Grant Rikihana v Mermaid Marine Vessel Operations Pty Ltd

[2014] FWC 6314

[2014] FWC 6314 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Grant Rikihana
v
Mermaid Marine Vessel Operations Pty Ltd
(U2013/14193)

COMMISSIONER WILLIAMS PERTH, 12 SEPTEMBER 2014

Termination of employment.

[1] This decision concerns an application made by Mr Grant Rikihana (Mr Rikihana or the applicant) under section 394 of the Fair Work Act 2009 (the Act). The respondent is Mermaid Marine Vessel Operations Pty Ltd (Mermaid or the respondent).

Background

[2] Mr Rikihana was employed by Mermaid in 2010. He worked at Mermaid’s Dampier supply base.

[3] Mr Rikihana’s employment was terminated with three weeks payment in lieu of notice on 13 September 2013.

[4] The letter of termination from Mermaid explained that the company had received a complaint from another employee alleging that Mr Rikihana had engaged in abusive, harassing and threatening behaviour. The letter says that following an investigation into this incident Mermaid had concluded that Mr Rikihana did in fact engage in this behaviour. The letter explained that whilst this incident was itself a serious issue the company had very significant concerns because of a long history of behaving in an unacceptable manner towards others. The letter referred to four particular prior instances of misconduct.

[5] The letter of termination concluded that because of Mr Rikihana’s continued disregard for Mermaid’s behavioural standards termination of his employment was justified.

[6] The applicant’s employment was covered by the Mermaid Marine and MUA Dampier Supply Base Enterprise Agreement 2011 [AE889585] (the Agreement).

Evidence and factual findings

4 September 2013

[7] I will first consider the incident in September 2013 which triggered the complaint about Mr Rikihana’s behaviour and Mermaid’s investigation referred to in the letter of termination.

[8] The incident occurred on 4 September 2013. Mr Rikihana’s evidence was that every morning at the pre-start meeting safety issues are brought up and discussed. At this meeting a hazard observation card was brought to the attention of the crew at the meeting. Mr Rikihana’s evidence was that Mr Hall, the Leading Hand, found the issue detailed on the card amusing and openly mocked it saying, “You can’t be serious. This is not a serious issue.”

[9] Mr Rikihana says that he replied to Mr Hall, “You’re a dickhead. You are supposed to be a Leader of this group. You’re a cock.”

[10] He says that swearing was common practice by both employees and supervisors at pre-start meetings.

[11] Mr Rikihana agrees that Mr Hall took offence and was angered by what he had said and that the discussion became heated 1.

[12] He agrees that it was disrespectful, inappropriate and demeaning but says he is not sorry that he said those words in the context this occurred 2.

[13] Mr Rikihana says that Mr Hall’s tone in reply to him was aggressive and that Mr Hall swore at him but that he, Mr Rikihana, also swore at Mr Hall but he believes that he was more restrained than Mr Hall was. Mr Rikihana says that he did not make a complaint about Mr Hall 3.

[14] Mr Rikihana concedes that when asked a direct question during the investigation into this incident he denied that he used the words “dickhead” and “cock” towards Mr Hall when he did in fact use those words 4.

[15] His evidence was that at the time of this incident he was aware that he had a final written warning under the Agreement and in his words he felt he was under a microscope.

[16] Mr Rikihana acknowledged that he was aware that the company had brought out a new code of conduct prior to this incident. In his evidence he explains that the reason he believed the company brought out that code of conduct was because it was standard fare or the norm for employees to swear at each other and at leading hands 5.

[17] Evidence was also given by Mr Williams Mermaid’s Wharf Supervisor at the Dampier supply base about the incident on 4 September 2013. His evidence was that as he was reading through the hazard observation cards with the crew, Mr Hall giggled in response to what he had read out from one card and Mr Rikihana went off at Mr Hall yelling at him about safety being serious and calling him a “cock”. He says Mr Rikihana was very aggressive in criticising Mr Hall and he had to intervene to stop the argument.

