DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Nathan Hill
v
Cobham Aviation Services Pty Ltd T/A Cobham Aviation Services
(U2019/7468)

Application for an unfair dismissal remedy – misconduct – valid reason – warnings - procedural fairness – health and depression - whether harsh – application dismissed

[1] On 8 July 2019 Nathan Hill (the Applicant or Mr Hill) applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by Cobham Aviation Services Engineering Pty Ltd (Cobham, the Respondent or ‘the employer’). He claims to have been unfairly dismissed on 28 June 2019. At the date of dismissal he was employed as a Component Maintenance Officer.

[2] Mr Hill claims that his dismissal was harsh, unjust or unreasonable. He seeks an order for monetary compensation.

[3] Cobham oppose the application. It contends that Mr Hill’s dismissal was not harsh, unjust or unreasonable, and that no issue of remedy arises. In any event, it says that Mr Hill was paid four weeks in lieu of notice, and no compensation order should be made.

[4] There are no jurisdictional issues arising.

[5] I am satisfied that Mr Hill was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. He served the statutorily required minimum employment period (section 382(2)(a)) and his annual rate of earnings did not exceed the high income threshold (section 382(2)(b)(iii)). His employer was a “national system employer” within the meaning of section 14 of the FW Act. His application was filed within the statutorily required 21 days after dismissal.

[6] Conciliation of the application by a Commission-appointed conciliator was conducted on 12 August 2019 but the matter did not resolve. It was referred to me for hearing and determination.

[7] I issued directions on 2 and 6 September 2019. In advance of the hearing, and consistent with my directions, I received witness statements, documents and materials in reply from both Mr Hill and the employer.

[8] I heard the matter by determinative conference on 6 October 2019 (with closing submissions by telephone on 7 October). I reserved my decision, which I now deliver.

[9] Both parties were self-represented.

[10] Mr Hill gave evidence. Mr Tim Cronk (Purchasing Manager) and Ms Charlotte Hopkins (Human Resources Business Partner) gave evidence for the employer.

[11] Some facts are agreed although others are in dispute. On some disputed facts, issues of credit are relevant.

[12] Given the parties were self-represented and the inquisitorial nature of a determinative conference, I questioned witnesses on their evidence.

[13] The evidence of all witnesses was direct, relevant and broadly reliable. However, some caution is required on aspects of Mr Hill’s evidence. His evidence 1 that issues concerning his interaction with staff was not discussed at performance reviews despite the record of those reviews indicating otherwise was not convincing. His recall of a verbal altercation with an employee (Ms Rebecca Kuchel) on 13 May 2019 appeared selective and imprecise.

[14] I note that the employer did not call Ms Kuchel or other persons said to have witnessed the altercation. I refer later to this omission.

[15] I determine disputed facts based on the tone and manner of giving evidence, the consistency (or otherwise) between oral evidence and witness statements, the existence (or otherwise) of corroborating evidence, and the inherent plausibility of versions of events.

[16] Where there is conflict between the evidence of Mr Hill and the evidence of Mr Cronk and Ms Hopkins, I prefer the evidence of Mr Cronk and Ms Hopkins. Mr Cronk in particular was clear in his recall, made appropriate concessions and did not embellish his version of workplace interactions with Mr Hill or the disciplinary process.

[17] I am not bound by the rules of evidence but consider them to be a good and useful general guide. Some of the oral evidence and evidence in witness statements strayed into the field of irrelevant considerations, hearsay, opinion and assumption. I place reduced levels of weight on such evidence except where corroborated by direct evidence, is uncontested or inherently believable.

The Facts

[18] Cobham provides aviation services nationally from Adelaide, South Australia.

[19] Mr Hill was employed by Cobham in June 2006 as a full time Component Maintenance Officer. Until dismissed, he had worked in this role for 13 years.

[20] On 28 June 2019 Mr Hill was dismissed upon the payment of four weeks in lieu of notice.

[21] He was dismissed for misconduct which the employer considered to be a breach of its Code of Business Conduct (the Code).

[22] Until 2017, Mr Hill’s employment was rewarding and, save for serious health issues, not a matter of concern to his employer. The serious health issues concerned cancer, a stroke and (in late 2018) a heart attack. Although recovered, Mr Hill suffers depression.

[23] Management provided support for Mr Hill through these major health challenges, without his employment security being adversely impacted. 2

[24] After 10 years of service, on 1 January 2016 Mr Hill received a letter of congratulations from the Chief Executive Officer and thanks for his contribution. 3

[25] Relevant for these proceedings, Mr Hill’s immediate manager was Mr Cronk. Mr Cronk was the (then) Component Maintenance Manager. Mr Hill was one of a small team of employees responsible for parts maintenance and supply.

[26] Consistent with its human resources practice, Cobham undertakes mid year and end of year performance reviews of staff.

[27] From 2017, performance and conduct issues emerged. The issues arose sporadically. They tended to concern Mr Hill’s conduct in and around other staff. Performance reviews referred to these matters. Mr Hill was not placed on formal performance management. However, Mr Hill received letters on 27 July 2017 and 27 February 2018 4 concerning conduct issues. From time to time, he was informally spoken to by his manager (Mr Cronk) about his conduct.

[28] In early 2018 Cobham introduced a new software system (RAMCO) which Mr Hill and others were required to use. Mr Hill as well as other managers and staff experienced difficulties with the system and adapting to it.

[29] The February 2018 letter arose from an altercation between Mr Hill and Mr Cronk in which Mr Cronk raised a concern about Mr Hill acting outside of his area of responsibility and Mr Hill expressing frustration with the new software system. During the altercation Mr Hill swore at Mr Cronk telling his manager that the “fucking meeting was over” and walking off and leaving the workplace without authority.

