Brendan Goddard v Smithbridge Australia Pty Ltd
[2012] FWA 6024
•26 JULY 2012
[2012] FWA 6024 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brendan Goddard
v
Smithbridge Australia Pty Ltd
(U2011/2372)
COMMISSIONER GOOLEY | MELBOURNE, 26 JULY 2012 |
Application for unfair dismissal remedy.
[1] Mr Brendan Goddard (the Applicant) was employed by Smithbridge Australia Pty Ltd (the Respondent) from 15 November 2010 until his employment was terminated on 18 November 2011.
[2] The Applicant lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging that he was unfairly dismissed. The application was referred to conciliation on 14 December 2011, and then for hearing on 14 -16 May 2012.
[3] Mr Ben Green of the CFMEU appeared for the Applicant and Mr D Pratt of Counsel was given permission to appear for the Respondent.
Jurisdiction of Fair Work Australia
[4] There is no dispute that the Applicant is a person who was protected from unfair dismissal. Fair Work Australia has the jurisdiction to determine the application.
The parties
[5] The Applicant 1 was employed by the Respondent to perform carpentry and form work at the wharf at Fisherman’s Island where the Respondent was building a wharf. The employees use boats to access areas of the wharf.2
[6] The Applicant’s supervisor was Mr Andrew Fairweather 3 who was the site supervisor. Mr Fairweather reported to Mr Ramesh Niduvali who was the Construction Manager and Mr John Crear’s predecessor.
[7] Mr John Crear 4 was the Construction Manager atr the site at the time of the dismissal. Ms Susan Sheather5 was the external investigator appointed by the Respondent.
[8] Mr Robert Burrows 6 was employed by the Respondent as a carpenter. Mr Paul O’Callaghan7 and Mr Timothy Dyball8 were also employed at the site by the Respondent.
The termination of employment
[9] On 14 November 2011 the Applicant and Mr Burrows were involved in a car accident. Mr Burrows’ car ran into the back of the Applicant’s car. Mr Burrows did not stop after the accident. The Applicant reported the accident to the Respondent and the police and the Respondent appointed an external investigator, Ms Susan Sheather to investigate the accident. Both the Applicant and Mr Burrows were stood down on full pay while the investigation took place. Ms Sheather interviewed a number of employees. Ms Sheather provided a report to Mr Crear who made the decision to terminate the Applicant’s employment.
[10] In making that decision, Mr Crear determined, given the seriousness of:
● “the health and safety issues outlined, especially with regard to “deliberately braking [his] vehicle in an unsafe manner on Monday 14 November 2011, with the intention of causing the other employee to have to also brake suddenly, resulting in the accident;
● the pattern of bullying behaviour including issues with your management of anger, the proven incidents and history of picking fights and having altercations with other employees; and
● the workplace bullying incidents of spitting at and stalking Mr Burrows”
and having regard to the final written warning given for similar behaviour on 8 September 2011, to terminate the Applicant’s employment without notice for unsafe, serious and wilful misconduct. 9
The Car Accident
[11] It was the Applicant’s evidence that on 14 November 2011 he left work and as he was driving behind Mr Peter Whittlesey, a fellow employee, he noticed that the speakers from Mr Whittlesey’s car had come loose and were sitting on the boot of his car. The Applicant attracted Mr Whittlesey’s attention who slowed down so that the Applicant was able to tell him what was happening. It was the Applicant’s evidence that he then continued driving and because the sun was behind him he was not aware that there was anyone behind him. He said that as he approached the bend he heard the screeching of tyres and looked in his mirrors and saw a car collide with his car. He pulled over to the side of the road but the other driver did not stop. He identified the other driver as Mr Burrows. Another employee, Mr Bruno Talora, stopped and the Applicant told him that Mr Burrows had just hit his car and driven off. 10
[12] The Applicant immediately rang Mr Fairweather and told him what had happened. He then reported the accident to the police. 11
[13] The Applicant attended work on 15 November 2011 and was given his letter of suspension by Mr Fairweather. 12 He did not mention to Mr Fairweather that morning that he had been injured in the accident or that he was going to the doctor.13 He went to the doctor on that day14 and because of the injuries he sustained in the accident he has been unfit for work since the accident.