[18] He says Mr Rikihana then stopped speaking loudly towards Mr Hall but then said “dickhead” under his breath directed at Mr Hall which could clearly be heard.

[19] Mr Hall responded by saying words to the effect of “What did you say? You can’t speak to me like that.”

[20] The argument escalated again with both men swearing at each other and using bad language.

[21] Mr Williams had to intervene again to calm both men down.

[22] Mr Williams says Mr Hall approached him after the meeting and said he would like to put in a formal complaint about Mr Rikihana’s conduct.

[23] Under cross examination Mr Williams’ evidence was that when he commenced with Mermaid at times he had been shocked by the language used at pre-start meetings but he did not engage in that sort of conduct and he didn’t call people up and say that it is not the way to conduct a meeting.

[24] His evidence was that Mr Hall did not engage in that sort of conduct.

[25] His evidence was that Mermaid’s new code of conduct was introduced in July 2013 and that this had improved the workplace culture.

[26] Prior to this he agreed that there had been a lot of swearing and use of foul language but disagreed that this swearing was directed at people. His evidence was that swearing would be used commonly, even when talking with managers, but not at them.

[27] The swearing which was common in general conversation was not confrontational nor was it directed at individuals.

[28] Since the code of conduct was rolled out his evidence was that swearing continues but rudeness, confrontation and aggression has stopped.

[29] His evidence was that they did on occasions get hazard observation cards that are put in as a joke 6.

[30] His evidence was that he is obliged to feedback all hazard observation cards that have been completed to the work crew no matter how ridiculous he might think they were.

[31] The particular hazard identification card that Mr Hall giggled about referred to the reflective strips on work shirts blinding forklift operators. His evidence was that whilst he did not think the card was a joke it was inappropriate to identify this as a hazard.

[32] He said Mr Rikihana was angry that Mr Hall had giggled. Mr Williams did not accept that there had been aggression and abuse from both sides but rather his evidence was that the aggression and abuse was from Mr Rikihana and that Mr Hall was upset at the abuse he was taking.

[33] Mr Williams says that Mr Hall did swear at Mr Rikihana after the argument escalated a second time.

[34] His evidence under cross examination was that he had not witnessed Mr Hall being abusive towards other workers in the workplace and no complaints by other workers about Mr Hall had been made to him.

[35] After Mr Hall told him he was going to put in a formal complaint about Mr Rikihana Mr Rikihana also approached him and said that if Mr Hall was going to put in a complaint that he would also. Mr Williams says that he took Mr Rikihana up to the administration building so that he could fill out a statement. Mr Rikihana however did not put in a complaint.

[36] Having seen both men give their evidence my view is that Mr Rikihana was not an impressive witness and he seemed at times to have a limited memory about important events relevant to this application. Mr Williams was open in his evidence and gave his evidence in a neutral manner adding to his credibility.

[37] Much of the evidence about the events of this day at the pre-start meeting are not in dispute.

[38] My findings as to what occurred are as follows.

[39] At the pre-start meeting on 4 September 2013 Mr Williams read out one of the hazard observation cards. Hearing that the hazard was a concern that forklift drivers were being blinded by the reflective tape other employees were wearing on their shirts Mr Hall, the Leading Hand, giggled.

[40] Mr Rikihana reacted to Mr Hall by yelling at him in an angry and aggressive manner to the effect that he should take safety seriously. Mr Rikihana swore at Mr Hall initially calling him a “cock”.

[41] Mr Hall was upset and swore as he was arguing back to Mr Rikihana.

[42] Mr Williams intervened to separate and calm both men down and told them to stop.

[43] Mr Rikihana lowered his voice and then quietly, but loud enough that others could hear, called Mr Hall a “dickhead”.

[44] The argument between Mr Rikihana and Mr Hall escalated again and Mr Williams had to intervene a second time to calm them down.

[45] These events occurred in front of the balance of the crew at the pre-start meeting.

