Benjamin Morovan v Laverton Cold Storage Pty Ltd

[2020] FWC 2999

[2020] FWC 2999

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benjamin Morovan
v
Laverton Cold Storage Pty Ltd
(U2019/13484)

DEPUTY PRESIDENT COLMAN MELBOURNE, 9 JUNE 2020

Application for an unfair dismissal remedy – aggressive behaviour towards co-workers – valid reason – relevance of WorkCover claim – dismissal not unfair – application dismissed

[1] This decision concerns an application made by Mr Benjamin Morovan under s 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy. From 4 January 2018 until his dismissal on 20 November 2019 Mr Morovan was employed by Laverton Cold Storage Pty Ltd (company) as a forklift and reach operator. From July to November 2019, the company received complaints from several employees about Mr Morovan behaving aggressively. On 22 October 2019, the company placed Mr Morovan on a ‘performance improvement plan’ directed at improving his behaviour. Among other things, it required Mr Morovan to remove himself from any situation involving conflict and not to use intimidating tones. Some two weeks later, on 8 November 2019, the company received another complaint about Mr Morovan, this time from an administrative officer who said that Mr Morovan had spoken to her aggressively on the telephone. She had been reduced to tears. The company put the new allegation to Mr Morovan, and after considering his response, concluded that the allegation was substantiated and terminated his employment. Mr Morovan was paid two weeks in lieu of notice.

[2] Mr Morovan denies that he was aggressive towards his co-workers and contends that the company did not have a valid reason to dismiss him. He also submits that his dismissal was in contravention of s 103 of the Workplace Injury Rehabilitation and Compensation Act2013 (Vic) (WIRC Act), because the company did not continue to provide him with employment until the end of the 12-month ‘employment obligation period’ following a workplace Achilles heel injury sustained in April 2019. He contends that his dismissal was unfair.

[3] The company contends that Mr Morovan’s aggressive behaviour towards his colleagues was unacceptable and that it continued even after he was warned about it. It says that it had a valid reason to dismiss Mr Morovan, and that s 103 of the WIRC Act is not relevant. It contends that the dismissal was not harsh, unjust or unreasonable.

[4] Section 396 of the Act requires that I decide four matters before considering the merits of Mr Morovan’s application. There is no dispute, and I am satisfied, of the following matters. First, Mr Morovan’s application was made within the 21-day period required by s 394(2) of the Act. Secondly, Mr Morovan was a person protected from unfair dismissal, as he earned less than the high income threshold and has completed a period of employment of at least the minimum employment period (s 382). Thirdly, the dismissal was not a case of genuine redundancy. Fourthly, the company is not a small business for the purposes of the Act, and therefore no question of compliance with the Small Business Fair Dismissal Code arises.

[5] The factual background centres on the incidents in which Mr Morovan was considered by the company to have behaved inappropriately towards certain co-workers, and in particular the telephone call with the administrative officer, Ms Linda Muggianu, on 8 November 2019. Various matters are contested and require factual findings.

The first incident

[6] On or about 8 July 2019, Mr Josh Barnes, who is responsible for human resources matters at the company, received a complaint from an employee, Mr Ilaisa Palavi, about Mr Morovan’s behaviour. Mr Palavi said that he was upset about the way Mr Morovan had spoken to him during a disagreement on 5 July 2019. Mr Palavi had wrapped a particular pallet incorrectly, resulting in Mr Morovan having to redo the work and perform overtime. As Mr Morovan said in his evidence, this had made him ‘agitated’.

[7] On 10 July 2019, Mr Barnes met with Mr Morovan and asked him about the incident. Mr Barnes’ evidence was that Mr Morovan acknowledged that he had ‘probably’ sworn at Mr Palavi but that it had been in the heat of the moment. Mr Barnes told Mr Morovan that swearing at a co-worker was ‘absolutely not on’ and that aggression would not be tolerated. 1 Mr Morovan then said words to the effect of ‘this is bullshit why am I getting into trouble for this?’ Mr Barnes’ evidence was that during this discussion, Mr Morovan raised his voice and was red in the face. Mr Barnes made a note of his discussion with Mr Morovan at the meeting on 10 July 2019, which was adduced in evidence as ‘Document 2’ to Mr Barnes’ statement. It is headed ‘Ben M’s version of events for Saturday night’ and records Mr Morovan as having said that ‘Ilaisa started swearing first’.

