Damian Mackay v Woolworths Group Limited T/A BWS
[2019] FWC 5584
•2 SEPTEMBER 2019
| [2019] FWC 5584 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Damian Mackay
v
Woolworths Group Limited T/A BWS
(U2019/100)
DEPUTY PRESIDENT BINET | PERTH, 2 SEPTEMBER 2019 |
Application for an unfair dismissal remedy.
Introduction
[1] On 3 January 2019 Mr Damian Mackay (Mr Mackay) made an application to the Fair Work Commission (FWC) pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he was unfairly dismissed from his employment with Woolworths Group Limited trading as BWS (BWS) on 13 December 2018.
[2] At the time of his dismissal Mr Mackay was employed by BWS at the BWS Spencer Park store in Albany (Store) as a casual Liquor Sales Assistant. Mr Mackay was dismissed on 13 December 2018 following an investigation into a series of altercations which occurred between Mr Mackay and another employee (Mr B), on 6 December 2018.
[3] On 21 January 2019, BWS filed a Form F3 Employer Response, noting it had no jurisdictional objections to the Application.
[4] The Application could not be resolved by conciliation.
[5] After taking into account the views of Mr Mackay and BWS as to whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing to determine the matter.
[6] The Application was therefore listed for a hearing in Albany on 5 and 6 June 2019 (Hearing).
[7] BWS sought permission to be represented by Ashurst Australia at the Hearing.
[8] Relevantly, section 596(1) of the FW Act provides that a party may be represented in a matter before the FWC by a lawyer or paid agent only with the permission of the FWC.
[9] Section 596(2) provides that the FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
a. it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or
b. it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
c. it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
[10] The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with section 596 of the FW Act.1 The decision to grant permission is a two-step process. First it must be determined if one of the requirements in section 596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.2
[11] Having considered the submissions of the parties I was satisfied that granting permission to BWS to be represented would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
[12] I therefore decided to exercise my discretion to grant BWS permission to be represented.
[13] At the Hearing Mr Mackay represented himself and gave evidence on his own behalf.
[14] BWS was represented by Mr Rayn Wade of Ashurst Australia (Mr Wade). Mr Wade called the following witnesses:
a. Ms Kerry Hills (Ms Hills) – Ms Hills is the Trainee Assistant Manager at the Store. She reports to Mr David Brady, the Store Manager (Mr Brady). Ms Hills was in charge of the Store on the date the altercations occurred between Mr Mackay and Mr B which led to Mr Mackay’s dismissal.
b. Mr Brady – Mr Brady reports to Ms Kylie Morris, the Area Manager (Ms Morris) and Mr Shawn Holloway, WA State Manager.
c. Ms Morris
[15] After the conclusion of the Hearing it became apparent that the audio of the Hearing was not fully captured using the devices provided by the FWC for Chambers to self monitor regional proceedings. On 28 June 2019 Ashurst proposed that as follows:
“In our view the most significant evidence not transcribed is the evidence that followed PN414, which was the balance of the cross-examination of the Applicant. Mindful of those deficiencies, we took steps to have the solicitor's notes of that portion of the evidence typed up and a copy of the missing evidence, in question and answer format, is attach as annexure A. In our view annexure A, although not a verbatim account of the evidence, is adequate for the purposes of the determination that the Commission is required to make. Our client accordingly proposes that the matter be determined with reference to both the existing transcript and the attached annexure A.”
(Ashurst Notes).
[16] On 4 July 2019 my Chambers wrote to the parties and informed them that in the absence of any objection to my doing so, that I proposed to procced to determine the Application based on the exhibits tendered during the Hearing, the available transcript, my own notes and the Ashurst Notes.
[17] Neither party objected to my use of the Ashurst Notes in the absence of transcript of that portion of the proceedings.
[18] Mr Mackay only challenged the accuracy of the Ashurst Notes in the following regard:
“I object to item PN414.33 of Ashurst notes in that I that it is Mr Wades definition as insubordinate not that I agree that it is insubordinate.”
[19] I have relied on my own notes of the proceedings in relation to the particular aspect of Ashurst Notes contested by Mr Mackay. I have relied on the balance of the Ashurst Notes when determining this Application.
[20] Final written submissions were filed by BWS on 11 July 2019. Final written submissions were filed by Mr Mackay on 18 July 2019. BWS elected not to file Closing Submissions in Reply notwithstanding having the opportunity to do so.
