Anderson v Detmold Packaging Pty Ltd

[2015] FCCA 479

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANDERSON v DETMOLD PACKAGING PTY LTD [2015] FCCA 479

Catchwords:
INDUSTRIAL LAW – Fair Work Act 2009 – claim for dismissal in contravention of a general protection – respondent proves that employee dismissed solely on the basis of her serious and wilful misconduct – application dismissed.

Legislation:

Workplace Relations Act 1996, s.361(i)

Applicant: SUE ANDERSON

Respondent: DETMOLD PACKAGING PTY LTD

File Number: ADG 38 of 2013

Judgment of: Judge Simpson

Hearing dates: 28, 29 and 30 January 2014

Date of Last Submission: 30 January 2014

Delivered at: Adelaide

Delivered on: 5 March 2015

REPRESENTATION

Counsel for the Applicant: Mr T Hardie

Solicitors for the Applicant: AMWU

Counsel for the Respondent: Mr K Luke

Solicitors for the Respondent: Thomsons Lawyers

ORDERS

1. The application filed on 21 February 2013 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 38 of 2013

SUE ANDERSON

Applicant

And

DETMOLD PACKAGING PTY LTD

Respondent

REASONS FOR JUDGMENT

1. In these reasons statements of fact are findings of fact arrived at on the balance of probabilities after a consideration of all of the evidence.

2. I have before me an application brought in the Fair Work Division of the Court in which the applicant, Sue Anderson, seeks orders against her former employer, the respondent Detmold Packaging Pty Ltd (“Detmold Packaging”).  Her application and claim filed on 21 February 2013 alleges as follows:

   “1.In contraventions of s.340(a)(ii) of the Fair Work Act 2009 (Cth), the respondent took adverse action against the applicant because she exercised her workplace right.

   2.The applicant requested that she not work overtime with Kristy Bellinger for OHS reasons as is her workplace right under s.341 of the Fair Work Act 2009 (Cth).

   3.After the applicant exercised her workplace right, she was dismissed on the grounds of misconduct from an incident which occurred between the applicant and Kristy Bellinger in November 2011.

   4.The applicant claims that the action taken against her was a result of her request to not work overtime with Kristy Bellinger due to OHS reasons.  The employer was aware of the incident in November 2011, well before the applicant exercising her rights … and decided not to take any disciplinary action.

   5.The applicant claims that the action taken against her was an adverse action as defined in s.342(1) item 1(a) of the Fair Work Act 2009 (Cth).”

3. Ms Anderson seeks orders for compensation, reinstatement and a pecuniary penalty. 

4. The application includes a certificate under s.369 of the Fair Work Act 2009 (Cth) (“the Act”) stating that a conference was held to try to resolve the dispute between the parties but without success. That certificate is dated 8 February 2013.

5. The respondent filed a Response on 19 March 2013 seeking that the applicant’s claim be dismissed and seeking costs.  The Response gives the following grounds of opposition:

   “Workplace Right

   (a)The applicant did not exercise a workplace right as defined under the Fair Work Act 2009 (Cth).

   (b)In or about mid September 2012, the applicant represented to her supervisor that she would not make herself available for voluntary overtime work on a weekend in the event that co-worker Kristy Bellinger was also working weekend time.

   (c)At (the) time of her representation, the applicant had a personal grievance with Ms Bellinger who was in a personal relationship with a male co-worker who had previously been in a close personal relationship with the applicant.

   (d)Following the applicant’s request, Ms Bellinger was not rostered to work weekend overtime.

   Reasons for Dismissal

   (e)In or around September 2012, Ms Bellinger complained to David Jeffries, Human Resources Manager, about not being rostered to work weekend overtime.  Ms Bellinger told Mr Jeffries that she thought it was unfair that the respondent rostered the applicant for weekend overtime and alleged the (sic) she had been the victim of bullying and harassment perpetrated by the applicant.  Ms Bellinger complained to Mr Jeffries that she had been physically assaulted by the applicant in the locker room at the respondent’s workplace on or around 11 November 2011.

   (f)Mr Jeffries initiated an investigation into the alleged incident.

   (g)During the investigation process, the applicant twice admitted that she had assaulted Ms Bellinger as alleged. 

   (h)At the conclusion of the investigation, the respondent found that the applicant had physically assaulted Ms Bellinger as alleged and that this conduct constituted serious and wilful misconduct.  As a consequence of the respondent’s investigation findings, it determined to terminate the applicant’s employment.

   (i)The applicant’s employment was not terminated because she exercised a workplace right.”

6. In 2011, the applicant was in a relationship with Peter Matthews, a co-worker at Detmold Packaging.  On a day in August 2011, the applicant returned to the home that she shared with Mr Matthews and found Mr Matthews in a compromising situation with a female co-worker at Detmold Packaging.  Understandably, as a result of this, the relationship between Ms Anderson and Mr Matthews soured.  They ended their relationship in November 2011.