[8] Mr Barnes said in his witness statement that Mr Palavi provided a written complaint. In his oral evidence, Mr Barnes clarified that the written complaint was a statement he took from Mr Palavi; after initially speaking with Mr Palavi about the incident, he met with Mr Palavi on 11 July 2019 and wrote down what Mr Palavi said about the incident, in Mr Palavi’s words. Mr Palavi then wrote his name and signed the hand-written document. This was produced as ‘Document 1’ to Mr Barnes’ statement. The note records Mr Palavi saying that Mr Morovan became angry and started swearing and saying ‘what the fuck?’

[9] Mr Morovan’s evidence was that he did not swear or get angry at Mr Palavi during the incident on 8 July 2019. He also said that he did not have any meeting with Mr Barnes on 10 July 2019 and that the incident with Mr Palavi was not raised with him until September. Mr Morovan said that Mr Barnes’ evidence about the meeting on 10 July was made up.

The second incident

[10] On 17 September 2019, Mr Barnes received another complaint about Mr Morovan from a different employee. Mr Caleb Lalota told Mr Barnes that on 13 September 2019 Mr Morovan had sworn and acted aggressively towards him, after Mr Lalota had accidentally damaged some cartons on a pallet with which Mr Morovan was working. Mr Lalota told Mr Barnes that, after he hit the pallet, Mr Morovan began swearing, saying that he had ‘damaged his fucking pallet’, and that he asked Mr Morovan to calm down but he became angrier and kept swearing. Mr Barnes took down a brief hand-written statement from Mr Lalota about the incident, which was attached to Mr Barnes’ statement as ‘Document 2B’.

[11] The following week, on 24 September 2019, Mr Barnes spoke to Mr Vinh Nguyen about the incident. Mr Nguyen said that he had been working in the transport office on 13 September 2019, when Mr Morovan had come in and said that Mr Lalota had damaged one of his pallets, and that Mr Morovan was ‘fuming’. He said that Mr Morovan told him that Mr Lalota was a ‘lazy fuck’. Mr Barnes made a note of his discussion with Mr Nguyen. Mr Barnes and Mr Nguyen gave evidence about these matters. Mr Morovan denied that he swore about Mr Lalota in front of Mr Nguyen. He said that Mr Nguyen was making them up.

[12] On 24 September 2019, Mr Barnes met with Mr Morovan to discuss the incident involving Mr Lalota. Mr Barnes’ evidence was that, when Mr Morovan realised what the meeting was about, he became very agitated, began cutting him off, and was aggressive. Mr Morovan told Mr Barnes that Mr Lalota had torn cartons on his pallet. Mr Morovan also said that he had referred to Mr Lalota as a ‘fatty’. Mr Barnes told Mr Morovan that it was unacceptable to refer to a colleague as fat, to which Mr Morovan said words to the effect of ‘if you have a problem with your image, do something about it.’ Mr Barnes’ evidence was that Mr Morovan became agitated, such that he began to be concerned for his own safety. Mr Barnes adjourned the meeting to the next day and suggested that Mr Morovan bring a support person.

[13] On 25 September 2019, Mr Morovan attended a further meeting with Mr Barnes about the incident with Mr Lalota. In attendance were Mr Rowe, and Ms Claire Lewis from the United Workers’ Union (UWU). Mr Morovan denied having sworn at or about Mr Lalota. Mr Morovan said that he had referred to Mr Lalota as a ‘fatty’ in front of Mr Nguyen, but that this was in the heat of the moment. Mr Barnes told Mr Morovan that it was unacceptable to call people ‘fatty’ and gave Mr Morovan a copy of the company’s bullying and harassment policy to read. Mr Morovan signed a document to confirm that he had received it.

The performance improvement plan

[14] Mr Barnes continued to have concerns about Mr Morovan’s behaviour. On 14 October 2019 he spoke to Mr Morovan’s immediate supervisor, Ms Leen Akariri, and took a statement from her. Ms Akariri said that Mr Morovan would swear to the point that it intimidated other employees, including her, and that there had been multiple occasions where Mr Morovan had lashed out verbally at other staff. Ms Akariri said that she believed Mr Morovan had serious issues with his anger.

