Gai Reng v JBS Australia Pty Limited
[2012] FWA 10879
•27 DECEMBER 2012
Note: An appeal pursuant to s.604 (C2013/44) was lodged against this decision - refer to Full Bench decision dated 14 August 2013 [[2013] FWCFB 5761] for result of appeal.
[2012] FWA 10879 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gai Reng
v
JBS Australia Pty Limited
(U2012/12197)
COMMISSIONER RYAN | MELBOURNE, 27 DECEMBER 2012 |
Termination of employment - no valid reason - reinstatement.
[1] An application for an unfair dismissal remedy was made pursuant to s.394 of the Fair Work Act 2009 (the Act) on 9 August 2012 by Mr Reng in relation to his dismissal on 1 August 2012 from his employment with JBS Australia Pty Limited (JBS).
[2] The hearing of the application took place on 12 and 13 November 2012 with Mr Portelli from the National Union of Workers (NUW) representing Mr Reng and Mr Button, the in-house general counsel of JBS, representing JBS. Mr Reng gave evidence on his own behalf. Mr Stiles an Organiser of the NUW gave evidence on behalf of Mr Reng. Evidence for JBS was given by Ms Silvanila Minute, a co worker of Mr Reng, by Mr Opacak a Supervisor of Mr Reng, by Ms Matthews the Manager of the work area of Mr Reng and by Ms Vella the HR Manager for the site.
[3] It became apparent to the Tribunal during the hearing that there was a direct contradiction in the evidence of Mr Reng and Ms Matthews over one issue which involved another employee. I sought that the other employee, Mr Dau, attend the Tribunal and give evidence on the issue.
Background
[4] Mr Reng had been employed by JBS at its cold store facility in Brooklyn since February 2006 and has been employed as a forklift driver at the cold store since early 2012. Mr Reng has also been the NUW site delegate since 2007 and an elected Health and Safety Representative since 2008.
[5] On 20 July 2012 Mr Reng was walking past a semi enclosed area outside the cold store which was used by workers as a rest area. Three employees were sitting in this semi enclosed area and as Mr Reng walked past one of the employees uttered the vulgarity “fuck”. Mr Reng considered that this was directed at himself. Mr Reng immediately proceeded into the cold store and to the office of Ms Matthews, the Manager. There Mr Reng complained about the conduct of the three employees and demanded that Ms Matthews address his concerns. Ms Matthews indicated that she would do so. Mr Reng then returned to where the three employees were and engaged with them in order to find out why they used the vulgarity towards him. One of the three employees, Mr Muru, took offence at Mr Reng’s approach and both Mr Muru and Mr Reng went to Ms Matthews’ office in order for Ms Matthews to deal with their respective grievances.
[6] What then occurred in the office of Ms Matthews led to Mr Reng being dismissed by JBS on 1 August 2012.
[7] The letter of dismissal was in the following terms:
“Dear Gai
RE: Termination of Employment
It has been determined, after careful consideration, that you have breached the Standard Terms and Conditions of Employment and in particular the Workplace Health and Safety Policy. You have placed at risk the workplace health and safety of your Manager by continually pushing the office door into her and standing over her in a threatening and abusive manner.
You have acted violently in the workplace and deliberately failed to follow your Supervisor and Manager’s instructions.
This behaviour cannot be tolerated in the workplace and as a result of your actions your employment will be terminated immediately.
Your termination payment, including any leave entitlements, will be processed and deposited into your bank account once you have returned all company property back to the Human Resources department.
Yours faithfully
JBS Australia Pty Limited
Pauline Vella
HR Manager”
[8] The two competing accounts (from Mr Reng and from both Ms Matthews and Mr Opacak) of events in the office of Ms Matthews and immediately after in both the cold store area and in the HR office are starkly contradictory.
What Happened in Ms Matthews Office
[9] The evidence of all involved is broadly in agreement that Mr Muru entered Ms Matthews office to complain about Mr Reng.
[10] Mr Reng described Mr Muru’s conduct as follows:
“22. Mr Muru walked in the office and said to me on a number of occasions “you fucken cunt” while he pointed his finger in my face.” 1
[11] Ms Matthews described it as follows:
“Literally 3 minutes later, Riki came up the stairs in to my office with Tito right behind him and said “Chanel, what’s going on? This cunt is coming down to us telling us we are going to HR.” 2
[12] Mr Opacak described it as follows:
“As Ricki came into Chanel’s office he said “Chanel, what the fuck is going on?
What’s this cunt on about? Please keep him away from me!” 3
[13] Once events move past this point of time the evidence of Mr Reng and of both Ms Matthews and Mr Opacak diverge markedly. The following accounts from Mr Reng, Ms Matthews and Mr Opacak are taken from their witness statements.
[14] Mr Reng describes what happened next as follows:
“23. As he did this, I said to Ms Matthew words to the effect “look, he’s threatening me.”
24. Ms Matthew then stated words to the effect of “Tito, leave the office” and further told me that if I didn’t leave the office that Mr Opacak would take me to Human Resources. She also said that she “would count to three” and then began counting.
25. All the while, Mr Muru continued to abuse me. I stated to Ms Matthew words to the effect of “I was coming to you to get the problem solved”. She then counted the number three and stated words to the effect “Peter, take Tito to HR.” 4
[15] Ms Matthews described events as follows:
“Then Tito said “Did you hear what he called me, his threatening me!”
13. Riki said “I’m not talking to you, I want to know what’s going on!”
14. I then told Riki to sit down as I could see he was agitated.
15. I said to Tito “what’s going on? What are you doing?”
16. Then within the next 5 minutes Tito said to Riki ‘‘This is wrong, why are you
swearing at me?”
17. Riki said “We weren’t swearing at you, what’s wrong with you?”
18. But this whole time whilst everyone else was talking, Tito did not stop repeating
himself and didn’t give anyone a chance to talk.
19. Then that’s when Tito started on me.
20. He was standing over me and pointing in my face, his finger was about 10cm away
from me.
21. Whilst pointing in my face Tito was yelling, “This is not right! You are siding with
him, you are threatening me, you can’t do this.” Tito kept repeating this over and
over again.
22. I said to Tito, “Tito I can’t address anything if you are in here yelling, I need you to
leave the office.”
