Colin Allan v Heartland Motors Pty Ltd

[2021] FWC 1242

[2021] FWC 1242

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Colin Allan
v
Heartland Motors Pty Ltd
(U2020/15047)

DEPUTY PRESIDENT CROSS SYDNEY, 8 MARCH 2021

Application for an unfair dismissal remedy.

[1] On 19 November 2020, Mr Colin Allan (the Applicant) lodged an application at the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) (the Application). The Applicant had been employed by the Heartland Motors Pty Ltd (the Respondent) since approximately July 2003 or 28 June 2004, as a Fleet Sales Manager. The Applicant was dismissed by the Respondent on 3 November 2020 for gross misconduct.

[2] In the hearing of the matter Mr G Cormack, a friend of the Applicant, appeared for the Applicant, and Mr N Duggin, the Company Secretary of the Respondent, appeared for the Respondent.

[3] On 14 December 2020, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The parties complied with the Directions. In particular:

(a) On 24 December 2020, the Applicant filed an Applicant’s Outline of Arguments, an Applicant’s Outline of Submissions (the Applicant’s Submission) that annexed three character references for the Applicant, and a statement of the Applicant; and

(b) On 11 January 2021, the Respondent filed undated statements from Mr Robert Clarence, the Human Resources/Payroll Manager of the Respondent, Mr Samir Gorasia, the Respondent’s General Sales Manager, Mr Lee Pitcock, the Dealer Principal of the Respondent, and Ms Dianne Bowden, the Respondent’s Marketing Manager.

[4] The Applicant filed no materials in reply, and Mr Cormack explained, “there was no information provided by the respondent that we felt that needed to be responded to.”  1 The matter was conducted as an in-person hearing before the Commission on 21 January 2021.

Background

[5] There were only minor factual disputes between the parties. The Applicant, Mr Clarence, Mr Gorasia and Mr Pitcock gave evidence at the hearing of the matter, and were cross-examined. Where material factual differences existed I have preferred the evidence of the Respondent’s witnesses, who all presented as honest and considered witnesses.

[6] Mr Gorasia, in particular, impressed me as an honest and forthright witness. While his evidence was received by telephone as the Respondent was not on notice that his evidence was challenged, and COVID 19 restrictions required the attendance before the Commission of only essential persons, his evidence was compelling. I have no doubt from hearing Mr Gorasia’s evidence that he was deeply offended by the Applicant’s comment. If there were ever any doubt as to the utility of evidence by telephone, particularly during COVID 19 times, Mr Gorasia’s testimony erased such doubt.

[7] The Applicant was, however, not an impressive witness. He seemed to treat the hearing of the matter as somewhat of a joke, smirking on numerous occasions throughout the hearing. He sought to tailor his answers in a way that he thought would best serve his case before the Commission regardless of their truth. That was particularly so where the Applicant sought to contend that in his offending comment he did not say “fucking” or “brown,” so rendering his comment unoffensive in his view.

[8] The key incident in the matter occurred in a meeting that took place on the morning of 2 November 2020. The Applicant was at the office of Heartland Kia, on Sunnyholt Road, Blacktown. He said he walked in to Mr Gorasia’s office and saw Mr Pitcock, sitting at Mr Gorasia’s desk. Mr Jason Foggy, a Wholesaler with CarNet, was also in the office. Mr Gorasia and Mr Pitcock said Mr Allan was at the door of Mr Gorasia’s office when he arrived. I do not consider anything material turns on the timing of attendance in the office.

[9] Either at the time Mr Gorasia entered his office, or after a few minutes, the Applicant made a comment regarding Indians (the Comment), and Mr Gorasia was of Indian decent. The recollections of the Comment were as follows:

(a) The Applicant stated that just before he left the group, he said what he thought was a humorous comment “What’s worse than an Indian?” Mr Pitcock responded “I don’t know, what?” The Applicant then said “Two Indians, and one has a knife.”

(b) Mr Gorasia recalled that the Applicant responded to his greeting when he entered his office by saying to Mr Pitcock and Mr Foggy “you know what’s fucking worse than working with a Brown Indian, working with 2 brown Indians with one having a knife behind his back”.

