[2016] FWC 6992

The attached document replaces the document previously issued with the above code on 7 October 2016.

At paragraph [10] the reference to “5 February 2016” has been changed to “5 January 2016”.

Associate to Vice President Hatcher

Dated 10 October 2016.

[2016] FWC 6992
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Joseph Wakim
v
Bluestar Global Logistics
(U2016/6712)

VICE PRESIDENT HATCHER

SYDNEY, 7 OCTOBER 2016

Application for relief from unfair dismissal.

[1] The applicant for an unfair dismissal remedy in this matter, Mr Joseph Wakim, pleaded guilty on 1 April 2016 to a charge of engaging in an act of sexual penetration with a 13-year old boy, and on 12 July 2016 he was sentenced by the Victorian County Court to 20 months in prison. On 4 May 2016 Mr Wakim was dismissed from his employment as National Sales and Marketing Manager with Bluestar Global Logistics (Bluestar) on the basis that his criminal conduct was in breach of various requirements of his employment. Mr Wakim contends that his dismissal was unfair because there was no valid reason for his dismissal and he was denied procedural fairness. He claims the amount of 26 weeks’ pay as a remedy.

[2] That matter was heard by way of a determinative conference conducted pursuant to s.398 of the Fair Work Act 2009 (FW Act) on 23 September 2016. Mr Wakim appeared by video-link from Hopkins Correctional Centre in Victoria. He made a witness statement in support of his application, and was cross-examined upon that statement. Bluestar’s only witness was Mr Wayne Thompson, who is its Chief Operations Officer. He also made a witness statement, and was cross-examined by Mr Wakim.

[3] The main facts in this case were not in dispute. However the case advanced by Mr Wakim depended, to a substantial degree, on the disputed factual propositions that his offence was non-deliberate and that in its aftermath he had been honest and forthcoming to the authorities and his employer about what had occurred. For reasons which are explained later, I do not accept much of his evidence in these respects. Mr Thompson presented as a witness who was frank, clear and consistent in his evidence, but at the same time anxious to be fair to Mr Wakim. I have no hesitation in accepting his evidence.

[4] Section 396 of the FW Act requires that four specified matters must be decided before the merits of Mr Wakim’s application may be considered. There was no contest between the parties about any of those matters. I find that:

[5] In order to understand the basis upon which Mr Wakim was dismissed, it is necessary to explain one important aspect of his personal background, namely that he has been for much of his adult life a public figure. In 1986 he founded the Streetwork Project program in Adelaide to help exploited children. He was appointed a Multicultural Affairs Commissioner in Victoria in 1991. In 1992 he founded the Australian Arabic Council. He has been involved in a number of public campaigns against racism and violence. In 1995 he was awarded the Order of Australia, and in 1996 he won the Commonwealth Heads of Government Violence Prevention Award. He is the author of two books, has written numerous newspaper columns on various topics concerning human rights, community relations and Middle Eastern affairs, and has frequently appeared in the electronic media. His public activities continued until late-2015. He held an advisory role with the NSW Police until after the commission of his offence. He was also regarded as a leader in his church. 1

[6] Bluestar is a national transport and logistics company. Mr Wakim commenced employment with Bluestar in Victoria in 1999. In mid-2001 he was relocated to NSW and became the NSW State Manager. In May 2014 he was promoted to become National Sales and Marketing Manager. His duties in this role substantially involved telephone, email and face-to-face contact with current and potential clients. He was also part of Bluestar’s senior management team and, according to Mr Thompson, he was seen as a leader in the business and someone who stood for its values, and was highly trusted.

[7] Mr Wakim entered into a new contract of employment upon taking up the new position in 2014. Two provisions of the contract are of note. First, a paragraph headed “Duties” provided, among other things: “You must ... Promote the interests of the Company and not do anything which may adversely affect the reputation or goodwill of the Company”. Second, the Code of Conduct annexed to the contract provided, among other things: “Employees must not deliberately or carelessly do anything that will result in poor quality work output or bring BGL [Bluestar] into disrepute”.

[8] Mr Wakim committed the offence for which he is now imprisoned on Christmas Day in 2015. His evidence did not disclose any detail about the nature or circumstances of his offence. His account in his witness statement was simply that he had heard about the suicide of a man who “had been molested by the same man who repeatedly molested me as a child”, and that “Due to post-traumatic stress, overwhelming guilt, and suicidal inclinations, I had re-enacted the exact abuse and committed a serious offence against a child which has caused me extreme emotional trauma”. These self-exculpatory statements are devoid of any real information about the offence.