[15] On 22 October 2019, Mr Morovan attended a meeting with Mr Barnes and Mr Mathew Rowe, the company’s general manager, as well as Mr Richard Ralph, the company’s managing director, to discuss his behaviour. Mr Barnes raised his concerns about Mr Morovan’s aggressive behaviour and swearing and said that this affected the well-being and work of other employees. Mr Barnes issued Mr Morovan with a ‘performance improvement plan’ (PIP). It stated that the ‘required outcomes’ were for Mr Morovan to remove conflict in the workplace between himself and other employees; ensure that he did not swear at any members of staff ‘or use intimidating tones’; for all staff to feel safe; and for Mr Morovan to adhere strictly to the bullying and harassment policy. Mr Morovan agreed and signed the PIP.

The third incident

[16] In the week leading up to the third incident, Mr Morovan was absent from work on personal leave. On 30 October 2019, he had injured his eye at work and then taken two days of personal leave. Around this time, his grandfather died. Then on 2 November 2019, he suffered what he described as a ‘seizure’ at home after which, he said, his speech was affected by slurring. Mr Morovan submitted medical certificates to the company covering his absence from work until 8 November 2019. On or around 7 November 2019, Mr Morovan called the company’s absentee line, and, referring to a sore eye, provided a return to work date of 14 November 2019.

[17] On 8 November 2019, Mr Morovan called the office and asked to speak to Mr Barnes. Ms Muggianu, the company’s administrative officer, answered the call. She asked Mr Morovan why he had specified 14 November 2019 as the day he would return to work. Ms Muggianu’s evidence was that Mr Morovan then raised his voice and said words to the effect of ‘well it hasn’t happened yet, has it.’ She asked him to calm down and said that she was only asking him a question. Still in a raised voice, Mr Morovan asked whether Ms Muggianu had read his incident report about the eye injury and said that he would be seeing the doctor. He said that the injury had made his speech slur. Ms Muggianu asked Mr Morovan if his injury was causing him to be rude to her. Mr Morovan asked her why she was bullying him. She replied that she could not understand how she was bullying him. He again told Ms Muggianu that she was bullying him. Ms Muggianu hung up.

[18] Ms Muggianu’s evidence was that during the conversation, which lasted several minutes, she asked Mr Morovan several times to calm down. She asked him to speak to her respectfully. She said that his manner was extremely aggressive, threatening and intimidating. 2 She said that Mr Morovan’s speech was not slurred at all, he was simply yelling at her, and that, apart from at the very start of the conversation, he had spoken in a raised voice, or was yelling, throughout the conversation. After the call, she was very upset, and in tears.

[19] In stark contrast, Mr Morovan said in his witness statement that the conversation proceeded in a normal and business-like tone, and that he did not yell. In oral evidence he said that he spoke normally. He said that, after he explained why he would be returning on 14 November 2019, Ms Muggianu had accused him of being aggressive, and that he was surprised because his tone had not changed. In cross-examination, when it was put to him that he raised his voice and kept it raised, he said that he was ‘not aware’ that his voice was raised, and that he was going through a lot of emotion.

[20] Mr Barnes’ evidence was that when he arrived at work on 8 November 2019, he saw that Ms Muggiano was crying. He asked her what had happened. She told him that she had just got off the phone from Mr Morovan and that he had been aggressive and rude, yelling at her over the phone. Mr Barnes had never seen Ms Muggianu cry. He told her to take her time and write down what had happened. Later that day Ms Muggianu sent Mr Barnes an email about what had happened. Mr Barnes also spoke to Ms Fiona Ralph from accounts, who was present during the telephone conversation. She told him that she had heard a loud voice with an aggressive tone on the other end of the line.

The final days of employment

[21] When Mr Morovan returned to work on 18 November 2019, Mr Barnes and Mr Rowe met him outside reception and gave him a letter which alleged that he had yelled at and been aggressive towards Ms Muggianu, which had intimidated her, in breach of the PIP. He was directed to attend a meeting and told that he was stood down with pay pending the meeting. According to Mr Barnes, Mr Morovan said to him, twice, ‘are you retarded?’ Mr Barnes escorted Mr Morovan from the premises, and on the way, Mr Morovan said to him: ‘Do you feel like a big man? Have you got anything to say to me? You’re such a big tough guy, aren’t you?’ Mr Barnes believed that Mr Morovan was trying to bait him into a physical altercation.