Background
[21] Mr Mackay commenced casual employment with BWS at the Store on 5 December 2017. 3
[22] Mr Mackay’s hours of work varied. He says that he worked up to 30 hours in any one week but that by December 2018 he was working as little as 6 hours per week. 4 BWS say that on average over the period of his employment Mr Mackay worked 20 hours per week for BWS. Mr Mackay earned an average weekly salary of $521 (gross).
[23] On 4 September 2018 Mr Mackay was issued with a First and Final Written Warning (Final Warning) following a meeting held the previous day. The Final Warning reminded him of BWS’ expectation that he adhere to and display the behaviour’s required by the Woolworths Code of Conduct, the Appropriate Workplace Behaviour Policy and the Company Values. 5
[24] The Final Warning warned him that any further instances of unacceptable behaviour would result in further disciplinary action up to and including termination of employment. 6
[25] The Final Warning was issued on account of three separate incidents’ during July and August that year. 7
a. On 18 July 2018, Mr Mackay had asked a customer for proof of identification and then questioned the customer regarding whether or not the identification was legitimate. The customer subsequently submitted a complaint, claiming that Mr Mackay had been rude during the course of this interaction. (Identification Incident)
b. On 24 July 2018, the Store Manager asked Mr Mackay to take his feet off a chair during a training session. The Training Facilitator repeated the request. Mr Mackay ignored both requests. (Training Incident)
c. On 4 August 2018 Mr Mackay commented on a female customer's appearance when she entered the store, stating words to the effect of 'what are you wearing, where is all of your clothing'. According to the customer, Mr Mackay had looked her up and down during this exchange. The customer subsequently submitted a complaint, claiming that Mr Mackay’s conduct was lewd. (Clothing Incident)
[26] Mr Mackay now contests the validity of the Final Warning. At the time the Final Warning was issued to Mr Mackay he was informed by Mr Brady that he could appeal it. I note that Mr Mackay chose not to do so at that time.
[27] In addition to issuing the Final Warning, BWS provided Mr Mackay with a copy of the Woolworths Code of Conduct and Appropriate Workplace Behaviours Policy. BWS also directed Mr Mackay to complete further training in the Woolworths Code of Conduct and Appropriate Workplace Behaviours Policy (Code). Mr Mackay undertook this training on 30 September 2018 and signed an acknowledgment that he understood the training and the Code. 8
[28] In addition to the Final Warning and associated remedial measures, Mr Mackay was also counselled by Mr Brady on 23 November 2018, a matter of weeks prior to the incidents that led to Mr Mackay’s dismissal. BWS say that the counselling was considered necessary because Mr Brady had received a complaint from an employee, Ms Heather Toovey, about the way in which Mr Mackay had spoken with her at the Store on Saturday 17 November 2018. 9
[29] Mr Brady says that during that counselling session he reminded Mr Mackay of BWS’s expectations of him in relation to respectful interactions with others in the workplace. 10
[30] Mr Mackay became concerned that other staff members disapproved of his approach to offering ‘tastings’ to customers, that they were discussing rumours regarding his personal life and that a number had indicated that they did not wish to be rostered to work with him. He wrote to Mr Brady on 19 November 2018 asking him to address these issues. 11
[31] Mr Brady responded to the email indicating that he was aware of the issues and would tend to them. 12
[32] On 6 December 2018, there were two interactions between Mr Mackay and another Store employee, Mr B about the unpacking of a load.
[33] On that day Mr Mackay had been asked by text message by Mr Brady to commence his shift early to help ‘smash out a load’. Mr Mackay says that when he arrived at the Store he approached Mr B who was already unpacking the load and asked Mr B what he wanted him to do. 13
[34] Mr Mackay says that Mr B replied that he should know what he had to do and that Mr Mackay shouldn’t ask ‘stupid questions’. 14
[35] Mr Mackay says he endeavored to reason with Mr B however Mr B: 15
“19. … took an aggressive stance. He seemed extremely agitated, tense, twitchy and intense eye contact.