[30] Further informal discussions between Mr Cronk and Mr Hill concerning alleged inappropriate conduct occurred in May 2018, September 2018 and November 2018. 5

[31] The proper characterisation of these informal discussions, the formal letters and the performance review notes is in contention. I make findings on these matters in this decision.

[32] On about 2 April 2019 Mr Hill took personal leave after informing Mr Cronk that he was feeling unwell due to depression. He returned to work on 15 April 2019. Upon his return Mr Cronk took Mr Hill aside, enquired of his wellbeing and informed Mr Hill of Cobham’s employee assistance program (EAP) which provided counselling on a confidential basis. Mr Hill expressed appreciation for the information and Mr Cronk’s interest in his circumstances.

Incident 13 May 2019

[33] Mr Hill worked in an administrative role in an open office area where desks were separated by mid-height partitions. Around him were staff from his and other departments. Nearby was an Inventory Control Supervisor, Rebecca Kuchel.

[34] On the morning of 13 May 2019, via email, a disagreement occurred between Mr Hill and Ms Kuchel about whether an invoice for a particular product required identification of the product’s shelf life. Ms Kuchel asked Mr Hill to secure that information, Mr Hill claimed that it was not required. The email exchange 6 was civil.

[35] Mr Hill, unhappy that Ms Kuchel would not take no for an answer, responded verbally. He stood from his desk, walked to the partition, lent over the partition and in a raised voice abused Ms Kuchel. The details of what was said are in contention. I make findings on this in considering if a valid reason existed.

[36] Ms Kuchel, appearing distressed, immediately left her work station and went to the bathroom.

[37] At 9.10am Mr Cronk (who did not witness the altercation) and another manager received an email from Ms Kuchel expressing concern at the incident and requesting managerial intervention.

[38] The issue was escalated by the managers to Ms Hopkins 7 who, being in charge of human resources, commenced an investigation.

[39] Ms Hopkins spoke to four employees who witnessed the incident, and two others who overheard parts of it.

[40] Mr Cronk, independent of the investigation, spoke informally to Ms Kuchel to check on her wellbeing.

[41] Ms Hopkins formed the view, based on staff feedback, that a disciplinary process needed to be commenced in which Mr Hill would be formally asked to explain his conduct.

Disciplinary process

[42] A letter of allegations dated 16 May 2019 was given to Mr Hill requiring his attendance at a disciplinary meeting on 21 May 2019.

[43] The allegations letter provided as follows:

“16 May 2019

PRIVATE & CONFIDENTIAL

Nathan Hill

Component Maintenance Officer

Adelaide

Dear Nathan

Requirement to attend Disciplinary Meeting

Following receipt of reports of inappropriate behaviour towards a member of your team, it is our view that it is necessary to schedule a meeting for you to respond to these allegations.

You are required you to attend a meeting with myself and Charlotte Bottrill HR Business Partner on Tuesday 21 May at 10.00am in the Hangar B Meeting Room.

The allegations listed below are around your continuous behaviour of inappropriate language to members of your team through your conversations and interactions. These allegations are a breach of the Cobham Code of Conduct and the Cobham Fair Treatment Policy.

On Monday 13th May, your behaviour towards a colleague was inappropriate and disrespectful. When requested to perform a task within your scope your response was "fucking do it yourself I'm not fucking doing it" When then told that you were best placed to perform this task and that refusal would lead to escalation, you said "go ahead fucking do it".

It was also witnessed that following the above event you then referred to Beck Kuchel as a "fucking cow" to other colleagues.

In order to enable you to prepare a considered response, it is important that you fully understand the seriousness of the allegations and the potential consequences should this be substantiated. If this allegation is substantiated, we would consider this behaviour to amount to misconduct, which may result in disciplinary action up to and including dismissal.

You are entitled to have a person of your choice attend with you. The role of your person of choice is to provide you with support and advice; however, this person cannot respond to the above issues on your behalf.

Please feel free to contact me if you have any questions in relation to this matter.

Regards

Tim Cronk

Component Manager”

[44] When handing the allegations letter to Mr Hill, a brief conversation ensued with Mr Cronk. Mr Cronk advised the seriousness of the situation given that a disciplinary process had commenced. Mr Hill said that there was nothing to defend as “nothing had happened” and that Ms Kuchel was “making it up”. 8

[45] Mr Hill did not attend work the next day (17 May 2019) and then took five weeks of personal leave (supported by medical certificates 9) until 21 June 2019.

[46] On or about 20 May 2019 a telephone conversation occurred between Mr Hill and Mr Cronk. Mr Hill had phoned to update Mr Cronk on his continuing absence as certified by his doctor. In the course of the discussion, Mr Hill indicated that he regretted the incident and “would like to apologise to Beck if the opportunity arose”. Mr Cronk indicated “that would be good and we could discuss it when he returns”. 10

[47] In early June 2019 Mr Hill was informed by Cobham that he was not required to attend for work until the (then) rescheduled meeting of 12 June 2019, but that he would be kept on pay until the meeting was held.

[48] The meeting scheduled for 21 May 2019 was rescheduled to 3 June then to 12 June and then again to 25 June 2019 in light of these absences.

Disciplinary meeting 25 June

[49] Ms Hopkins and Mr Cronk were in attendance. Mr Hill did not attend with a support person despite having been informed of the opportunity to do so.

[50] Ms Hopkins asked Mr Hill whether he recalled the incident of 13 May 2019 and the allegations. Mr Hill said that he did so “only vaguely”. Ms Hopkins handed Mr Hill the allegations letter. Mr Hill looked at it and handed it back.