23. Tito said, “No you are threatening me, you can’t threaten me.”
24. Then I said “Kindly remove yourself from my office Tito.”
25. Tito still kept saying the same thing repeatedly and wasn’t listening.
26. Then I started counting and said “Kindly remove yourself from my office, one” and
Peter [Peter Opacak, Cold Store Senior Supervisor] said to Tito “Mate you need to
remove yourself from Chanel’s office”, I said, “two.”
27. Then I said to Tito “This is the last time mate, you need to go, three.”
28. He was still in my face yelling at me and repeating himself and not listening.
29. At this stage Tito was saying “Yeah you’re going to go to HR and they’re gonna
deal with you!”
30. I signalled Peter with an eye look and said, “Can you remove Tito from my office
please and take him to HR.”
31. As they got out the door I went to go shut the door, when Tito threw himself back
into the door to get back into the office.
32. Lucky I was holding the door knob as the door just missed my face.
33. I said “Tito, get out of the doorway, what are you doing?”
34. At this point Tito was being really aggressive. I felt very scared and lucky that Riki
was in the office with me.
35. Tito kept repeating “You are threatening me, you can’t do this! Why are you
threatening me?”
36. Tito tried to get back in about 3-4 times after this very aggressively. Tito
positioned his body between the door and the door frame so that I could not close
door. Tito used the weight of his body and his right arm to prevent me from
closing the door. This caused my arm to jar backwards with the force.
37. I then said to Tito, “You need to go to HR with Peter.
38. I went to close the door again and Tito again pushed the door back with his right
arm. This happen twice.
39. On the forth occasion that I tried to close the door Tito did the same but on this
occasion the door handle came out of my hand and the door swung toward me
and out of instinct I put my foot in front of the door to stop it from hitting me in the
face.
40. Then after that I finally shut the door, to talk to Riki.
41. Riki asked me if I was alright because he commented that Tito is a Psycho.
42. Then I said to Riki, “What is going on?”
43. To which he couldn’t respond because Tito was still yelling out on the stack down
floor, so I went down stairs.
44. When I stood on the stairs I said to Tito “Be quiet and go to HR.” 5
[16] Mr Opacak described events as follows:
“13. That’s when Chanel and I both immediately jumped up and I said “Calm down!
What’s going on? Riki take a seat; tell me what’s going on!”
14. At that point Tito yelled “He [Riki] called me a cunt, his threatening me, they can’t
do this, they can’t swear its threatening! I want to take them to HR!”
15. l said “Whoa, Tito just calm down, just calm down” at the same time as Chanel
was trying to tell him to calm down.
16. I then again tried to talk to Riki and I could not get a response from Riki due to
Tito’s irate behaviour as he was still yelling and screaming. Tito said, “They called
me a cunt, they called me a cunt, they can’t swear at me, I want them to go to HR”.
17. At this time Chanel and I were in a standing position. Chanel said to Tito, “Please
leave the room and calm down and I will come to speak to you in a couple of
minutes.”
18. Tito totally ignored Chanel. Chanel said to Tito again, “Please leave the room and
calm down and I will come to speak to you in a couple of minutes. That’s the
second time I’ve asked you Tito.”
19. About the same time I said to Tito, “Just leave the office” and that’s when he
started personally attacking Chanel by standing over her in an intimidating stance
about 10cm away from her, yelling and pointing his fingers in her face.
20. Tito accused Chanel of siding with Riki. Tito said, “He called me cunt [Riki] you
heard him you are siding with Riki now, you have to go to HR you can’t call me a
cunt.”
21. Chanel again said “Tito calm down that’s the third time.”
22. Tito still ignored Chanel and Tito continued to scream in her face. Tito said, “He
called me cunt [Riki] you heard him you are siding with Riki now, you have to go to
HR you can’t call me a cunt.”
23. That’s when Chanel said “Pete please take Tito to HR”, I then said, “Tito come on
lets go to HR.’’
24. Tito was still screaming and yelling and accusing us of threatening him with HR
and that we can’t do this.
25. Chanel said, “Tito you are going to HR, and we can sort it out over there.”
26. Tito kept repeating, “Why am I going to HR? He [Ricki] threatened me he called
me a cunt he should go to HR.”
27. Chanel said “You are going to HR for your attitude towards me, it has nothing to do with the swearing, why did you even go down and tell the boys that they’re going
to HR? Please leave the office Tito and go to HR.”
28. That’s when I managed to entice [I walked close to Tito and asked him to come
with me] Tito out of Chanel’s direct office, when Tito suddenly threw himself into
the door that Chanel was trying to close.
29. Tito threw himself into the door yelling and screaming with his arm in the way of
the door “You’re threatening me; you can’t close the door on me.”
30. Chanel nearly had the door closed and Tito launched himself through the door with one arm stopping it from closing and his other hand on the door.
31 . Chanel asked Tito to go to HR again and as she went to close the door Tito
pushed door back and it went towards Chanel then it hit something on Chanel’s
side then flicked back towards Tito. I thought it had hit Chanel.
32. Then Chanel said, “Tito you’ve got to go to HR” and Tito said “Yea I’ll got to HR
and see what they going to do about you!” 6
[17] There is an obvious conflict in the competing versions of events. Both Ms Matthews and Mr Opacak portray Mr Reng as being highly agitated and clearly aggressive.
[18] The question however is whether I can rely upon the version of events as presented by Ms Matthews and Mr Opacak and the third witness for JBS, Ms Minute.
The value of the evidence of Minute
[19] I will deal first with the evidence of Ms Minute.
[20] Ms Minute adopted as her evidence a witness statement signed by her on 24 October 2012, Exhibit R1. In her written witness statement Ms Minute identified herself as one of the three employees in the semi enclosed area at the time that Mr Reng walked past and heard someone swear. Ms Minute then went on to state that after finishing her smoko she went to the fridge outside Ms Matthews office to put her lunch away and that whilst there she heard part of the conversation between Mr Reng and Ms Matthews. Ms Minute then went on to state that she entered Ms Matthews office and spoke to Mr Muru and then left the office. Finally Ms Minute stated that Mr Reng walked out of Ms Matthews office by himself followed 2 minutes later by Ms Matthews.
[21] Elements of the written evidence of Ms Minute support the case of JBS and elements support the case of Mr Reng.