[9] Mr Wakim further said in his witness statement: “On 28 December 2016 [sic, 2015] , I made admissions to Victoria Police and refused to exercise my right to remain silent”. I initially read that statement as meaning Mr Wakim self-reported his offence to the Police. But he did not. Under questioning when he gave evidence at the determinative conference, Mr Wakim disclosed that there had been a complaint made to the Police on behalf of the boy he had sexually abused. It was on 28 December 2015 that Mr Wakim was charged.

[10] It was a theme of Mr Wakim’s case that he had been forthcoming to Bluestar, his employer, about what had occurred and the predicament he was in. However I do not accept his evidence in that respect. His first communication with Bluestar in relation to the matter was an email he sent to a number of managers including Mr Thompson on 5 January 2016. The email stated:

[11] The attached medical certificate was not placed into evidence by Mr Wakim. The email does not disclose anything which would allow Bluestar to conclude that Mr Wakim had committed a serious crime. Indeed, in my view it has deliberately been drafted in a way which would not invite further inquiry out of respect for Mr Wakim’s privacy.

[12] After he returned to work, Mr Wakim had a “closed door” conversation with Mr Thompson on 14 January 2016. Mr Wakim’s evidence was that he “explained the sequence of events from the suicide to the flashbacks to my childhood trauma, leading to my own regrettable action”. He said that “lawyers, police and psychologists were now involved” and he might need trips to Melbourne to meet with them. He said he also made a reference to the current Royal Commission into Institutional Responses to Child Sexual Abuse, and said it “added to my trauma, when I saw these men my age break down and cry”. Importantly, he said that he “expressed my anxiety over my job security, in case any of this reached the media”. He said that Mr Thompson did not press him for further details, and allayed his concerns about his employment and undertook to keep the matter confidential.

[13] It is clear that, even on his own account, Mr Wakim did not disclose that he had been charged with a serious offence and had already admitted to the Police that he had sexually abused a child. Mr Wakim’s position was that his reference to the Royal Commission should have made it obvious what had occurred. That makes no sense whatsoever. No reasonable person would understand an expression of sympathy and distress for victims of child sexual abuse to constitute a disclosure of the commission of a child sexual abuse offence.

[14] Mr Thompson denied that the Royal Commission was raised in this conversation, and said it in fact arose in a much later conversation (after 4 April 2016). Beyond that point, he did not challenge to any significant extent Mr Wakim’s account of the conversation. His evidence, which I accept, was that he thought Mr Wakim was talking about some minor contravention, and trusted him enough not to inquire further into the matter. He said he never imagined, from his past experience with Mr Wakim, that he could have committed an offence as serious as child sexual abuse, and did not “join the dots” from what Mr Wakim was telling him. He regarded the matter as mainly an issue of taking time off work. Mr Thompson’s understanding of and reaction to what Mr Wakim told him appears to me to be the natural response of a reasonable and sympathetic manager.

[15] Mr Wakim had a conversation with Mr Muzi Eideh, the Managing Director of Bluestar, on 1 February 2016. Mr Thompson had not previously briefed Mr Eideh about what Mr Wakim had told him because he regarded it as a private matter and trusted Mr Wakim to deal with it. I only have Mr Wakim’s account of this conversation, since Mr Eideh did not give evidence. However, even on Mr Wakim’s account, he did not tell Mr Eideh what had actually happened. He said that “as with Mr Thompson, I then explained the situation, the suicide and my childhood trauma”, and said to Mr Eideh: “... my worst fear was fulfilled. I did something terrible, against all that I ever stood for. It was like someone who fights against terrorism suddenly committing the act himself”. Mr Eideh responded sympathetically, said that he was “contactable 24-7” and would provide him with support. It is clear to me, particularly having regard to subsequent events, that Mr Eideh also did not understand the gravamen of what Mr Wakim was saying. Mr Wakim, who is clearly a very articulate and intelligent person, was expressing himself in a way which gave the pretence of disclosure while at the same time casting a veil over what had actually happened. The reaction of any reasonable person to the type of language used by Mr Wakim would be to not probe any further. Honest disclosure required Mr Wakim to say directly that he had been charged with, and had admitted to, child sexual abuse. He did not do this. Mr Wakim claimed that his lawyers had advised him to say as little as possible to his employer about the matter. That may well be the case, but Mr Wakim cannot plausibly claim at the same time that he was honest and forthcoming about the matter with his employer.