20. He took a step towards me and invited me to engage in a physical altercation by saying “come on then” or similar.”
[36] Ms Hills says she became concerned about the nature of the interaction between the men and came over to intervene in the conversation. 16
[37] In her witness statement prepared for these proceedings she says that she instructed Mr Mackay to step away from Mr B so that she could explain to him what duties he should perform. She says that Mr Mackay initially began to do so however Mr B and Mr Mackay continued conversing. She says that after Mr Mackay mumbled something she couldn’t hear, Mr B stepped towards Mr Mackay. 17
[38] Ms Hills said that Mr Mackay remained in situ and so she instructed him several times to move away. When he did not do so she stepped between the two men and motioned Mr Mackay with her hand to move away. 18
[39] Mr Mackay concedes that Ms Hills told him to walk away. He says that he tried to raise with her concerns that Mr B had previously acted in the same way. 19
[40] On the CCTV Footage 20 of the incident, Mr Mackay can be observed approaching Mr B who is unpacking product from a cart onto a shelf. With the exception of a few seconds, throughout the duration of the incident Mr B continues to perform the task of transferring product from the cart to the shelf. While it is apparent the men are speaking to each other, with the exception of those few seconds, there is nothing about Mr B’s physical demeanour which suggests aggression. To the contrary, Mr B appears to be intent on completing his duties without interruption.
[41] Mr Mackay does not perform any work during the altercation but can be observed continuing to engage verbally with Mr B and Ms Hills in an animated way aggressively jabbing his finger.
[42] Ms Hills can be observed on the CCTV footage stepping between the men and then positioning herself to lead Mr Mackay away from Mr B towards the back of the Store. She gestures to Mr Mackay to follow her and starts walking towards the back of the Store. In her contemporaneous notes of the incident, Ms Hills says that Mr Mackay was happy to walk away with her. 21 However this is not consistent with the CCTV Footage which reveals Mr Mackay remaining stationary whilst engaged in conversation with Mr B. When Mr Mackay doesn’t move and continues to speak to Mr B, the CCTV Footage reveals that Ms Hills stepped back towards the two men. The men can be observed conversing while Mr B continues to pack shelves.
[43] Notwithstanding Ms Hills evidence to the contrary, on the CCTV Footage it appears that it is Mr Mackay that takes the first step towards Mr B rather than the other way around. Mr B then briefly stops packing the shelf and steps towards Mr Mackay squaring his body with his arms at his side. Contrary to Ms Hills’ contemporaneous notes of the incident 22 Mr B’s gesture does not appear aggressive but intended to be a response to Mr Mackay’s movement towards him to indicate that Mr B is not intimidated by Mr Mackay. It is the type of movement a police officer or security guard might make when approached by an unruly individual or intoxicated drunk. Mr Mackay then takes a further step towards Mr B, aggressively leading with one shoulder. Despite both men being solidly built and considerably taller than the diminutive Ms Hills, she steps between the two men. Mr B then turns his back and continues to pack shelves while Ms Hills can be observed speaking to Mr Mackay.
[44] Mr Mackay appears to be agitated. Speaking animatedly to Ms Hills and gesturing. Ms Hills makes several gestures with her hands for Mr Mackay to follow her. She begins moving to the back of the store. Mr Mackay takes a few steps to follow her, stops, then begins engaging with Mr B again. Ms Hills can be seen to continue to try to get Mr Mackay to move further towards the back of the Store. Mr Mackay takes a few steps to follow her then turns to engage again with Mr B. Ms Hills steps behind Mr Mackay in an apparent effort to block him returning to Mr B. Eventually after stopping and starting several times she gets Mr B to the back of the store where she appears to be instructing him to perform a task.
[45] Ms Hills says that she sent Mr Mackay to take the rubbish outside to separate him from Mr B. She says that in Mr Mackay’s absence she warned Mr B that his behaviour was not acceptable. 23
[46] Ms Hills was shaken by the events which occurred and left the Store to report the altercation to Mr Brady. She says that she was concerned for her own safety and surprised by Mr B’s conduct given that he was normally very quiet. She asked Mr Brady what she should do and was informed that she should keep the men apart. 24
[47] She returned to the Store and heard raised voices. 25
[48] Mr Mackay and Mr B were alone in the Store at the time that the second incident started.