[22] At the beginning of cross examination by Mr Portelli of the NUW, Ms Minute reaffirmed that she entered the office of Ms Matthews and spoke to Mr Muru. 7 At the conclusion of the examination of Ms Minute by the parties’ representatives the Tribunal put a number of questions to Ms Minute which established that Ms Minute was only briefly at the top of the stairs next to Ms Matthews office while she put her lunch in the fridge and then she returned back down the stairs. In answering questions from the Tribunal Ms Minute did not assert that she entered the office of Ms Matthews nor speak to Mr Muru.8 In fact the answers given by Ms Minute to the questions from the Tribunal would lead to the conclusion that Ms Minute could not have entered the office of Ms Matthews and spoken to Mr Muru.9
[23] There are clear contradictions within the evidence of Ms Minute, so much so, that I give no weight to that evidence.
The value of the evidence of Matthews
[24] Mr Reng in his witness statement described an incident which occurred after he had left the office of Ms Matthews and was on his way through the packing room to the HR office:
“26. We walked past Mr Dau on the way who asked Mr Opacak words to the
effect “why are you taking Tito to HR?” and “is it because of Damien,
Richard and Nila, you shouldn’t because they swore at me outside” to
which Ms Matthew responded with words to the effect “you’re my fucking
leading hand ... get back to work I’ll take you to HR.” 10
[25] In cross examination from Mr Portelli Ms Matthews said:
“Are you aware that in Mr Reng’s evidence he says that you said to Mr Dau words to the effect, “You’re my fucking leading hand. Go back to work or I’ll take you to HR”?---That’s not correct.
What did you say? Did you swear in any way to Mr Dau?---I asked Atem to go with Tito to the HR office.
Are you aware of any statement as part of these investigations from Mr Dau where he also alleges that you swore at him?---There was a statement taken from Atem, but I’m not aware of it, no.
Would it be your general habit, or would there be occasions where you would, through frustration or other reasons, swear at your subordinate employees?---Swear at them? No.” 11
[26] At the conclusion of the evidence of Ms Matthews I advised the parties that I intended to take evidence from Mr Dau given the conflict in the evidence of Mr Reng and Ms Matthews about what Ms Matthews said to Mr Dau. 12
[27] In answer to questions from the Tribunal Mr Dau gave evidence as follows:
“One part of the evidence that’s been put to me involves you in a round about way. I want to show you a witness statement - read paragraph 26?---Yes.
Okay?---Do you want me to read it aloud or - - -
No. If you read paragraph 26, do you agree with that paragraph?---Yes, I agree with it.
So that’s what happened on that day?---Yes.
Those - the paragraph says that Ms Matthews used those words to you. Did Ms Matthews say those words to you?---Yes, she say them.” 13
[28] Mr Button examined Mr Dau and his evidence included the following:
“So that paragraph 26, Mr Dau, whereabouts when Ms Matthews said those words to you? In the cold store, or outside the cold store, at HR or where were you, do you recall?---Yes, I was standing on the floor, boys take (indistinct) boys take the boxes, they’re coming out of the office.
Yes?--- Tito in the front, Peter behind Tito, followed by Chanel.
Right?---They get to the (indistinct) sorry, Tito, “What’s going on?”
Yes?---While Tito explained it to me, Chanel said, “Tito, go to HR, take them to HR. Ask him, ‘What are you fucking doing with my fucking leading hand.’“ That’s what she say - - -
Okay. That’s where you were. You were downstairs there?---Yes.” 14
[29] Whilst the language attributed to Ms Matthews by both Mr Reng and Mr Dau is different the language is nevertheless swearing by Ms Matthews at an employee and apparently the employee was Mr Reng. I have no reason to doubt the evidence of Mr Dau.
[30] Mr Button for JBS sought to explain away the contradiction in the evidence through the following submission:
“THE COMMISSIONER: - - - which means he confirmed the applicant’s version of events and casts - or puts the evidence of Ms Matthews in a position of being false evidence.
Mr BUTTON: Well, to the extent that, perhaps, it’s limited to that incident. To take it further than that, I think may be met in terms of she says something, someone else says something else. If in terms of the relevance of that, if that then falls out that, okay, that was said - perhaps, she doesn’t recall it - in her memory she says she doesn’t recall it and that she didn’t say it. Now, in all of the circumstances again these are fairly heightened - this a fairly heightened situation - I can’t say anything further than that other than to say that that was her recollection.
I don’t know that that would - that that later incident or that incident - even in ts context put into doubt her evidence in its entirety, I’d put that down to that she was probably in a situation of having been yelled at, having had a door flung back in her face, having a person yelling and screaming at her, not more than a few seconds - or a few minutes before and still continue on and still not having a managed workplace where there’s calm and people are focused on their work but than people stopping work, people are being dragged into a situation that is clearly not a normal work situation than for her, I would think that, you know, it may be that - that something like that was said but she doesn’t recall it because of the heat of the moment, and that she was - in a desperate situation. Other than that I can’t say. “ 15
[31] The speculation from Mr Button does not assist. It is clear to me that Ms Matthews was not being truthful in her evidence about what she said to Mr Reng and Mr Dau when she explicitly denied swearing at subordinate staff. What Ms Matthews said to Mr Reng and Mr Dau was not central to the case being made out by JBS against Mr Reng. However once it is established by the evidence that Ms Matthews was not truthful about a matter which was not central to the case against Mr Reng the Tribunal can have no confidence in any of the evidence of Ms Matthews.
[32] I make a further observation as to the evidence of Ms Matthews and that is that the witness statement, part of Exhibit R3, was prepared three months after the event yet attached to the witness statement and forming part of Exhibit R3 is a statement made by Ms Matthews on 23 July 2012. There are significant differences between Ms Matthews’ two statements. In her earlier statement Ms Matthews identified only one instance where Mr Reng tried to get back into her office but by the time of her second statement this had become 4 instances of Mr Reng trying to force his way into her office and the level of “aggressive” behaviour from Mr Reng appears to have escalated between the first and second statements of Ms Matthews.
The value of the evidence of Opacak
[33] In the final oral submissions on behalf of Mr Reng Mr Portelli contended as follows:
“Mr Opacek, in his evidence, quite forcefully nominated - in fact, I believe, there was three supposedly serious incidents which he referred to as blow ups in an effort to demonstrate that the termination or the incident that led to the termination was, indeed, not an isolated incident but part of an ongoing pattern of very serious conduct and behaviour.