[16] There was a further conversation with Mr Eideh on 10 March 2016. Again, I only have Mr Wakim’s account of this. Mr Wakim referred in this conversation to a hearing in the Melbourne Magistrates Court on 1 April 2016, and the hope that no media would be present, but did not disclose anything new beyond this. Mr Eideh again made expressions of support. On 17 March 2016 Mr Wakim texted Mr Eideh about his need to travel to Melbourne to see lawyers on 22 March 2016 and for “legal/court requirements” on 1 April 2016. Mr Eideh approved this.

[17] It was on Friday 1 April 2016, as earlier stated, that a formal plea of guilty was entered by Mr Wakim to the charge of child sexual penetration in the Melbourne Magistrates Court. The following Monday, 4 April 2016, Mr Wakim was contacted by a journalist from the Melbourne Herald-Sun newspaper who was doing a story about his guilty plea. Mr Wakim was not responsive to the inquiry, but then separately contacted Mr Eideh and Mr Thompson to warn them about “the possibility of media interest in my court situation”. However even at this stage he did not disclose the nature of his offence or his plea of guilty.

[18] That evening a story was published about Mr Wakim in the online version of the Herald-Sun. The story’s headline was “Former Victorian Multicultural Affairs Commissioner Joseph Wakim guilty of child sex offence”, and featured a large photograph of him. He was described elsewhere in the story as founder of the Australian Arabic Council and a “prolific social commentator”, and as being employed in a “senior position with a logistics company”. It described him as having been charged with three offences involving a young boy including grooming, but that two of the charges were withdrawn and he had pleaded guilty to the charge of sexual penetration.

[19] Having seen the story, Mr Wakim emailed Mr Eideh a link to the story at 9.23pm the same evening. The following morning, Mr Thompson and Mr Eideh, having read the article, discussed it together. Mr Thompson described this as a “head exploding moment”. This was, he said, the first time he became aware of the nature of the offence with which Mr Wakim was charged but that, notwithstanding what the article said, he did not yet fully comprehend that Mr Wakin had pleaded guilty. At 9.00am Mr Eideh and Mr Thompson phoned Mr Wakim about the article. They expressed their concern that their customers might ask whether Bluestar condoned such a crime, and Mr Wakim was instructed to leave the office and go home until further notice. In doing so Mr Eideh and Mr Thompson expressed concern about Mr Wakim’s welfare. As Mr Thompson explained, part of this concern was apprehension about how other employees would react when they read the news story. Mr Wakim protested this, saying: “Sending me home is more punishment. I have been punished enough, daily. Being home alone now cannot be good for my welfare. It will make my situation worse. There must be another way”. However the decision was not changed.

[20] There was a further, very detailed, story about Mr Wakim published in the online Daily Mail on 6 April 2016. The headline was “Arabic Council of Australia founder who pleaded guilty to having sex with a boy called Adelaide a ‘paedophile’s paradise’ after working with troubled youth in the city”. The story, which contained a large picture of Mr Wakim, contrasted his offence with his statements and activities when working with street children in Adelaide in the 1980s.

[21] Mr Thompson gave evidence that with 24-48 hours of the first newspaper story, he had already begun to hear “noise” about the matter both internally and externally. It became quickly apparent to him that Bluestar staff were talking about the story on social media, and he became concerned about how they would react to Mr Wakim. He and Mr Eideh also began to receive “multiple” phone calls from longstanding customers, asking about the story and whether it was true, and “expressing concern about the commercial relationship with Joe”. Mr Thompson said it was only some time after the first article appeared that it became clear to him that Mr Wakim had pleaded guilty to the charge.

[22] On 8 April 2016 Mr Eideh rang Mr Wakim and reiterated his direction for him to stay at home until further notice, and possibly until his sentencing hearing on 10 June 2016. He said: “No one can get past the shocking media headlines. No one wants to know the background”. He told Mr Wakim that he would be paid from his accrued annual leave and long service leave.

[23] In the period prior to his dismissal on 4 May 2016, there were various communications from Mr Wakim to Mr Eideh and Mr Thompson in which he complained about being required to stay at home and sought an alternative such as working from home, expressed concern at the depletion of his financial resources, and advised that his mental health had deteriorated as a result of his “home confinement”. For example, on 21 April 2016, Mr Wakim sent Mr Eideh and Mr Thompson an email which stated, among other things:

[24] The email went on to request a character reference for Mr Wakim’s sentencing hearing on 10 June 2016, and set out in detail the requirements for such a reference. These requirements included that a statement that “I am aware that Mr Wakim has pleaded guilty to a charge of Sexual Penetration of a Child Under 16 Years of Age” be made, and a further statement “that I have discussed this matter directly with you. (I confided in Wayne in person on 14 January, and with you on 1 Feb, as I legally could not discuss anything by phone).” Arguably, having regard to my earlier findings, this amounted to an invitation to make a misleading statement to the Court. In any event, neither Mr Eideh nor Mr Thompson responded to this email.