[46] Subsequently Mermaid interviewed Mr Rikihana about these events and he was specifically asked whether he had used the language identified above when he was referring to Mr Hall. In response he denied he had used this language. I find that Mr Rikihana during the investigation meeting denied he swore at Mr Hall using the language that at the hearing of this matter he freely admits he did direct at Mr Hall.

[47] I find that Mr Rikihana during the meetings conducted as part of the investigation into these events was not open and honest in his answers to the questions he was asked.

9 February 2013

[48] The evidence of Mr Williams was that on 9 February 2013 he overheard an altercation between Mr Rikihana and his Leading Hand Mr Hall.

[49] Mr Hall had directed Mr Rikihana to assist another employee. Mr Rikihana had responded to by saying words to the effect of, “Get fucked” and in a reference to another employee “Get the fat lazy C*** to do it.”

[50] Mr Rikihana had said this loudly and aggressively towards Mr Hall. Mr Hall walked away saying that he had enough of this type of thing.

[51] Mr Williams’ evidence was that he walked over to Mr Rikihana and asked him what the problem was and why he wasn’t following instructions and his response was that he did not want to work in the place Mr Hall directed him to.

[52] Mr Williams told him that he had to follow instructions and he told Mr Rikihana that he had to do what the Leading Hand told him to do. His evidence was that Mr Rikihana came across as frustrated by his intervention and he walked off swearing under his breath. Mr Williams raised the incident with the Operations Manager and sent an email to him about these events.

[53] This email was not provided to Mr Rikihana nor was he provided with any written warning about these events.

[54] Mr Rikihana agrees that Mr Williams counselled him about these events but cannot recall the detail of what Mr Williams said during that verbal counselling 7.

[55] Considering this evidence I find that the events of 9 February 2013 occurred as Mr Williams stated which is detailed above.

8 February 2013

[56] Considering the evidence given by Mr Williams about the events on 8 February 2013 which was not challenged in cross examination and the evidence of Mr Rikihana which amounted to a simple denial that these events occurred I prefer the evidence of Mr Williams and find that on 8 February 2013 Mr Rikihana left the wharf area where he was working and proceeded to the crew room. He did so without any authority to leave the work area and without informing either Mr Williams or his Leading Hand at the time Mr Hall.

[57] Mr Williams shortly thereafter spoke to Mr Rikihana in the crib room and the applicant accepted that he was in the wrong and agreed to inform Mr Williams or Mr Hall in such circumstances in the future.

15 December 2012

[58] Mr Rikihana’s evidence is that on this day he received a phone call from a union representative Mr Munro who told him that there had been an accident at the “AB” area and someone had crushed their hand. He said there should be a certified safety representative present which Mr Rikihana was.

[59] He says he then rang WorkSafe and spoke to Mr Green a WorkSafe Inspector. Mr Rikihana told him that there had been a serious accident and someone had crushed their hand. Mr Rikihana says Mr Green told him, “This is your chance to get involved. Go down there and find out about the welfare of the person who got hurt and those around him.”

[60] Mr Rikihana says he went down to the wharf with Mr Munro and Mr Brian another representative from the union.

[61] Mr Howe, the Mermaid Supply Base Manager and Mr Munyard, Mermaid’s human resource representative were at the gate.

[62] Mr Rikihana’s evidence in chief was that Mr Howe tried to stop him by telling him he had to be inducted to go into the area, which he had not been, and that he didn’t have his personal protective equipment (PPE) on, specifically his gloves.

[63] Mr Rikihana told him that he had been coming into this area for two years and nobody from his workgroup had been inducted and that he wasn’t going to be handling anything and was just there to see how the worker was and how the Health and Safety representative Officer is.

[64] Mr Rikihana says Mr Howe told him, “You don't need to be here. We have a Safety Officer here.” Mr Rikihana says that he replied that the Safety Officer had not been accredited and that he had spoken to WorkSafe before coming.

