Industrial Relations Commission of New South Wales CITATION: Lewis v Gosford City Community and Information Service [2007] NSWIRComm 1021 APPLICANT Ian Edward Lewis PARTIES: RESPONDENT Gosford City Community and Information Service FILE NUMBER(S): 61 of 2007 CORAM: McLeay C CATCHWORDS: Unfair dismissal - application accepted out of time - financial services counsellor - conduct and performance issues - failed to heed counselling - dismissal not harsh, unreasonable or unjust - application dismissed LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 24/04/07 DATE OF JUDGMENT: 17 May 2007 APPLICANT Mr Lewis appeared unrepresented LEGAL REPRESENTATIVES: RESPONDENT Mr S Schmitke Employers First DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MCLEAY C 17 May 2007 Matter No IRC 61 of 2007 Ian Edward Lewis and Gosford City Community and Information Service Application by Ian Edward Lewis re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2007] NSWIRComm 1021 1 This is an application by Ian Edward Lewis ("the applicant") re unfair dismissal against Gosford City Community and Information Service ("the respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 Mr Lewis was employed by the Gosford City Community and Information Service Limited as a part-time co-ordinator of the Gosford/Wyong Financial Counselling Service for a fixed term of three months commencing on 2 November 2005. He was at that time the only applicant for the position and the respondent wished to re-advertise, which they did later in the year. Again Mr Lewis was the only applicant for the position and was appointed Financial Counsellor on a permanent part-time basis, incorporating a three month probationary period. Throughout the applicant's employment the respondent was not satisfied with his conduct or performance and extended his initial probationary period. He was dismissed on 19 December 2006. Application made out of time 3 The Act requires people to make applications for unfair dismissal within 21 days of dismissal, but further provides the Commission with discretion to accept a late application if there is sufficient reason to do so. In this case the dismissal occurred just prior to the Christmas break and allowance must be made for the closure of offices due to public holidays. If three days are allowed, the application was filed seven days late. 4 I accept that as Mr Lewis says, he was shocked and felt that he had to challenge his dismissal, but thought that he had no rights. Certainly he had made a previous claim in or around 1998, but the law has changed substantially since that time and it is not surprising that based on media reports he came to that view. Therefore I accept that he didn't do anything immediately prior to going on holidays. 5 When he returned from holidays early Mr Lewis found the legal centre closed. He returned and acted expeditiously when the centre opened, gaining appointment on the next day, being called back with further advice the following day. The very next day he went first to the Anti-Discrimination Board and then the Industrial Relations Commission where he lodged his claim. 6 I am satisfied that Mr Lewis acted as soon as he possibly could given the circumstances and that if the legal centre had not been closed when he returned early from holidays, that his application would have been on time. Therefore the lateness was not due to any fault of his own and does not, as far as I know, disadvantage the respondent. I am satisfied to accept the application out of time as there is sufficient reason to do so. Background 7 The respondent is a community based organisation providing a range of welfare and other services, particularly targeting the disadvantaged but aiming to engage all sectors in involvement with the local community. The respondent engaged the applicant from 2 November 2005 to 19 December 2006 initially on a fixed term basis for three months and as a permanent employee from February 2006. 8 Although the applicant's probationary status had been extended throughout his employment, the respondent conceded that the extension to the probationary period did not take the application outside the jurisdiction of the Commission. 9 Before Mr Lewis commenced employment with the respondent, he was asked to meet with the Manager, Lorraine Sieff, to discuss the respondent's expectation of the financial counsellor's position. At this meeting the respondent's expectations of Mr Lewis' performance and conduct were outlined to include: (1) That clients would be told that bankruptcy should be the last resort in line with the philosophy of the respondent, the Office of Fair Trading and the Financial Counsellors' Association of New South Wales. (2) That clients were empowered with information about their options and given the opportunity to make a choice. (3) That he was to offer to act on behalf of clients, advocating for them with their creditors. (4) If bankruptcy was being considered that the consequences of this option were fully explained. (5) That he was not to touch females or stand too close to them. 10 The reasons for these specific expectations being outlined prior to employment was that the respondent was aware of previous concerns raised about Mr Lewis in the area when he had worked with other organisations and with the respondent on a 12 month project. He was at the time the only applicant for the advertised position. 