[22] Mr Morovan denied asking Mr Barnes if he was ‘retarded’. He said that Mr Barnes had made this up. He acknowledged saying ‘you’re such a big tough guy, aren’t you? do you feel like a big man’ but said that this was in the context of his having said to Mr Barnes that he was ‘picking on a depressed person.’ Mr Barnes denied that Mr Morovan said these words.

[23] A disciplinary meeting occurred on 20 November 2019. In attendance were Mr Barnes, Mr Rowe, Mr Morovan and Ms Lewis from the UWU. Mr Morovan was asked to respond to the allegations in the letter that had been given to him on 18 November 2019. He denied the allegations and said that he had not shouted at Ms Muggianu and had spoken normally. Ms Lewis told Mr Barnes and Mr Rowe that Mr Morovan had been stressed and was also mourning his grandfather’s passing. She said that the allegations against Mr Morovan were false but that he was willing to apologise.

[24] Mr Barnes and Mr Rowe then adjourned the meeting to consider the company’s disciplinary response. They did not accept Mr Morovan’s denial of the allegations. They resumed the meeting and told Mr Morovan that his employment was terminated and that he would be provided with two weeks’ pay in lieu of notice. Mr Morovan was then sent a letter dated 21 November 2019 confirming the termination of his employment.

Factual findings

[25] In relation to the first incident, I make the following findings. I accept Mr Barnes’ evidence that he met with Mr Morovan on 10 July 2019 and spoke to him about the incident with Mr Palavi. Mr Barnes was a credible witness. He answered questions clearly and convincingly and without an eye to forensic advantage. His evidence of the meeting with Mr Morovan on 10 July 2019 was detailed, and consistent with the note he made from his discussion with Mr Morovan. The note described Mr Morovan’s behaviour at the meeting, including that he was upset and raising his voice. I believe Mr Barnes’ evidence. I do not believe Mr Morovan’s evidence. I find it implausible that there was no such meeting, and that Mr Barnes’ detailed evidence of this meeting was made up.

[26] I also accept Mr Barnes’ evidence that during the meeting on 10 July 2019, Mr Morovan said that he had probably sworn at Mr Palavi. This is consistent with Mr Barnes’ note of the meeting, which records this statement. It is consistent with Mr Morovan’s evidence that he was ‘agitated’ during the incident with Mr Palavi. I also accept Mr Barnes’ evidence that he told Mr Morovan that the company would not tolerate swearing or aggression in the workplace.

[27] As to the second incident, I make no finding about whether Mr Morovan swore at or towards Mr Lalota by saying ‘you’ve damaged my fucking pallet’. What Mr Lalota told Mr Barnes about the incident is hearsay, and unlike the incident with Mr Palavi, there is no evidence of Mr Morovan acknowledging having sworn. However, I accept Mr Nguyen’s evidence that Mr Morovan said to him that Mr Lalota was a ‘lazy fuck’. And I accept Mr Barnes’ evidence that Mr Morovan acted aggressively towards him during the meeting on 24 September 2019, to the point that Mr Barnes had a concern for his safety and adjourned the meeting for this reason.

[28] As to the third incident, I accept Ms Muggianu’s evidence about Mr Morovan’s behaviour during the telephone call on 8 November 2019. I found her evidence to be unembellished and convincing. She was a witness of truth. Her account is corroborated by the evidence of Ms Ralph, who was in the same room as Ms Muggianu at the time of the call. Ms Ralph said that she heard Ms Muggianu speaking on the phone and that her tone and manner were polite. Ms Ralph said that she could hear the other person speaking in a loud voice with an aggressive tone. She said that at the end of the call, she told Ms Muggianu that she had done well to remain calm, and that she saw how upset Ms Muggianu was. I accept Ms Ralph’s evidence. I find that Mr Morovan yelled at Ms Muggianu and was rude and aggressive towards her. I find that he reduced her to tears. I find nothing in the evidence to suggest that Ms Muggianu was hypersensitive. I reject Mr Morovan’s evidence that he spoke normally.