However, he was unable to explain why throughout those incidents warnings had not arose - why those incidents, including those that he’d been involved in to some extent, did not resolve in serious formal disciplinary action. Mr Opacek, in our submissions, Commissioner, evaded then denied, then eventually remembered a serious disciplinary matter which was put to him and that he was subjected to a couple of years ago after about a month of his employment with JBS.
We say his credibility as a witness suffers as a result, and we say that this disciplinary matter that he was involved in also goes, at least, in part, to the overall issue of proportionality in this case.
Mr Opacek’s matter was extremely serious concerning what could only be described as an alleged physical assault. Mr Reng’s alleged conduct, even if determined by you to be in exactly the same form as that alleged by the respondent, we would say certainly less serious than termination in those circumstances would be disproportionate to the alleged incident.” 16
[34] Mr Button in his submissions in reply dealt with the issue of Mr Opacak’s own warning as follows:
“If we look at first of all, Mr Opacek in terms of him having a prior warning and - for some behaviour that occurred within his first month of employment, so far as our submissions go in that respect Fair Work Australia has dealt with issues around disciplinary procedures in the way that companies may apply their policies and procedures, that that is a matter for the company. In that respect I refer Fair Work Australia a decision of DP World Sydney Ltd v Mr Stephen Lambley Sydney, 22 June 2012, C2012/3296.
So far as Mr Opacek’s evidence about his prior warnings he gave a recollection about them. He was - as he indicated he - there was no actual finding against me but an order to clear his probation period and to continue on. He accepted a warning and he got on with his job. As his evidence came out, there was no - there was no finding definitely against him in that respect.
Again, this is not a matter for Mr Opacek to answer, this is a matter for the applicant to bring a case about unfairness and harshness or unjustness with respect to this termination. How the company has dealt with Mr Opacek and his conduct has not been traversed here. It may be relevant to the extent that he has a history, but has he had a history with the applicant? Has there been any grudge? Has there any poor behaviour with the applicant says Mr Opacek engaged in towards him? No, there has not.” 17
[35] I have no reason to disagree with the submission of Mr Button, but Mr Button doesn’t address the critical issue raised by Mr Portelli in relation to the credibility of Mr Opacak.
[36] I also note that there is a stark difference between the present matter and DP World Sydney Ltd v Lambley where there was unequivocal evidence by way of CCTV footage of Mr Lambley physically attacking another employee. In the present matter the very evidence of Ms Matthews and Mr Opacak is suspect.
[37] I do agree with the conclusion drawn by the Full Bench in that matter at para 26 that:
“A tribunal member determining whether a dismissal is harsh, unjust or unreasonable does not stand in the shoes of the employer and determine what action they would take in the circumstances. Only if the employer’s disciplinary actions are judged to lie outside the description of a reasonable and just response to the relevant conduct and are disproportionate, should a finding of unreasonableness or injustice be made.”
[38] Mr Opacak was cross examined on his own conduct whilst employed by JBS as follows:
“Just onto your own record at the company, have you had any disciplinary issues yourself at the company in a managerial capacity? Have you had warnings? Have you had counselling sessions?---Do I need to answer that?
THE COMMISSIONER: Yes?---Yes, I have been reprimanded on an occasion.
Mr PORTELLI: What was that for?---Inappropriate use of a radio, which I was having a joke around, and telling a joke over the radio, and mimicking a voice, and I was reprimanded for that.
What was the problem with using a voice? I don’t understand?---I was mimicking a character voice.
Like a cartoon character?---Yes.
Has that been the only warning or counselling session you have been subjected to in your time with the company?---I do not believe so, no. But none that are subject to anything with today’s case.” 18
[39] After this exchange the Tribunal, in the absence of Mr Opacak, explored with both Mr Portelli and Mr Button the relevance of any further questioning of Mr Opacak along the same lines. After that discussion Mr Opacak resumed being cross examined by Mr Portelli as follows:
“Mr PORTELLI: Mr Opacek, have you received any warnings, or have you been subject to any disciplinary action, in relation to more serious matters than inappropriate use of a radio?---No.
Have you been subject to any disciplinary action, including counselling, warnings, in relation to an incident relating to Gabriel Uchel, which I think is spelled U-c-h-e-l?---Mr Uchel, yes. Actually, yes. Yes, I have. Yes. It was - - -
What was the nature of that incident and the disciplinary proceedings?
---- - - alleged I pushed Mr Uchel down stairs, and I was stood down pending an investigation. That was within my first month employed at JBS.
Can you explain to the tribunal how, in your mind, that was less serious than inappropriate use of a radio?---I’m sorry, that’s completely blanked in my mind, because it was early on in my career at JBS. I didn’t even remember that.
Can you tell the tribunal why that occurred, what led to you doing that - or the allegation at least, what was the incident?---The incident, sorry?
Can you explain the incident?
Mr BUTTON: I’m going to object, Commissioner. He has answered the question - - -
THE COMMISSIONER: Yes, I don’t think we need to know the incident. He has admitted that a reprimand, counselling or something happened in relation to something that happened in the first month of his employment.
Mr PORTELLI: How would you compare, Mr Opacek, allegedly pushing someone down some stairs and an employee raising their voice and being arguably aggressive. How would you compare those two, sort of, potential incidents?---Well, the first one was allegedly. It never happened. The second one did happen. So you can’t compare them.
I put it to you, Mr Opacek, that while you may disagree with the first part of the disciplinary action, with the allegation that you were stood down, it was investigated and you were given the benefit of the doubt?---I don’t know what you call that, benefit of the doubt. I did receive an official warning for that so - - -
How long were you off work when you were stood down?---I believe a bit over a week, if that’s relevant at all.
Were you given a copy of the allegations when you were stood down?---To my recollection I can’t recall.
Mr BUTTON: Again, Commissioner, I’m going to object to the relevance.
THE COMMISSIONER: Yes.
MR PORTELLI: Sorry, Commissioner, I’ll - - -
THE COMMISSIONER: You’re sort of losing me, as well, Mr Portelli, just to where this goes.
Mr PORTELLI: I was just wondering - - -
THE COMMISSIONER: It’s just - - -
Mr PORTELLI: Sorry, Commissioner.
THE COMMISSIONER: Mr Opacek, did you get a warning, counselling, reprimand - - -?---Yes, I did. I received a written warning.
A written warning in relation to that incident?---Yes.