[14] In cross-examination the Applicant said that he had braked before the curve in the road 15 and then accelerated out of the bend.16 The Applicant subsequently contradicted this evidence and claimed that he was not accelerating at the time he was hit.17 He denied deliberately hitting his brakes.18 He confirmed that he heard the screech of Mr Burrows’ car tyres before he was hit.19
[15] The Applicant spoke to the police about the accident. In his statement to the police the Applicant said he “began to accelerate driving around the right hand curve on Lucinda Dr when another vehicle has collided with the rear of my vehicle.” 20
[16] Ms Sheather interviewed the Applicant on 16 November 2011. In that interview the Applicant said that after he spoke to Mr Whittlesey he “went around the corner still on Lucinda, heard a screech behind me. I didn’t know he was there until I heard the screech. I looked in my rear vision mirror and he was there, he hit me and drove off.” The Applicant said he was going about 50kms per hour. 21
[17] Ms Sheather asked the Applicant if he put the brakes on and he said no. 22
[18] Mr Burrows was the driver of the car involved in the accident with the Applicant. It was his evidence that on 14 November 2011 as he was driving along Lucinda Road he noticed that Mr Whittlesey was behind him and the Applicant was behind Mr Whittlesey. He noticed the Applicant swerving and beeping his horn. He did not know why this was happening but as a consequence he pulled over to let the two cars go past. Mr Whittlesey then pulled over and the Applicant stopped in the middle of the road and pointed to something. The Applicant then took off and according to Mr Burrows he was doing normal speed within a short distance. Mr Burrows was behind the Applicant but he was not too close to the Applicant. Mr Burrows said he was doing 40 km per hour at this time. 23
[19] Mr Burrows said that as the Applicant approached the bend the Applicant slammed on his brakes. Mr Burrows had to slam on his brakes to avoid an accident. Mr Burrows said that he did not actually hit the Applicant but the two cars locked together as his car was hooked on the Applicant’s car tow bar. When he jammed on the brakes the cars came apart. Mr Burrows said he did not stop after the accident because he was afraid of what might happen if he did. Mr Burrows could see no reason why the Applicant braked suddenly. 24
[20] In cross examination Mr Burrows said that when the Applicant hit his brakes “a wisp of smoke come up his right hand front wheel.” 25
[21] Mr Burrows denied that this was simply an accident 26 caused by him driving too close to the Applicant. He further denied using the accident as an opportunity to blame the Applicant to get him into trouble.27
[22] Mr Burrows spoke to the police about the accident and he was reported as saying [the Applicant] deliberately slowed causing him to collide with the rear of [the Applicant’s car]. 28
[23] Mr Burrows was interviewed by Ms Sheather. His statement to Ms Sheather was consistent with his evidence to the Tribunal.
[24] Mr Dyball was a passenger in the car driven by Mr Whittlesey. Mr Whittlesey pulled over after the Applicant had alerted him to the speaker being on the boot. Mr Dyball said the Applicant then took off and appeared to be going pretty quick. Mr Dyball gave the following evidence about what happened:
“Mr Burrows was up behind Mr Goddard and he slammed brakes on. I witnessed smoke off his tyres. I estimate he would have skidded around a metre and a half. His brake lights appeared to be locked. I could see Mr Burrows appeared to try to stop himself from hitting Mr Goddard.” 29
[25] In cross-examination Mr Dyball gave evidence that he did not see Mr Burrows’ car on the side of the road, as described by Mr Burrows, but it was his evidence that Mr Burrows had driven past them when they were stopped. 30
[26] Mr Dyball, in cross examination, denied that Mr Burrows was too close to the Applicant. Mr Dyball said he saw the Applicant’s brake lights come on and “he slammed on his brakes and [he] saw smoke off his tyres.” 31 He also saw smoke come off Mr Burrows’ tyres when he hit his brakes.32
[27] Mr Dyball was sure the cars had not hit or touched each other. 33 Mr Dyball was cross examined on the statement he had given the police over the phone. In that phone call Mr Dyball told the police that he saw the incident and that “the collision and damage was very minor, accidental and did not appear to be deliberate.”34 Mr Dyball gave evidence that he did not make these statements to the police. Mr Dyball stuck with his statement filed in these proceedings.35
[28] Senior Constable Luke Musgrave gave evidence. He stated that Mr Dyball did not tell him that the Applicant had applied his brakes suddenly. It was his evidence that he typed up what Mr Dyball said as he said it. 36
The Applicant’s final warning
[29] The Applicant gave evidence about raising issues of safety with Mr Fairweather. He gave evidence of an altercation between himself and Mr Niduvali on 7 September 2011, after a dispute arose at a tool box meeting between the Applicant and Mr Keiran Gailey, the Safety Officer. The Applicant was not happy with how he perceived safety issues were being dealt with. It was his evidence that at the tool box meeting, Mr Niduvali told him to “fuck off” and pointed to the car park. 37
[30] On 8 September 2011 at a tool box meeting the Applicant had an exchange of words with Mr Fairweather in which he said to Mr Fairweather “you’re treating us like arseholes. You don’t tell us what’s going on. You don’t say g’day to us.” 38
[31] After the meeting the Applicant asked Mr Fairweather about his dogman’s ticket and was told to speak to Mr Niduvali. He was told by Mr Niduvali that he would not receive training for his dogman’s ticket. Mr Fairweather then arrived and complained to Mr Niduvali that the Applicant had abused him at the tool box meeting. 39
[32] It was the Applicant’s evidence that Mr Niduvali then told him his position was redundant. The Applicant disputed this with Mr Fairweather who then went and spoke to Mr Niduvali. As a consequence the Applicant was given a final written warning. 40 That warning also referred to an incident between the Applicant and another employee Mr Michael Sikking. The warning advised the Applicant that “a repeat in future will result in dismissal.”41
[33] The Applicant disputed that he was at fault in the incident with Mr Sikking because he claimed that it was Mr Sikking who was abusive and threatening. Mr Sikking received a written warning about this incident 42 but the Applicant did not.