[51] Mr Hill stated that Ms Kuchel was not his manager and that he was correct in not agreeing with the invoice request she had made of him. Ms Hopkins indicated that the disciplinary issue was his alleged conduct towards Ms Kuchel, not the invoice request and his stance on it. She asked whether he had said what was alleged. She said that all employees were entitled to respect in the workplace, whether or not direct managers.

[52] Mr Hill said that he may have sworn at Ms Kuchel and had mumbled something under his breath once she had left her workstation, but denied having called her a “fucking cow”.

[53] Ms Hopkins indicated that she had spoken to witnesses who had said they heard this said.

[54] Mr Hill then became loud and aggressive in tone. He said words to the effect “shall I just fucking go now. They are fucking lying.” 11

[55] Ms Hopkins told Mr Hill to curb his language and that this was his opportunity to explain his version of events.

[56] Mr Hill continued in a heated manner to swear and said that the situation was not helping his depression.

[57] Ms Hopkins became alarmed at the volatile situation. 12 Fearing further escalation, she called a suspension to the meeting. The meeting was rescheduled to 28 June 2019.

[58] Following the 25 June meeting, Ms Hopkins arranged for an officer from the EAP be present in the vicinity (but not attend) the rescheduled meeting. She also arranged a security officer to be in the vicinity. Mr Hill was not informed of these arrangements, only of the rescheduled meeting.

Disciplinary meetings 28 June

[59] The disciplinary meeting resumed on 28 June 2019, again in the presence of Mr Hill, Mr Cronk and Ms Hopkins.

[60] It was a meeting that occurred in two parts, punctuated by a private discussion between Ms Hopkins and Mr Cronk during which a decision to dismiss was made. Each part of the meeting with Mr Hill was brief, some five to ten minutes in duration.

[61] The meeting commenced with Ms Hopkins asking Mr Hill if there was anything he wanted to add. Mr Hill replied with words to the effect “it’s just convoluted; yes I swore but not at her”. 13

[62] Ms Hopkins twice asked Mr Hill if there was anything else he wished to add before the company would make a decision. Mr Cronk did likewise. Mr Hill said “no” and “not really”.

[63] Ms Hopkins and Mr Cronk left the room. In private discussion they each expressed the view that Mr Hill’s defence of the allegations had not been made out, that his conduct had breached the Code of Business Conduct, that Mr Hill had displayed a poor attitude to the disciplinary process and that Mr Hill had previously been formally and informally counselled and warned about his conduct towards other staff. They jointly agreed to a decision to terminate his employment. Ms Hopkins then spoke by telephone to the employer’s Human Resources Vice President (Ms Angela Catlett) and conveyed this recommendation. It was accepted.

[64] Ms Hopkins then prepared a dismissal letter dated 28 June 2019 under Mr Cronk’s name, which he signed. 14

[65] The meeting with Mr Hill resumed. Ms Hopkins advised Mr Hill that he was dismissed on the ground that his workplace behaviour continued to be unacceptable despite warnings. She handed him the dismissal letter.

[66] Mr Hill protested his objection. He said that he had received only one warning in February 2018 which was too long ago to count, and also said that as far as he was concerned the warning of 27 July 2017 did not count. He said words to the effect “you know I have depression but you don’t care.” 15 Ms Hopkins replied that the company did care. Mr Hill became loud and agitated. He said that the company could not do this, claiming he had spoken to the Fair Work Commission. Ms Hopkins said that she cannot accept this behaviour in the workplace. He was asked to return his pass by Ms Hopkins, which he took off and threw at her.

[67] Mr Cronk told Mr Hill that he (Mr Cronk) had given other warnings to him.

[68] Ms Hopkins advised that an EAP representative was present to assist Mr Hill if required. Mr Hill was surprised by this, saying words to the effect “I bet you have”. He declined the suggestion.

[69] Ms Hopkins closed the meeting, apologising that matters had ended this way.

[70] As they walked through reception Mr Hill loudly said words to the effect “this is not the last you have heard of this.”

[71] He was then escorted from the workplace.

[72] Mr Hill subsequently received his accrued entitlements and four weeks pay in lieu of notice.

[73] Mr Hill commenced these proceedings on 8 July 2019.

Consideration

[74] The issue for determination is simply put: was Mr Hill’s dismissal “harsh, unjust or unreasonable” having regard to the considerations in section 387 of the FW Act and, if so, is it appropriate to order a remedy by way of reinstatement or compensation?

[75] I am under a duty to consider each of the criteria in section 387 of the FW Act, 16 and now do so. In so doing, I take all of the evidence and submissions before me into account.

[76] Section 387 of the FW Act provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the

capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which 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; and

(h) any other matters that the FWC considers relevant.”

Valid Reason (section 387(a))

[77] An employer must have a valid reason for the dismissal of an employee. It is the Commission’s task to determine if a valid reason exists. The reason(s) should be “sound, defensible and well founded” 17 and should not be “capricious, fanciful, spiteful or prejudiced.”18

[78] In a conduct-based dismissal 19 the test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. The Commission must itself make findings as to whether the conduct occurred based on the evidence before it.20

[79] Where an employee is dismissed for misconduct, as in this case, an evidentiary onus rests on an employer to establish that on the balance of probabilities the misconduct occurred. 21

[80] Mr Hill’s dismissal was triggered by, but not based on, the isolated incident of 13 May 2019.

[81] The reasons for dismissal, as stated in the letter of dismissal, were:

1. breach of the Cobham Code of Conduct on 13 May 2019;

2. conduct during the disciplinary meetings; and

3. a lack of remorse.

[82] I now consider each of these matters.

Conduct on 13 May 2019

[83] I make the following findings of fact concerning Mr Hill’s alleged misconduct on that day.