[65] His evidence was that both Mr Howe and Mr Munyard physically tried to stop him by blocking his path but he walked around them and went into the wharf area.

[66] He approached the Safety Officer Mr Saunders and asked how the injured worker was and what had happened. Mr Howe and Mr Munyard who had followed him had then said that they had it under control and that he did not need to be there.

[67] Mr Saunders told him that the injured worker had been taken away and Mr Rikihana queried why an ambulance was not called. The Safety Officer told Mr Rikihana that he was fine and Mr Rikihana says that he then told them he was leaving.

[68] Mr Rikihana agrees he was not wearing his gloves when he tried to enter the wharf area. He says he disregarded the repeated instructions given to him by a Mermaid senior manager not to enter without his gloves because in his view not having gloves seemed minor compared to finding out the welfare of a worker who has just crushed his hand 8.

[69] He accepts that his entry to the wharf was as much as 2.5 hours after the worker was injured but says this was because he was also concerned about other workers who may have been psychologically affected by witnessing the incident.

[70] His evidence was that Mr Howe said to him that he had made a big mistake and that he would later see him in his office.

[71] Mr Lee, the Supply Base General Manager also gave evidence. On 19 December 2012 he and Mr Gillett, the General Manager of Human Resources for Mermaid, met with Mr Rikihana and his support person about this incident. His evidence was that Mr Rikihana did not deny that he had attempted to enter an area of the supply base without a valid permit (i.e. without having been inducted) and without wearing the required PPE.

[72] Mr Rikihana also admitted that on more than one occasion he had been requested by the two management personnel to leave the area but he did not.

[73] Mr Lee said that following discussion about these events Mr Rikihana was told that Mermaid viewed the incident very seriously and were questioning whether or not to continue with his employment. Mr Rikihana was told that it was of concern that this was not an isolated incident and there seem to be a pattern of inappropriate behaviour with no improvement on his behalf.

[74] After the meeting was adjourned Mr Gillett returned and told Mr Rikihana that they had come very close to terminating his employment but were prepared to give him a last chance and so had decided to impose a final written warning.

[75] That warning was detailed in a letter dated 28 December 2012 9 and concluded by saying, “You are hereby on notice that any further indiscretions on your part in relation to your behaviour in the workplace or in relation to your work performance generally will likely result in the termination of your employment.”

[76] Mr Rikihana agrees that he received this final written warning letter 10.

[77] Mr Rikihana says he does not agree with what is recorded in the letter but that he never invoked his rights under the Agreement to challenge the appropriateness of this warning letter.

[78] Considering this evidence I find that Mr Rikihana attended the wharf area on 15 December 2015 and was seeking to enter an area of the wharf where he had been advised that an employee had sustained an injury. He was aware that the safety incident had occurred some significant period prior to his attendance at the wharf. Mr Rikihana was not wearing gloves when he sought to enter this area of the wharf which was required PPE to enter. He was advised by two senior managers from Mermaid that there was already a safety officer who was in attendance. Those managers repeatedly advised him that he could not enter the area because he had been not inducted, was not wearing the required PPE and there was no need for him to enter the area. Mr Rikihana argued with the managers and ignoring their protestations entered the wharf area contrary to their direct instructions.

14 September 2012

[79] On this day at the pre-start meeting Mr Rikihana says that his then Supervisor Mr Hinchliffe told the crew that untreated sewerage was being brought onto the wharf. Mr Rikihana says he replied that the company had to provide a safe working environment but Mr Hinchliffe told him that he was ordering them to carry on working to which Mr Rikihana says he told Mr Hinchliffe to “fuck off.”

[80] Mr Hinchliffe was called on behalf of the applicant and gave evidence that when he then told Mr Rikihana that it was unacceptable for Mr Rikihana to swear at him in this way Mr Rikihana told him to “get fucked twice”.

[81] This triggered a heated argument between himself and Mr Hinchliffe.