[34] Mr Fairweather was cross-examined about the incident with Mr Sikking. He was unaware that this incident was referred to in the final warning given to the Applicant. He thought that the Applicant had been given a verbal warning about the incident with Mr Sikking by Mr Niduvali. He said he was outside when the Applicant had the dispute with Mr Sikking. It was his evidence that the Applicant caused the incident by abusing Mr Sikking. 43
[35] Mr Fairweather overheard the conversation between Mr Niduvali and the Applicant referred to at paragraph [29]. It was his evidence that Mr Niduvali told the Applicant that “you can fit in, or you can fuck off”. Mr Fairweather did not hear the whole conversation but he understood it to be about a safety issue. 44
[36] Mr Fairweather confirmed the Applicant’s evidence at [30]. However Mr Fairweather recalled the Applicant used far more abusive language than the Applicant recalled. 45 He described the Applicant’s conduct as very abusive and inappropriate. Because it was said in front of other employees he considered the Applicant’s behaviour was undermining him as a foreman.46
[37] Mr Fairweather gave evidence that he was present during the meeting with Mr Niduvali and the Applicant. Mr Fairweather heard Mr Niduvali tell the Applicant that he had had “many altercations with other blokes on site.” He said that the Applicant responded that “they are the ones with a problem, not [him]” 47. Mr Fairweather initially confirmed that Mr Niduvali told the Applicant he was redundant48 but later changed his evidence.49 However, it was his evidence that he talked Mr Niduvali out of sacking the Applicant and instead got him to give the Applicant a written warning.
Other incidents with Burrows
[38] Mr Burrows commenced employment with the Respondent on 3 May 2011. The Applicant had his first dispute with Mr Burrows soon after he commenced employment when Mr Burrows told him to turn his boat engine off. The Applicant did not do as requested by Mr Burrows and told him that he need not tell him what to do as the Applicant had been doing the job long enough. 50
[39] Mr Burrows recalled this incident differently. He said that the Applicant was asked twice by another employee to turn off his engine and when he didn’t Mr Burrows asked him to turn it off. He said that the Applicant swore at him and abused him. 51
[40] The next altercation occurred in early September when the Applicant asked Mr Burrows where his life jacket was. The Applicant said that Mr Burrows, at the smoko break said “you ought to think about your kids. I can make it hard for you if you want to fuck me around” 52. The Applicant was concerned about this because of Mr Burrows’ relationship with other employees.
[41] The Applicant claimed that Mr Burrows began agitating to get his coxan’s ticket because of the work they were doing. It was his evidence that Mr Burrows gave him the phone number of the Harbour Master and for an inspector from Maritime Safety Queensland and asked him to make a complaint to them. The Applicant refused. 53
[42] Mr Burrows denied giving him the phone numbers. He said that he gave the numbers to two other employees at the Applicant’s suggestion.
[43] Soon after this Maritime Safety Queensland attended the site and the Applicant was concerned that Mr Fairweather and Mr Niduvali would think that he had called them as he was always raising health and safety issues. 54
[44] Consequently he spoke to Mr Fairweather and told him that Mr Burrows had asked him to complain to Maritime Safety Queensland about not having a coxan’s ticket. 55
[45] The Applicant said that Mr Burrows was spoken to by Mr Niduvali about this.
[46] It was Mr Burrows’ evidence that Mr Niduvali spoke to him about this incident and he told Mr Niduvali that he “was sick to death of the abuse and harassment from [the Applicant] and said [he’d] rather leave than put with it.” 56 Consequently Mr Niduvali moved him off the boats.
[47] The Applicant gave evidence that Mr Burrows threatened him, swore at him and told him that he would get him sacked. Mr Burrows was said to have made reference to the Applicant being on a final warning. 57
[48] Mr Burrows denied threatening the Applicant’s job but did give evidence that he swore at and abused the Applicant after he was spoken to by Mr Niduvali. 58
[49] The Applicant complained to Mr Fairweather about Mr Burrows. He was told that Mr Niduvali was dealing with his complaint. The Applicant said that on the same day Mr Burrows again swore at him and made rude gestures. 59
[50] The Applicant again complained to Mr Fairweather and was told that Mr Burrows had been moved off the boats.