[29] Finally, as to what occurred on 18 November 2019 when Mr Barnes was escorting Mr Morovan from the premises, I find that Mr Morovan said to Mr Barnes: ‘Are you retarded?’ and ‘Do you feel like a big man? Have you got anything to say to me? You’re such a big tough guy, aren’t you?’ I accept Mr Barnes’ evidence about this incident, including his evidence that Mr Morovan did not say that Mr Barnes was picking on a depressed person. Again, Mr Barnes was a credible witness whose evidence was detailed and consistent and in keeping with other witnesses’ evidence about Mr Morovan’s behaviour. By contrast, Mr Morovan’s evidence was that Mr Barnes had fabricated his evidence about the July meeting and the incident on 18 November 2019, that Mr Nguyen had made things up, and that Ms Muggianu’s evidence was also false. This is implausible. And I accept these witnesses’ evidence.

[30] Mr Barnes said that Mr Rowe had been a witness to the final incident on 18 November 2019 and could corroborate his account. During the hearing, the company’s counsel offered to call Mr Rowe. Mr Morovan’s counsel was opposed to this course. The fact is that Mr Barnes’ evidence was credible and convincing. It does not require corroboration.

Was Mr Morovan’s dismissal unfair?

[31] For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable. In considering whether it is so satisfied, the Commission must take into account the matters specified in s 387. I will address each of these matters in turn below.

Was there a valid reason for dismissal (s 387(a))?

[32] The Act directs consideration of whether there was a valid reason for the dismissal related to the person’s capacity or conduct. A valid reason is one that is sound, defensible and well-founded. The question the Commission must address is whether there was a valid reason, in the sense both that it was a good or sufficient reason, and a substantiated reason.

[33] In cases relating to alleged misconduct, the Commission must make a finding on the evidence provided as to whether, on the balance of probabilities, the conduct occurred. It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. Where allegations of misconduct are made, the standard of proof in relation to whether the alleged conduct occurred is the balance of probabilities.

[34] Based on my factual findings, of which I am more than comfortably satisfied on the balance of probabilities, I consider that the company clearly had a valid reason to dismiss Mr Morovan. On several occasions over a period of some five months, Mr Morovan behaved in an aggressive and inappropriate manner towards several colleagues. It began with Mr Palavi. Mr Barnes told Mr Morovan that aggressive behaviour was not acceptable. Then followed the incident with Mr Lalota. Exactly what occurred is unclear. But Mr Barnes had concerns about Mr Morovan’s behaviour. He did what a conscientious manager ought to do. He followed up on his concerns. He spoke with Mr Morovan’s supervisor, Ms Akariri. She said that Mr Morovan’s behaviour intimidated others and that he had anger issues. Mr Barnes put Mr Morovan on a PIP to improve his behaviour. Mr Morovan agreed to this. The PIP stated that the required outcomes were that Mr Morovan must avoid conflict and not ‘use intimidating tones with any members of staff’. Less than three weeks later, Mr Morovan yelled at Ms Muggianu and reduced her to tears. Then, after having been told that he was required to attend a disciplinary meeting about the incident with Ms Muggianu, he taunted Mr Barnes with obnoxious comments, asking him if he was ‘retarded’. He acted contrary to the PIP. Even if there had been no PIP, this behaviour would have been patently unacceptable.

[35] The incidents involving Mr Palavi and Mr Lalota consumed much time in the proceedings. But even putting these prior incidents to one side, the fact is that Mr Morovan was told not to be aggressive. He acknowledged in cross-examination that he understood that he was not to be aggressive in the workplace. But he proceeded to be aggressive anyway. I consider that Mr Morovan’s mistreatment of Ms Muggianu, after he was told that aggressive behaviour was unacceptable, constituted a valid reason for dismissal. Ms Muggianu was just doing her job, asking him about his sick leave. In response, Mr Morovan was rude and aggressive. He yelled at her. He made her cry.

[36] I consider that the company had a further valid reason for dismissing Mr Morovan, constituted by his aggressive behaviour towards Mr Barnes on 18 November 2019. This conduct too was in breach of the PIP. Mr Morovan’s comments were rude, goading and aggressive. This behaviour also occurred immediately after Mr Morovan was told that he was required to attend a meeting about the incident with Ms Muggianu, and that he was stood down until that time. His comments to Mr Barnes were therefore also defiant and brazen.

[37] Mr Morovan’s primary contention was that there was no valid reason because he did not engage in aggressive behaviour, including towards Ms Muggianu. My findings above dispose of this contention. However, he further contended that the conduct alleged by the employer would not be an adequate reason to terminate his employment and could not be considered a valid reason for his dismissal. He said that the conduct alleged against him was not serious enough to warrant his dismissal.