[82] Mr Hinchliffe’s evidence was that supervisors and leading hands were instructed by management to keep conveying the message that employers are to treat each other with dignity and respect and the poor culture must change 11.

[83] Mr Hinchliffe reported this incident. His evidence was that he wanted to bring to a head the concern he had about the poor culture within the workgroup. His evidence was he was not picking on Mr Rikihana as such and did not want him to lose his job over the incident.

[84] Mr Hinchliffe’s evidence was that there had never been any threat to bring untreated sewerage onto the wharf in any event.

[85] I find that even in the context of what was then a poor culture Mr Rikihana’s behaviour was an aggressive personal attack on his supervisor without justification.

[86] It is not disputed and I find that Mermaid’s decision, having investigated these events, was that Mr Rikihana should be verbally counselled with respect to his unacceptable aggressive and abusive behaviour towards Mr Hinchliffe but that no written warning would be issued.

23 April 2012

[87] Mr Rikihana admits that on this date when asked by the Security Officer at the gate to show his induction card he told her to “fuck off”.

[88] The Security Officer reported the incident and in her report states that Mr Rikihana swore at her in an aggressive manner and his body language indicated he was quite angry. Her report says that he then ignored her instruction and started to walk away. When she followed him and asked for his name he continued to swear in an aggressive and abusive manner towards her and she became concerned that he may become physically aggressive. Only after this did he then show her his identification card as she had originally requested.

[89] Mermaid investigated this report and whilst Mr Rikihana denied that his behaviour was as serious as the Security Officer had reported he did agree that he should have behaved better, should have been more patient, that he did swear and that he had acted towards the security officer in a manner that was harsh.

[90] Following the investigation and interviews with Mr Rikihana by Mermaid into this incident the respondent gave him a letter as a formal record of his inappropriate conduct. That letter advised that it would be kept on his file and be taken into consideration should he become involved any further disciplinary matters.

[91] Mr Rikihana to his credit concedes that it was appropriate he received that warning and this was fair in the circumstances 12.

The code of conduct

[92] I find that in July 2013 Mermaid rolled out to its employees a new code of conduct. The code specifies employees must refrain from bullying and harassing behaviour, must act honestly and show respect for others.

[93] Mr Rikihana attended a presentation on the code on 31 July 2013 and that presentation explained that code breaches would result in disciplinary action being taken.

Submissions

The applicant’s for submission

[94] It is submitted that there was no valid reason for the applicant’s termination relating to his capacity or conduct. Whilst the applicant does not deny swearing in the workplace it is submitted this was not out of the ordinary in that particular workplace and so did not constitute a breach of the behavioural standards expected of him.

[95] The applicant accepts he was notified of the reason for his termination at the time he was terminated.

[96] The applicant asserts he was not given the opportunity to respond to the reasons for his termination and that the respondent has failed to follow the disciplinary procedure set out in Appendix 3 of the Agreement which applied to his employment.

[97] The applicant agrees he was allowed a support person at the discussions which occurred at his termination.

The respondent’s submission

[98] The respondent submits that there was a valid reason for dismissing Mr Rikihana in that he engaged in conduct in breach of the respondent’s code of conduct and continually demonstrated disregard for Mermaid’s behavioural standards.

[99] The respondent rejects the defence that Mr Rikihana’s swearing and conduct was not out of the ordinary. It is submitted that he persistently engaged in conduct in breach of the code which was applicable at the time of his dismissal and the earlier conduct policy which predated that code.

[100] His conduct extended beyond mere swearing and commonly involved a level of aggression and intimidation towards others including his supervisors and managers.

[101] The processes adopted by Mermaid afforded the applicant procedural fairness.

[102] Other matters relevant are that the applicant has failed to demonstrate any appreciation of the seriousness of misconduct over his period of employment and has displayed little evidence of contrition for his actions.

[103] The applicant had a relatively short period of service.