[51] The Applicant alleged that Mr Burrows continued to niggle at him, blowing him kisses, suggesting they fight. He also alleged that Mr Burrows deliberately collided with his boat. 60
[52] Mr Burrows gave evidence that when he was put in charge of the crew of a boat where the Applicant was a crew member, the Applicant spat at him and used abusive language towards him. He reported this to Mr Fairweather. 61 This was confirmed by Mr Fairweather but it was his evidence that Mr Burrows was not specific in his complaints.62
[53] Mr Burrows further gave evidence that the Applicant was abusive towards him after he volunteered to be on the safety committee. 63
[54] On 25 October 2011 the Applicant invited Mr Burrows to the pub. Mr Burrows found the Applicant’s behaviour intimidating and he thought that the Applicant issued the invitation so he could fight Mr Burrows. 64 He said that the Applicant was “bouncing and aggressive.”65
[55] Mr Burrows said that at pre-start meetings the Applicant was abusive towards him. 66 He told Ms Debbie Sikking in the office and she told him to avoid the Applicant.67
[56] By this time Mr Burrows had formed the view that the Applicant was stalking him. 68 He was subsequently told by Mr Paul O’Callaghan that the Applicant spat at Mr Burrows during a pre-start meeting. Mr Burrows had not seen the Applicant spit at him but he had heard him.69
[57] Mr O’Callaghan gave evidence that he saw the Applicant spitting at Mr Burrows at a pre-start meeting and being abusive towards him. 70
[58] Mr Burrows gave evidence that on another occasion when Mr Burrows was under the wharf working the Applicant repeatedly spat in his direction and swore at Mr Burrows. 71
[59] The Applicant denied spitting at Mr Burrows and also denied threatening him. He gave evidence that he asked Mr Burrows to go to the pub with him but this was an attempt at reconciliation. 72
The investigation
[60] The Applicant reported the car accident to Mr Fairweather. Ms Sheather was contacted on 15 November 2011 and she recommended that the Respondent suspend both employees while the incident was investigated. 73 Ms Sheather interviewed the Applicant first and Mr Shane Treadaway, the CFMEU organiser, was present during the interview.74 The Applicant was asked to describe the car accident. The Applicant told Ms Sheather that Mr Burrows had threatened his job. He also told her that he had seen a doctor and that he was injured and was claiming compensation.75
[61] The Applicant told Ms Sheather that Mr Burrows told him that he knew he was on a final warning and he was going to make sure the Applicant “fucked it up.” He had told Mr Fairweather about this threat. 76
[62] The Applicant told Ms Sheather that Mr Burrows had made obscene gestures towards him. 77
[63] Ms Sheather interviewed Mr Burrows who described the accident and also told Ms Sheather about many of the other incidents between him and the Applicant.
[64] Ms Sheather interviewed Mr Dyball who witnessed the accident. His answers to Ms Sheather were consistent with his evidence before the Tribunal.
[65] Ms Sheather interviewed Mr Whittlesey who didn’t see the accident. He told Ms Sheather that the Applicant often lost his temper. He told her that the Applicant caused trouble and got into fights with other employees. 78
[66] Ms Sheather interviewed Mr Bruno Talora who was in Mr Whittlesey’s car but he did not see the accident. Mr Talora told Ms Sheather that the Applicant had told him about Mr Burrows’ threat to his job. 79
[67] Ms Sheather interviewed Mr Fairweather. He told her that the Applicant had complained to him that Mr Burrows had threatened his job. The Applicant continued to complain to Mr Fairweather about Mr Burrows and consequently the employees were separated. He also told Ms Sheather that Mr Burrows complained about the Applicant on a couple of occasions. 80
[68] Mr Fairweather told Ms Sheather that the Applicant became aggressive easily but that his behaviour had improved a bit after his final warning. 81
[69] Ms Sheather interviewed Mr O’Callaghan about incidents between the Applicant and Mr Burrows. Mr O’Callaghan told Ms Sheather what he told the Tribunal. 82
[70] Ms Sheather interviewed Mr Jason Arnold, another employee. He witnessed the Applicant ask Mr Burrows to come down the pub after work. He described the Applicant as behaving like he wanted to fight Mr Burrows. He told Ms Sheather that Mr Burrows did not trust the Applicant and that Mr Burrows had told him about the Applicant spitting at him. 83
[71] Ms Sheather then prepared a report for the Respondent. She did not re-interview the Applicant. Ms Sheather’s report dealt with seven allegations. Three allegations were made by the Applicant and four allegations were made by Mr Burrows.
[72] Ms Sheather concluded on the balance of probabilities that:
(1) the Applicant had deliberately braked in a sudden manner knowing that Mr Burrows was behind him.
(2) Mr Burrows had not threatened the Applicant’s employment.
(3) Mr Burrows made obscene gestures towards the Applicant
(4) the Applicant stalked and intimidated Mr Burrows and spat at him on two occasions.
(5) the Applicant when inviting Mr Burrows to the pub danced around Mr Burrows in a way that lead Mr Burrows to think the Applicant wanted to fight him.
[73] She recommended that the Applicant’s employment be terminated and that Mr Burrows receive a final written warning.
The Termination
[74] Mr Crear had sat in on the interviews Ms Sheather had with the employees. He received her report and agreed with her recommendations. He had regard to the Applicant’s final warning. He also had regard to the four altercations the Applicant had had with other employees. Mr Crear, prior to making the decision, drove the road where the accident had occurred and decided that there was no reason for the Applicant to brake where he did. 84
[75] On 18 November 2011 he contacted the Applicant and asked him to attend the site for a meeting. The Applicant told him that he could not come in and asked if his employment was being terminated. Mr Crear told him it was and told him he would be sent a letter.