(c) Mr Pitcock recalled that when Mr Gorasia entered his office that the Applicant said “you know what is worse than one fucking brown Indian two fucking brown Indians one with a knife behind his back.”

[10] Of those three versions, I prefer the version of Mr Gorasia. He was very clear in his evidence before the Commission as to what was said, and I note that Mr Pitcock’s recollection does not depart in any material way from Mr Gorasia’s. The Applicant, as I have found above, sought to tailor his evidence by denying, unacceptably, that he did not say “fucking” or “brown.”

[11] The Applicant then left the meeting. Mr Pitcock went to look for the Applicant to tell him the Comment was in poor taste. He could not find the Applicant, and so telephoned the Applicant and told the Applicant the Comment was in poor taste.

[12] The following day, 3 November 2020, Mr Clarence was advised of the Comment and carried out an investigation to ascertain what had happened. Mr Clarence interviewed Mr Gorasia and Mr Pitcock and obtained statements from them both. He noted that there was unanimity in their versions of the Comment. Mr Clarence also spoke to Mrs Bowden, who Mr Gorasia had seen on the previous day after the Comment, and she confirmed Mr Gorasia’s distress. Mr Clarence then decided to interview the Applicant to get his version of the events.

[13] That same day Mr Clarence attended the dealership at Kings Park where the Applicant was located and advised the Applicant that he wished to speak to him. As the Applicant and Mr Clarence walked up the stairs to the meeting room the following words were said:

The Applicant:	“Is there a problem?”
Mr Clarence:	“Yes there is.”
The Applicant:	“Is this to do with Samir [Mr Gorasia]?”
Mr Clarence:	“Yes. Would like a support person or witness.”
The Applicant:	“No – I can look after myself”

[14] At the meeting the complaint regarding the Comment was outlined to the Applicant who agreed that he had made the Comments in general as outlined, but denied that the Comment included the expletive and any reference to colour. The Applicant suggested that he was joking but conceded that the Comments could be offensive. At this time Mr Allan showed no remorse nor made any offer to apologise to the complainant.

[15] After some discussion Mr Clarence left the meeting in order to discuss the situation with Mr Duggin. That discussion lead to a decision being made that the evidence received from the witnesses was compelling and that the Comment constituted gross misconduct such that the Applicant’s services should be terminated.

[16] Mr Clarence returned to the meeting room where the Applicant had remained, and advised the Applicant that the comments he had made were a breach of not only Company Policy but also a breach of society standards. The Applicant was further advised that given the compelling evidence from the Mr Gorasia and other witnesses, and that he had not provided sufficient argument to refute the allegations, his services would be terminated. Mr Clarence then provided the Applicant with a letter of termination (the Termination Letter). That letter was as follows:

“Dear Mr Allan,

You have attended a termination interview in relation to your gross misconduct in your role as Fleet Sales Manager at Heartland Motors, Kings Park.

This conduct relates to you making racial comments towards, or in the presence of another staff member, which is contrary to Company policy.

Your final pay including all your entitlements will be processed and deposited in your bank account in the next cycle.

Yours sincerely

R Clarence”

[17] As at the time of the hearing the Applicant had not obtained alternate employment, but the Applicant’s evidence was that he had been suffering ill health and, when better, he would have absolutely no difficulty finding alternate employment and had already received approaches form prospective employers. 2

CONSIDERATION

Preliminary findings

[18] There are no jurisdictional objections to the Applicant’sapplicationbeing determined by the Commission. Specifically, I am satisfied that:

(a) the Applicant was dismissed at the initiative of the employer (ss 385(a) 386(1)(a));

(b) his unfair dismissal application was lodged within the 21 day statutory time limitation found at s 394(2) of the Act;

(c) the Applicant is a person protected from unfair dismissal in that:

(i) he had completed the minimum employment period set out in ss 382 and 383 of the Act; and

(ii) his salary was below the high income threshold;

(d) his dismissal was not a case of genuine redundancy (s.385(d)); and

(e) his dismissal was not a case involving the Small Business Fair Dismissal Code (s.385(c)).