[25] On 3 May 2016, Mr Wakim sent Mr Thompson an email stating that he had received advice (apparently from the Fair Work Ombudsman) that he was entitled to be paid his normal pay, rather than being required to take his leave entitlements, for the 8-week period from his stand-down on 5 April 2016 until his sentencing hearing on 10 June 2016 and requesting that this be reviewed. The email concluded by stating: “As always, I remain grateful for your ongoing support and sensitivity”.

[26] On 4 May 2016 Mr Thompson called Mr Wakim. Mr Wakim’s account of this conversation included that it took about six minutes, and that Mr Thompson said that Bluestar “cannot sit back and hold tight”, there was “no opportunity for a return to work”, and that Mr Wakim’s employment had to be terminated “in the best interests of the business”. He said that he would email Mr Wakim the reasons for the termination and his final entitlements. Mr Thompson did not disagree with these aspects of Mr Wakim’s evidence, but he recalled the conversation as being longer and more comprehensive. I do not consider that this difference in recollection ultimately matters much, so it is not necessary to resolve it. Mr Thompson’s evidence was to the effect that the decision to dismiss Mr Wakim was made at this time because it took some time after 4 April 2016 for him and Mr Eideh to gain a full understanding of Mr Wakim’s situation and to work out what to do about it.

[27] Mr Wakim lodged his unfair dismissal remedy application the following day, 5 May 2016. On 10 May 2016 he received the termination letter. It stated, omitting formal parts:

[28] I assume the question marks at the end of the third and fourth dot points in the letter are typographical errors and not meant to convey any lack of certitude as to the propositions expressed.

[29] Mr Wakim was paid his outstanding leave entitlements. He was not paid any amount in lieu of notice because he was dismissed summarily. He did not obtain any alternative employment before he was sentenced and immediately commenced his term of imprisonment on 12 July 2016.

[30] In determining whether Mr Wakim’s dismissal was harsh, unjust or unreasonable, it is necessary to take into account each of the matters specified in s.387. I will deal with each of the s.387 matters in turn.

Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s.387(a))

[31] The mere fact that a person has committed a criminal act outside of working hours does not necessarily mean that there is a valid reason for the person’s dismissal by his or her employer. There needs to be a relationship of the requisite degree between the criminal conduct and the employment. The criteria by which the necessary relationship was to be established was classically stated in Rose v Telstra Corporation Ltd 2 as follows:

[32] In cases involving out of hours conduct, it is often contended that the necessary relationship between the conduct and the employment is established on the basis of an assertion that the conduct will in some way affect the employer’s reputation or compromise the employee’s capacity to perform his or her duties. However there needs to be evidentiary material upon which a firm finding may be made that there is or will be the necessary effect; it is not sufficient merely to assert its potentiality: Public Employment Office, Department of Attorney General and Justice (Corrective Services NSW) v Silling. 3

[33] In this case, I consider that there is a firm basis upon which to conclude that Mr Wakim’s conduct significantly damaged Bluestar’s interests in respect of its relationships with its client and staff. There are three critical features in this case. The first is that Mr Wakim was a public figure, so that any serious criminal conduct on his part was always likely to attract media attention. The second is that Mr Wakim’s crime of child sexual abuse is one which, as he admitted in his evidence, is viewed with particular abhorrence in the community. The third is that there was widespread media coverage of his offence which identified him by name, contained his picture, described details of the offence, and in at least one case referred to his employment with a logistics company.

[34] The predictable result of this was that Bluestar’s clients and staff quickly found out about Mr Wakim’s offence after his plea of guilty. In relation to the current and potential clients, Mr Wakim was the primary point of contact within Bluestar, so that it is not surprising that Bluestar began receiving alarming communications from them. In relation to the staff, Mr Wakim was a senior manager and regarded as a leader in the business. It may reasonably be inferred that many staff would be disturbed by having to work under the direction of or in association with a person who had committed a child sex offence. Certainly Mr Thompson quickly became aware of disquieting comments between staff as to what had occurred.

[35] In short, the public disclosure of Mr Wakim’s offence rendered his continued employment untenable. If Mr Wakim had continued to be employed and clients and staff were required to continue to deal with him, there would undoubtedly have been ongoing damage to Bluestar’s reputation and its interests as a business and an employer. Mr Wakim submitted that he could have been given alternative duties which would not have required him to have contact with clients, but there was no evidence to support the proposition that such duties were available and in any event it would not have solved the problem of the requirement for him to interact with other staff.

