Note: An appeal pursuant to s.604 (C2012/4319) was lodged against this decision - refer to Full Bench decision dated 12 September 2012 [[2012] FWAFB 7877] for result of appeal.

[2012] FWA 4789

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FAIR WORK AUSTRALIA

DECISION

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

Craig Symes
v
Linfox Armaguard Pty Ltd
(U2011/15004)

COMMISSIONER CARGILL

SYDNEY, 8 JUNE 2012

Termination of employment.

[1] This decision arises from an application by Mr C Symes (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by Linfox Armaguard Pty Ltd (the respondent or the company). The applicant’s dismissal occurred on 16 December 2011 and his application for relief was lodged with Fair Work Australia (FWA) on 22 December 2011.

[2] The matter was dealt with by an FWA Conciliator but did not settle. It was heard by me in Brisbane on 17 and 18 May 2012. The matter proceeded by way of hearing as I considered that it was appropriate to do so having taken into account the factors set out in section 399 of the Act.

[3] The applicant was represented by Mr Carter, Legal Officer with the Queensland Branch of the Transport Workers’ Union of Australia (TWU). The respondent was represented by Mr Tindley, solicitor.

[4] The applicant gave evidence. His witness statement dated 8 March 2012 was marked Exhibit Applicant 1. His statement dated 15 May 2012 was marked Exhibit Applicant 2. The applicant’s oral testimony is at PN 41-421 of Transcript. The following witnesses also gave evidence on behalf of the applicant:

[5] The following witnesses gave evidence on behalf of the respondent:

[6] There was extensive evidence and much material provided in these proceedings. Although I do not refer to each and every issue which was raised, in reaching my conclusions I have had regard to all relevant materials and evidence before me.

FACTS AND EVIDENCE

[7] The applicant commenced employment with the respondent in December 2000. He was initially employed as a road crew employee on a casual basis. He became a Crew Leader and full time permanent employee approximately three years ago. The applicant’s duties included the transportation of cash to and from client’s premises and the servicing of ATMs. He was licensed to carry a firearm as part of his role. The applicant was based at the respondent’s depot at Murarrie in Brisbane.

[8] Until the incidents on 15 December 2011 which led to the applicant’s dismissal he was never warned, counselled or disciplined by the respondent. I note that there is a reference in the respondent’s written submissions to an incident in 2008 involving the applicant. There was no evidence led about this and no mention of it in the respondent’s oral submissions.

[9] In September 2011 the applicant suffered a work-related injury. He made a workers’ compensation claim which was accepted by the respondent. The applicant was certified as unfit for duty for ten weeks during which time he had surgery for his injury. When the applicant returned to work he was on light duties for two weeks and then commenced normal duties on 28 November 2011.

[10] The applicant did not receive the relevant documentation in relation to his rehabilitation until on or about 12 December 2011. This was despite it being dated 22 September 2011, Attachment CS2 to Exhibit Applicant 1. The applicant’s evidence is that he suspects that Mr Hala had the documentation in his possession from September. Mr Hala’s evidence is that he couldn’t recall why there was a delay in providing the material to the applicant, however, it was just a mistake and not due to any deliberate action on his part.

[11] On 7 December 2011 there was a meeting between the applicant and Mr Hala. Mr Matthews was also present as was a Security Supervisor, Mr Morris. During the meeting there was a discussion about the length of time the applicant was taking to do his runs. Mr Hala’s evidence is that he informed the applicant that he would not be a Crew Leader for the time being but would be rostered as an Armoured Vehicle Operator (AVO) until his performance improved. Mr Hala’s evidence is that the applicant would continue to be paid at the higher rate. Both the applicant and Mr Matthews deny that this was mentioned in the discussion.

[12] Exhibit Applicant 3 is an extract from Mr Hala’s work diary for 7 December 2011. The final paragraph of Mr Hala’s comments set out in the extract refer to this disputed issue. Mr Hala maintained that he had informed the applicant of this proposed change. Again, the applicant and Mr Matthews deny that this occurred.

[13] On 15 December 2011 the applicant began work at 5.30am. It is his evidence that he had had a fight with his wife before he came to work, he was frustrated with his wife and, in hindsight, should not have come in. Shortly after arriving at work the applicant attended a Communications Meeting which was being conducted by Mr Hala. This was one of a series of meetings being held on that day. The meetings are held each month to discuss operational matters with the road crew. The applicant’s evidence is that these meetings are relatively informal with employees moving around the room, reading newspapers and occasionally leaving the room. His evidence is that such employees have not been told to return. Mr Armstrong’s evidence is that the meetings are treated as important by those present. On one occasion when he observed an employee leaving the meeting room the manager followed the employee and spoke to him.