What was the written warning?---Basically there was - they couldn’t quite make substantial evidence either way. They couldn’t support me and they couldn’t support Mr Uchel and I don’t know how they come out with that outcome, I just copped it on the knuckles and went on doing my job so - which I must say, Mr Uchel now is one of my leading hands in the cold store so there was a lot of history back when I first started there. There was a very racially-inclined workplace. It was - my ex-leading hand did make a lot of the workers feel threatened and was an alcoholic drinking on the job and I believe it was a ploy of his to try and get rid of me at the time. So I believe it was completely cooked and fabricated.
But you accepted a reprimand?---Yes, I did. It was a condition of me coming back to work, I accept that, or, yes, maybe I wouldn’t be working there now.
Mr PORTELLI: Just finally, Mr Opacek, are there any other serious disciplinary matters that may have slipped your mind or is that it?---Not that I can recall, no.” 19
[40] What emerges from the evidence is that Mr Opacak was aware that there were other warnings he had received when he gave his answer at PN1313. This was the last question he answered before being asked to leave the hearing room for a short period. Yet in his very first answer after he resumed giving evidence Mr Opacak at PN1339 denied receiving warnings or counselling for anything more serious than misuse of a radio. In the very next question when the specifics of a particular incident were put to him Mr Opacak agreed that he had been counselled for conduct more serious than misuse of a radio. Mr Opacak’s claim that this incident was “completely blanked in my mind, because it was early on in my career at JBS. I didn’t even remember that” is not credible. It is clear that Mr Opacak did not want his behaviour to have been brought to light in this matter. Mr Opacak’s denial of ever having engaged in the conduct for which he was counselled is less than convincing.
[41] Mr Opacak identified that Mr Reng had engaged in previous aggressive behaviour which Mr Opacak considered to be serious matters. Yet under cross examination Mr Opacak conceded that he did nothing about the earlier incidents.
[42] Mr Opacak complained that the allegation that he had pushed a fellow worker down the stairs and which led to Mr Opacak being counselled “was completely cooked and fabricated” and that it was a ploy to try and get rid of him at the time. 20
[43] Given the evidence of Mr Opacak I am of the view that much of Mr Opacak’s evidence in relation to Mr Reng suffers from the same complaint.
[44] I make a further observation as to the evidence of Mr Opacak and that is that the witness statement, part of Exhibit R2, was prepared three months after the event yet attached to the witness statement and forming part of Exhibit R2 is a statement made by Mr Opacak on 24 July 2012. There are significant differences between Mr Opacak’s two statements. In his earlier statement Mr Opacak identified only one instance where Mr Reng tried to get back into Ms Matthews office but by the time of his second statement this had become 2 instances of Mr Reng trying to force his way into her office and the level of “aggressive” behaviour from Mr Reng appears to have escalated between the first and second statements of Mr Opacak.
The value of the evidence of Reng
[45] Whilst the above analysis casts doubt over the evidence of Ms Minute, Ms Matthews and Mr Opacak the presence of such doubt does not of itself mean that I should accept Mr Reng’s evidence.
[46] Mr Reng produced a Witness Statement in this matter which he adopted as his evidence, Exhibit A1. In that statement Mr Reng describes what happened in Ms Matthews office as follows:
“21. Ms Matthew and Mr Opacak were still in the office when I entered. I
advised Ms Matthew that Mr Muru had threatened me and spoken to me
in an aggressive and threatening way.
22. As I was finishing explaining this to Ms Matthew, Mr Muru walked in the
office and said to me on a number of occasions “you fucken cunt” while he
pointed his finger in my face.
23. As he did this, I said to Ms Matthew words to the effect “look, he’s
threatening me.”
24. Ms Matthew then stated words to the effect of “Tito, leave the office” and
further told me that if I didn’t leave the office that Mr Opacak would take
me to Human Resources. She also said that she “would count to three”
and then began counting.
25. All the while, Mr Muru continued to abuse me. I stated to Ms Matthew
words to the effect of “I was coming to you to get the problem solved”. She
then counted the number three and stated words to the effect “Peter, take
Tito to HR.” 21
[47] Mr Reng had made an earlier statement to JBS on 24 July 2012 about what happened and in that earlier statement Mr Reng said:
“I went back to see Chanel and Richard followed me to the office. Both Chanel and Peter were in the office. I told Chanel that the same incident is happening again and Richard is threatening me that I don’t do any work. Richard in the office called me a fucken cunt and was pointing his finger in my face. Chanel told me to leave the office, counted 1, 2, 3 and then said if I don’t get out that she would get Peter to take me to HR.”
[48] Mr Reng was subject to vigorous cross examination from Mr Button where he maintained that he never pointed his finger at Ms Matthews and that he never swore at Ms Matthews and that he never pushed the door as Ms Matthews was trying to close it.
[49] Mr Reng did admit that Ms Matthews counted to three whilst asking Mr Reng to leave her office. Mr Reng indicated that he didn’t know why Ms Matthews counted to three.
[50] In order to emphasise his truthfulness Mr Reng, who was already under oath, sought to invoke his mother as a further form of oathtaking.
[51] Mr Reng proved to be a difficult witness under cross examination. Part of this difficulty clearly arose from Mr Reng not understanding questions put to him and part arose from Mr Reng not expressing himself clearly in English. However it is apparent from an examination of the cross examination that part of the difficulty arose because Mr Reng did not listen to questions put to him and that he was more intent on making his point.
[52] If Mr Reng displayed to Ms Matthews on 20 July 2012 the same level of determination to get his point across as he displayed in the witness box whilst under cross examination there would have been a necessity to count to three to get Mr Reng out of the room.
[53] Given the conduct of Mr Reng in the witness box in dealing with the cross examination I find it completely implausible that Mr Reng acted in the meek and polite manner which he described in his two statements.
The Case for Reng
[54] The case for Mr Reng is that whilst he was complaining about the language used by Mr Muru to him and about him and whilst he complained to Ms Matthews about her attitude towards the swearing, he never threatened Ms Matthews, nor did he stand over her waving his finger in her face, nor did he push back on the door to Ms Matthews office to prevent her from closing the door.
[55] The case for Mr Reng is that he was the victim of three specific abusive comments and that Ms Matthews did not immediately deal with Mr Reng’s complaints in a timely or appropriate manner.
The Case for JBS
[56] The case for JBS is that Mr Reng did engage in aggressive conduct toward Ms Matthews apparently because Ms Matthews did not act on Mr Reng’s complaints as soon as Mr Reng wanted her to act.