[84] I have found that Mr Hill, unhappy that Ms Kuchel would not accept his email response to the product invoice dispute on 13 May 2019 stood from his desk, walked to the partition, and leaning over the partition and in a raised voice abused Ms Kuchel. I have also found that Ms Kuchel, appearing distressed, immediately left her work station and went to the bathroom.

[85] The allegation letter of 16 May 2018 described the altercation as follows: 22

“•  On Monday 13th May, your behaviour towards a colleague was inappropriate and disrespectful. When requested to perform a task within your scope your response was "fucking do it yourself I'm not fucking doing it" When then told that you were best placed to perform this task and that refusal would lead to escalation, you said "go ahead fucking do it".

•  It was also witnessed that following the above event you then referred to Beck Kuchel as a "fucking cow" to other colleagues.”

[86] I do not determine this matter on the basis of what the employer believed what was said. I determine this matter on the evidence before me of the altercation.

[87] As noted, neither Mr Cronk nor Ms Hopkins witnessed the incident. Cobham has not called Ms Kuchel to give evidence. Nor has Cobham called any of the staff who it says witnessed the altercation or heard its aftermath. At its highest, Cobham’s evidence of what was said by Mr Hill is hearsay, including the allegations in the email sent by Ms Kuchel at 9.10am on 13 May 2019.

[88] Even though I have, in my discretion, admitted into evidence this hearsay material, it falls well short of meeting the standard of proof required for me to make a finding of misconduct.

[89] I am left with the direct evidence of Mr Hill.

[90] Mr Hill’s version is as follows: 23

•  he stood from his desk, walked to the partition and lent over, he told Ms Kuchel words to the effect “Beck I’m not fucking doing it”;

•  Ms Kuchel then said words to the effect “I’ll take this further; I’ll take this to HR if you don’t do it”;

•  Mr Hill then replied, “fucking do it then”.

[91] Mr Hill’s evidence was that he was “uptight”, “angry” and “incensed” at the time and “just snapped”. 24

[92] I accept this evidence and find this to be the exchange between Mr Hill and Ms Kuchel that morning, before she retreated to the bathroom.

[93] I am satisfied that Mr Hill did raise his voice during this exchange. His evidence on this was equivocal, initially denying that he did so but then suggesting that his voice is loud and his comments would have been heard by others. 25 Raising his voice is consistent with Mr Hill’s evidence of his state of mind at the time: that he was uptight and angry.

[94] As to whether Mr Hill, in the minutes that followed (whilst Ms Kuchel was in the bathroom) added words to the effect “fucking cow” is in dispute.

[95] Mr Hill denied that he said so. His denials were not convincing. His evidence was that he mumbled something under his breath but could not recall what. Not being able to recall what was said is inconsistent with an apparent recall that it was not “fucking cow”.

[96] Nonetheless, whilst expressing an epithet such as “fucking cow” would be consistent with the volley of abuse that Mr Hill had hurled at Ms Kuchel, it does not automatically follow that this was said. The absence of direct evidence before me from witnesses means there is no evidentiary basis on which I can reliably make a finding that Mr Hill called Ms Kuchel a “fucking cow”. I decline to do so.

Conduct during the disciplinary meetings

[97] I accept the evidence of Ms Hopkins and Mr Cronk that Mr Hill did not demonstrate an appreciation of the seriousness of the allegations that were being put to him. He was dismissive in tone and attitude. His explanations were short and argumentative. When told by Ms Hopkins that she had interviewed staff who witnessed the altercation, he became rude and abusive. He accused other employees of lying and swore at Ms Hopkins and Mr Cronk.

[98] Mr Hill was informed in the allegations letter, and in prior verbal discussion with Mr Cronk that the allegation was being taken seriously by the employer. Mr Hill had the chance to bring a support person but, having delayed the meeting by weeks, chose not to do so when the meeting ultimately occurred. Mr Hill displayed an attitude that hoped the employer would drop the issue as time lapsed with the multiple deferrals. In this respect, he exercised poor judgment.

[99] Mr Hill continued, in his evidence to the Commission, to fail to comprehend the seriousness of the matter. He downplayed the incident in the following terms: 26

“It was a small incident and as far as I was concerned it went away very quickly.”

[100] Mr Hill’s volatile outburst towards the end of the 25 June 2019 meeting caused the disciplinary meeting to be aborted and Ms Hopkins to arrange for a security officer and an EAP officer to be on standby when it resumed. In the circumstances, these steps were not an overreaction.

[101] I find that Mr Hill was rude and abusive towards Ms Hopkins and Mr Cronk, particularly on 25 June 2019. It was conduct that was disrespectful of these managers and the disciplinary process they were conducting. Mr Hill was however trying to defend his conduct in the face of possible dismissal. It was a stressful moment and Mr Hill had chosen not to bring a support person. This notwithstanding, his swearing and aggressive manner was disrespectful conduct.

Failure to show remorse

[102] I find that Mr Hill failed to show remorse for having been rude and abusive towards Ms Kuchel. He failed to do so on 13 May 2019 and in the days that followed.

[103] Mr Hill did, to his credit, broach the subject of making an apology when speaking to Mr Cronk the following week. Mr Cronk encouraged him to do so. By then Mr Hill had been made aware that a disciplinary process was being undertaken, and a disciplinary meeting arranged. In that context, Mr Hill’s mooted apology was not instinctive following the incident. It arose once he feared his job could be at risk. Nonetheless, I take it into account.

[104] Mr Hill did not raise the issue of a possible apology at either of the disciplinary meetings of 25 or 28 June 2019. As these meetings occurred a month after the incident, time was running out for Mr Hill to demonstrate remorse, yet Mr Hill chose to adopt a defiant and argumentative approach. In these circumstances, given the way the 25 June 2019 meeting spiralled, it was not unreasonable that Mr Cronk or Mr Hopkins did not raise the apology issue during those meetings. 27

[105] As a result, I find that Mr Hill failed to apologise to Ms Kuchel. I also find that Mr Hill failed to peruse his suggested option of making an apology despite being informally encouraged by Mr Cronk to do so.

