Byron Te Namu v Boral PlasterBoard Pty Limited

[2017] FWC 3354

[2017] FWC 3354

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Byron Te Namu
v
Boral PlasterBoard Pty Limited
(U2017/3155)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 1 AUGUST 2017

Application for an unfair dismissal remedy.

[1] Mr Byron Te Namu (the applicant) applied under s.394 of the Fair Work Act 2009 (FW Act) on 23 March 2017 for an unfair dismissal remedy in relation to the termination of his employment by Boral PlasterBoard Pty Limited trading as USG Boral (the respondent) on 4 August 2016.

[2] The applicant was employed by the respondent from 15 September 2014 to 17 March 2017.

[3] The application was heard in a determinative conference in Sydney on 21 June 2017. The applicant represented himself. The respondent was represented by S Tarr, HR Director.

[4] The applicant filed a statement on 28 May 2017 which was tendered in the determinative conference. 1

[5] The respondent filed submissions with appendices 1 to 5 and relied on oral evidence given by the following employees:

(a) Andres Velez, plant manager;

(b) Saji John, shift team leader; and

(c) George Alim, production manager.

[6] The respondent did not tender any statements in the proceedings.

[7] During the course of evidence by Mr Velez, the respondent tendered two documents:

(a) USG Boral Discrimination, Bullying and Harassment Policy and Procedure (section 5: Bullying & Harassment) (anti-bullying policy); 2 and

(b) a signed acknowledgement by the applicant that he had received the respondent’s policy on Treatment of Serious Misconduct and Training Record, and that he had read and understood the contents. 3

[8] It is not in contention that the applicant was protected from unfair dismissal at the time he was dismissed. The issue to be determined is whether his dismissal was harsh, unjust or unreasonable.

Events leading to termination of employment

[9] On Sunday 12 February 2017 the applicant arrived at work for a 12-hour shift, commencing at 5.30pm. In his statement 4, the applicant says:

“10. On the 12th February 2017 I went to work on overtime shift, 12 hours 17:30pm – 05.30am.

11. During my overtime shift, I dropped my mobile phone and accused a fellow worker of picking it up.

12. I was so upset and talking out loud. I informed my Senior Operator I was going home. Because of what just happen.

13. I ended up staying the whole shift all the while being mad.

14. On Monday 13th February around 05:10 am myself and four colleagues were gathered inside the control room.

15. I was asked by a fellow colleague about my shift change.

16. I was so mad I started talking out loud saying,

17. This is duty of care what George and Saji are doing. What do they think I’m a show pony. I’ll show them who’s Boss. Do they know what the f*** they doing.”

[10] The respondent notes in its submissions that paragraphs 14 and 17 of the applicant’s statement are consistent with the respondent’s understanding of the events.

[11] However, the respondent (via its investigation into the events of 12 February) came to the view that the applicant had used language that was more specific, threatening and intimidating; specifically, that he had threatened to bring a gun into the respondent’s site to physically harm three employees.

[12] On 14 February 2017, at least one of the employees who was gathered inside the control room with the applicant raised concerns with Mr Alim that threats were being made by the applicant against Mr Alim and other employees.

[13] Mr Alim gave evidence 5 that after speaking with employees about the events of 12 February he asked Mr Velez to carry out an investigation into the allegations.

[14] Mr Alim also gave the following evidence:

His Honour: I just want to ask a couple of questions. Mr Alim, I just wanted to confirm: have you ever heard - you personally have heard Mr Te Namu ever make any threatening remarks to anybody at the workplace?

Mr Alim: Not to anyone in the workplace, no; just general conversation about things outside of work, et cetera - - - 6

His Honour: What sort of things do you mean?

Mr Alim: Things like when I first met him, he was telling me about he was in trouble with the police, et cetera; he’s not scared of anyone and he will slap down any cop, et cetera, which I thought was weird topic of conversation like that when I first started. 7

[15] At the determinative conference the applicant gave evidence about his response to the allegations arising from the 12 February events when they were notified to him:

His Honour: But what was in the letter? I mean, forget about whether it’s true or not but what did they say?

Applicant: Just pretty much that I threatened certain employees such as himself, Saji and there was another guy: Michael Douglas, which was my senior operator. They also said, yes, I was going to bring weapons to work to physically harm these people. So while he’s reading this out I’m thinking, ‘Why would I do that? I’ll use my own hands I was born with to do the job’, you understand what I’m saying? Like, I’m not the type of person to say, ‘I need this weapon to bring to work to do this.’ I’ll do it him where he is. You know, I’ll lay you out flat where you stand. It really don’t worry me because that’s the background I came from. You know, I’m not a verbal type of person. I actually get the job done. I know what I’m doing and the consequences. If I want to suffer them and go through with it, so shall it be, you know? That’s how I think.”  8

[16] The applicant also said:

His Honour: But you didn't say anything about physically beating George [Mr Alim]?