11 Mr Lewis was provided in November 2005 with an orientation and given a kit which included confidentiality, code of conduct, harassment policy, occupational health and safety policy and the grievance procedure. When the position was re-advertised Mr Lewis again was the only candidate. He was given a probationary period by the Board which was extended after review. The issue of grading of the position was reviewed by the Board following Mr Lewis' application for the position to be re-graded to grade 4 in February 2006 and the Board declined to upgrade the position. Mr Lewis was advised that the Board's decision was based on continuing concerns about his work performance and conduct as well as the level of duties being performed. Performance issues 12 Throughout the period of employment a number of concerns were identified by the respondent. The applicant received warnings and counselling in regard to the low levels of client advocacy, encouraging clients to file for bankruptcy and harassment of female staff members and clients. 13 During his employment Mr Lewis was counselled in regard to bankruptcy rates on a regular basis. His first monthly statistics in November 2005 showed a bankruptcy rate of 68 per cent. In the following months it was 71 per cent. In the five years prior to his employment financial counsellors for the respondent reported bankruptcy rates at an average of 17 per cent. While Mr Lewis argued that rates were increasing generally his average rate of 57 per cent over his 13 months of employment were considered too high. 14 Mr Lewis argued that the low levels of client advocacy were consistent with the requirements of the Financial Counsellors Association of NSW (FCAN) and with the policies of the respondent. He said that his methods of encouraging clients to do things for themselves was part of the empowerment policies of both organisations. 15 Mr Lewis acknowledged the level of client bankruptcy but said that he did not encourage this. He said that his statistics on bankruptcies were naturally higher than those of his predecessor who had not worked satisfactorily and were higher than other local community organisations which referred matters to the respondent rather than handling them themselves. He claimed but gave no evidence that his figures were consistent with those in community centres in other regions. He claimed that he had never received any complaints about harassment of female staff members and clients throughout his many years as a financial counsellor. He particularly objected to comments made by his manager against his work as his manager was not a qualified financial counsellor. 16 Contrary to Mr Lewis' claims to having assisted clients "to avoid bankruptcy by putting in a hardship application to their creditors", there is no copy of a hardship application in 50 client files checked by the Manager. There were also no copies of an Authority to Act without which Mr Lewis would not have been able to make a phone call or write a letter on behalf of a client. Mr Lewis argued that no Authority to Act was required because he showed clients how to write letters for themselves and that he only made calls when the client was present and with the client informing the creditor that they authorised Mr Lewis to speak on their behalf. Miss Sieff gave evidence that she had asked other financial counsellors whether this was acceptable practice and had been informed that an Authority to Act should be provided in writing by the client to the financial counsellor, even in the circumstances described by Mr Lewis. 17 Mr Lewis had also argued that preparing a money plan and credit payment proposal was advocacy for clients. Miss Sieff had pointed out to him that advocacy that they were referring to meant dealing with creditors on behalf of clients. Mr Lewis had been directed to offer to advocate for clients. Miss Sieff had also attempted to give Mr Lewis guidance and counselling in regard to effective empowerment. Mr Lewis in his oral evidence has said that Miss Sieff had no right to try to manage him professionally since she was not a qualified financial counsellor. 18 On two occasions Miss Sieff sat in with Mr Lewis during a financial counselling session with clients. She observed that he did not discuss issues prior to asking a client to sign a form stating that all options had been discussed. At both the sit-ins, no options other than bankruptcy were discussed with clients. 19 As part of the respondent's outreach service Mr Lewis had worked at Wesley Mission Wyong. Complaints had been received from the Wyong office that Mr Lewis had been overbearing to staff and had asked them to lie to the Manager if she asked about him being in the building on the day she was located there. In oral evidence Mr Lewis claimed that he did not ask people to lie for him. He then went on to admit that he had asked them cover for him and that he had asked them, in effect, to lie for him. 20 A second allegation had been made that Mr Lewis had left earlier than he was rostered to finish off and that he had falsified his time sheets. Mr Lewis admitted that he left early on a couple of occasions in order to catch a particular train when no clients were attending a service. 21 The respondent had also complained about Mr Lewis' misuse of papers and envelopes belonging to the Wesley Mission at Wyong. He admitted he had done this explaining that he thought it was a reasonable use of their materials. Conduct issues 22 Mr Lewis acknowledged that he had been counselled in regard to being too close to a young female volunteer who worked as a receptionist at the Gosford centre. The receptionist, Naomi Craike, was a volunteer at the Gosford/Narara Neighbourhood Centre, who gave evidence that she had felt extremely uncomfortable with Mr Lewis. Having been counselled, Mr Lewis then was very careful to keep his distance from her. In fact he said that he made remarks to her from time to time such as "don't touch Naomi, she doesn't like it". Ms Craike gave evidence that such comments were made regularly but only when there was nobody else present. After she reported the comments to her manager and Mr Lewis was counselled about them he desisted from further remarks. 