Conclusion on valid reason

[106] Was Mr Hill’s conduct a valid reason for dismissal?

[107] Mr Hill knew of and was bound by the Cobham Code of Business Conduct. The Code and related company policies concerning values and bullying behaviour had been brought to his attention in the course of previous counselling and warnings, for example the warning letter of 27 February 2018. 28

[108] The Code provides under the section ‘What’s expected of employees?”: 29

“In order to uphold our Code we must:

…

•  Respect each other, be inclusive, champion diversity, embrace individuality and listen to others.

•  Fully co-operate with any internal or external investigations…

Any kind of discrimination, harassment or bullying by or against a colleague, customer or supplier will not be tolerated…

Harassment is directed at an individual. It can take the form of demeaning, insulting or derogatory comments, slurs or innuendos, or intimidating behaviour.”

[109] The Code goes on to provide: 30

“What are the consequence of violating our Code?

Failure to comply with any provision of this Code is a serious violation and may result in disciplinary action, including termination of employment.”

[110] Having not found that Mr Hill called Ms Kuchel a “fucking cow” I nonetheless conclude that the abuse and swearing at Ms Kuchel which I have found was targeted, direct and threatening. It was not casual workplace banter at an industrial site.

[111] Mr Hill denied that his exchange was threatening to Ms Kuchel. He claimed that what he said “wasn’t at her, it was just in front of her”. 31 I do not accept this evidence. It asserts a distinction without a difference. Viewed objectively, what Mr Hill said was directed to Ms Kuchel and at her. In both content and tone it was disrespectful and threatening.

[112] It was a serious breach of the Code. Its seriousness lies in the fact that:

•  By walking to and speaking over the office partition, Mr Hill chose to transform what was a civil disagreement by email into a foul verbal altercation. He instigated the verbal altercation and did so without provocation;

•  Mr Hill raised his voice in an open office environment and was indifferent to the fact that other staff were around and likely to be disrupted by what was said;

•  Mr Hill’s first statement to Ms Kuchel was abusive in tone and content. It involved anger evident by the expletives used;

•  Mr Hill’s second statement (the reply) was again abusive in tone and content, and insubordinate. Although Ms Kuchel was not his direct report, Mr Hill’s response showed an indifference to being held accountable to managers for his conduct. He dared her to report his conduct. This was threatening and intimidating behaviour; and

•  Mr Hill continued to work in the office that day but took no steps to apologise to Ms Kuchel. He allowed his abuse and its disruptive effect to permeate the office environment and remain un-remediated. He left it to Ms Kuchel or others to raise the issue. It was only days later, when he realised that a disciplinary investigation was to be commenced, that he informally raised the issue of an apology with Mr Cronk.

[113] Mr Hill’s conduct, even absent a finding that he called Ms Kuchel a “fucking cow”, was sufficiently serious to constitute misconduct and a breach of the Code.

[114] Mr Hill advances two further submissions as to why there was no valid reason for dismissal: he says that other employees were not dismissed for swearing or altercations; and that his conduct was sporadic and not continuing conduct.

[115] Neither contention is persuasive.

[116] Mr Hill’s evidence asserts “double standards” by Cobham. 32 He refers to two incidents where he says other workers were not dismissed for misconduct.

[117] The first was an allegedly heated and allegedly expletive laden argument involving senior management weeks prior to his dismissal that Mr Hill and others overheard. I have no evidence on which to make findings about that incident or whether it had consequences for the individuals concerned. I am unable to draw the conclusion of inconsistent behaviour sought by Mr Hill.

[118] The second was a historic incident where Mr Hill claims he was deliberately bumped by a contractor in the workplace. He raised the issue at the time with Ms Hopkins. The contractor left the business but, some time later was re-engaged. Mr Hill felt disrespected by the process. I have only limited evidence on this matter but Mr Hill’s sense of grievance was expressed genuinely. However, a historical altercation with a contractor and dissatisfaction with the way the human resources department dealt with his then complaint neither explains nor mitigates Mr Hill’s conduct towards Ms Kuchel in May 2019. Only to a limited degree does it explain his dismissive attitude towards Ms Hopkins during the disciplinary meetings.

[119] I accept that Mr Hill’s outbursts and unsatisfactory dealing with staff were of relatively recent duration (given his 13 years of service), were sporadic and were not a constant occurrence. The warnings and counselling (discussed below) were however sufficiently frequent to make the issue one of ongoing concern throughout 2017 and 2018 and were noted as such in the performance reviews conducted in both years.

[120] The occasional, but not everyday nature, of Mr Hill’s breaches of the Code does not set aside a valid reason. Unacceptable workplace conduct, even when occasional, if repeated and not remediated can warrant disciplinary sanction including dismissal, depending on the circumstances.

[121] There was a valid reason for dismissal. Mr Hill’s misconduct on 13 May 2019 and his conduct during the disciplinary meetings was individually and collectively disrespectful, discourteous and insubordinate. The conduct was a breach of Cobham’s Code of Business Conduct.

[122] Collectively the conduct formed a sound, defensible and well-founded reason for dismissal.

[123] This consideration weighs against a finding of unfair dismissal.

Notification of the reason for dismissal (section 387(b))

[124] I have found that Mr Hill was notified of the reason for his dismissal by Ms Hopkins on 28 June 2019, and in writing by letter of the same date.

[125] This consideration weighs against a finding of unfair dismissal.

Opportunity to respond (section 387(c))

[126] Mr Hill had two formal opportunities to respond to the allegations of misconduct: on 25 June 2019 and again on 28 June 2019.