[38] This contention rests on a premise that employees should simply toughen up and tolerate inappropriate behaviour from their co-workers. I reject this premise. Workers must be treated with respect by employers and co-workers alike. They should not have to tolerate aggression, swearing, or other inappropriate behaviour directed towards them by those with whom they work. The mistreatment by an employee of a co-worker is not to be brushed off as trivial.

[39] Several other submissions were advanced by Mr Morovan as to why the Commission should nevertheless conclude that there was no valid reason for dismissal. First, he said that the letter of termination stated that the reason for his dismissal was that he shouted and was aggressive and intimidating towards Ms Muggianu. He denied shouting (which I reject), but also said that these matters are subjective and not amenable to proof. I reject this contention. Plainly it is possible for findings to be made about whether particular conduct is aggressive or intimidating, and whether a person was shouting or speaking normally.

[40] Secondly, Mr Morovan submitted that, in the meeting at which his employment was terminated, Mr Barnes said that the company had taken into account the statements of other workers about his conduct, and that, despite Ms Lewis asking for these statements, they were not provided. It appears that Mr Barnes was referring to the information provided to him by Ms Akariri and Ms Ralph. However, this was simply further evidence demonstrative of the fact that the allegations were substantiated. A fair process ordinarily requires the relevant allegations to be put to the employee. It does not necessarily require that all of the collated evidence that might support the allegations be provided to the employee. Of course, if there is some piece of evidence that is not provided to the employee, and the employee turns out to have a compelling response to it that the employer never hears, the employer runs the risk of making a disciplinary decision without a complete picture. That risk has not materialised in this case.

[41] In any event, I note that Mr Morovan knew that Mr Palavi and Mr Lalota had complained about his behaviour, and although he was not aware of the information provided by Ms Akariri and Ms Ralph, he has had the opportunity to cross-examine these witnesses and challenge their evidence. Far from casting doubt on the company’s conclusions about Mr Morovan’s conduct, their evidence has only reinforced those conclusions.

[42] Thirdly, Mr Morovan referred to certain mitigating factors. I return to these when considering other relevant matters for the purpose of s 387(h). They do not affect my conclusion that there was a valid reason for dismissal.

[43] Fourthly, Mr Morovan contended that the PIP document was not a warning and that this somehow impugns the validity of the reason for dismissal. These matters are considered in connection with s 387(e) and (h) below.

[44] Finally, Mr Morovan contended that on 17 April 2019 he had sustained a workplace injury to his Achilles heel, and that he was therefore within the 12-month ‘employment obligation period’ for the purpose of s 103(1) of the WIRC Act. That provision states:

“(1) An employer must, to the extent that it is reasonable to do so, provide to a worker until the expiration of the employment obligation period –

(a) suitable employment, while the worker has a current work capacity; and

(b) pre-injury employment, while the worker no longer has an incapacity for work.”

[45] Mr Morovan contended that s 103(1) prohibited the company from terminating his employment. The contention is misconceived.

[46] Section 103 must be read in the context of the division and the part of the Act in which it sits. Part 4 of the WIRC Act is concerned with the return to work of injured workers. As s 97 explains, the purposes of Part 4 include to provide that employers, workers and others involved in the return to work process co-operate to ensure that workers successfully return to work, and that employers are responsible for providing pre-injury employment or suitable employment to enable workers to return to work. The section is simply not concerned with the dismissal of an employee for misconduct or other reasons unrelated to a workplace injury.

[47] Mr Morovan relied on a passage in a Full Bench decision which stated that‘a dismissal may be prohibited by State workers compensation legislation or otherwise unlawful’, in which case it would be ‘highly likely, bordering on certain, that there could be no valid reason for the dismissal in that event’. 3 But the immediately preceding sentences in that decision make clear that the Full Bench was talking about a situation where an employer dismisses an employee because of an inability to perform the inherent requirements of a position. Obviously, where an employer dismisses an employee for reason of capacity, and the employee has a workplace injury, s 103 may be relevant. But it is not relevant in cases where the reason for dismissal has nothing whatsoever to do with a workplace injury, which is the case here. Mr Morovan does not allege that his dismissal is related to his Achilles heel injury or a return to work, and there is no basis in the evidence for any such contention.