[14] It is the applicant’s evidence that, at some point during the meeting on 15 December, he became aware that he had been allocated a vehicle with a faulty indicator. He became frustrated and annoyed because the correct rectification procedures had not been followed and this meant that he would be delayed in commencing his run.

[15] Because of these concerns the applicant left the meeting to arrange to have the fault fixed. The applicant’s evidence is that, as he was at the door of the meeting room, Mr Hala asked him what was wrong, the applicant told him and proceeded to walk towards the Armoury to find the Security Supervisor who could organise to have the vehicle repaired. His evidence is that, when he was almost there, Mr Hala told him that he would have to return to the meeting. The applicant replied “get fucked”. His evidence is that he said this in an exasperated, not aggressive or agitated tone.

[16] Mr Hala’s evidence is that, whilst the applicant was still in the meeting room, he told him to sit down and sort the problem out later. Mr Hala followed the applicant when he left the room and told him to come back and sit down. His evidence is that the applicant was at the Armoury door when he told Mr Hala to “get fucked”.

[17] The applicant then proceeded to arrange for the vehicle to be repaired and Mr Hala returned to, and finished conducting, the Communications Meeting. After this they separately went to the lunchroom. Mr Hala’s evidence is that, when he inquired what the problem was, the applicant replied that it was the “fucking roster”. His evidence is that the applicant then raised his fist in the air and hit the board with one finger extended. Mr Hala says that the applicant hit the board with some force.

[18] The applicant denies saying “fucking roster”, raising his fist or hitting the board with force. His evidence is that he poked the board once or twice with his right index finger whilst complaining about the roster. The applicant’s evidence is that he was unhappy and annoyed when he saw that he had been rostered as an AVO rather than a Crew Leader. He also felt unsupported by Mr Hala. The applicant’s evidence is that he injured his finger as a result of it being bent backwards when he made contact with the board.

[19] Mr Rojas entered the lunchroom whilst the applicant and Mr Hala were talking. His evidence is that the applicant was “swearing at Aryn (Mr Hala) a lot and was saying that he had to work with someone and he didn’t like to work with that person. He was “f-this and f-that”” When asked in cross-examination what he meant by swearing a lot, Mr Rojas said “Just, fuck this. I hate this shit”. You know, Why the fuck did you put me to work with this guy...”.

[20] It is Mr Rojas’ evidence that he saw the applicant hit or punch the roster board and then “everything fell down”. He does not recall the applicant having his finger extended when he made contact with the board.

[21] The applicant’s evidence is that when he was standing at the roster board he had his back to the doorway and that Mr Hala was about four metres away. Mr Hala’s evidence is that he was closer than that and was within “swinging distance”. His evidence is that at the time he didn’t know what was going to happen. Mr Hala did not disagree that the applicant had his back to the doorway.

[22] Mr Rojas’ evidence is that the applicant was facing the doorway and that Mr Hala was one to one and a half metre away from the applicant. Mr Rojas later told Mr Matthews that he thought the applicant might punch Mr Hala.

[23] As a result of the applicant’s contact with the roster board the perspex cover fell out onto the floor. It is the applicant’s evidence that he had seen it fall out before when supervisors changed roster sheets. It is generally agreed by the witnesses that the locking mechanism on the board was faulty and the cover could be moved without the use of a key.

[24] Mr Armstrong’s evidence is that the lock fell off the board when the cover fell to the floor and two small pieces of metal became detached. Mr Armstrong’s evidence is that, at the time, he believed that the fall had also damaged the perspex although he now understood that was not the case.

[25] After the incident Mr Armstrong and others tried poking the board to see if the cover moved. It is Mr Hala’s evidence that it didn’t and that it required some force to move it. Mr Steindl’s evidence is that, when he poked the roster board the day after the applicant’s dismissal, the perspex cover fell out very easily.

[26] After the cover of the board fell out Mr Hala told the applicant that he was to go home and would be contacted about returning for a formal discussion. The applicant deposited his gun and signed off. Although there was no particular evidence about this I understand that the applicant, and presumably other relevant employees, were wearing their guns from the commencement of the shift.

[27] It should be noted that a plan of the relevant areas of the workplace which was prepared by the applicant is at Attachment CS4 to Exhibit Applicant 1.