[127] He did so, but in a brief and somewhat dismissive manner.

[128] Mr Hill acknowledged that he was provided an opportunity to respond but says that he should have been placed on formal suspension with pay prior to the disciplinary meeting.

[129] This submission is not persuasive. Mr Hill remained on pay from 13 May 2019 until he was dismissed. It was Mr Hill’s medically certified absences for five weeks (until 21 June 2019) which delayed the disciplinary meetings. Mr Hill was informally told by Mr Cronk that in light of the disciplinary meeting scheduled for 25 June, he was not required to work the preceding day, 24 June. This was not unreasonable. Nor was it unreasonable that he was not required to work on 26 or 27 June given that the disciplinary meeting was suspended due to Mr Hill’s volatile response. There was no prejudice arising to Mr Hill from being informally rather than formally notified of being suspended with pay.

[130] This consideration weighs against a finding of unfair dismissal.

Opportunity for support person (section 387(d))

[131] Cobham did not refuse Mr Hill a support person, reasonably or unreasonably.

[132] Cobham’s allegations letter to Mr Hill of 16 May 2019 actively informed Mr Hill of his right to have a support person. On that same day, Mr Cronk, in the context of stressing to Mr Hill the seriousness of the matter as far as Cobham was concerned, informed Mr Hill that he could have an independent representative attend as his support. 33

[133] This is a neutral consideration in this matter.

Warnings concerning performance (section 387(e))

[134] I have found that:

•  Since 2017, performance reviews of Mr Hill identified concerns relating to Mr Hill’s interaction with other staff;

•  Mr Hill received a letter on 27 July 2017 concerning his conduct towards staff;

•  Mr Hill received an allegations letter on 14 February 2018 and then a warning letter on 27 February 2018 concerning misconduct and insubordination issues; and

•  Further informal discussions between Mr Cronk and Mr Hill concerning alleged conduct towards staff occurred in May 2018, September 2018 and November 2018.

[135] The proper characterisation of these informal discussions, the formal letters and the performance review notes is in contention. I now make findings on those issues.

Formal warnings

[136] I find that Mr Hill received two formal written warnings in the period 2017-2018.

[137] The first was a letter dated 27 July 2017 from the then Global Head of Supply Chains, Mr Henk De Vos. The letter provided: 34

“Further to our meeting whereby I discussed my concerns with you regarding the importance of behaving in a professional manner and the need to treat other colleagues with respect and dignity at all times. You are reminded that any further occurrences of failing to follow the appropriate code of conduct in the workplace may result in further action up to and including disciplinary action.”

[138] The correct characterisation of this letter is as a warning letter. Though Mr Hill disputed that the meeting which gave rise to the letter dealt with a matter of substance, the letter nonetheless speaks for itself. It put Mr Hill on formal notice concerning his workplace behaviour.

[139] The second was the altercation with Mr Cronk in February 2018 in which Mr Hill expressed frustration with the new software system, became aggressive and agitated, swore at Mr Cronk and walked out of the workplace. Mr Hill’s evidence was “on reflection I probably did not act appropriately…I think I swore a few times and then walked out of the office.” 35 I have found, based on Mr Cronk’s evidence, that Mr Hill swore at Mr Cronk telling his manager that the “fucking meeting was over” and walking off and leaving the workplace (not just the office) without authority.

[140] The letter of 27 February 2018 provided: 36

“The Company has reviewed and considered your response to the allegations and has determined that you need to modify your behaviour to ensure that this type of occurrence does not happen again. You are responsible for your behaviour and you must consider and be aware of the impact that your behaviour has on others, you are to demonstrate a mature work ethic and control your emotions/temper at all times.

We are treating this matter very seriously, and therefore this letter constitutes a written warning that your inappropriate behaviour and conduct must cease immediately. Further displays of such behaviour and conduct will not be tolerated and further disciplinary action may occur, which may include consideration of your on-going employment.”

[141] This letter, self-evidently, is a letter of warning.

[142] Mr Hill did not dispute that the letter of 27 February 2018 was a warning letter but claimed that it was stale by June 2019.

[143] I do not accept this submission for two reasons. Firstly, the warning letter arose only 15 months prior to the incident with Ms Kuchel that precipitated dismissal. It had no self-designated expiry. It remained current at the date of dismissal. Secondly, the nature of what Mr Hill was warned about in February 2018 was directly relevant to the behaviour for which he was dismissed: that is, his conduct vis-a-vis other staff and managers in the workplace.

Informal discussions

[144] I have also found that informal discussions occurred between Mr Cronk and Mr Hill concerning alleged inappropriate conduct in May 2018, September 2018 and November 2018. These are also relevant as each arose from concerns raised with Mr Cronk (some formally by email from other managers) about Mr Hill’s interactions with staff. These are enumerated in Mr Cronk’s evidence. 37

[145] I characterise these informal discussions as counselling discussions.

Performance reviews

[146] I also find that the performance reviews conducted in 2017 and 2018 by Mr Cronk, whilst not generally critical of Mr Hill’s performance, raised express concerns at his manner in and around the office.

[147] The 2018 performance review (signed by Mr Hill on 24 February 2019) observed: 38

“In regards to office environment Nathan has had some good moments but has also slipped on occasions leading to inappropriate comments or conflict with others. This has led to further informal discussion and a reminder of his requirements.”

[148] The 2017 performance review (signed by Mr Hill on 1 March 2018) observed: 39

“Nathan hasn’t had a great start to the year in this area (office environment) which led to formal discussions on 2 occasions and a formal letter in regard to the matter. I can only re-iterate the need to remain professional and seek advice from management when feeling stressed and being considerate of others and the expectations of a typical office environment at all other normal times.”