Applicant: No, because I would have done it on shift. I'm not the type to, you know, say, ‘Yes, I'm about to do this, you better go and warn them.’ I'd just do it. That's the type of person I am. If I say I'll do it, that's what it is. I'll do him on shift. It really doesn't worry me. 9

[17] The applicant further said:

Applicant: You know, I'm not one to play games like that. If I say I'm going to do something I'll get up and do it, you know? Even though it makes me so mad at the end of the day, like, ‘Yes, what's happening with my shift change?’ I went to George numerous times and I kept telling him, ‘What's going on? You keep telling me I'm going to move but I'm not.’ You know, and then there was a little incident - a little baby incident, on another shift with a verbal argument that two people had, right? So he moved them. He sacked one guy and moved the next guy and I went to him and I told him, ‘Hey, George - my issues are worse than what these verbals are coming out. Mine, I'm ready to swing on brothers, you know?’ That's how I told him. I said, ‘I'm reading to swing on people, man. You better get me off the shift.’ 10

[18] The investigation into the applicant’s alleged conduct was commenced on or about 14 February 2017.

[19] On 16 February 2017 the applicant was required to attend a meeting with Mr Velez and Mr Alim. He was accompanied by a support person, Mr Saninovic. At the meeting, the applicant was handed a letter advising he was stood down with pay from his employment until an investigation into the 12 February events was concluded. The allegations against him were not specified to the applicant. 11 Mr Velez gave evidence12 that:

“So [at] that meeting we basically provided Byron a stand-down letter, saying that we needed to carry out an investigation based on comments made from other people on site.”

[20] On 9 March 2017 the applicant attended a further meeting, about which I am satisfied he was adequately informed in terms of notice, purpose and opportunity to bring a support person. The applicant was again accompanied by Mr Saninovic. At this meeting, the allegations arising from the 12 February events were detailed. Mr Velez read to the applicant statements from other employees. The applicant was given an opportunity to respond to the allegations. The applicant elected to not respond. Mr Velez gave evidence 13 that:

“After the meeting we discussed with the USG Boral HR department to come up with an outcome.”

[21] On 17 March 2017 the applicant attended a further and final meeting, about which I am satisfied he was adequately informed in terms of notice, purpose and opportunity to bring a support person. The applicant’s support person at this meeting was from United Voice.

[22] At the meeting, the applicant’s employment was terminated for serious misconduct, effective immediately. The applicant was provided with a Notification of Outcome of Investigation:

“…

On Sunday 12 February 2017 you threatened to bring a weapon onto site and use this weapon to physically harm 3 specific employees…

Several witness accounts recall you saying, ‘I will get them back, I will bring my glock to work and show them who’s the boss’.

We confirm we have now concluded the investigation. We are satisfied that you did engage in the conduct allegations.

… In having engaged in this conduct you have breached clause 19.2(vi) of your written employment contract 14 and USG Boral’s Bullying and Harassment Policy.

…”

The anti-bullying policy

[23] The applicant chose to not respond formally to the allegations made against him. The respondent made its decision to terminate the applicant’s employment based on the information it had to hand, and in the light of its anti-bullying policy, which says in part:

“…

USG Boral is committed to the elimination of all Workplace Bullying & Harassment. Bullying & Harassment is treated very seriously by USG Boral and will not be tolerated.

Bullying & Harassment can include, but is not limited to:

• verbal or written abuse (eg being sworn at, threats, insults…);



• threatening harm to someone;



• acts of violence;



• threatening body language;

…”

Consideration

[24] In considering whether the applicant’s dismissal was harsh, unjust or unreasonable the Commission is required to take into account the factors outlined in s.387 of the FW Act. These are:

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

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

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

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

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

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

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

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

[25] I am satisfied that the respondent had a valid reason to dismiss the applicant, although I am not entirely satisfied, based on the evidence presented in the determinative conference, that the applicant specifically said that he would bring a weapon to work. However, the applicant’s own evidence confirms he made a threat to “show them who’s the boss”. This involved at the very least an implicit threat of violence. Such behaviour constitutes serious misconduct.

[26] I am satisfied that the applicant was notified of the reasons for his dismissal, and was afforded the opportunity to respond.

[27] The applicant was permitted to have a support person at all meetings: on 16 February 2017, 9 March 2017 and 15 March 2017.

[28] The procedures adopted by the respondent in effecting the dismissal of the applicant were appropriate, having regard to its size and access to specialist human resources expertise.

Conclusion

[29] I find that Mr Te Namu’s dismissal was not unfair and his application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

The applicant, Mr B Te Namu, appeared for himself

Ms S Tarr appeared for the respondent

Determinative conference details:

2017

Sydney

June 21

 1   Exhibit T1

 2   Exhibit B1

 3   Exhibit B2

 4   Exhibit T1 paragraphs 10 to 17

 5   Transcript paragraphs 294, 295, 297

 6   Transcript paragraph 284

 7   Transcript paragraph 285

 8   Transcript paragraph 118

 9   Transcript paragraph 88

 10   Transcript paragraph 91

 11   Transcript paragraph 178

 12   Transcript paragraph 173

 13   Transcript paragraph 186

 14   Not tendered

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