[28] Later that day, after time for reflection, the applicant felt disappointed in himself for his actions. He telephoned Mr Hala and apologised. He also telephoned Mr Armstrong and apologised. The applicant also wrote out a formal apology to Mr Hala. This is Attachment CS5 to Exhibit Applicant 1.

[29] Also later on the day of the incident, Mr Hala asked Mr Rojas to provide a statement of what he had witnessed. That is at Attachment OR1 to Exhibit Respondent 2. Mr Hala spoke to Mr Armstrong about the incident. They both discussed the matter with one of the respondent’s human resources advisors. That advisor drew up a discussion record for use in the meeting to be held with the applicant. That document is at Attachment AH2 to Exhibit Respondent 1. It notes Mr Hala as being the Manager/Interviewer. Mr Hala’s evidence is that Mr Armstrong was the ultimate decision maker. Mr Armstrong confirmed that was the case.

[30] The meeting with the applicant took place on 16 December 2011. The applicant was accompanied by Mr Matthews and Mr Green. Mr Hala and Mr Armstrong were present on behalf of the respondent. It is Mr Hala’s evidence that he did the speaking and Mr Armstrong took notes.

[31] Mr Hala’s evidence is that he read directly from the discussion record referred to earlier. The applicant agreed that Mr Hala had put to him that he had failed to follow a reasonable and lawful direction and had used inappropriate physical violence in the workplace. The applicant was also told that he had failed to follow company policies and procedures, failed to work cooperatively with his Manager and team members and had used abusive and offensive language. The applicant’s evidence is that, despite the allegation concerning the failure to follow a lawful direction being read out, there was no discussion about that point and he had no opportunity to explain that he had intended to return to the Communications Meeting after arranging for the vehicle to be repaired.

[32] The applicant’s evidence is that he felt constrained in what he could say because of Mr Hala’s presence. He testified that he believed that he didn’t get a fair go because Mr Hala was in the meeting. The applicant’s evidence is that he felt the best option was to apologise and explain why he had reacted as he had. He read out the letter of apology he had prepared the previous day. The applicant’s evidence is that he let Mr Matthews do most of the talking on his behalf.

[33] There was a break in the meeting during which time Mr Hala and Mr Armstrong spoke to the human resources advisor. It is Mr Armstrong’s evidence that he was considering termination of the applicant’s employment as he thought that the applicant’s behaviour amounted to serious misconduct. This was because the applicant had disobeyed a direction to return to the meeting room, had damaged company property and had displayed anger and aggression while holding a firearm, contrary to company policy. It is Mr Hala’s evidence that the advisor said that the situation was serious and that dismissal could be considered.

[34] The respondent’s representatives returned to the meeting and Mr Hala advised that dismissal was being considered. He asked if there was anything the applicant wanted to add in mitigation. The applicant apologised again. There was another break in the meeting. Mr Armstrong and Mr Hala spoke again to the human resources advisor. Mr Armstrong’s evidence is that he considered giving the applicant a “first and final” written warning. However, due to the seriousness of the applicant’s behaviour Mr Armstrong decided to dismiss the applicant. When the meeting reconvened Mr Hala told the applicant of the decision.

[35] The completed copy of the discussion record which contains Mr Armstrong’s notes of the responses made by the applicant and Mr Matthews as well as the outcome of the meeting and, rather oddly in the circumstances, an action plan for improving the applicant’s behaviour, is at Attachment MA2 to Exhibit Respondent 3. It is signed by Mr Hala as the Manager/Interviewer and Mr Armstrong as the company’s witness.

[36] The applicant was summarily dismissed. A letter of termination dated 16 December 2011 confirming the discussions earlier in the day is Exhibit Applicant 13. It is unclear whether the applicant received the letter at or around the time it was sent but there is no doubt that he was told of the dismissal at the meeting.

[37] The applicant seeks reinstatement and compensation for lost remuneration. He has obtained some casual employment since his dismissal and provides details of that and his efforts to find employment at paragraphs 56 and following of Exhibit Applicant 1 and in Exhibit Applicant 2. It is also the applicant’s evidence that there are only a few companies in the cash in transit industry in Queensland and, consequently, his chances of securing another position in the industry are minimal.

[38] The applicant’s evidence is that he does not think he would have any problems working with Mr Hala if he is reinstated. He states that he will not use bad language again in the workplace. Mr Hala’s evidence is that he does not have any personal issues with the applicant. He also testified that, in any event, he would not be the applicant’s supervisor as he is presently in a different area of the business.