23 Corinne Biggs reported that she had previously worked with the respondent when she had been undertaking a course to become an accredited financial counsellor. As part of that course she was required to sit in with two other financial counsellors. For this purpose she was introduced to Mr Lewis where he worked at another centre at Tuggerah. Miss Biggs reported that she was uncomfortable with Mr Lewis' approach and what she called "bullying tactics" when counselling his clients as it conflicted with the high standards and quality of training that she was obtaining. She found that Mr Lewis highlighted the advantages of bankruptcy but by and large neglected to explain or warn of the disadvantages. She was sufficiently concerned to seek out other counsellors with whom she should sit in, rather than continuing with Mr Lewis. She did not report him at the time because of her junior status. 24 Miss Biggs also reported previous incidents where she had felt uncomfortable with Mr Lewis on a personal basis because of his behaviour. She found that it was his closeness and body language made her very uncomfortable. She spoke with the manager and asked for a different case supervisor so that she was not required to work with Mr Lewis again. 25 Gillian Holton is the Service Manager at Berkeley Vale Neighbourhood Centre where Mr Lewis was based on Tuesday of each week to provide a financial counselling service to local residents. Miss Holton gave evidence that on two separate occasions she saw Mr Lewis embracing two different female clients after a counselling session. She reported this observation to Ms Sieff. Ms Holton had been told by another of her employees that that employee had been made to feel very uncomfortable by Mr Lewis standing too close to her at the photocopier. Miss Holton referred this matter to Miss Sieff also. 26 A little later Mr Lewis asked Ms Holton to come into a counselling session he was having with one of his clients. The client was distraught because Mr Lewis had told her he was to face disciplinary action because of the concerns that Ms Holton had raised. The client said that she had hugged Mr Lewis rather than he hugging her and it was in circumstances where he had provided her with counselling immediately following the death of her husband. Mr Lewis felt that his manager needed to hear the circumstances direct from the client. Ms Holton felt that involving an emotionally fragile client in employment issues was inappropriate. 27 Ms Sieff sent a memorandum to Mr Lewis advising him of Ms Holton's complaint. Mr Lewis rang Ms Holton. Ms Holton gave evidence that Mr Lewis told her he was going to sue her for defamation of character because she had accused him of sexual harassment. Ms Holton was so upset by Mr Lewis' language and attitude on the phone that she hung up on him and rang Ms Sieff to report Mr Lewis' behaviour. 28 Ms Sieff said that this was the final straw. Prior to her hearing of this telephone call, Ms Sieff had set up a disciplinary meeting where it was her intention to talk through other issues that had arisen with Mr Lewis and perhaps issue a final written warning to him. However his conduct towards Miss Holton was so extreme and so inappropriate and unprofessional that she decided at that stage that Mr Lewis's conduct was so extreme as to warrant the consideration of dismissal. The final disciplinary interview 29 On 13 December Ms Sieff had written to Mr Lewis advising him of a meeting scheduled for 2pm on Tuesday 19 December to be attended by herself and a Director, Des Riach. The letter set out the following: The purpose of this meeting is to give you the opportunity to respond to our assertion that in spite of extensive performance counselling and direction your work performance has not improved. We further assert that you have breached a warning in regard to your professional conduct. You may bring a support person to this meeting if you wish. 30 On receiving Miss Holton's further complaint about Mr Lewis as outlined above Miss Sieff then sent a memorandum on 15 December to Mr Lewis attaching Miss Holton's email and advising him that in conducting himself in the manner set out in that email, he has breached the code of conduct and breached a written warning issued on 10 August 2006. The memorandum further stated that the issue would be included in the disciplinary meeting scheduled for 2pm on Tuesday 19 December. Mr Lewis was advised not to report for work prior to the time of the appointment. He was further advised that "we are considering terminating your employment". Following the meeting on 19 December Mr Lewis was dismissed. Submissions 31 Despite all of the counselling and warnings, Mr Lewis said that he did not understand why he was only offered an initial three month contract. Nor could he understand why he was kept on probation for a further 10 months. He disputed his grading as a grade 3 employee under the Social and Community Services Employees (State) Award although he conceded that he knew from before he commenced work that that was the grade being offered to him. 32 Mr Lewis argued several times throughout the hearing that he had not been warned about his behaviour. Alternately he also said on several occasions that he had been warned every time he was spoken to or every time the respondent wrote to him. He said the warnings were given so often that they were meaningless. In his written evidence Mr Lewis stated that his manager "was consistently telling me I was not writing enough letters for clients and my level advocacy was too low". Also in that document he stated "the manager, L Sieff, reported to me after board meetings that she and the board wanted the bankruptcy numbers reduced". He said that Ms Sieff had suggested he do a computer software training course but that he had told her he was not interested. 