The Applicant’s Submissions
[76] The Applicant’s employment was terminated because it was alleged that “he braked severely and deliberately when it was unnecessary to do so with the intention of causing alarm or damage to Mr Burrows who was driving behind him.” 85 It was submitted that this reason is fanciful, not well founded or defensible. It was submitted that the only evidence of what happened was from the Applicant who consistently denied knowing that Mr Burrows was behind him until he heard the screeching of Mr Burrows’ brakes. It was submitted that the Applicant acknowledged braking but this was to go around the bend. It was submitted that both WorkCover and the Applicant’s insurer had accepted the Applicant’s claim.86 It was further submitted that WorkCover was entitled to reject the claim if the injury is caused by the employee’s serious and wilful misconduct.87 It was submitted that the police rejected Mr Burrows’ version of events.
[77] It was submitted that Mr Dyball’s evidence should not be relied upon due to “significant, demonstrable inconsistencies.” 88 It was submitted that the only conclusion that could be drawn from his evidence was that he did not see the accident.89
[78] It was submitted that Mr Burrows’ evidence should not be relied on. He had had a run in with the Applicant a few weeks earlier after the Queensland Maritime Safety had visited the site. 90 The Applicant told Mr Fairweather at the time that Mr Burrows had threatened his job and he told Ms Sheather and Mr Crear when he was interviewed. This complaint was not a recent invention and should be believed.91 It was submitted that the Tribunal should find that Mr Burrows did in fact threaten the Applicant’s job.92 It was submitted that in the interview conducted by Ms Sheather, Mr Burrows confirmed that he made the threat.93
[79] Further it was submitted that the evidence established that Mr Burrows made obscene gestures towards the Applicant. 94
[80] It was submitted that Mr Burrows should not be believed as he gave inconsistent evidence. 95
[81] It was submitted that the evidence established that Mr Burrows was not driving a safe distance behind the Applicant as he could see his number plate. 96 Further he left the scene of the accident without stopping as is required by law.97 It was submitted that given Mr Burrows was moved away from the Applicant only a few weeks before, he was worried about his job.98 This it was submitted was why he didn’t simply say it was an accident but blamed the Applicant. Further, it was submitted that Mr Burrows was motivated by malice towards the Applicant.99 It was submitted that Mr Burrows lied to get the Applicant into trouble as he had threatened to do so only a few weeks earlier.100
[82] It was submitted in relation to the allegations against the Applicant the level of satisfaction required is that set out in Brigginshaw v Brigginshaw. 101 It was submitted that it is inherently unlikely that the Applicant would have behaved in a way that put himself and another driver at risk.102
[83] It was further submitted that there was no independent evidence to support the other allegations relied upon by the Respondent in its letter of termination. 103
[84] It was submitted that the Applicant was never told his employment was at risk and never told about a number of the allegations relied upon by the Respondent to justify the termination of his employment. 104
[85] It was submitted that had these allegations been put to the Applicant he would have been able to rebut them. 105
[86] Further it was submitted that he was never given an opportunity to respond to those allegations. 106 The specific allegation about the accident, namely that he deliberately braked hard, was never put to the Applicant.107
[87] It was submitted that both Ms Sheather and Mr Crear “exhibited conduct and have said things that give rise to a reasonable apprehension of bias on their part.” 108 This was exhibited by their failure to put many of the allegations to the Applicant and also because they did not accept the proposition of the Applicant’s representative that the interview should not take place because the Applicant was on workers compensation. It was submitted that had they discussed this at the time they would have discovered that the Applicant was unwell and on medication.109
[88] It was submitted that this bias was evidenced by the information given by Ms Sikking to Ms Sheather, before the investigation that the Respondent wanted to sack both employees. 110
[89] It was submitted that the termination should be found to be harsh because the Applicant had been in an accident three days before his employment was terminated and as a result he was not able to work. 111
[90] It was submitted that the Applicant should be reinstated with continuity of employment. It was submitted that the employer is a large employer and these incidents arose because of a conflict between two employees and they could be separated. 112 It was submitted, assuming the crash was an accident, after the employees had been separated there were no other incidents.113
[91] It was submitted that the making of such orders would not have a significant impact on the employer as the Applicant has been unfit to work and therefore apart from some accrued entitlements would not receive any payment from the employer until he returned to work. It was submitted that this is relevant to a determination that compensation is not an appropriate remedy. If he is not reinstated he will lose the opportunity to have a graduated return to work as provided for in the workers compensation legislation. 114
The Respondent’s Submissions
[92] The Respondent submitted that the Applicant’s explanation of the accident was implausible. 115
[93] The Applicant submitted that Mr Dyball was an independent witness and he gave evidence that the Applicant braked in “an extreme way causing Mr Burrows to drive into the applicant’s car.” 116 It was submitted that Mr Dyball had no reason to lie about the incident. Further the only inconsistency it was submitted in his evidence was his claim that there had been no collision. This it was submitted, did not undermine his evidence that the Applicant’s braking caused the accident.117
[94] It was submitted in the Applicant’s claim that he did not know that Mr Burrows was behind him because the sun was behind him should not be accepted. In cross examination the Applicant accepted that the sun was not behind him when he had the accident. It was submitted that the conclusion should be drawn that the Applicant knew Mr Burrows was behind him. 118