[49] Mr Mackay says that he again tried to assist to unpack the delivery and was informed by Mr B that he had told the Store Manager a day or two earlier that he had decided that he would not speak to Mr Mackay. 26
[50] Mr Mackay says that Mr B moved to the front counter of the Store and Ms Hills returned to the Store and stood at the counter speaking to Mr B. Mr Mackay says that he subsequently approached the counter to assist Mr B and Ms Hills says that he was unsuccessful so he walked away. 27
[51] Ms Hills says that when she returned to the Store the men were again arguing and she asked Mr Mackay to walk away. She says that Mr B turned to her and raised his voice and that she told him to leave the Store. 28
[52] The CCTV Footage tendered at the Hearing commences with Mr B located behind the counter. In the CCTV footage Mr B can be seen leaning against the wall in a relaxed pose looking at what appears to be his mobile phone. From time to time he looks up and appears to respond to someone who can not be viewed on the footage but whom Mr Mackay concedes was him standing at the rear of the Store. Ms Hills can then be seen returning to the Store. Shortly after she returns, Mr Mackay can be observed walking aggressively towards the counter of the Store. He is animated in his gestures, leaning forward and pointing forcefully. Ms Hills steps between the men who are separated by the counter and she gestures repeatedly to Mr Mackay to return to the back of the Store. Throughout the incident Mr B leans in a relaxed way against the back of the counter intermittently looking at his mobile device. There is nothing aggressive about his demeanour. Eventually Mr Mackay returns to his duties at the back of the Store. There is no footage of Ms Hills instructing Mr B to leave the Store or Mr B leaving. Her evidence that he spoke to her in raised voice is not consistent with his demeanour in the CCTV Footage.
[53] Ms Hills says that she felt unsafe in the Store with Mr Mackay and Mr B behaving in the manner they were and decided to call a friend’s boyfriend who was working nearby to come to the Store. He subsequently attended and remained for thirty minutes. 29
[54] Mr Brady arrived at the Store at approximately 3pm and spoke individually to Ms Hills, Mr B and Mr Mackay. Mr Brady told both men they would be required to attend a formal meeting. 30
[55] Mr Mackay was subsequently directed to attend a formal meeting on 11 December 2018, with Mr Brady and Ms Kyley Pike (Ms Pike), Store Manager, Brooks Garden (Investigation Meeting). Mr Mackay was offered the opportunity to have a support person attend the meeting but elected not to take up the opportunity. At this meeting Mr Brady asked Mr Mackay to provide his version of events in relation to the interactions with Mr B on 6 December 2018. Mr Mackay told Mr Brady that he thought his behaviour and actions were reasonable and that he did not feel he had breached the Code. 31
[56] Following the meeting on 11 December 2018, Mr Brady advised Mr Mackay that he would be required to attend a meeting on 13 December 2018 to provide further explanation of his conduct during the interactions with Mr B on 6 December 2018 and give reasons as to why his employment should not be terminated because of his conduct (Show Cause Meeting). Mr Brady requested that Mr Mackay also provide this information in writing prior to the Show Cause Meeting. 32
[57] By email dated 12 December 2018, Mr Mackay responded to Mr Brady's request (Show Cause Response). 33
[58] On 13 December 2018, Mr Mackay attended the Show Cause Meeting with Mr Brady and Ms Pike. At this meeting, Mr Brady asked Mr Mackay whether he had anything further to say about the altercations and to provide any additional reasons as to why his employment should not be terminated because of his conduct during the interactions with Mr B on 6 December 2018. 34
[59] Mr Mackay did not disclose any additional information and consequently BWS determined that it would terminate Mr Mackay’s employment with effect the same day. This was confirmed in writing by way of a letter of termination. 35
[60] Mr B’s employment with BWS was also terminated. 36
[61] Mr Mackay commenced employment with another employer within 5 days of being dismissed.
[62] In light of his subsequent new employment and the breakdown in his relationship with BWS, Mr Mackay does not seek reinstatement but instead seeks an order for compensation for $13,561.60, being six months’ pay at an average of 20 hours per week. 37
Is Mr Mackay protected from unfair dismissal?
[63] Section 390 of the FW Act provides that the FWC may order a remedy for unfair dismissal if satisfied that the applicant was unfairly dismissed and that the applicant was protected from unfair dismissal at the time he or she was dismissed.
[64] Section 382 of the FW Act provides that an applicant is protected from unfair dismissal if, at the time of being dismissed:
a. the applicant is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
b. one or more of the following apply:
i a modern award covers the person;
ii an enterprise agreement applies to the person in relation to the employment;
iii the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[65] It was not in dispute and I find that Mr Mackay was an employee on a national system employer who had completed a period of employment of at least the minimum employment period. 38
[66] It was not in dispute and I find that, at the time of dismissal, the BWS Enterprise Agreement 2014 applied to Mr Mackay’s employment.