[39] Mr Armstrong’s evidence is that there has been a breakdown in the relationship between the applicant and management at the Murarrie site because of the applicant’s behaviour and failure to comply with a direction. His evidence is that this would make reinstatement impossible. Mr Armstrong’s evidence is that he has not had much to do with the applicant. Further, he was about to move to a new role of Operations Manager for the State. That position is not located at Murarrie. Mr Armstrong’s evidence is that there are 220 employees and four managers at Murarrie. Due to the awarding of a new contract approximately six additional employees are to be recruited.

[40] There was much evidence about the extent to which bad language is accepted in the workplace and the degree to which employees are disciplined for its use. The respondent has a policy that swearing in the workplace is not tolerated. Nevertheless it concedes that it is a robust workplace and that swearing does occur. The respondent says that whether or not the use of bad language is considered to amount to misconduct depends on factors such as context, location, the person it is directed towards and the manner in which it is said. Both Mr Armstrong and Mr Hala agreed that employees may be receiving mixed messages about the use of swearing.

[41] Mr Rojas has alleged that Mr Matthews urged him to change his statement. Mr Matthews denies the allegation. The issue was the subject of a formal interview with Mr Matthews on 21 December 2011. The outcome was that there was no warning warranted. The discussion record is Exhibit Applicant 5. This issue is relevant for present purposes only as to the credit of the witnesses. There is no suggestion that the applicant was involved in anything that may have happened between Mr Matthews and Mr Rojas.

SUBMISSIONS ON BEHALF OF THE APPLICANT

[42] A written outline of submissions on behalf of the applicant was provided prior to the proceedings. Mr Carter relied on those submissions and also made oral submissions.

[43] Mr Carter noted that there were a number of factual differences between the parties. These included: where the applicant was at the time he was told to sit down; whether Mr Hala’s words to the applicant were ambiguous; the extent to which bad language is accepted in the workplace and whether employees are disciplined for its use; whether the applicant used bad language while at the roster board; whether Mr Hala was threatened; the degree of contact with the roster board; whether the applicant had been given a proper opportunity to respond to all issues on which the respondent relied; and, who made the decision to terminate.

[44] It is submitted that I should prefer the applicant’s evidence of events surrounding him leaving the meeting room rather than Mr Hala’s version. Mr Carter submitted that the respondent could have called other witnesses and that an adverse inference should be drawn from its failure to do so. On the applicant’s evidence Mr Hala’s words were unclear and ambiguous and were not in the nature of a direction. The applicant had left the meeting to attend to an important issue and had intended to return to the meeting. Mr Carter noted that the applicant had not been cross examined on his evidence that the Communications Meetings were informal events.

[45] Mr Carter submitted that I should find that the applicant had not failed to follow a direction. In the alternative, any such failure did not amount to serious misconduct in the circumstances. Mr Carter referred to the decision of Dissanayake v Busways Blacktown Pty Ltd [2011] FWA 3549 @ paras 86-91. He submitted that the authorities were clear that, for a single act of disobedience to amount to serious misconduct, it must be of a magnitude which showed that the employee was repudiating the contract of employment or one of its essential terms.

[46] Mr Carter accepted that the applicant’s action in swearing at Mr Hala was wrong. He noted that the applicant had apologised both verbally and in writing. Mr Carter submitted that the evidence had established that the culture of the workplace was such that language of this sort is generally not disciplined.

[47] In the written submissions it is noted that the respondent has never enforced any policy prohibiting the use of bad language. Reference is made to the principles which are to be applied in considering whether a breach of policy will be a valid reason for dismissal as set out in Woolworths Limited (t/as Safeway) v Brown [2005] AIRC 830 @ paras 34-36. Reference is also made to Robinson v Woolworths Limited [2012] FWA 1179 @ paras 89-90.

[48] It is submitted that the applicant’s behaviour on 15 December was an aberration for which some other form of disciplinary action would have been more appropriate. It is noted that the applicant had eleven years of unblemished service.

[49] Mr Carter submitted that the applicant’s version of what took place in the lunchroom should be preferred to that of the respondent’s witnesses. He noted that, even on the respondent’s evidence, there was no physical threat to Mr Hala. He also noted that, because the human resources advisor had not been informed that the applicant had his finger extended at the time he made contact with the roster board, the advice given to Mr Armstrong and Mr Hala was flawed. Mr Carter submitted that the evidence of Mr Rojas was clearly exaggerated.

[50] Mr Carter noted that the respondent had sought to focus on the fact that the applicant had been wearing his gun at the time of the incident. Mr Carter submitted that the decision of Cutrali v Chubb Security Services Limited [2010] FWA 5156 (Cutrali), which is relied on by the respondent, should be distinguished as the situations were not comparable.