[57] JBS asserts that the strength of the case against Mr Reng is supported by the statements made by Ms Matthews, Mr Opacak and other employees a day or so after the event in circumstances where the respective employees did not have a chance to collude in relation to the contents of their statements. Further that the conduct of Mr Reng in this matter was not isolated but was consistent with other serious inappropriate conduct engaged in the past by Mr Reng.
Consideration of the Evidence
[58] JBS makes the point that the witness statements adopted by each of Ms Matthews, Mr Opacak, Ms Minute and Mr Reng were based upon their respective statements given to JBS a few days after the incident on 20 July 2012. I have carefully considered each of the statements made in the few days after the 20 July incident. I note that none of the statements was taken on the day of the incident, Friday 20 July 2012, but rather were taken in the next week as follows:
Ms Matthews 2.16pm to 2.39pm on Monday 23 July 2012
Mr Reng - 9.00am to 9.25am on Tuesday 24 July 2012
Mr Opacak - 11.46am to 12.14pm on Tuesday 24 July 2012
Mr Muru - 12.51pm to 1.01pm on Tuesday 24 July 2012
Ms Minute - 1.24pm to 1.32pm on Tuesday 24 July 2012
[59] Considering each of those statements in light of the oral evidence given in this matter I have concluded that every statement suffers from the same defect. Each leaves out what the person making the statement does not want to disclose and each embellishes the points that the person wants to emphasise.
[60] The witness statements appear to take this approach further in the case of each of Ms Matthews (Exhibit) R3, Mr Opacak (Exhibit R2), Ms Minute (Exhibit R1) and Mr Reng (Exhibit A1).
[61] In this matter the truth of what happened lies somewhere between the extreme pictures painted by Mr Reng on the one hand and Ms Matthews and Mr Opacak on the other.
Consideration of the Case as to the Dismissal
[62] The determination of whether a dismissal is fair or unfair is governed by Part 3-2 of the Fair Work Act.
[63] Section 396 provides as follows:
“396 Initial matters to be considered before merits
FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[64] In relation to each of the matters identified in s.396 I decide as follows:
- the application was made within the period required in subsection 394(2);
- Mr Reng was protected from unfair dismissal;
- the Small Business Fair Dismissal Code does not apply in this matter and the criteria in s.396(c) is irrelevant in this matter;
- the dismissal of Mr Reng was not a case of genuine redundancy.
[65] Section 385 identifies when a person has been unfairly dismissed and s.387 identifies the criteria that FWA must take into account in deciding whether a dismissal is harsh, unjust or unreasonable. The relevant provisions are as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA 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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(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 FWA considers relevant.”
[66] In this matter there is no dispute that Mr Reng was dismissed within the meaning of s.386 and I so decide. I have already decided that the Small Business Fair Dismissal Code does not apply and that the dismissal was not a case of a genuine redundancy.
Harsh Unjust or Unreasonable Dismissal
[67] A dismissal does not have to be harsh and unjust and unreasonable to be unfair. As the High Court made clear in Byrne and another v Australian Airlines ltd (1995) 185 CLR 410 at 465, “It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap.”
[68] I turn now to consider each of the criteria under s.387.
s.387 (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)
[69] For a reason to be a valid reason it must be “sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason”. 22
[70] Nothing in the present matter raises any issue as to the capacity of Mr Reng to do his work.
[71] Rather the assertion of JBS is that the conduct of Mr Reng provides a valid reason for the dismissal and further that the conduct has a direct impact on the provision of a healthy and safe workplace for both Ms Matthews and Mr Opacak and other employees.
[72] As one Full Bench has noted “the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts.” 23
[73] The level of satisfaction required by the Tribunal is on the balance of probabilities. Having said that I am mindful of what Dixon J said in Briginshaw v Briginshaw 24:
“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty ; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
[74] The context in which the alleged conduct of Mr Reng occurred is important when considering whether there is a valid reason for the dismissal of Mr Reng.
[75] Ms Matthews in answer to cross examination from Mr Portelli said as follows:
“Do you find the comments including “fucking cunt” offensive?---Offensive to myself? No, I do not.
Right. As a manager do you think there’s a responsibility that you have to ensure that offensive language doesn’t occur in the workplace?---I think it’s very hard to stop offensive language from happening, if that’s what you would like to label it. To me I believe it’s a very common occurrence in any workplace and for any manager to be on top of every employee that said anything offensive would be very hard to maintain.
So do you see it as your role, as the manager of the entire cold store, to reprimand employees who refer to other employees as “fucking cunts” or not?
---Do I - sorry?
Do you see it as part of your role, as the manager of that entire area, I think where there is approximately 120 - - -?---114.
114 workers employed. Do you see it as part of your role to reprimand employees when they refer to other employees using that sort of language?---I feel it’s my job to find out what’s happening and what got them to that point in the first place, yes.
Are you - - -?---To reprimand them for using that language, that would come after I found out what was going on.
So you didn’t seek to reprimand Mr Muru then, when he used that language in the presence - - -?---I didn’t get a chance to talk to him.
But you heard him say it?---I did hear him say it, yes.
Are you aware of Mr Muru using that sort of language in the past, or is this a one off as far as you’re concerned?---I’m not sure.
So you’re not aware of him using it in the past?---I don’t work with him on the floor, so I wouldn’t know.
In your opinion, is a worker calling another worker - or using this language, a breach of the company’s own policies or not?---I would say that it’s an unfair way to talk to a person, yes.” 25
[76] Mr Opacak in answer to cross examination from Mr Portelli said as follows:
“Were you surprised that Mr Reng was offended about being referred to as a “cunt”?---I can’t say how he was surprised or not. It’s common language, unfortunately, in the workplace.
Who tends to use that? Do you use this sort of language in the workplace?
---I don’t personally, but it is known. We work in that kind of industry, and it is second to none.
In your dealings with employees, do you tolerate or do you think this sort of language should be tolerated in the workplace?---No, to a certain extent, when someone gets upset, I will reprimand that person, have a speak to them. Besides that, everyone is individual. I don’t condone it, but it is something that unfortunately is the culture.
So your view is that swearing in and of itself isn’t necessarily an issue, it’s only an issue if someone on the shop floor is offended by it?---No. Like I said, I don’t agree with it personally. Everywhere else I’ve worked, that language has never been used. But unfortunately, I’ve been at JBS for two years, and it was the culture well before my time, and it’s common knowledge that those words are spoken, second nature.