[104] In reply to the applicant submissions that alleged non-compliance with the disciplinary procedure in the Agreement renders of itself the dismissal unfair the respondent submits that, if indeed the respondent erred in relation to any warning or counselling being given consistent with the Agreement, at no time has it deprived the applicant of the opportunity to dispute those counselling and warnings under the terms of the procedure.

[105] The issue before the Commission in any event is the fairness of the dismissal of Mr Rikihana not the lawfulness of his dismissal. Section 387 of the Act specifies those criteria which are to be considered.

[106] The issues the applicant raises regarding the detail of the disciplinary procedure do not subtract from the conclusion that Mr Rikihana was afforded a fair go all round and had been put on notice regarding the consequences or future transgressions by him.

[107] In any event it is submitted that the events of 15 December 2012 were themselves sufficiently serious that a final written warning could have been given under the procedure.

[108] The respondent argues that in all the circumstances the dismissal or Mr Rikihana was not unfair and this application should be dismissed.

Legislation

[109] Section 387 of the Act set out below specifies the criteria the Commission must take into account when determining whether Mr Rikihana’s dismissal was harsh, unjust or unreasonable.

“387 Criteria for considering harshness etc.

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 person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

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

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

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

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

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

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

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

Valid reason

[110] It was the events of 4 September 2013 that led to Mermaid making its decision to dismiss Mr Rikihana.

[111] What occurred on that day was simply that Mr Hall, the Leading Hand, had giggled after hearing what had been written on one of the hazard observation cards that was read out to the work group at the pre-start meeting. At worst Mr Hall’s reaction could be characterised as an ill considered response.

[112] Mr Rikihana reacted by loudly and aggressively verbally abusing Mr Hall.

[113] Mr Hall verbally responded to this abuse and a heated confrontation took place. Mr Williams the Wharf Supervisor separated the two men telling them to stop. Immediately after this Mr Rikihana ignored Mr Williams and again directed verbal abuse towards Mr Hall.

[114] Mr Rikihana’s aggressive and abusive reaction towards Mr Hall was totally unjustified and inexcusable.

[115] Mr Rikihana’s aggression and abuse was conduct that of itself was a valid reason for his dismissal.

[116] Mr Rikihana’s behaviour was a clear breach of the respondent’s code of conduct and this breach was also a valid reason for his dismissal.

[117] Mr Rikihana at the interviews held on 4 September 2013, to gather information into the events which had occurred earlier that day, denied having called Mr Hall a “dickhead” at the pre-start meeting. In his evidence before the Commission Mr Rikihana contrary to this freely admitted calling Mr Hall this and other names at that pre-start meeting. Self evidently Mr Rikihana was not honest and open when he was being asked questions at these interviews by Mermaid’s staff 13.

[118] Mr Rikihana’s conduct in failing to be honest when asked questions by his employer about what he had said to Mr Hall on 4 September 2013 was also a valid reason for his dismissal 14.

Notification of the reason

[119] Mr Rikihana was notified of the reasons he was being dismissed in a meeting on 11 September 2013. Those reasons were confirmed in the termination letter dated 13 September 2013.

Opportunity to respond

[120] Mr Rikihana participated in two meetings on 4 September 2013 in which he was asked to explain what occurred between him and Mr Hall earlier that day. It was explained to him that the situation was serious given his past history.

[121] Mr Rikihana in those meetings and in the final meeting on 11 September 2013 had an opportunity to respond to the reasons for which he was ultimately dismissed.

Support person

[122] There was no refusal to allow Mr Rikihana to have a support person present during discussions that related to his dismissal in fact Mr Rikihana was accompanied by a support person of his choice at the meetings mentioned above including the final meeting which concluded with his dismissal.

Performance warnings

[123] The dismissal of Mr Rikihana was not related to his performance but rather to his conduct.

Size of the enterprise

[124] The respondent is a large enterprise and the procedure adopted in this case was as would be expected in an enterprise of this size.