[51] Mr Carter refuted any suggestion that the applicant had engaged in occupational violence. He noted Mr Armstrong’s evidence that the applicant had breached the respondent’s weapons policy. Mr Carter submitted that it was critical to note that Mr Armstrong had conceded that this had never been put to the applicant.

[52] Mr Carter submitted that the evidence was that the applicant had not damaged the roster board. Mr Armstrong had thought he had but now agreed he was incorrect in that regard.

[53] Mr Carter submitted that there was no valid reason for the applicant’s dismissal. It was accepted that some form of disciplinary action was warranted, however, termination was a grossly disproportionate response.

[54] It is submitted that the applicant had been denied procedural fairness. Several factors are relied upon in this regard. These include the involvement of Mr Hala in the disciplinary process. It is submitted that Mr Hala was the actual decision maker as evidenced by email exchanges with the human resources advisor as well as him signing the discussion record as the Manager.

[55] In the alternative, if it is accepted that Mr Armstrong made the decision to dismiss, at the very least, Mr Hala had input into and influence on that decision. It is submitted that Mr Hala should not have been involved in the process other than as a complainant. Mr Carter referred to the decision of Lawrence v Fulton Hogan Pty Limited [2010] FWA 7924 @ paras 68-72 (Lawrence).

[56] It is also submitted that there are some indications that others had input into the decision. If anyone else within the respondent’s organisation had played a role in the decision without hearing directly from the applicant this would be further procedural unfairness.

[57] Mr Carter submitted that procedural unfairness also flowed from the respondent’s failure to put to the applicant that it considered he had breached the weapons policy. Further, the applicant was never asked to respond to the allegation that he had failed to follow a management direction. If the allegation was central to the decision it should have been properly put and the applicant given a proper opportunity to respond. Mr Carter also submitted that the applicant had not received the letter of termination.

[58] Mr Carter noted that there was no issue concerning the applicant having a support person at the disciplinary meeting. The applicant’s performance was not relevant to the dismissal. Mr Carter noted that the respondent was a large employer and submitted that it should have ensured that the disciplinary process was fair and free from bias.

[59] Mr Carter accepted that the applicant was not entirely innocent. However his contrition and remorse are relevant factors to be considered.

[60] Mr Carter noted that the applicant sought reinstatement and compensation. Mr Carter referred to the applicant’s evidence in Exhibit Applicant 2 that, unless he is reinstated, he will have difficulties in obtaining work in the industry for some time. Mr Carter submitted that any deduction for misconduct should be minimal.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

[61] A written outline of submissions on behalf of the respondent was provided prior to the hearing. Mr Tindley relied on that material and also made oral submissions.

[62] Mr Tindley made a number of submissions as to the credit of various witnesses which he noted would be a central consideration in the matter. He submitted that the evidence of the respondent’s witnesses should be preferred to that of the applicant and his witnesses.

[63] Mr Tindley submitted that the applicant had shown a lack of preparedness to admit things which would not be favourable to his case. The applicant had omitted important material from his statement and had sought to overly embellish his testimony. Mr Tindley noted that the applicant had agreed that, contrary to his statement, he had not been constrained from responding in the meeting of 16 December.

[64] Mr Tindley submitted that Mr Matthews was not a credible witness. His evidence was unreliable, implausible and evasive and he had shown a tendency to make submissions rather than testify as to the facts. Mr Tindley submitted that the only inference that could be drawn from Mr Matthews telling Mr Rojas that he would be “grilled” is that he was trying to influence Mr Rojas not to make a statement.

[65] Mr Tindley submitted that Mr Green’s credibility was also flawed. He had omitted crucial pieces of evidence from his statement.

[66] By way of contrast the evidence of each of the respondent’s witnesses had been clear and consistent throughout.

[67] Mr Tindley submitted that the totality of the applicant’s conduct on 15 December amounted to a valid reason for the dismissal. He noted that the respondent had policies and procedures relating to conduct in the workplace. He submitted that, even in the absence of such policies, the applicant’s conduct was unacceptable and represented a valid reason for dismissal.

[68] Mr Tindley submitted that Mr Hala’s version of what happened in the meeting room and following should be accepted. The applicant had been very annoyed, didn’t want to be delayed and left the meeting despite being told not to. This was a lawful and reasonable direction which the applicant disobeyed.