Have you heard Mr Muru using that language before?---Yes, I have.
Was he reprimanded for it?---No, he wasn’t.
Did you seek to reprimand him?---No, I didn’t.
Isn’t your role a managerial one, which includes overseeing and ensuring that employees do the right thing and are pulled up when they need to be?---Yes, but I’m not going to stop someone while they’re on their break, on their smoko break, using that language. They’re quite free to do whatever they like while they’re on their break. If it does get quite loud, I tell them to pipe it down, which they normally do.
They’re quite free, are they, Mr Opacek, to use the language that Mr Muru used towards Mr Reng? So they’re quite free to do that as well, are they?---While they’re on their break - - -
I’m not asking you about their break. I’m asking you whether or not you think they’re free to do that - - -?---No.
- - - when they’re in a manager’s officer, like Mr Muru was?---No. I don’t.” 26
[77] What at first blush appeared to be outrageous behaviour by Mr Muru in entering Ms Matthews office and saying either “Chanel, what’s going on? This cunt is coming down to us telling us we are going to HR.” 27 or “Chanel, what the fuck is going on? What’s this cunt on about? Please keep him away from me!” 28, would appear, in light of the evidence of both Ms Matthews and Mr Opacak as to their tolerance of the use of swearing by employees, to be tolerated behaviour in that workplace. I note that Mr Muru used Ms Matthews first name in addressing her which suggests a high degree of informality in workplace. I also note that Ms Matthews used Mr Muru’s first name, Riki, when speaking to him and about him yet always referred to Mr Reng as “Tito” rather than as Gai or Mr Reng.
[78] Language which clearly upset Mr Reng was not considered offensive by Ms Matthews when directed at herself.
[79] Having regard to all of the evidence in this matter and the assessment I have made in relation to each of Ms Matthews, Mr Opacak, Ms Minute and Mr Reng I cannot be reasonably satisfied in the Briganshaw v Briganshaw sense that Mr Reng engaged in the specific conduct which is alleged against him and which constituted the reason for the dismissal.
[80] I have already concluded that the picture of events painted by each of Mr Reng, Ms Matthews and Mr Opacak cannot be relied on and that the truth lies somewhere between the extremes painted by either side. I am reasonably satisfied that Mr Reng was agitated and that he was loudly remonstrating with Ms Matthews in relation to the conduct of Mr Muru and the approach being taken by Ms Matthews and that he did try to prevent Ms Matthews closing the door to her office as he was leaving but even so the picture that emerges is without the overt aggression claimed by Ms Matthews and Mr Opacak.
[81] I find that JBS did not have a valid reason for the dismissal of Mr Reng.
s.387 (b) whether the person was notified of that reasons.
387 (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the persons.
[82] I will deal with both of the criteria in s.387(b) and (c) together.
[83] Mr Reng was stood down from his employment on 20 July 2012. On 26 July 2012 JBS sent a letter by ordinary post to Mr Reng advising him of the allegations made against him and seeking a response from him. The letter was as follows:
“Dear Gai Reng
Re: Further response to allegations of breach of standard terms and conditions of employment
Initial discussions regarding the above matter were held between you and me on Tuesday July 24, 2012. At this meeting you were given an opportunity to provide a statement of response.
At the conclusion of this meeting you were advised that you would not be required to attend work as the Company would continue to undertake further detailed investigations in relation to the serious allegations that had been made against you.
As part of the investigation process a number of statements have been obtained with respect to the allegations made against you.
We wish to confirm that further investigation of this matter has been conducted and as a result we offer you a further opportunity to clarify your recollection of events.
We would like to give you an opportunity to respond to the unresolved questions below:
1. Did you stand over Chanel Matthews in an abusive and threatening manner?
2. Did you continually push the door into your Manager, Chanel Matthews?
3. Did you continue to disregard instructions from both your Supervisor Peter Opacek and Manager Chanel Matthews?
We would now like to give you a further opportunity to respond to us in writing. This will give you the opportunity to provide any further relevant information that may help us determine the outcome of this investigation.
Can you please prepare your response and be in a position to deliver it to us Monday July 31st, 2012.
Should you require additional time to prepare your written response, or have any questions in relation to this matter, please do not hesitate to contact me.
If you do not provide this response in writing before 12.00pm 31st July 2012 we will base our decision on your future employment on the information we currently have at hand.
Yours faithfully
JBS AUSTRALIA PTY LTD” 29
[84] Mr Reng gave evidence that he never received the letter dated 26 July 2012.
[85] Mr Reng gave evidence that on 21 July 2012 he moved house. Mr Reng had been renting a house and since early 2012 had been in the process of building a new house in the same street. Mr Reng moved from the rental house to his own home on 21 July 2012. The address to which the letter of 26 July 2012 was sent was to the rental house. Mr Reng gave evidence that he was checking the mail at the rental house for letters to him even after the 21 July 2012 but that he never received the letter. Mr Reng’s evidence was that the first he knew about the existence of the letter dated 26 July 2012 was when he received a copy of the witness statement of Pauline Vella in October 2012. 30
[86] I note from the evidence of Mr Stiles, the NUW Organizer representing Mr Reng, that the existence of the letter dated 26 July was not raised with him or brought to his attention when he had telephone conversation with Ms Vella on 30 July 2012 or at the meeting on 1 August 2012 when Mr Reng was dismissed. 31
[87] I note from the evidence of Ms Vella that apart from the posting of the letter on 26 July 2012 the issue of the allegations was not verbally raised with either Mr Reng or Mr Stiles at any time. 32
[88] Notwithstanding that JBS posted a letter to Mr Reng I am satisfied from the evidence in this matter that JBS did not notify Mr Reng of the reasons for the dismissal nor did JBS give Mr Reng an opportunity to respond to the reasons for dismissal.
387 (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissals.
[89] There was no unreasonable refusal by the employer to allow Mr Reng to have a support person present to assist in discussions relating to the dismissal. The evidence makes clear that in the initial investigation stages immediately after 20 July 2012 that JBS permitted Mr Reng to have a support present at discussions. Additionally JBS permitted Mr Reng to have a support person present at the meeting in which Mr Reng was terminated. However there do not appear to have been any discussions relating to the dismissal prior to the dismissal being effected by JBS.
387 (e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissals.