Human resource specialists

[125] The respondent does have dedicated human resource specialists and these were involved in this matter and consequently the procedure adopted was as would be expected.

Other relevant matters

[126] There are a number of other relevant matters in this case.

Prior conduct and discipline

[127] As can be seen from the facts of this matter Mr Rikihana in the less than three years he was employed with Mermaid had repeatedly been counselled or disciplined for various instances of misconduct.

[128] Mr Rikihana has been counselled or disciplined on different occasions because:

• he ignored the directions of a security officer and verbally abused her,



• he was abusive and aggressive towards a previous supervisor,



• he ignored repeated directions from two managers not to enter a particular area,



• he left his area of work without authorisation or notifying his supervisor,



• he refused to obey an instruction from his supervisor, verbally abused him and referred to another employee in highly derogatory terms.

[129] Mr Rikihana was issued with a final written warning in December 2012 that said any further indiscretion in relation to his behaviour would be likely to result in his termination 15.

Non-compliance with the Agreement

[130] The applicant submits that the discipline of the applicant administered by the respondent over the period of the applicant’s employment was not fully compliant with the terms of clause 6, clause 8.1 and Appendix 3-Disciplinary Procedure of the Agreement and so it is submitted that these actions are invalid and so cannot be relied upon to justify the termination of the applicant.

[131] I note that this submission was touched on in the applicant’s materials filed in accordance with the Commission’s directions however the particular basis on which the applicant’s representative argued this point at the hearing has somewhat disadvantaged the respondent in that having only at hearing heard the specificity of the applicant’s submission it in hindsight may have wished to call evidence to counter the factual basis on which the applicant made that submission.

[132] In my view there is real doubt in any event as to whether Appendix 3-Disciplinary Procedure does prescribe a rigid procedure that must be adhered to and cannot be departed from. This is so because the introduction to the procedure explains that:

“The application of this procedure together with the particular circumstances and the severity of each case, will determine the appropriate step/s to be taken with respect to an employee.”

[133] Further the applicant’s argument that an asserted failure to provide an employee with a copy of a “formal warning” as is specified in step 2 of the disciplinary procedure means that warning was not a ‘formal warning’ for the purposes of potentially issuing a final warning under step 3 and so any “final warning” that followed was invalid is not a matter for the Commission to determine in terms of whether the respondent has breached the terms of the Agreement.

[134] There is also some merit in the respondent’s submission that the events of 15 December 2012 amounted to “...circumstances of serious misconduct not justifying summary dismissal...” and as provided for under step 3 of the disciplinary procedure those circumstances, viewed in isolation and ignoring all prior misconduct, allowed the respondent to issue Mr Rikihana with a final warning.

[135] Even if the applicant’s view is correct that the respondent has not been fully compliant with the terms of the Agreement this is only one factor to be taken into account in determining whether Mr Rikihana’s dismissal was harsh, unjust or unreasonable as explained in Farquharson v Qantas Airways Limited [[2006] AIRC 488] at paragraph [41]:

“[41] The fact of unfairness in the employer’s decision making process, even if it involves a breach of a term in a certified agreement, is but a factor to be taken to account in determining whether a termination of employment was harsh, unjust or unreasonable. In circumstances where, as here, the merits of a termination of employment based on misconduct have been the subject of a full hearing in the Commission (in which the employer must establish the alleged misconduct on the balance of probabilities) and the dismissal has been found to be justified, it will be rare for a defect in an internal disciplinary process that preceded the termination justifying a conclusion that the termination was harsh, unjust or unreasonable. This is so because, almost invariably in such circumstances, it may be inferred that the outcome of the disciplinary process would have been the same even if there had been no such defect.” (Underlining added)

[136] The terms of Appendix 3-Disciplinary Procedure at 1.4 of the Agreement provide that where the employee disputes the legitimacy of a verbal and/or written warning the matter will be dealt with in accordance with the dispute settlement procedure in the Agreement. It is a fact that Mr Rikihana did not at any time under the terms of this procedure challenge the disciplinary letters or verbal discipline he was subject to in accordance with the dispute settlement procedure. I note that union representatives had been involved in a number of the meetings and discussions over earlier incidences of misconduct and so the applicant was in the past properly represented.