[69] Mr Tindley submitted that I should accept Mr Hala’s evidence that the applicant’s words at the Armoury door had been directed at him. The evidence was that the applicant had been very annoyed at the time and it is submitted that people in such a frame of mind tend to speak in the manner attested to by Mr Hala. Mr Tindley submitted that the applicant’s attempts to downplay what he had said should not be accepted.

[70] Mr Tindley further submitted that I should not accept the applicant’s evidence that he did no more than gently poke the roster board. Instead, the evidence of the respondent’s witnesses that the applicant had hit the board in a punching motion and with some force, should be preferred. Mr Tindley questioned the evidence of the applicant and his witnesses as to the ease with which the perspex cover could fall out.

[71] Mr Tindley responded to the issues of procedural fairness which had been raised on the applicant’s behalf. He noted that the applicant had agreed that the allegation concerning the failure to comply with Mr Hala’s direction had been put to him. Mr Tindley submitted that it was the applicant’s responsibility to have responded to the allegation, not the company’s to ensure that he had.

[72] Mr Tindley submitted that the only question concerning Mr Hala’s involvement in the disciplinary process would be if it had affected the outcome. In this regard he referred to paragraph 69 of Lawrence. Mr Tindley noted that, in this case, there was another witness to the events in the lunchroom so it was not just Mr Hala’s evidence as against that of the applicant.

[73] Mr Tindley noted that the respondent did not challenge the assertion that bad language is used in the workplace. However what the applicant did was far removed from merely that. Mr Tindley submitted that it is necessary to consider the whole context in which the language is used. He submitted that swearing at a supervisor after refusing to comply with a direction of that supervisor and then punching and damaging your employer’s property amounts to a valid reason for dismissal. It is also submitted that the applicant’s physically aggressive behaviour coupled with his earlier actions and words meant this was distinguishable from other incidents of swearing in the workplace.

[74] Mr Tindley also submitted that it was relevant to consider the nature of the industry in which the applicant worked. Reference is made to Cutrali and it is submitted that the respondent is entitled to be confident that its employees who are armed will act in a calm and controlled manner. The applicant’s behaviour on 15 December was not calm or controlled.

[75] It is submitted that the issue which had led to the applicant’s actions had been relatively minor. The applicant’s response was extreme and clearly disproportionate such that the respondent considered it to be a significant breach of policy. The respondent considered that the applicant’s behaviour constituted serious misconduct within the definition in Regulation 1.07(2)(b) and (3) of the Fair Work Regulations 2009 (the Regulations).

[76] Mr Tindley noted that Mr Armstrong’s evidence was that he believed a letter of termination had been sent although he could not guarantee it. Mr Tindley also noted that the applicant had been informed that he was being dismissed for serious misconduct. The applicant was provided with an opportunity to respond and had the assistance of two TWU delegates at the meeting on 16 December. The dismissal was not connected with the applicant’s performance and it is submitted that the procedures followed by the respondent were appropriate given its size and the presence of human resource specialists within its business. In summary, the dismissal was not harsh, unjust or unreasonable.

[77] In the alternative, Mr Tindley submitted that it would be inappropriate and impractical to reinstate the applicant. The respondent had lost trust and confidence in the applicant as an employee. In particular, it could not be confident that the applicant would react in a measured fashion to any future incidents.

[78] Mr Tindley noted that, although the applicant had been contrite initially, he was now trying to downplay the seriousness of his actions. It is submitted that, if compensation is to be awarded, it should be significantly reduced in accordance with section 392(3) of the Act and that any income earned by the applicant since the dismissal should be deducted. Reference is made to the decisions of Delaney v Parramatta Leagues Club Limited [2010] FWA 1164 and Birmingham v Kings Transport & Logistics (Aust) Pty Ltd [2010] FWA 1116 as being relevant to the issue of compensation.

[79] Mr Tindley also provided a number of other decisions: Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (Selvachandran); Mar v Lazer Wizard Pty Ltd [2011] FWA 4853; AMWU v Unilever Australia Limited [2007] AIRC 736; Barber v Commonwealth of Australia as represented by the Department of Parliamentary Services [2011] FWA 4092; and Jalea v Sunstate Airlines (Queensland) Pty Ltd T/A Qantas Link [2012] FWA 1360.

CONCLUSIONS

[80] Section 396 of the Act sets out four matters which must be decided in applications of this type before the merits of a claim are considered. Those matters are:

[81] As will have been apparent from paragraph 1 of this decision the application was made within the period required in subsection 394(2). There is no issue that the applicant is a person protected from unfair dismissal. Paragraphs (c) and (d) of subsection 396 have no relevance in the present matter.