[36] Mr Wakim’s contract of employment, in the provisions to which I have earlier referred, required Mr Wakim not to engage in any conduct which adversely affected the reputation or goodwill of Bluestar or brought it into disrepute. These provisions clearly applied to conduct outside of working hours as well as conduct at work. Mr Wakim submitted that he had not breached these provisions because, by reference to the use of the word “deliberately” in the Code of Conduct provision earlier quoted, his criminal conduct was not deliberate. The submission must be rejected for two reasons. First, as observed above, Mr Wakim chose not to give any evidence describing in detail the circumstances of his offence. He was the only person in the proceedings who could have provided that information, and I consider that Mr Wakim’s choice was a deliberate and strategic one made by him in order to obscure matters adverse to his case. Consequently there is no evidentiary foundation upon which to conclude that the offence was not deliberate. Second, Mr Wakim’s plea of guilty, the acceptance of that plea by the Court and his conviction upon that plea necessarily involved an admission by Mr Wakim and a conclusion by the Court that the offence element of criminal intent existed. It is not open in those circumstances for Mr Wakim now to contend that his offence was unintentional. It might be thought surprising that Mr Wakim advanced this submission given the emphasis he sought to place upon his remorse and acceptance of responsibility for his crime, but Mr Wakim appears simultaneously to have convinced himself that he is a victim of his own crime.

[37] One of the reasons for Mr Wakim’s dismissal given in the letter of termination was that his conduct would cause a serious and imminent risk to the reputation, viability or profitability of the Company. I think that was an imperfect way of expressing the proposition that Mr Wakim’s criminal conduct had the effect of irreparably damaging relationships with clients and other staff and rendered his continued employment untenable. I consider that was a valid reason for dismissal.

Whether the person was notified of that reason and was given an opportunity to respond to any reason related to the capacity or conduct of the person (s.387(b) and (c))

[38] Mr Wakim was not notified of the reason for his dismissal prior to him being dismissed on 4 May 2016, and he was therefore not given an opportunity to respond to that reason.

Whether there was any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal (s.387(d))

[39] There were no discussions relating to Mr Wakim’s dismissal prior to him being dismissed. Accordingly the issue of him being allowed a support person does not arise for consideration.

If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal (s.387(e))

[40] Mr Wakim was not dismissed for unsatisfactory performance, so the issue of whether he was warned beforehand does not arise for consideration.

The degree to which the size of the employer’s enterprise or the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal (s. 387(f) and (g))

[41] Although Bluestar is not a small business, it did not have any dedicated human resource management specialists or expertise in the business at the time of the dismissal. It is clear that this affected the procedures it adopted in dismissing Mr Wakim. However Bluestar’s size meant, in my view, that it could and should have obtained external advice as to how to afford procedural fairness before deciding to summarily dismiss Mr Wakim.

Any other matters that the Commission considers relevant (s.387(h))

[42] I consider that the following matters are relevant and adverse to the conclusion that the dismissal was unfair:

[43] Mr Wakim is now in a position where he can no longer provide financial support to his three children, two of whom are young adults and one of whom is a child. However I do not consider this to be a relevant matter since this is a result of Mr Wakim’s imprisonment, not his dismissal.

Conclusion

[44] Notwithstanding that Mr Wakim was denied procedural fairness, I do not consider his dismissal to have been unfair. The dismissal was not unjust or unreasonable because there was a valid reason for his dismissal, he had not honestly disclosed his crime to his employer until it was publicised in the media, and there was no tenable basis upon which his employment could have continued. Had Mr Wakim been afforded procedural fairness, I do not consider that there is any reasonable possibility that he could have advanced any response which might have altered the outcome. His commission of the offence was an admitted fact and the consequences for his employment once his offence was publicised were obvious and unavoidable. Nor do I consider the dismissal to have been harsh. It was a proportionate response to the situation in which Bluestar found itself, and the financial and personal consequences of the dismissal were limited given that the employment would in any event have ended about nine weeks later due to Mr Wakim’s imprisonment.

[45] Mr Wakim’s application for an unfair dismissal remedy is therefore dismissed.

al of the Fair Work Commission with the memeber's signature.

VICE PRESIDENT

Appearances:

J. Wakim on his own behalf.

C. Gugliemino paid agent for Bluestar Global Logistics.

Hearing details:

2016.

Sydney:

23 September.

 1   Some of these details are drawn from publicly-available information about Mr Wakim.

 2   Print Q9292, [1998] AIRC 1592

 3   [2012] NSWIRComm 118

Printed by authority of the Commonwealth Government Printer

<Price code C, PR585925>