[137] I do not accept that any non-compliance by the respondent of the disciplinary procedure and related clauses in the Agreement have an anyway denied Mr Rikihana natural justice and provides no basis for a conclusion that his dismissal was harsh, unjust or unreasonable.

Swearing in the workplace

[138] Mr Rikihana’s representatives submitted that his actions on 4 September 2014 wherein he verbally abused Mr Hall in an aggressive manner should not be seen as a serious matter because there was a widespread culture of employees swearing at each other and at supervisors throughout the workplace.

[139] I have considered the evidence of all of the witnesses who dealt with this proposition.

[140] There is no doubt that Mermaid had been concerned in the past at the manner in which its employees interacted with each other and with their supervisors. As the applicant’s representative point out Mermaid’s concern to improve this is demonstrated by the fact that a new code of conduct had been introduced in July 2013.

[141] This code of conduct was rolled out to employees prior to the events on 4 September 2013 and the evidence is that Mr Rikihana was involved in the rollout of that code and understood what was expected of him from that code of conduct 16 and the consequences for failing to comply with the code.

[142] The evidence of the witnesses has satisfied me that whilst wearing by employees in general conversation had continued after the introduction of the new code of conduct there had been a general improvement in the interactions between employees.

[143] I am satisfied from the evidence that neither before nor after the new code of conduct was introduced was it the norm nor was it commonplace for employees to direct swearing at individuals as distinct from using swear words as part of their normal conversations. There is a generally appreciated distinction between regularly using swear words as part of everyday descriptive language and swearing aggressively and maliciously at another person.

[144] Consequently I do not accept that Mr Rikihana’s behaviour on 4 September 2014 towards Mr Hall could be viewed as acceptable in the context of the cultural of this particular workplace.

Service

[145] Mr Rikihana had been employed for approximately three years at the time of his dismissal.

Conclusion

[146] Considering all of the factors as required by section 387 of the Act there is no basis for finding that the dismissal of Mr Rikihana was harsh, unjust or unreasonable.

[147] His behaviour on 4 September 2014 was unjustified, extreme and unacceptable. This misconduct was another example of behaviour he had engaged in over the course of his employment where he had responded to persons in authority in a contemptuous and aggressive manner without justification. Mr Rikihana had been put on notice by his employer on a number of occasions that this was not acceptable. He was aware his actions were contrary to the behavioural expectations of his employer as detailed in its code of conduct and when asked to account for his actions he was not honest in his responses to his employer.

[148] Mr Rikihana’s dismissal in all the circumstances was not surprising and certainly was not unfair.

[149] Mr Rikihana was not unfairly dismissed.

[150] This application will be dismissed and an order to that effect will be issued.

COMMISSIONER

Appearances:

L Edmonds of The Maritime Union of Australia for the applicant.

R. Wade of Ashurt Australia for the respondent.

Hearing details:

2014.

Perth:

May 6 and 7.

 1   Transcript at PN452 and PN453.

 2   Ibid., at PN454 and PN455.

 3   Ibid., at PN558 to PN563.

 4   Ibid., at PN441 to PN445 and PN460 to PN462.

 5   Ibid., at PN498 to PN501.

 6   Ibid., at PN1395.

 7   Ibid., at PN566 to PN570.

 8   Ibid., at PN377.

 9   Exhibit R1, page 92.

 10   Transcript at PN324 to PN331.

 11   Ibid., at PN159.

 12   Ibid., at PN322 and 323.

 13   Ibid., at PN441 to PN445, PN451, and PN460 to PN462.

 14   [2008] AIRCFB 15 at paragraph [23].

 15   Exhibit R1, page 92.

 16   Transcript at endnote PN498 to PN501.

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