[82] Section 385 provides that a person has been unfairly dismissed if FWA is satisfied that:

[83] Paragraph (a) is clearly met in relation to the applicant. Paragraphs (c) and (d) have no relevance.

[84] In order to decide whether the dismissal of the applicant was harsh, unjust or unreasonable it is necessary to turn to section 387 which sets out the factors which must be taken into account by FWA. Those factors are as follows:

[85] The first matter which must be taken into account is whether there was a valid reason for the dismissal. The meaning of valid reason has been the subject of much consideration by the Courts as well as by this Tribunal and its predecessors. There seems to be general acceptance of the often quoted words of Northrop J in Selvachandran which are referred to in the respondent’s submissions.

[86] The reasons relied upon for the termination in this matter relate to the alleged misconduct of the applicant. In this regard I have to determine for myself whether the alleged misconduct, or any part of it that is contested, took place and, if so, whether it amounted to a valid reason for the termination: King v Freshmore (Vic) Pty Ltd [Print S4213].

[87] There are three matters of behaviour which the respondent relies upon as cumulatively amounting to serious misconduct and a valid reason for the dismissal. These are: that the applicant failed to follow a lawful and reasonable direction; that he swore at Mr Hala in an aggressive manner; and, that he used inappropriate physical violence in a disproportionate response when he hit the roster board.

[88] I accept that Mr Hala did tell the applicant to sit down whilst he was still in the meeting room. In this I am not imputing any untruthfulness to the applicant. It is quite possible that he was so intent on having the vehicle repaired that he just didn’t hear. Mr Hala then followed the applicant from the room and when the applicant was almost at the Armoury Mr Hala asked him to return to the meeting.

[89] There is no doubt that the applicant did not comply with the request of his supervisor. There is also no doubt that what Mr Hala was asking the applicant to do was perfectly lawful and reasonable. However, I do not consider that Mr Hala’s request amounted to a “direction”. An examination of the words used suggests an exhortation rather than an order or command. The relevant words are set out at paragraph 6 of Exhibit Respondent 1 and are as follows: “sort it out later, sit down we’ve got a Comms meeting on”, “mate we’ve got a Comms meeting, come back in and sit down”; “do it later, come back and sit down”.

[90] The applicant’s use of swear words to Mr Hala was totally inappropriate and unwarranted. Despite the applicant’s frustration and annoyance, Mr Hala did not say or do anything that could have warranted the applicant’s response. I accept that the use of bad language towards another person, especially a supervisor, is of a different character to swearing at an inanimate object or its use as an adjective such as describing traffic or weather. However, it is also relevant to consider the evidence that the respondent’s workplace is one in which bad language is commonly used and in which both Mr Armstrong and Mr Hala agreed that employees may have received mixed messages about such use. I also note in passing that there was no suggestion that the applicant’s words were overheard by other employees which could have undermined Mr Hala’s authority.

[91] I accept that the applicant probably did use the word “fucking” when describing the roster. Again, I don’t suggest that he was untruthful when he said he didn’t. He was frustrated and upset. In any event it is not suggested that the use of the word in the context used is in itself an issue.

[92] Mr Hala agreed that at the time the applicant made contact with the roster board his finger was extended so it is probably correct to describe the impact as a poke rather than a punch. However it was obviously a forceful poke, or two, as demonstrated by the fact that the applicant injured his finger. I do not accept that the applicant was intending to or actually threatened Mr Hala in any way.

[93] I accept that physical violence in the workplace is not appropriate, however, hitting an inanimate object such as the roster board is in a different category of behaviour to violence towards a person. This situation is clearly very different to the case of Mr Carmisino who was dismissed for, among other things, direct physical violence to a colleague, Exhibit Applicant 12.

[94] I do not accept the evidence of Mr Rojas where it differs from that of Mr Hala. Despite his denials Mr Rojas clearly exaggerated what he saw and heard in the lunchroom. For example, Mr Hala did not suggest that the applicant used bad language in the lunchroom other than saying “fucking roster”. The evidence of Mr Rojas at paragraph 19 above is not compatible with that.

[95] As for the issue of the credit of Mr Rojas and Mr Matthews, it appears to me that there may have been a misunderstanding by Mr Rojas of what Mr Matthews meant when he said that he would be “grilled” if the matter went to a hearing. After all he was “grilled” in the sense that he was cross-examined. There is nothing inappropriate or incorrect in what Mr Matthews told Mr Rojas and I do not consider that there is a necessary inference that Mr Matthews tried to pressure Mr Rojas to change his statement.