[95] Further it was submitted that the Applicant’s claim that Mr Burrows was antagonistic towards him should not be accepted. It was submitted that quite the reverse the Applicant was antagonistic towards Mr Burrows and this was supported by independent witnesses. 119
[96] It was not accepted by the Respondent that Mr Crear had accepted that Mr Burrows threatened the Applicant’s job despite Mr Crear’s evidence in cross examination that Mr Burrows had confirmed that he had threatened the Applicant’s job. 120
[97] It was submitted that Mr O’Callaghan’s evidence should be accepted. 121
[98] It was submitted that the investigation by Ms Sheather was thorough and not biased. 122
[99] It was further submitted that Mr Burrows’ version of events should be accepted. He did not resile from his evidence in cross examination and he admitted matters which did not put him in a good light. 123
[100] It was submitted that Mr Burrows did not stop at the accident because he was concerned the Applicant may harm him and given the circumstances that decision was not unreasonable. 124
[101] It was submitted that the warning given to the Applicant by Mr Niduvali was reasonable. 125 It was submitted that Mr Fairweather’s evidence should be believed as he had a reasonable relationship with the Applicant.126
[102] It was submitted that there was a valid reason for terminating the Applicant’s employment because the Applicant, by deliberately braking, deliberately endangered the health and safety of Mr Burrows. 127 This behaviour constituted serious misconduct as defined in regulation 1.07 of the Fair Work Regulations 2009.128
[103] It was submitted that the behaviour of the Applicant towards Mr Burrows prior to this date was simply context and the conduct on 14 November 2011 warranted the termination of the Applicant’s employment, particularly in the context that he was on final warning. 129
[104] It was submitted that the Applicant knew why he was being dismissed before it occurred 130 and he was given an opportunity to respond.131
[105] It was submitted that the decision of WorkCover to accept the claim is irrelevant and not in evidence. 132
Was the termination of employment harsh, unjust or unreasonable?
[106] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, Fair Work Australia must take into account the following:
s387(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);
[107] The Applicant’s employment was terminated for serious and wilful misconduct. The Respondent concluded that the car accident was caused by the Applicant deliberately braking and found that he engaged in bullying behaviour at work.
[108] In determining whether there is a valid reason the Tribunal must determine if the conduct occurred. 133
[109] There is no doubt that the Applicant and Mr Burrows had an antagonistic relationship. The evidence established the employees’ immediate supervisor was aware of the conflict as was the Site Manager, Mr Niduvali. However, apart from moving Mr Burrows away from the Applicant, it does not appear, on the evidence, that either employee was counselled or warned about their inappropriate behaviour towards each other.
[110] Be that as it may, I found Mr Burrows to be an honest witness who admitted matters against his interest when they were put to him. I did not find the Applicant to be so willing. The Applicant denied any wrong doing even when his wrong doing was corroborated by others.
[111] Turning to the accident, I do not accept the Applicant’s evidence that he did not brake suddenly. His evidence on this critical incident was contradictory. He told Ms Sheather that he did not brake. He did not mention braking in his witness statement. He did not mention braking in his statement to police. It was only after Mr Burrows and Mr Dyball evidence was submitted to the Tribunal in which both gave evidence that of his braking that in cross examination the Applicant gave evidence that he had braked going into the bend. I find on the balance of probabilities that the Applicant braked suddenly for no reason and put his own, and Mr Burrows’ safety, at risk. Unfortunately for the Applicant it is he who ended up injured.
[112] I accept Mr Burrows’ version of events which was supported by Mr Dyball. The Applicant submitted that I should disregard the evidence of Mr Dyball because his evidence was inconsistent with his police record of interview. However Mr Dyball was interviewed by Ms Sheather soon after the accident and prior to the police interview which occurred two weeks after the accident. In his interview with Ms Sheather, Mr Dyball gave the same evidence as he gave the Tribunal. His evidence supported Mr Burrows’ evidence that the Applicant had braked suddenly. There was no animosity between Mr Dyball and the Applicant. While I accept that his statement to the police was inconsistent with his sworn evidence, he was not shaken from this evidence in cross examination and I accept his sworn evidence. Further I do not consider Mr Dyball’s evidence, that there was no collision, is fatal to his credibility. Given the collision was not major I accept that Mr Dyball may not have been able to see from his vantage point that the cars had in fact collided. Be that as it may, I accept his evidence that he saw the Applicant brake suddenly and that this act caused Mr Burrows to have to brake suddenly as well.
[113] I accept the evidence of Ms Sheather and Mr Crear that there was no reason to brake sharply when entering the bend where the accident occurred. I note that the Applicant denied braking when asked by Ms Sheather in the interview.
[114] I do not need to find that the Applicant intended to cause an accident, it is sufficient for my purpose to find that the Applicant’s conduct was reckless and threatened the safety of himself and another employee and as a result a traffic accident in fact occurred.
[115] I do not accept the contention of the Applicant that Mr Burrows made up what happened to get the Applicant into trouble knowing that he was on a final warning. While there is evidence that Mr Burrows had abused the Applicant after he was spoken to about the Queensland Maritime Authority I accept Mr Burrows evidence that he did not try to get the Applicant sacked.