[67] I am therefore satisfied that, at the time of dismissal, Mr Mackay was a person protected from unfair dismissal.
[68] Section 394(2) of the FW Act requires that an application be made within 21 days after the dismissal took effect. It is not disputed and I find that Mr Mackay was dismissed from his employment on 13 December 2018 and made the Application on 3 January 2019. I am therefore satisfied that the Application was made within the period required in subsection 394(2) of the FW Act.
[69] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
a. the person has been dismissed; and
b. the dismissal was harsh, unjust or unreasonable; and
c. the dismissal was not consistent with the Small Business Fair Dismissal Code; and
d. the dismissal was not a case of genuine redundancy.
[70] There was no dispute and I find that Mr Mackay’s employment with BWS was terminated at the initiative of BWS. I am therefore satisfied that Mr Mackay has been dismissed within the meaning of section 385 of the FW Act. 39
[71] It was not in dispute and I find that BWS is not a small business employer within the meaning of section 23 of the FW Act at the relevant time, having in excess of 14 employees (including casual employees employed on a regular and systematic basis). 40
[72] I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as BWS is not a small business employer within the meaning of the FW Act. It is therefore not necessary to consider whether BWS complied with the Small Business Fair Dismissal Code in relation to the dismissal.
[73] It was not in dispute and I find that Mr Mackay’s dismissal was not a case of genuine redundancy.
Was Mr Mackay’s dismissal harsh, unjust or unreasonable?
[74] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
a. whether there was a valid reason for the dismissal related to the applicant’s capacity or conduct (including its effect on the safety and welfare of other employees); and
b. whether the applicant was notified of that reason; and
c. whether the applicant was given an opportunity to respond to any reason related to the capacity or conduct of the applicant; and
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; and
e. if the dismissal related to unsatisfactory performance by the applicant – whether the applicant 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.
[75] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.41 I set out my consideration of each below.
Was there a valid reason for the dismissal related to Mr Mackay’s capacity or conduct?
[76] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”42 and should not be “capricious, fanciful, spiteful or prejudiced.”43 However, the FWC will not stand in the shoes of the employer and determine what the FWC would do if it was in the position of the employer.44
[77] Where a dismissal relates to an employee’s conduct, the FWC must be satisfied that the conduct occurred and justified termination.45
“The question of whether the alleged conduct took place and what it involved is to be determined by the FWC 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.”46
[78] BWS submit that Mr Mackay’s behaviour on 6 December 2018 in the context of the Final Warning and the counselling and training he had received in relation to his interactions with other staff and customers demonstrated that he was incapable of ensuring that his behaviour to both colleagues and customers conformed to BWS’s reasonable and necessary behavioural requirements as set out in its Code of Conduct. BWS submit that this constituted a valid reason for Mr Mackay’s dismissal
[79] Mr Mackay submits that BWS bear responsibility for the events of 6 December 2018 because:
a. He had informed BWS that rumours were circulating amongst his colleagues which were damaging his capacity to work effectively with his colleagues and BWS failed to act to address this; and
b. BWS were aware that Mr B was refusing to speak to Mr Mackay but nevertheless BWS rostered them to work together. 47
[80] Mr Mackay says that his interactions with Mr B on 6 December 2018 occurred in the course of him endeavouring to comply in a reasonable and appropriate way with the direction of BWS to assist with processing the delivery. Mr Mackay asserts that Mr B was the aggressor, that he did not provoke Mr B and that he treated Mr B with respect notwithstanding Mr B’s aggression. Mr Mackay denies he wilfully ignored Ms Hills lawful and reasonable directions. 48 He also disputes the validity of the Final Warning.
Final Warning
[81] In his Closing Submissions Mr Mackay asserts that:
“The overall integrity of the First and Final notice has always been questioned by the Applicant.” 49
[82] I note that the evidence is that at the time the Final Warning was issued to Mr Mackay, he was informed by Mr Brady that he could appeal it and that he did not do so.
[83] In respect to the Training Incident, Mr Mackay conceded under cross examination that he had refused two instructions from senior management to remove his feet from a chair.