7. In November 2011, an incident occurred involving Ms Anderson and Ms Bellinger.  Ms Anderson went to the female locker room to get a radio to listen to while she worked.  She did so at around 7.10am.  She says that when she went to the locker room, Ms Bellinger was present.  An incident occurred between Ms Anderson and Ms Bellinger.  There is some dispute about exactly what happened.  Ms Anderson says that immediately after the incident, she went to see Mr Matthews, who was, on that day, her co-worker on day shift, and said, “I think I’ve fucked up”, to which Mr Matthews said, “Why?”.  Ms Anderson said, “I’ve had a run-in with Kristy (ie Ms Bellinger) in the toilets”, to which Mr Matthews asked, “What happened?”.  Ms Anderson said, “We have just had words and some contact and now she is threatening to get me the sack”.  Mr Matthews said that he would talk to Ms Bellinger about the matter.  When Mr Matthews came back to Ms Anderson shortly afterwards, he said:

   “I’ve spoken to her.  She is not going to do anything.  In fact she is surprised that you have not said anything to her until now.  She was surprised that it has taken this long for you to snap”,

   or words to that effect.

8. In late 2012, Ms Anderson was asked by her employer to work on weekends.  She told her employer that she would be prepared to work on weekends but not if Ms Bellinger was also working.  She explained this on the basis that she felt threatened by Ms Bellinger’s aggressive tendencies and did not feel safe working with her on weekends with no supervisors around.  She informed the Production Manager, Mr Stephen Craike, of her reason for not wishing to work overtime on weekends. 

9. The General Manager of Detmold Packaging, Mr Thomas Sullivan, gave evidence.  Mr Sullivan gave evidence that part of his role was to be the person to make final decisions whenever it was proposed that an employee of the respondent be dismissed from his or her employment.  Mr Sullivan said that it is the policy of Detmold Packaging that all terminations of an employee’s employment requires the general manager’s approval.  The decision to dismiss is the general manager’s decision and no one else’s.

10. Mr Sullivan said that in late September or early October 2012, he was advised by David Jeffries, the company’s Human Resources Manager, that he was conducting an investigation into a complaint by an employee of Detmold Packaging, namely Kristy Bellinger.  He said that Kristy had alleged that she had been assaulted by Ms Anderson in November 2011 in the female locker room at the Detmold Packaging’s premises.  He says that he recalled numerous informal discussions with Mr Jeffries during the course of the investigation, during which discussions Mr Jeffries updated him on the progress of the investigations.  Mr Sullivan commented that the respondent could not be seen to support or condone violence in the workplace. 

11. Mr Sullivan says that on 29 October 2012, Mr Jeffries met with him and advised him that he had concluded his investigation into the locker room incident.  Mr Sullivan says that Mr Jeffries gave him a summary of his findings from the investigation.  Mr Sullivan noted that Mr Jeffries had found that Ms Anderson had assaulted Kristy Bellinger in the course of the locker room incident.  Mr Sullivan says that Mr Jeffries provided him with comments and recommendations as to what disciplinary action should be taken in relation to the applicant. 

12. Mr Sullivan says that he recalls that Mr Jefferies was concerned that if the company did not dismiss Ms Anderson for assaulting Ms Bellinger that this would send a message to the workforce that this sort of behaviour was not taken seriously by Detmold Packaging.

13. Mr Sullivan recollects that he spoke to Mr Jeffries briefly about the potential risk for the company in terminating Ms Anderson’s employment.  In particular, Mr Jeffries was concerned that the incident had occurred some time ago and that the investigation had revealed that Kristy had told her manager, Mr Steve Craig, and a Human Resources Officer for Detmold Packaging, Jacky Heton, about the incident.  Mr Jeffries expressed the strong view to Mr Sullivan that now that senior management were aware of the locker room incident and the assault that took place, that the company could not be seen to condone Ms Anderson’s behaviour.  On this basis, it was Mr Jeffries’ recommendation that Ms Anderson’s employment be terminated. 

14. Mr Sullivan made the point in cross-examination that he did not always accept the recommendations of Mr Jeffries, but in this case, on the basis of the material provided, he considered it appropriate to adopt Mr Jeffries’ recommendation.  The recommendation was that Ms Anderson’s employment be terminated.  Mr Sullivan gave evidence that he considered that the company had a legal duty to ensure the safety of its employees in the workplace.  Accordingly, he decided it was appropriate to terminate Ms Anderson’s employment on the basis that she had engaged in serious and wilful misconduct during the locker room incident.  At the end of the meeting, Mr Sullivan instructed Mr Jeffries to terminate Ms Anderson’s employment.

15. Mr Sullivan gave evidence that he understood that Ms Anderson asserted, as part of these proceedings, that her employment was terminated because she made a request to not be placed on overtime with Kristy Bellinger.  Mr Sullivan said that he was not aware of any such request at the time of his meeting with Mr Jeffries on 29 October 2013 and that this did not therefore form part of any discussion during that meeting.

16. It follows from Mr Sullivan’s evidence that the reason that Ms Anderson’s employment was terminated was solely for the reason that she was guilty of serious and wilful misconduct.  I found Mr Sullivan to be a reliable and truthful witness.  I accept as true and accurate what Mr Sullivan said.  He was not cross-examined to suggest any other reason for Ms Anderson’s termination. 

17. I find that the sole reason for Ms Anderson’s termination of employment was the employer’s belief that Ms Anderson was guilty of serious and wilful misconduct.  The employer was entitled to summarily dismiss for such conduct and did so.

18. No issue under s.361(i) of the Act arises in this case.

19. I make the orders to be found at the beginning of these reasons. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  5 March 2015