[116] At the time the Applicant engaged in this conduct, he was on a first and final warning. That warning was given primarily because of his statements to Mr Fairweather. While the Applicant submitted that this warning was not warranted because it made reference to the incident with Mr Sikking, even accepting the Applicant’s evidence about that incident, the Applicant’s comments to Mr Fairweather warranted a warning. I accept Mr Fairweather’s evidence about what was said on that occasion. While the Applicant excused his language because of his frustration his conduct was entirely inappropriate. The Applicant abused his supervisor in front of other employees. The warning put the Applicant on notice that his employment was at risk.
[117] I find that the Applicant and Mr Burrows had a bad working relationship. I find that both employees have at times engaged in inappropriate behaviour. However on balance it is clear that on the majority of occasions the Applicant was the instigator of incidents and his behaviour in spitting at Mr Burrows was unacceptable.
[118] While the Respondent was on notice about this bad working relationship I do not accept the submission of the Applicant that these matters were spent because the Respondent had responded to them by separating the employees. 134
[119] I have found that the Applicant by his conduct in braking for no reason put himself and Mr Burrows at risk. This in itself was a valid reason for the termination of the Applicant’s employment. When considered in the context of his language towards his supervisor and his conduct towards Mr Burrows, including spitting at him, I find that there was a valid reason for the termination of the Applicant’s employment.
s387(b) whether the Applicant was notified of that reason;
[120] In Crosier v Palazzo Corporation Pty Ltd 135 the Full Bench of the Australian Industrial Relations Commission considered whether the equivalent provision in the Workplace Relations Act 1996 (as it existed prior to Workplace Relations Amendment (Work Choices) Act 2005) required the employee to be notified before the decision was made.
[121] The Full Bench held that:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG (3) (b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted”. 136
[122] The Applicant was not notified of the reason for the dismissal prior to the decision to terminate his employment being made. In this case Mr Crear attempted to get the Applicant to attend a meeting but the Applicant declined to attend. The Applicant asked Mr Crear if his employment was being terminated and Mr Crear told him it was.
s387(c) whether the Applicant was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[123] For the reasons set out above in relation to section 387(b), the opportunity to respond is a reference to an opportunity to respond before a decision is taken to terminate the employee’s employment.
[124] I find that the Applicant was not provided with an opportunity to respond to the reason for his termination.
[125] While the Applicant was on notice that the accident was being investigated, the investigation gave rise to additional allegations against the Applicant and he was not advised of these allegations until after his employment was terminated. Ms Sheather made findings and recommendations about the Applicant without advising the Applicant of the allegations or providing him with an opportunity to respond. The Respondent relied upon this report in reaching its conclusion to terminate the Applicant’s employment.
[126] The use of an external investigator did not absolve the Respondent of its responsibility to provide the Applicant with procedural fairness. Mr Crear was present during all the interviews. He knew there were matters raised which were not put to the Applicant. When he received the report he had an obligation to put those findings to the Applicant and provide him with an opportunity to respond. He did not do so and consequently the Applicant was denied procedural fairness.
s387(d) any unreasonable refusal by the employer to allow the Applicant to have a support person present to assist at any discussions relating to dismissal;
[127] The Applicant had a representative present with him during the interview conducted by Ms Sheather.
s387(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;
[128] There was no issue about the Applicant’s performance.
s387(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;
[129] The Respondent is a “large employer.” 137 It did not have dedicated human resources personnel. It relied upon an external provider to investigate the accident. While it was submitted by the Respondent that it provided procedural fairness to the Applicant, it did not do so.
s387(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;
[130] No submissions were made on this factor.
s387(h) any other matters that FWA considers relevant.
[131] The Applicant had been employed by the Respondent for just over one year. In that time he had received a letter of warning. I have had regard to the evidence given about the abusive language directed at other employees at this workplace and that this abusive language appears to have been tolerated at the site. In fact the evidence showed that such language was used by senior managers towards workers. It is therefore unsurprising that the Applicant did not understand that swearing at other employees or his supervisor was unacceptable conduct. However, there was no evidence that he challenged the letter of warning at the time. In fact the Applicant’s only objection to the warning was its mention of the incident with Mr Sikking.
Conclusion
[132] The Respondent had a valid reason for terminating the Applicant’s employment. However the Applicant was denied procedural fairness in that the totality of the allegations taken into account by the Respondent were not put to the Applicant prior to the Respondent making the decision to terminate his employment.
[133] This would normally be sufficient for me to conclude that the termination of the Applicant’s employment was unjust. However, the incident on 14 November 2011 was serious. Even thought I accept that the Applicant did not intend to cause an accident between himself and Mr Burrows, his conduct was reckless and had the effect of causing the accident and which, unfortunately for the Applicant, caused him an injury from which he has not yet recovered.
[134] The Applicant was on his final warning. Even though it may have been inappropriate to include in that final warning a reference to the incident with Mr Sikking, even without that, the Respondent was entitled to issue the Applicant with a warning about his inappropriate language directed at his immediate supervisor. The Applicant knew about the letter of warning and it could have come as no surprise to him that the Respondent would have regard to it when deciding what action to take.