[96] Returning to the event in the lunchroom, I note Mr Armstrong’s evidence about the damage to the locking mechanism on the roster board. Whilst I do not in any way condone damage to an employer’s property it is clear that the applicant did not set out to cause any damage.

[97] In summary, I find that the applicant did not fail to comply with a direction, that he did swear directly at Mr Hala and that he did hit the roster board with some force although he did not punch it. I do not consider that the applicant’s actions amounted to serious misconduct within the meaning of Regulation 1.07 of the Regulations. I do not consider that his behaviour was inconsistent with the continuation of his contract of employment or was conduct that caused serious and imminent risk to the health and safety of anyone.

[98] In coming to such conclusions I am mindful that the applicant was wearing a loaded gun at the time of the incidents. However I agree that the situation in this case is distinguishable from that in Cutrali where there was actual physical violence to another person.

[99] I consider that the applicant’s actions amounted to misconduct but that, whether taken separately or together, they did not amount to a valid reason for dismissal.

[100] The applicant was informed of the reasons for his dismissal other than the issue of the weapons policy. I consider that he had an adequate opportunity to respond other than in relation to that issue. The applicant was represented at the meeting of 16 December by two TWU Delegates. He was not dismissed for performance reasons.

[101] I have had regard to paragraphs (f) and (g). The respondent overall is a very large company. It has dedicated human resources management specialists. With one exception which I deal with in paragraphs 103 and 104 below I am satisfied that these factors were reflected in the procedures which were followed in effecting the dismissal.

[102] There are four matters which I consider to be relevant under paragraph (h). The first is the length of the applicant’s employment and the absence of any disciplinary issues during that time.

[103] The second matter of relevance concerns Mr Hala’s involvement in the disciplinary process. I accept that Mr Armstrong was the ultimate decision maker, however, in an enterprise of this size it was not appropriate that Mr Hala should be involved other than as a complainant or witness.

[104] In saying this I am not suggesting that Mr Hala himself acted inappropriately, however, at the very least, the process had the appearance of procedural unfairness. Mr Hala is noted on the discussion record as being the Manager/Interviewer while Mr Armstrong is merely the witness. Mr Hala did all of the talking at the meeting including conveying the decision to dismiss. Mr Armstrong did not inform the meeting that he was going to be the decision maker.

[105] The third matter of relevance is the applicant’s immediate contrition for his behaviour. I do not accept the submission that this is undermined by the applicant’s evidence.

[106] The fourth matter of relevance is that I consider that the applicant’s behaviour warranted some form of disciplinary action though not dismissal.

[107] In all of the circumstances and having taken account of each of the factors in section 387 and my findings thereon I have determined, on balance, that the termination of the applicant’s employment was harsh. It follows from this and other matters addressed in paragraphs 82 and 83 above, that the applicant’s dismissal was unfair.

[108] Sections 390, 391 and 392 of the Act deal with remedies for unfair dismissals. I am satisfied that the provisions of section 390(1) and (2) have been met in this case. Subsection (3) provides that an order for compensation must not be made unless FWA is satisfied that reinstatement is inappropriate.

[109] I have considered all of the evidence and submissions which were put on the question of remedy. I am satisfied that, in all of the circumstances of this case and on the basis of my findings, reinstatement is appropriate.

[110] The applicant was dismissed in circumstances which I have found to be harsh. In considering the question of whether the necessary relationship of trust and confidence has been broken it is necessary to balance one instance of an inappropriate set of behaviours against eleven years of service without any disciplinary issues.

[111] Although the respondent may have some reservations about the applicant’s future behaviour, and I accept that there may be some tension caused by the applicant’s return to work, I am satisfied that a satisfactory working relationship could be restored with goodwill on both sides.

[112] I consider that it is appropriate to order the continuity of the applicant’s employment.

[113] However I consider that the applicant’s conduct contributed to the loss of his employment. It is not unreasonable for some penalty to apply. I consider that, in the circumstances, the respondent should not be required to pay the applicant in respect of a period of six weeks between the date of dismissal and the date of reinstatement.

[114] The amount which the respondent is to pay the applicant is to be further reduced by the amount of remuneration which the applicant has earned between the date of dismissal and the date of reinstatement.

[115] An Order reflecting this decision is published separately in PR524790.

COMMISSIONER

Appearances:

A. Carter, Legal Officer, from the Transport Workers’ Union of Australia Queensland Branch on behalf of the applicant

N. Tindley, solicitor, for Linfox Armaguard Pty Ltd.

Date of Hearing

2012
Brisbane
May 17 and 18.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR524789>