[84] In relation to the Identification Incident, Mr Mackay attempted at the Hearing to cast doubt over the credibility of the complainant and of the very existence of the event (by reference to the recording of an incorrect date). I note however that Mr Mackay did not contest that the incident occurred during the investigation into the customer complaint but instead sought to justify his conduct.
[85] In relation to the Clothing Incident, during the course of the Hearing Mr Mackay suggested that the event never occurred. I note that:
a. In his evidence in chief, Mr Mackay specifically addressed the Final Warning and he suggested that the Identification Incident did not in fact occur. He did not however at that point suggest that the Clothing Incident did not occur. 50
b. There is no evidence that prior to the Hearing, Mr Mackay had at any point disputed that the Clothing Incident occurred.
c. During the investigation which led to the issuing of the Final Warning, Mr Mackay in effect acknowledged the Clothing Incident but sought to contextualize and justify the words that he had used, suggesting that he asked the offending question out of a concern that the female complainant was cold. 51
[86] I also note that Mr Mackay refers to the Clothing Incident in his Show Cause Response as follows: 52
“For the young lady who took offence at my suggesting to her that her lack of clothing in the very cold weather might be a fun conversational interaction with a customer I have learnt a great deal from this incident …”
[87] On the evidence before me I am not satisfied that the Final Warning was not validly issued.
Incidents on 6 December 2018
[88] Following his initial training on the Code, Mr Mackay was, as part of the outcome of the Final Warning, retrained on the Code. 53
[89] The Code provides that: 54
a. employees are required to take personal responsibility to always work within the rules, as described by the Code;
b. employees are required to behave in a manner which is consistent with the Woolworths Values, which requires employees to act with integrity, honesty and trust at all times;
c. unacceptable conduct includes, but is not limited to, using objectionable language and gestures towards fellow employees; and
d. employees are responsible for fostering a working environment where everyone is treated with dignity, courtesy and respect.
[90] Mr Mackay had raised concerns about his working relationship with his colleagues with BWS in advance of the incidents which led to his dismissal. He attributed the cause of the breakdown to malicious rumours and disapproval by his colleagues of behaviour consistent with company polices. Ideally these concerns should have been addressed by BWS in a more timely and proactive manner. However, my observations of Mr Mackay in the course of progress of this Application, reveal an approach to interactions with others that if replicated in the workplace would suggest that his behaviour was a significant if not primary source of the breakdown of his relationship with his colleagues. It may well have been the case that had BWS dealt with his grievances earlier it might well have led to it reviewing his suitability for continued casual employment.
[91] Given that Mr B had flagged a breakdown in his working relationship with Mr Mackay, rostering Mr Mackay and Mr B to work together was not ideal. Declining to speak to a colleague and refusing to work collaboratively is not an acceptable way to behave in the workplace and Mr B suffered the ultimate disciplinary consequence for his behaviour, losing his employment. Mr Mackay is entitled to complain about such conduct and ask that his employer address it. However, it is not a ‘get out of jail free card’ which permits him to behave inappropriately himself.
[92] Having observed the relevant CCTV footage (from two angles in the case of the first incident) multiple times it appears to me that Mr Mackay is the aggressor in the interactions between himself and Mr B. Mr Mackay appears to persist inflaming the situation, not withstanding Ms Hills’ valiant attempts to defuse the situation and separate the men.
[93] Even without audio it is readily apparent that on numerous occasions Ms Hills’ endeavours to direct Mr Mackay to move away from Mr B and that Mr Mackay ignores her. In the Investigation Meeting Mr Mackay confirmed that Ms Hills did in fact ask him to move away. In all the circumstances, Ms Hills’ instruction to move away was not only lawful and reasonable it should have been easily and readily complied with.
[94] These events occurred in a context where Mr Mackay had recently been counselled about his personal interactions, had received additional training about BWS expectations with respect to his workplace behaviour and had been issued with a Final Warning in relation to unsatisfactory workplace interactions.
[95] I am satisfied that the totality of the evidence demonstrates that Mr Mackay refused a lawful and reasonable direction and was incapable of ensuring that his workplace behaviour conformed to BWS’ reasonable and necessary behavioural requirements.
[96] Having regard to the matters I have referred to above, I find that there was a valid reason for the dismissal related to Mr Mackay’s conduct.
Was Mr Mackay notified of the reason for his dismissal?