[149] Relevantly, Mr Hill notated this review with the following: 40

“I have had trouble with this objective but I try to keep to myself as a rule, only engaging others when my work requires it. I will try to improve in the future.”

[150] I accept Mr Cronk’s evidence concerning these performance reviews and counselling discussions: 41

“Anytime I had to have a discussion around behaviour or performance…it would be a challenging situation as I knew he would react badly or become aggressive at some point before hopefully calming down again and accepting and understanding the situation.”

[151] For the aforementioned reasons, I conclude that Mr Hill had, at the time of dismissal, received relevant and current formal warnings as well as counselling from his immediate manager as well as performance reviews that raised concerns with his manner of interaction with staff.

[152] This consideration weighs against a finding of unfair dismissal.

Size of employer’s enterprise (section 387(f)) and human resource capability (section 387(g))

[153] Cobham is a medium sized national business in the aviation services industry, employing approximately 250 persons. It has internal capability to deal with industrial and human resource issues. Its size and internal capability provide no basis for the employer to provide other than substantive and procedural fairness to its employees.

[154] This is a neutral consideration in this matter.

Other matters (section 387(h))

Harshness: willingness to apologise

[155] Mr Hill submits that his dismissal was harsh because he broached the subject of an apology with Mr Cronk.

[156] I have found that Mr Hill failed to apologise to Ms Kuchel despite having an opportunity to do so on the day. I have also found that Mr Hill, to his credit, gave thought to an apology but failed to peruse his suggestion despite being informally encouraged by Mr Cronk to do so. I have also found that Mr Hill’s suggestion was made about a week after the incident, and once he feared his job could be at risk. I have also found it not unreasonable that Mr Cronk did not raise the apology issue during the disciplinary meetings given the way they escalated.

[157] In these circumstances, given the failure to make an apology, Mr Hill’s dismissal cannot be characterised as harsh simply because Mr Hill had broached the subject with Mr Cronk.

Harshness: health and depression

[158] I have found that Mr Hill experienced serious health issues in the course of his thirteen years of employment, including cancer, a stroke and (in 2018) a heart attack. I have also found that Mr Hill was suffering depression in the months preceding dismissal, and that this had been disclosed to Mr Cronk.

[159] I have found that Cobham provided support for Mr Hill through these major health challenges, without his employment security being adversely impacted.

[160] Issues of mental health pervade modern society, which is generally more aware and enlightened on such matters. It should not be surprising they may impact workplaces. Persons suffering independently diagnosed mental illnesses should be treated with sensitivity and respect, including by managers and work colleagues, and encouraged to take pathways to treatment and recovery. I do not dismiss the possibility that outbursts in the workplace may be connected in some way to a person’s mental health.

[161] With respect to Mr Hill’s depression, in April 2019 Mr Cronk specifically took Mr Hill aside and advised of the company’s willingness to enable him to take time to get better and informed him of the counselling services available through the EAP. This was an appropriate and respectful response.

[162] Mr Hill presented to work on 13 May 2019 fit and ready to do his job. Whilst Mr Hill referred to his mental health during the disciplinary meetings, he presented no evidence to these meetings that his conduct arose from or was caused by his depression. 

[163] Nor did Mr Hill present such evidence to the Commission. His certificates of sickness relating to his absences following the 13 May 2019 incident are neither specific nor probative of such matters.

[164] I have no medical evidence before me on which to conclude that any of the incidents involving Mr Hill, including that on 13 May 2019 was attributable to his physical or mental health or that this was a material contributing factor by way of explanation. If such evidence was before me it would be relevant, but it would not necessarily follow that Mr Hill’s dismissal was not for a valid reason or was harsh.

Harshness: personal impacts

[165] Mr Hill’s evidence is that the disciplinary process and then the dismissal has deeply affected him, and accentuated his stress and mental wellbeing. 42 His evidence was that he has been unable to work or seek employment since dismissal and that coupled with his past serious physical illnesses, he is “not a great employment prospect”. However, he has not seen his doctor since he was dismissed but is scheduled to do so.

[166] The consequent impacts on Mr Hill, socially and financially are self-evident. Although still a relatively young man he fears he may not work again. He has, for the time being, lost the value and routine that work brings to one’s sense of well-being. He is sustained by his wife’s income which is at a level that precludes him from obtaining income support from Centrelink.

[167] These are real impacts, and I take them into account.

[168] In considering the significance of these factors I must weigh them alongside the self-evidently serious nature of the misconduct, as well as my overall findings concerning procedural fairness.

[169] I conclude that each of these considerations, whilst relevant, are not unique. They do not carry sufficient weight to set aside the breaches of the Code and the valid reason they constitute. They do not sufficiently transform this dismissal for a valid reason into one that can be characterised, at law, as harsh. 43 

Conclusion

[170] This matter concerns dismissal of a longstanding employee for misconduct in the context of prior warnings and counselling in the two years prior to dismissal.

[171] My role is not to review whether the employer had a reasonable basis for its decision but to consider whether, on the evidence before me, the dismissal of Mr Hill was harsh, unjust or unreasonable.

[172] The onus of proof in establishing that a dismissal was harsh, unjust or unreasonable rests on an applicant, in this case Mr Hill.

[173] However, in cases such as this, the employer carries an evidentiary burden of proof to establish that the misconduct which they allege did in fact occur. I have made findings of fact having regard to the evidentiary onus borne by the employer. Those findings of fact have been based on the requisite standard of proof.

[174] The ambit of the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 44 as follows:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[175] In reaching my conclusion, I adopt the approach set out by a Full Bench of this Commission in B, C and D v Australian Postal Corporation T/A Australia Post: 45

“[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.

[59] It is in that weighing that the Commission gives effect to a ‘fair go all round’.”