33 The respondent argued that they took a consistent approach to managing the applicant's performance concerns. Mr Lewis had been made aware of allegations against him from a previous employer at the time of his employment. When matters arose during his period of employment with the respondent, all matters were raised with him and he was given an opportunity to respond on each occasion. Each time the applicant was told that his behaviour or performance was unacceptable and that the consequences of a failure to improve could be further disciplinary action including termination of his employment. In addition to formal performance management, the applicant's manager had spoken to him on a number of occasions in relation to performance concerns and had offered him assistance such as additional training. The respondent submitted that all of these factors together would allow the Commission to find that the respondent provided the required degree of procedural fairness and should not to intervene in the matter. Consideration 34 I am satisfied that the use of envelopes and stationery at Wesley Mission Wyong was a reasonable use of the facilities. There was no evidence that materials were used for anything other than professional purposes. Nor was there any evidence that Mr Lewis had been told not to use the materials in this way or that he used them at any time after it was raised with him. 35 As for the issue of harassment of female staff and employees: I am satisfied on the basis of the warnings issued to Mr Lewis prior to and during his employment, that he continued to take little notice of his Manager's instructions in this regard. 36 As to what one might consider his core duties, that is providing counselling, advocacy and support to people requiring financial counselling, I am completely satisfied on the evidence that Mr Lewis ignored all the advice given and warnings issued by his Manager. He reiterated during his oral evidence that he had been warned on numerous occasions both verbally and in writing. He insisted that he could have and should have required Ms Sieff to leave the counselling sessions, on advice from FCAN. He showed complete contempt for her role as Manager of the Gosford City Community and Information Service. 37 The final straw, according to Ms Sieff's evidence, was the telephone incident when Mr Lewis rang Ms Holton about his disciplinary meeting. I accept Ms Holton's evidence about Mr Lewis' attitude and aggression. He displayed such aggression in cross-examining her during these proceedings. I am satisfied that his behaviour was inappropriate and unprofessional and could in other circumstances reflect poorly on the respondent. 38 The evidence provided by the respondent included memoranda to Mr Lewis in regard to client feedback and warnings about the code of conduct, records of meetings and records of verbal warnings. Mr Lewis did not deny receiving any of these although he did object to some of their content. For example when told that he was not to touch female clients if they were upset, he said that that was not in the rules. He insisted that when someone was upset it was reasonable to give them a hug. I cannot agree with his assessment. The obligations on a professional counsellor are of a higher standard and should be well known to counsellors whether financial counsellors or otherwise. Apart from being the norm, Mr Lewis as an employee of the respondent does not have a right to disregard both written policies and verbal instructions directed to him from his Manager. 39 One of the times that Mr Lewis was counselled about hugging a female he responded that the female person was the facilitator of a workshop at the centre where he was placed. She was not a client. She was somebody that he knew well. He also said that the workshop facilitator had hugged him. Ms Sieff's report from 11 May 2006 said that she had seen what happened and that the lady had stood with her arms by her side and "looked uncomfortable". She reminded Mr Lewis that he was warned not to touch females. In giving evidence Mr Lewis said he was not warned not to touch females only not to touch female staff and clients. This is not consistent with the evidence. Allowing for the fact that the person he hugged was not a client, I accept that Mr Lewis did not appropriately heed the warning given. Conclusion 40 In considering whether or not there was sufficient reason to accept Mr Lewis' application out of time, I took into consideration that he was shocked at the time of dismissal and thought he had no rights. Having heard all of the evidence in the case I am now satisfied that there was no reason for him to have been shocked. Nevertheless I do accept that he thought he did not have rights to claim an unfair dismissal and that the other factors taken into consideration were sufficiently substantial to warrant the application being accepted out of time. 41 Having accepted the application out of time, all of the evidence in the case, whether or not specifically referred to above, was considered. 42 In all I am satisfied that Mr Lewis' professional conduct in providing counselling did not meet the standards required of the respondent. I am further satisfied that his personal behaviour, particularly in regard to females, was highly inappropriate to that of a financial counsellor. I am satisfied that he had been appropriately counselled and warned in regard to his behaviour and performance and that all issues had been raised with him. He had been given ample opportunity to respond to the issues. His responses were taken into account by the respondent when further opportunities were given. In all aspects, both substantially and procedurally, the respondent has fulfilled all the obligations upon it. 43 The dismissal of the applicant was not harsh, unreasonable or unjust. The application is dismissed. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.