[48] In any event, s 103(1) only imposes an obligation on an employer to provide employment ‘to the extent that it is reasonable to do so’. It is not reasonable to expect an employer to refrain from dismissing an employee for misconduct for 12 months following a workplace injury, where the misconduct does not have the remotest connection with the injury. Moreover, in this case, Mr Morovan’s conduct was in my view creating a risk to the wellbeing of other employees. It would have been especially unreasonable to expect the company to continue to provide employment to Mr Morovan in these circumstances.

Notification of reasons for dismissal, opportunity to respond (s 387(b) and (c))

[49] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and afforded an opportunity to respond to any reason related to conduct or performance. In order to tell against a finding that the dismissal was unfair, notification of the reason should occur before the decision to dismiss is made. The question of whether an employee had an opportunity to respond to reasons relating to conduct or performance should be understood in a common sense way; the focus of the consideration is whether the employee is treated fairly, rather than on any formality.

[50] In his written submissions, Mr Morovan contended that he was not notified of the reason for dismissal prior to the decision to dismiss him, and that any notification was not conveyed in clear terms. I note that the consideration in s 387(b) is whether the person was ‘notified of that reason’, which is a reference to the valid reason referred to in s 387(a). In the present case, I consider that, in light of what had preceded the meeting, and in particular the allegations letter, Mr Morovan was on notice about the proposed reasons for his termination and was also notified, in plain terms, of the actual reason once the decision was taken.

[51] The allegations letter given to Mr Morovan in advance of the final meeting set out the allegations against him, namely that he was yelling and aggressive on the telephone, that he intimidated Ms Muggianu, and that he had breached the PIP. The letter stated that the possible outcomes of the meeting included dismissal. At the meeting, Mr Morovan was assisted by Ms Lewis from the UWU. She said that the allegations against him were false but that he was willing to apologise to Ms Muggianu. She said that he was stressed and going through a difficult period. Mr Barnes and Mr Rowe adjourned the meeting to consider their position. The company did not accept Mr Morovan’s denials. They decided that Mr Morovan posed a health and safety risk. They resumed the meeting and told Mr Morovan that his employment was terminated. He received a letter dated 21 November 2019 that referred to what was clearly the reason for his dismissal, namely his aggressive and intimidating behaviour toward Ms Muggianu, after having been told that such conduct was not to occur. I am satisfied that Mr Morovan was notified of the valid reason for his dismissal. Even if he had not been notified, the reason would have been obvious.

[52] Mr Morovan also contended that he was not given an adequate opportunity to respond to the reasons that were relied upon to terminate his employment. I reject this contention. The allegations letter set these out. Mr Morovan denied being aggressive. The company rejected his denials.

[53] Mr Morovan submitted that he was not shown the complaint of Ms Muggianu and other hand written statements taken from various persons by Mr Barnes, including Ms Akariri. Ms Lewis said in her statement that she had requested in the termination meeting that the company provide her with statements from other workers on site that concerned Mr Morovan’s behaviour, but that the company refused, on the basis that they were confidential. But again, it was not necessary for the company to provide Mr Morovan with all of its evidence. The central question was whether the allegations concerning Mr Morovan’s treatment of Ms Muggianu were substantiated, and therefore whether Ms Muggianu’s version of events should be preferred to that of Mr Morovan. This was put to him. The company believed Ms Muggianu and so do I.

[54] I consider that Mr Morovan was afforded an opportunity to respond to the matters in the allegations letter. He was given an adequate opportunity to respond to the reason for his dismissal, which related to his conduct, and in particular his mistreatment of Ms Muggianu.

Support person (s 387(d))

[55] There is no suggestion that the company refused, unreasonably or otherwise, to allow Mr Morovan to have a support person present to assist at any discussions relating to dismissal. Ms Lewis from the UWU attended the meeting on 20 November 2019.

Warning about unsatisfactory performance (s 387(e))

[56] If a dismissal relates to unsatisfactory performance, s 387 requires the Commission to consider whether the person has been warned about the unsatisfactory performance prior to dismissal. As noted above, the valid reason for dismissal I have found to exist in the present matter relates fundamentally to conduct. In the circumstances it was not necessary for Mr Morovan to have been warned about the conduct for which he was dismissed. Mr Morovan noted that his employment separation certificate cited, as the reason for dismissal, unsatisfactory performance and failing to meet a performance improvement plan. And the company’s initial submission, prior to obtaining legal representation, also referred to underperformance. I would not characterise the dismissal as one related to performance but I accept that there is not always a bright line between conduct and performance.