[97] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,55 and in explicit56 and plain and clear terms.57
[98] Mr Mackay submits that he was not notified of the valid reason for his dismissal until he was dismissed.
[99] BWS submit that Mr Mackay was informed of the reasons which resulted in his dismissal at the Investigation Meeting and the Show Cause Meeting.
[100] I am satisfied that Mr Mackay was notified of the reasons which ultimately resulted in his dismissal before a decision was made to terminate his employment.
[101] In light of the above, I find that Mr Mackay was notified of the reason for his dismissal.
Was Mr Mackay given an opportunity to respond to the reasons for his dismissal?
[102] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.58
[103] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.59 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.60
[104] Mr Mackay was provided with an opportunity to respond to the reasons for his dismissal at the Investigation Meeting and the Show Cause Meeting.
[105] Mr Mackay asserts that BWS had predetermined the outcome of the investigation and that he had no real opportunity to respond to the reasons for his dismissal. 61
[106] I am not satisfied that the evidence suggests that BWS had predetermined the outcome of the investigation.
[107] In light of the above, I find that Mr Mackay was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.
Did BWS unreasonably refuse to allow Mr Mackay to have a support person present to assist at discussions relating to the dismissal?
[108] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[109] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”62
[110] There is no dispute and I am satisfied that BWS did not unreasonably refuse to allow Mr Mackay to have a support person present to assist at discussions relating to his dismissal. 63
Was Mr Mackay warned about unsatisfactory performance before the dismissal?
[111] BWS assert that Mr Mackay was dismissed for misconduct rather than poor performance. While Mr Mackay contested whether his conduct constituted misconduct, he did not assert that his dismissal ought to be characterised as a performance based dismissal. If a dismissal did not relate to unsatisfactory performance, this factor is not relevant.
[112] Even if Mr Mackay’s dismissal could be characterised as a performance-based dismissal, I am satisfied that BWS’s concerns about the nature of his interactions with customers and colleagues was raised with him. He was verbally counselled and issued with a Final Warning alerting him to the need to modify his behaviour and the consequences of a failure to do so. He was provided with training to clarify the organization’s expectations of his behavior.
[113] To the extent that it was necessary I find that BWS did warn Mr Mackay about his unsatisfactory performance before his dismissal.
To what degree did the size of the enterprise and/or the absence of dedicated human resource management specialists or expertise impact on the procedures followed in effecting the dismissal?
[114] The size of an employer’s enterprise and/or the absence of dedicated human resource management expertise may impact on the procedures followed by an employer in effecting a dismissal.
[115] BWS is a large employer with extensive internal human resource management, industrial relations and legal expertise and has the financial capacity to access specialist external expertise.
[116] I find BWS conducted the disciplinary process to a standard that would be expected of an organisation of its size and resourcing and I have treated this factor as neutral.
What other matters are relevant?
[117] Section 387(h) requires the FWC to take into account any other matters that the FWC considers relevant.
[118] Mr Mackay submitted that the following other matters are relevant to my consideration of whether his dismissal was harsh, unjust or unreasonable:
a. The events on 6 December 2018 occurred in the course of him endeavoring to comply with the direction of BWS to commence work early to assist with processing a delivery.
b. He had alerted BWS to the breakdown in the relationship between himself and his colleagues yet BWS rostered him to work with a colleague who BWS were aware was refusing to speak to Mr Mackay.
c. He did not provoke or assault Mr B.
d. The Code was not enforced against other employees.
e. His mental health.
f. The financial impact of the dismissal given his living circumstances had recently changed and that his financial position was weak given the decline in his hours of work in the period preceding his dismissal.
[119] BWS submitted that the following other matters are relevant to my consideration of whether the dismissal was harsh, unjust or unreasonable:
a. Mr Mackay had only been employed by BWS for a short period of time.
b. Mr Mackay had received training in relation to the BWS’ expectations with respect to his behaviour.
c. Mr Mackay had been previously verbally counselled and issued with a Final Warning in relation to his interactions with colleagues and customers.
d. Mr Mackay had recently been counselled about his behaviour.
e. Mr Mackay ignored Ms Hills intervention and persisted in his altercation with Mr B.
[120] In relation to the consistent enforcement of the Code the evidence before me is that the Code was enforced consistently as between Mr Mackay and Mr B, who was also dismissed for his involvement in the events on 6 December 2018. There is insufficient evidence before me to determine that in the particular circumstances of other situations that the Code was not applied consistently to other employees of BWS employed at the Store.