[19] As I have just concluded that the above criteria have been satisfied, this leaves only the question of whether the Applicant’s dismissal was ‘harsh, unjust or unreasonable,’ and therefore an unfair dismissal. To this end, one must direct attention to s.387 of the Act, dealing with the matters to be taken into account by the Commission in determining whether the dismissal was unfair. It is trite to observe that each of the matters must be considered and a finding made on each of them, including whether they are relevant or not; for example whether a person was refused an opportunity to have a support person present may be irrelevant, if the request was not made, or the employee declined to take up the offer.

[20] Section 387 of the Act identifies the matters that the FWC must take into account in deciding whether a dismissal was “harsh, unjust or unreasonable:”

(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.

(a) Valid reason

[21] The Applicant was dismissed for gross misconduct. Not only does the Applicant say that his dismissal was ‘harsh, unreasonable and unjust,’ but he also denies having committed misconduct. With this in view, the onus is on the Respondent to prove to the Commission’s satisfaction, on the balance of probabilities, that the misconduct occurred, see: Pastrycooks Union v Gartrell White (No. 3) 3and Yew v ACI Glass Packaging Pty Ltd.4

[22] While decided in a different statutory context, the comments of Moore J in Edwards v Giudice, 5 at paragraphs [4] and [7] are apposite:

“In the present case the Full Bench concluded that Commissioner Tolley had failed to determine whether Mr Edwards was guilty of misconduct in the way alleged by Telstra Corporation Ltd and that the Commissioner should have done so as part of ascertaining whether her termination had been harsh, unjust or unreasonable. The approach of the Full Bench was, in my opinion, unexceptionable. When the reason for a termination is based on the misconduct of the employee, the Commission must, if it is an issue in proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s 170CG(3)(a). That is, the Commission must determine whether the alleged conduct took place and what it involved.

...

The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in an arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee might elect to contest the termination in the arbitration on the basis that the conduct took place but the conduct did not provide a valid reason and perhaps also by relying on the other grounds in paras (b) to (e). However an employee may not concede or admit, for the purposes of the arbitration, that the conduct occurred or may not be prepared to accept that the Commission could assume the conduct occurred. In either situation the employee would be putting in issue whether the conduct occurred. In my opinion the Commission must, in these circumstances, determine whether the conduct occurred as a step in resolving whether there was a valid reason. I do not see how the Commission can move straight to a consideration of whether termination was justified by assuming the conduct did occur. First the Commission would have failed to resolve an issue raised by and relied on by the employee, namely whether the conduct occurred at all. Second the Commission would have failed to make findings by reference to which a Full Bench might have to determine an appeal where the Commission had concluded the termination was harsh unjust or unreasonable on assumed facts and not facts found.”

[Emphasis added]

[23] In King v Freshmore, 6 a Full Bench of the Australian Industrial Relations Commission said at paras [24], [26], [28] and [29]:

“[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.

...

[26] As we have noted above, s.170CG(3)(a) obliges the Commission to make a finding as to whether there was a valid reason for the termination of employment. In circumstances where a reason for termination is based on the conduct of the employee the Commission must also determine whether the alleged conduct took place and what it involved.

[28] It is apparent from the above extract that his Honour answered the question of whether the alleged misconduct took place on the basis of whether it was reasonably open to the employer to conclude that the employee was guilty of the misconduct which resulted in termination. This is not the correct approach. The Commission’s obligation is to determine, for itself and on the basis of the evidence in the proceedings before it, whether the alleged misconduct took place and what it involved.

[29] In our view the Senior Deputy President failed to determine for himself whether Mr King was guilty of misconduct in the way alleged by Freshmore and he should have done so as part of determining whether the termination had been harsh, unjust or unreasonable. When the reason for a termination is based on the misconduct of the employee the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The absence of such a finding leads us to conclude that the member below failed to properly determine whether there was a valid reason for the termination of Mr King’s employment.”

[Emphasis added]

[24] The meaning of “valid reason” in s.387(a) is drawn from the judgment of Justice Northropin Selvachandran v Peterson Plastics Pty Ltd. 7 This meaning, which has been applied by members of this Commission and its predecessors for many years, was stated as follows:

“In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly.”

[25] The reasons for the Applicant’s dismissal were outlined in the Termination Letter. There is no doubt that the Comment was made, and I have found that Mr Gorasia’s recollection is the correct version of the Comment. There is therefore no doubt the misconduct took place and what it involved, and so a valid reason for dismissal existed.