[135] In this case having heard from the Applicant I agree with the Respondent that even had the allegations been put to the Applicant before the decision to dismiss him was taken the outcome would have been the same.
[136] In all the circumstances, I find that the termination of the Applicant’s employment was not harsh, unjust or unreasonable and therefore the application is dismissed.
COMMISSIONER
Appearances:
B Green of the CFMEU for the Applicant.
D Pratt of Counsel for the Respondent.
Hearing details:
2012.
Melbourne:
May 14, 15, 16.
1 Exhibit A2
2 Exhibit A5 at [5]
3 Exhibit R13
4 Exhibit R6
5 Exhibit R10
6 Exhibit R12
7 Exhibit R5
8 Exhibit R8 and Exhibit R9
9 Exhibit A5 Annexure D
10 Ibid at [61]-[68]
11 Ibid at [70]-[73]
12 Exhibit R13 at [10]
13 Ibid at [11]
14 Exhibit A6
15 Transcript PN 586, 591
16 Ibid PN 593
17 Ibid PN 655
18 Ibid PN 663
19 Ibid PN 622
20 Exhibit A4 at page 4
21 Exhibit R10 at [15]-[17]
22 Ibid at [22]-[23]
23 Exhibit R12 at [37]-[44]
24 Ibid [44]-[46]
25 Transcript PN 2425
26 Ibid PN 2495
27 Ibid PN 2503
28 Exhibit A4 at page 4
29 Exhibit R8 at [6]
30 Transcript PN 1638-1640
31 Ibid PN 1648
32 Ibid PN 1655
33 Ibid PN 1651
34 Exhibit A4 at page 4
35 Exhibit R9
36 Transcript PN 1156
37 Exhibit A5 at [10]-[19]
38 Ibid at [27]
39 Ibid at [31]
40 Ibid at Annexure E
41 Ibid
42 Exhibit A3
43 Exhibit R13 at [19]
44 Transcript PN 2635-2636
45 Exhibit R13 at [16]
46 Ibid
47 Ibid at [17]
48 Transcript PN 2596
49 Transcript PN 2608
50 Exhibit A5 at [42]
51 Exhibit R12 at [5]
52 Exhibit A5 at [43]
53 Ibid at [46]
54 Exhibit A5 at [48]
55 Ibid at [49]
56 Exhibit R12 at [20]
57 Exhibit A5 at [52]
58 Exhibit R12 at [22]
59 Ibid at [55]
60 Ibid at [59]
61 Exhibit R12 at [7]
62 Exhibit R13 at [15]
63 Exhibit R12 at [11]
64 Ibid at [26]
65 Ibid
66 Ibid at [25]
67 Ibid at [29]
68 Ibid at [30]
69 Ibid at [31]
70 Exhibit R5 at [2]
71 Exhibit R12 at [33]
72 Exhibit A5 at [81]-[82]
73 Exhibit R10 at [4]
74 Ibid at [11]
75 Ibid at [38]
76 Ibid at [52]
77 Ibid at [54]
78 Ibid at [144]
79 Ibid at [163]
80 Ibid at [186]-[191]
81 Ibid at [197]
82 Ibid [199] -[206]
83 Ibid [207]-[221]
84 Exhibit R6 at [123]-[128]
85 Transcript PN 2704
86 Ibid PN 2705
87 Supplementary submissions of the Applicant at [3]
88 Ibid at [4]
89 Ibid at [5]
90 Transcript PN 2711
91 Ibid PN 2713-2715
92 Ibid PN 2716
93 Ibid PN 2719
94 Ibid PN 2720
95 Ibid PN 2726-2728
96 Ibid PN 2729
97 Ibid
98 Ibid
99 Ibid PN 2730
100 Ibid
101 Ibid PN 2731
102 Ibid PN 2733
103 Ibid PN 2736
104 Ibid PN 2738
105 Submissions in reply of the Applicant at [8]
106 Transcript PN 2740
107 Ibid PN 2741
108 Ibid PN 2744
109 Ibid PN 2755
110 Ibid PN 2750
111 Ibid PN 2758
112 Ibid PN 2760
113 Ibid PN 2762
114 Ibid PN 2800
115 Respondent’s outline of final submissions at [8]
116 Ibid at [9]
117 Respondent’s submission in reply at [3]
118 Respondent’s outline of final submissions at [12]
119 Ibid at [13]
120 Ibid at [19]
121 Ibid at [21]
122 Ibid at [24]
123 Ibid at [31]-[32]
124 Ibid at [33]
125 Ibid at [36]
126 Ibid at [37]
127 Ibid at [39]
128 Ibid at [40]
129 Ibid at [41]
130 Ibid at [44]
131 Ibid at [46]
132 Supplementary submissions of the Respondent at [2]
133 Edwards v Giudice 169 ALR 99 at [7]
134 Final submission of the Applicant dated 28 May 2012 at 10.c.
135 Print S5897
136 Ibid at [73]
137 Transcript PN 2760
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