[90] This criteria was not relevant in the present matter.
387 (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissals.
[91] JBS is a large employer and its size would not have any impact on the procedures followed in effecting the dismissal. This criteria is neutral in the present matter.
387 (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 dismissals.
[92] JBS does have dedicated human resource management specialists or expertise who were used in the implementation of the procedures effecting the dismissal in the present matter. This criteria is also of neutral value in the present matter.
387 (h) any other matters that FWA considers relevant.
[93] I consider it relevant that the evidence of both Ms Matthews and Mr Opacak identifies a workplace culture at JBS which accepts employees using swearing and profanities at each other and in the presence of supervisors and management. Once an employer such as JBS accepts the existence of this type of workplace culture it is very difficult to draw clear boundaries between acceptable and unacceptable workplace behaviour. I note the evidence of Ms Matthews that when presented with a situation of employees using swearing or profanities that she sought to find the reason for its use rather than stop its use, and I note the evidence of Mr Opacak that when faced with employees using profanities and swearing in their own time that the most he would do was to ask them to quiet down.
Conclusion as to Unfair Dismissal
[94] The proper approach to s.387 is that “in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account”. (Sayer v Melsteel P/L [2011] FWAFB 7498 at pn20)
[95] Taking each relevant criteria into account and weighing them up I conclude that the dismissal of Mr Reng by JBS was harsh, unjust or unreasonable.
Consideration of the Case as to Remedy
[96] I now turn to consider a remedy. The relevant section of the Act is set out below.
“390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[97] The language of s.390(1) makes clear that “the decision to make an order that provides for a remedy is discretionary. It is a discretion which ‘may’ be exercised.” (Ellawall v Australian Postal Corporation, Print S5109). The exercise of the discretion to order a remedy is conditional upon the requirements in s.390(1) and (2) having been met.
[98] The requirements of s.390(1) have been met as the necessary findings have previously been made within this decision.
[99] Mr Reng has made an application under s.394 and thus the requirement of s.390(2) has been met.
[100] Of the two available remedies: reinstatement or compensation, the Act makes reinstatement the primary remedy. As a Full Bench noted, “Section 390(3) requires that Fair Work Australia determine whether reinstatement is appropriate before considering any other remedy. It is not until reinstatement has been found to be inappropriate that compensation is to be considered.” (Holcim (Australia P/L v Serafini [2011] FWAFB 7794 at pn 24)
[101] Mr Reng seeks reinstatement and an order to restore lost pay.
[102] JBS contended in its written submissions filed on 26 October 2012 that:
“65. The Respondent disagrees with the contention by the Applicant that the reinstatement of the Applicant would not be an appropriate remedy.
66. The relationship between the Applicant and the Respondent has deteriorated to the extent that reinstatement should not be ordered.
67. Given the lack of contrition by the Applicant in relation to his conduct on 20 July 2012 [intimidation, aggression and violence] and his past conduct toward management [insubordination] the Respondent could have no confidence that there would be no reoccurrence of the conduct of 20 July 2012.
68. The Respondent has a duty of care to employees and is legitimately concerned that other employees should not be exposed to harm on account of the Applicant’s conduct. See Paul Wildman v NRMA Limited [2009] AIRC 879 (6 October 2009).
69. Further, the Applicant should not be compensated for remuneration lost, or in lieu of reinstatement, as provided by sections 390 and 392 of the Act, as to do so would be providing a financial reward for serious and gross misconduct and given the Applicant has already been paid 4 weeks’ notice by the Respondent.”
[103] JBS relies upon the decision of VP Lawler in Wildman v NRMA. I have considered that decision but it is not helpful in the present matter given the very different circumstances in that matter vis a vis the present matter.
[104] Given my conclusions as to the evidence of Ms Matthews and Mr Opacak I am not convinced by their assertions that they could not work with Mr Reng in future. Ultimately the issue of ensuring that reinstatement works is up to JBS and Mr Reng.
[105] I cannot on the material before me be satisfied that reinstatement is inappropriate. Therefore I will grant the remedy sought by the Applicant of reinstatement.
[106] I note the provisions of s.391 which are as follows:
“391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”
[107] JBS made no submission that any order for reinstatement should be by “appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal”. I will order that Mr Reng be reinstated to the position he had immediately before the dismissal.
[108] I consider it appropriate to make an order under s.391(2) that maintains the continuity of employment of Mr Reng and his continuous service with JBS.
[109] Mr Reng has specifically sought an order to restore lost pay. I consider that it is appropriate to make an order under s.391(3). I cannot at this time determine an appropriate amount under s.391(3) as I do not have any material before my which addresses the requirements of s.391(4). I will list the matter for further hearing in relation to the determination of the amount under s.391(3) and (4).
[110] The order for reinstatement and for continuity of service are issued separately to this decision.
COMMISSIONER
Appearances:
A. Portellli, National Union of Workers, for the Applicant
S . Button, for the Respondent
Hearing details:
2012
Melbourne
November 12, 13
1 Exhibit A1 at para 22
2 Exhibit R3 at para 11
3 Exhibit R2 at para 12
4 Exhibit A1
5 Exhibit R3
6 Exhibit R2
7 Transcript at PN1131 - PN1134
8 Transcript at PN1164 - PN1181
9 Transcriptat PN1168
10 Exhibit A1 at para 26
11 Transcript at PN1424 - PN1427
12 Transcript at PN1721 - PN1749
13 Transcript at PN1771 - PN1775
14 Transcript at PN1784 - PN1788
15 Transcript at PN1915 - PN1917
16 Transcript at PN1802 - PN1805
17 Transcript at PN1899 - PN1902
18 Transcript at PN1308 - PN1313
19 Transcript at PN1339 - PN1662
20 Transcript at PN1360
21 Exhibit A1
22 Selvachandran v Peteron Plastics P/L (1995) 62 IR 371 at 373, Northrop J
23 Print R4471
24 (1938) 60 CLR 336 at 361 - 362
25 Transcript at PN1477 - PN1487
26 Transcript at PN1245 - PN1455
27 Exhibit R3 at para 11
28 Exhibit R2 at para 12
29 Attachment PV4 to Exhibit R4
30 Transcript at PN168 - PN180 and PN782 - PN853
31 Transcript at PN994 - PN1007, PN1041 - PN1043 and PN1091- PN1092
32 Transcript at PN1645 - PN1649
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