[26] The Macquarie Dictionary defines racism as:

“1. the belief that one race of people is better than any other.

2.unpleasant or violent behaviour towards people of a particular race.”

[27] The Comment was racist. The Comment expressed the view that the presence of one Indian was a bad thing, and the presence of two Indians was worse. The Comment was unpleasant behaviour towards Mr Gorasia, who was Indian. Mr Gorasia’s evidence, when questioned by the Applicant and not Mr Cormack who was otherwise his representative, was as follows:

“THE WITNESS: But, Colin, why make such a comment? How would you feel if you were like - when there are three people sitting in the office and in front of three people you make a comment like that. Do you know how little I felt, and what have I done to deserve that? Why would you swear, why would you use a word “Fucking brown Indian and a knife.” That - that is - - -

MR ALLAN: I’m sorry - - -?  

THE WITNESS: You should know that. You should know that. Like you’re not a teenager, you’re not like someone that’s not exposed, mate, to what it is. I’ve never used any such words to anyone that would hurt someone.”

[28] The Applicant maintained that the Comment was merely a “joke” that his father (who was English) would often use in referring to his own nationality by saying “what’s worse than a Pom – two of them.” His father would use the same comments in relation to Irish, or Scottish persons, and there was no racial intent. The Applicant also repeatedly denied being racist.

[29] Just how the Comment, or the joke of the Applicant’s father, could not be considered racist, being clearly directed to the race of certain persons, was explained by the Applicant on enquiry by the Commission as follows: 8

“So do you accept in certain circumstances saying exactly those words can be racist?  -Yes, that’s correct, they can be racist. But when we’re talking - if I say, “What’s worse than a Scotsman?” there’s obviously someone that I know in the room, and I’ve never once had anything there go back to somebody who had complained about it or come back to me.

So applying that principle, the first time you would’ve said something like that - say you’d just met Mr Samir and you said the comment you said to him, that you say you said to him, that first time it would’ve been racist?  -No, I didn’t put it across the - - -

No, no, attend to my question. Assume that this was the first time you’d met Mr Samir?  -Yes.

And you said that to him, would that be racist?  -Putting it that way, yes, it probably would - it would be, yes.

So basically I’m just trying to understand your answer to Mr Duggin’s last question. The reason you say it’s not racist is because of the history you have with Mr Samir?  -I’ve worked with him for five years.

Okay. I’m just trying to - - -?  -Well, I’ve never worked - - -

I’m trying to understand your answer?  -Let me rephrase that, I worked with that dealership for probably six months before I went out to Heartland at Penrith, and then when Holden fell by the wayside I come back and I got - I come out of hospital, had my surgery and whatnot, and when I’d come back I worked at Hyundai, so two different places.

What am I meant to take from that, that if you said it at one dealership it might be racist, but at another dealership it might not?  -They’re both Indians.

They’re both Indians, so - - -?  -General manager, general manager, both Indians, both good mates.

It gets back to what I was trying to understand is that if you have familiarity with someone then that means it’s not racist?  -If I have familiarity I would consider it not racist, yes.

But if it was the first time you met them it would be racist?  -Definitely.

Okay?  -Definitely.”

[30] Mr Duggan also explored the basis upon which the Applicant considered his conduct as not being racist in the following exchange in evidence: 9

“MR DUGGIN: So I don’t know if you quite answered my question. Do you think there’s people walking around doing racist things that don’t acknowledge that they’re racist people?  -If they’re going out there with racist - and they’re doing racist taunts, yes.

And you don’t think you’re one of those people?  -They are - I’m not one of those people.

Because you pick your mark, you choose when to be racist when not to be?  -Yes, I choose when I’m having a bit of fun.

Right?  -And that’s purely and simply what it is.”

[31] I reject the Applicant’s explanation as to why his conduct, and the Comment, were not racist. That explanation was a fanciful attempt to explain the complete inappropriateness of the Comment. There is no component of subjective intent or familiarity in the dictionary definition of racism, and it ludicrous to suggest that the Comment should be assessed by reference to such components. The Comment was quite clearly not “a bit of fun” to Mr Gorasia. To the contrary, he was clearly and deeply offended.