[121] I note there is mention in the evidence of Mr Mackay suffering some form of mental illness. However, the nature of that illness, its symptoms, its impact on his conduct and his future employability is not clear. In the absence of evidence in relation to these issues there is limited weight I can give to this matter.
[122] I note that Mr Mackay does not seek reinstatement and that he is of the view that “there has been a total breakdown of employee and employer relationship” and says that the issues between BWS and himself are “vast and deep”. 64
[123] At the time of his dismissal Mr Mackay was engaged on a casual basis by BWS, working an average of 6 hours per week at the rate of $26.08 per hour. Mr Mackay obtained casual employment within five days of being dismissed, working 35-40 hours per week at the rate of $23.50 per hour for ordinary hours and $25 per hour for overtime. He was still in that employment as at the date of the Hearing. 65
[124] Mr Mackay concedes that he has earned more income since he was dismissed (at least $1500) than he would have earned had he remained employed by BWS. 66 He submits that he would have continued in both employments had he not been dismissed by BWS. However, there is no evidence before me that he was actively seeking alternative employment prior to his dismissal by BWS and he identified his employment with his new employer as evidence of his efforts to mitigate his loss. I note that notwithstanding this, BWS do not seek an adverse costs order. I am not satisfied that the dismissal had any adverse financial implications for Mr Mackay.
[125] Having considered these particular matters and the others raised by the parties there are no matters relevant to my consideration which lead me to conclude that Mr Mackay’s dismissal was harsh, unjust or unreasonable.
Conclusion
[126] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Mr Mackay was not harsh, unjust or unreasonable. Mr Mackay’s application is therefore dismissed. An order to this effect [PR711226] will be issued with this decision
DEPUTY PRESIDENT
Appearances:
D. Mackay on his own behalf
R. Wade of Ashurst for the Respondent
Hearing details:
2019.
Albany.
June 5 and 6.
Final written submissions:
Applicant, 18 July 2019
Respondent, 11 July 2019
Printed by authority of the Commonwealth Government Printer
<PR711225>
1 Warrell v Fair Work Australia [2013] FCA 291.
2 Ibid.
3 Exhibit A2.
4 Ibid.
5 Exhibit A1 at Attachment DB2 and Exhibit R2.
6 Exhibit A1 at Attachment DB2.
7 Ibid.
8 Exhibit R2.
9 Ibid.
10 Ibid.
11 Exhibit A2 and A3.
12 Exhibit A3.
13 Exhibit A2 and A3.
14 Ibid.
15 Exhibit A3.
16 Exhibit R1.
17 Ibid.
18 Ibid.
19 Exhibit A3.
20 The CTV Footage of the incident has no audio so it is not possible to determine what was said by those involved.
21 Exhibit R1 at Attachment KH1.
22 Ibid.
23 Exhibit R1.
24 Ibid.
25 Ibid.
26 Exhibit A3.
27 Ibid.
28 Exhibit R1.
29 Ibid.
30 Exhibit R1 and Exhibit R3.
31 Exhibit R2.
32 Ibid.
33 Ibid.
34 Ibid.
35 Ibid.
36 Respondent’s Closing Submissions filed on 11 July 2019.
37 Exhibit A2. In his closing submissions Mr Mackay sought additional compensation beyond the statutory compensation cap for expenses not compensable under the FW Act.
38 Transcript PN51-PN74.
39 Ibid.
40 Ibid.
41 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
42 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
43 Ibid.
44 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
45 Edwards v Justice Giudice [1999] FCA 1836, [7].
46 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
47 Exhibit A2.
48 Exhibit A2, Applicants Closing Submissions filed on 18 July 2019.
49 Applicants Closing Submissions filed on 18 July 2019.
50 Transcirpt at PN225-232.
51 Exhibit A1 at page 87-89.
52 Exhibit A1 at page 72.
53 Transcript PN263-PN276.
54 Exhhibit A1.
55 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
56 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
57 Ibid.
58 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
59 RMIT v Asher (2010) 194 IR 1, 14-15.
60 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
61 Exhibit A2.
62 Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542].
63 Transcript at PN87-PN90.
64 Exhibit A2.
65 Exhibit A2.
66 Transcript at PN123-PN130.
0
8
0