[57] To the extent that the dismissal could be characterised as being related to poor performance, such that the question of whether the applicant was warned is relevant under s 387(e), I consider that the PIP constituted, in substance, a warning. It stated that Mr Morovan was required to avoid conflict, to ‘ensure he does not … use intimidating tones with any members of staff’ and reminded him to adhere strictly to the anti-bullying and harassment policy. The PIP confirmed the required standards of behaviour. Mr Morovan was told what the company expected of him. In addition, after the meeting concerning the first incident, Mr Barnes orally warned Mr Morovan that the company would not tolerate swearing or aggression towards employees. Finally, and in any event, a person should not have to be warned not to behave aggressively towards co-workers.

Size of the enterprise, dedicated human resources (section 387(f) and (g))

[58] The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal. In my view, these considerations do not carry weight in the analysis of whether Mr Morovan’s dismissal was unfair.

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

[59] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is to take into account any other matters that it considers relevant. The proportionality of the dismissal to the conduct that is the subject of a valid reason is a matter to be considered in connection with s 387(h).

[60] The conduct that I have found Mr Morovan to have engaged in was of sufficient gravity to warrant his dismissal. For the purposes of my consideration of s 387, I consider that the company’s dismissal of Mr Morovan with the payment of two weeks in lieu of notice was not disproportionate to the conduct in question. It is also relevant to note again, in the context of s 387(h), that Mr Morovan had been told by Mr Barnes that he must not be aggressive towards co-workers. The PIP document told him not to use intimidating tones. Ms Muggianu was then subjected to Mr Morovan’s bad tempered and aggressive behaviour on 8 November 2019.

[61] Mr Morovan said that the PIP review period still had several months to run, as the final review date was not until mid-January 2020. He said that it is relevant to the consideration of unfairness, and in particular the question of whether the dismissal was harsh, that the PIP was not allowed to run its course. He also said that the fortnightly meetings contemplated by the PIP did not occur. However, the PIP did not commit the company to refrain from dismissing Mr Morovan until the end of the PIP process. The PIP did not mean that he was free to behave aggressively towards colleagues in the interim. As to the fortnightly meetings, these evidently did not occur because Mr Morovan was absent on compassionate and personal leave for much of the period between the commencement of the PIP and his dismissal.

[62] Mr Morovan also contended that, because the PIP stated that his employment would be in jeopardy if he failed to report conflict or potential conflict, but not in other situations, he was not properly warned, and that (as I understand the submission) the dismissal did not conform to the PIP. But there is no sensible basis to read the PIP as implying that the company would only dismiss Mr Morovan in this one circumstance, just as it cannot be read as undertaking not to terminate his employment before the end of the review period. I also note that Mr Morovan did not report the conflict with Ms Muggianu, as the PIP required him to do.

[63] I take into account Mr Morovan’s submissions that his dismissal has caused him financial hardship, that he was mourning the passing of his grandfather, and that he had various medical problems. I also take into account that Mr Morovan does not recognise that he has done anything wrong. Although through Ms Lewis he offered to apologise to Ms Muggianu, he has clearly not done so. I accept Ms Muggianu’s evidence that she has not had any contact with him since the dismissal. This is not a case where an employee has behaved badly but has then expressed remorse, promised not to repeat the bad behaviour, and asked for another chance. It is case of repeated bad behaviour, with an absence of any appreciation of this fact.

Conclusion

[64] Taking into account all of the circumstances and the considerations in s 387, I consider that the dismissal of Mr Morovan was not harsh, unjust or unreasonable and that accordingly his dismissal was not unfair. Mr Morovan’s application for an unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

G. Dircks for Mr Morovan
J. Hooper of counsel for Laverton Cold Storage Pty Ltd

Hearing details:

2020
Melbourne (by video)
26 and 27 May

Printed by authority of the Commonwealth Government Printer

<PR720024>

 1   Witness statement of Josh Barnes, paragraphs 10 and 17

 2   Witness statement of Linda Muggianu, paragraphs 22 and 39

 3   Boag and Son Brewing Pty Ltd v Button[2010] FWAFB 4022 at [29]