(b) to (e) Notification/ Opportunity to Respond/ Support Person/ Warnings

[32] Subsections (b)-(e) of s.387 of the Act might be broadly characterised as issues relevant to whether a dismissed employee was afforded procedural fairness. Even if there was a valid reason for an employee’s dismissal, the dismissal may still be held to be unfair, if the employee was not afforded procedural fairness. On the other hand, any issue or issues of procedural unfairness may not be of such significance as to outweigh the substantive reason/s for an employee’s dismissal, particularly in cases of misconduct where the proven misconduct is of such gravity as to outweigh any other considerations such as age, length of service, contrition, and issues of procedural unfairness generally.

[33] In Crozier v Palazzo Corporation Pty Limited t/as Noble Storage and Transport, 10 a Full Bench of the AIRC, said at paragraph [73]:

“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.”

[Emphasis added]

[34] In Wadey v YMCA Canberra, 11 Moore J made clear that an employer cannot merely pay lip service to giving an employee an opportunity to respond to allegations concerning the employee’s conduct. His Honour said:

“In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee’s conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.”

[35] The Applicant was given the opportunity to have a support person at the meeting he attended. The Applicant stated “No – I can look after myself”, notwithstanding that he had just been advised that the meeting was “… to do with Samir [Mr Gorasia]?”

[36] There was some complaint by the Applicant as to the specification of the precise nature of the Respondent’s concerns, and a suggestion that those concerns should have been reduced to writing prior to the disciplinary meeting. I do not consider there was any failure to give the Applicant an opportunity to respond to the reasons for which he was subsequently dismissed. The meeting occurred of the day following the Comment. The Applicant was aware a complaint had been made, and even anticipated the reason for the meeting. It is further apparent that in that meeting the Applicant was given a full opportunity to respond.

[37] While in the hearing there was some evidence given of the Applicant making other comments of a racial nature, those comments were not a part of the considerations of the Respondent in dismissing the Applicant. Mr Clarence’s clear evidence on that issue, which I accept, was as follows:

“Okay. So those inquiries from - - -?  -They came as an outside part of it. They weren’t a part of the actual reasoning for what happened.

But there was nothing provided to Mr Allan about any of those?  -No. No.

So it’s likely that prior warnings may have avoided this whole issue if Mr Allan had been made aware of any concerns prior, and there was no decision to suspend him while an inquiry took place - - -?  -No.

- - -obviously; is what you say---No. Nobody had made an official complaint about anything else. Everything else was basically hearsay. It was this particular item - incident rather that we were focusing on. This was the incident which we took as being the reason for terminating him. We took it because an official complaint had been made. The man making the complaint indicated and said in his statement that these things had happened before, but he had no made formal complaints about them. The formal complaint was about this particular incident, and this is the incident upon which we acted.”

(f/g) Size of the business/human resources

[38] This factor is ordinarily applied to explain poor procedures followed in effecting dismissal by reference to the small size of a business and the absence of dedicated human resource management specialists or expertise. That was not a relevant circumstance in this matter. To the contrary, the Respondent had Mr Clarence as a dedicated Human Resources professional. In those circumstances this is a neutral consideration.

(h) Other relevant matters

[39] Regarding other relevant matters, I consider there are two countervailing matter relevant to the Applicant. They are:

(i) Whether summary dismissal was a disproportionate response; and

(ii) The Applicant’s lack of contrition.

(i) Disproportionate Response

[40] In the Applicant’s Submission, the following was put:

The circumstances of this matter are such that the decision to immediately terminate the employment of a long serving employee is disproportionate to the alleged incident. Mr Allan apologises for any offence caused to anyone. The matter should have been resolved by considering options such as offering Mr Allan the opportunity to apologise in person to anyone who may have been offended and by issuing a warning. Mr Allan could have also been made aware of, or re acquainted with, any relevant company policies. He could have also been required to attend cultural awareness training.

The decision to summarily dismiss Mr Allan is an extreme action for the alleged offence.

[41] I accept that termination of long serving employees for one instance of misconduct can in certain circumstances be harsh, but such harshness is substantially obviated in this matter by the Applicant’s evidence that he will have no problems gaining alternate employment, and has to date in fact rebuffed approaches from prospective employers on the basis of his health.