[176] I have found that there were valid reasons for Mr Hill’s dismissal based on breaches of duty and in particular Mr Hill’s misconduct in the workplace on 13 May 2019 when he abused, threatened and intimidated Ms Kuchel.

[177] Despite his length of service and generally good work record, dismissal was a proportionate response given the prior warnings and counselling.

[178] Individually and collectively, the misconduct in the face of repeated warnings and counselling established a well-founded loss by the employer of trust and confidence in Mr Hill’s capacity to work in a manner that complied with Cobham’s Code of Business Conduct.

[179] Mr Hill was not denied procedural fairness. Aside from the warnings and counselling, the allegations of misconduct were put to him. He was provided an opportunity to explain. Disciplinary meetings were deferred to meet his circumstances. He was invited to obtain assistance from a support person but declined. The disciplinary process was stressful but not unfair. Dismissal was not pre-meditated.

[180] In these circumstances the dismissal was neither unjust nor unreasonable.

[181] I have considered whether the dismissal was harsh in three contexts: harsh because Mr Hill had earlier suggested he could apologise; harsh because of Mr Hill’s health and depression; and harsh because of personal impacts on Mr Hill.

[182] The sanction imposed was the most severe available to the employer: dismissal. It chose not to give further warnings or refer Mr Hill to training or coaching. Relevantly, it did not summarily dismiss Mr Hill but dismissed on the payment of four weeks’ notice in lieu.

[183] A dismissal is not rendered harsh simply because a lesser sanction is an option open to an employer. It is not uncommon that a number of reasonable disciplinary courses may be available to an employer on a given set of facts. The test under the FW Act is not whether the Commission would have dismissed in the circumstances that the employer did or whether the employer could have or should have been more lenient or taken different steps to make the sanction fairer. 46 It is not the Commission’s role to stand in the shoes of an employer to determine which of those courses it may or should choose.47

[184] The statutory object of the FW Act is one of ‘a fair go all round’ having regard to the decision that was made and all relevant circumstances. What is required to be determined is whether, in all those circumstances, the dismissal was, in objective terms, harsh, unjust or unreasonable.

[185] I have concluded that the combined effect of the incident of 13 May 2019, Mr Hill’s disrespectful conduct during the disciplinary meetings and his lack of remorse coupled with the warnings and counselling over the previous two years led to a well-founded loss by Cobham of trust and confidence in Mr Hill’s capacity to work in a manner that complied with the Code.

[186] I have also concluded that personal factors do not materially explain the misconduct and, whilst real, are not unique or sufficiently weighty in the context of the misconduct to render the dismissal harsh.

[187] Whilst the employer did not decide a lesser sanction, it cannot be objectively said that the dismissal was harsh, unjust or unreasonable. Mr Hill ultimately lost a job that he had performed for a long time and which was important to him as a result of his failure over a reasonable period to accept accountability for and remedy Cobham’s justified concerns with the sporadic but not infrequent occasions he communicated with staff and managers in a disrespectful manner.

[188] Whilst believing that he was treated unfairly, he was not denied a fair go.

[189] As the dismissal was not unfair, I am not required to consider issues of remedy.

[190] For these reasons and in conjunction with the publication of this decision I issue an Order that the application be dismissed.

DEPUTY PRESIDENT

Appearances:

N. Hill, on his own behalf

C. Hopkins and T. Cronk, for the Respondent

Hearing details:

2019.

Adelaide.

6 and 7 November.

Printed by authority of the Commonwealth Government Printer

<PR714398>

 1   Audio transcript 6 November 2019 11.04am and 11.13am

 2   R2 Statement of Tim Cronk paragraph 56

 3   A12

 4   The 27 February 2019 letter followed an allegations letter of 14 February 2019

 5   R2 Statement of Tim Cronk paragraphs 50 to 55

 6   A5

 7   Then known as Ms Bottrill

 8   R2 Statement of Tim Cronk paragraphs 8 to 11

 9   A7, A8, A9

 10   R2 Statement of Tim Cronk paragraph 23

 11   R1 Statement of Charlotte Hopkins paragraph 26; Audio transcript 6 November 2019 2.21pm

 12   Audio transcript 6 November 2019 2.11pm

 13   R1 Statement of Charlotte Hopkins paragraph 34

 14   R1 CHF; R2 paragraph 38

 15   R1 paragraph 44

 16   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]

 17   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

 18   Ibid

 19   except where the Small Business Fair Dismissal Code applies

 20   King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 at [24]

 21   Edwards v Guidice (1999) 94 FCR 561 at [6] to [7]

 22   R1 Statement of Charlotte Hopkins CHD

 23   Audio transcript 6 November 2019 11:33am to 11.45am

 24   Audio transcript 6 November 2019 11:33am to 11.37am

 25   Audio transcript 6 November 2019 11:35am and 1.57pm

 26   Audio transcript 6 November 2019 11:42am

 27   Audio transcript 6 November 2019 2.17pm

 28   R2 TCB

 29   R3 pages 6 and 24

 30   R3 page 8

 31   Audio transcript 6 November 2019 11.35am

 32   A2 Impact Statement

 33   R2 paragraph 10

 34   A4

 35   Audio transcript 6 November 2019 11:25am

 36   R2 TCB

 37   R2 Statement of Tim Cronk paragraphs 50 to 55

 38   R2 TCA 2018 Review page 2/6

 39   R2 TCA 2017 Review page 2/5

 40   R2 TCA 2017 Review page 2/5

 41   R2 Statement of Tim Cronk paragraph 56

 42   A2

 43   For example, Dawson v Qantas Airways Limited [2017] FWCFB 1712 at [48]

 44   [1995] HCA 24; (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ

 45   [2013] FWCFB 6191

 46   Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185 at [46] citing Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685

 47   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685