[42] I do not accept, however, that the Applicant had been denied the opportunity to apologise, or that the apology contained in the above submission was sincere. Indeed, at the commencement of his examination in chief, the following evidence fell from the Applicant: 12

“MR CORMACK: Did you ever - were you afforded any opportunity to consider how the matter might be resolved? Was there any discussion with you about the fact that Samir has been upset by these comments and that the company would like to have the issues resolved or considered, some way of addressing his concerns?  -I didn’t get the opportunity, and my way of looking at it, if somebody - if I’ve upset somebody, anybody, let them be man enough to come and say, “Col, I take” - and I know the guy very well, so rest assured he would not have any dramas coming up and telling me the situation. That’s what I can’t understand why he’s just went away in tears apparently. You would’ve thought he would’ve come and said, “Hey, I take offence to that.”

[Emphasis added]

[43] When the Applicant interrupted Mr Cormack during the cross-examination of Mr Gorasia (which statement was nonetheless rejected as not being a question), he attempted the following most disingenuous form of apology: 13

“MR ALLAN: Hi, Samir, sorry about that, mate. Just enquiring after we had our little get together and I give my comment, my bad comment, I’m just enquiring - I’ve just about lost my train of thought where I was going - we understand what I said I did say, and I’d also like to say now, because I didn’t get any opportunity, if it was offensive to yourself I would have really appreciated if you had have come and said to me, “Hey, Col, I take that to heart” - and, you know, bang, bang, bang.”

[44] As Mr Gorasia observed in a further exchange with the Applicant: 14

“If the opportunity had of been there I would have said those words [An apology]?  -Again you could have picked up the phone. You know where I’m working, and there at Heartland yesterday as well. You could have come to me and said, “Samir, this is what it is, please forgive me” - you know. I don’t have an issue, but when there are people sitting out there, when there are external people from different organisations sitting in my office and you say that, mate, I don’t deserve to be spoken like that. My parents certainly weren’t - want to be like that. I don’t speak to anyone like that.”

[45] As to the issue of Company policies, I note that each party attended the hearing with a version of a Company policy and neither could establish which policy was applicable at the relevant time. The final position regarding the policies was summarised by the Commission as follows: 15

“I am just trying to work out how we can deal with the policies. It’s noted they’re in existence. Each of the policies refers to race discrimination and each says that you can be instantly dismissed for breach of discrimination laws including race discrimination. That’s understood.”

[46] The parties agreed with the above summary, but the Applicant noted that on any policy version termination of employment “may” not “will” result from a serious indiscretion.

(ii) The Applicant’s Lack of Contrition

[47] Based on my observation of the Applicant, and his evidence and conduct at the hearing of the matter, it is clear that he does not consider he did anything wrong in making the Comment. His belated attempt at a disingenuous apology was put on the basis of “if it was offensive to yourself,” rather than any genuine acceptance of wrongdoing.

[48] The Applicant’s attempt to maintain that the Comment was not offensive on his version (absent the expletive and “brown”), and to explain the Comment as part of a long standing “joke,” further emphasises the lack of contrition of the Applicant.

Conclusion Regarding s. 387

[49] After consideration of the relevant matters outlined in s.387 of the Act, I am satisfied, for the reasons outlined above, that the Applicant’s dismissal was not ‘harsh, unjust and unreasonable’ within the meaning of s.387 of the Act. His dismissal was substantively and procedurally fair, and there was a valid reason for the dismissal.

[50] The Application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR727582>

 1   Transcript PN 15.

 2   Transcript PN 115, and 122 to 128.

 3 [1990] 35 IR 70, at Pp. 83 to 84.

 4 (1996) 71 IR 201

 5 (1999) 94 FCR 561.

 6   [2000] AIRC 1019.

 7 (1995) 62 IR 371.

 8   Transcript PN 264 to 275.

 9   Transcript PN 290 to 293.

 10 (2000) 98 IR 137.

 11 (1996) IRCA 568.

 12   Transcript PN 229.

 13   TranscriptPN 537.

 14   Transcript PN 543

 15   Transcript PN 622.