[2021] FWC 5173

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Greg Chapman
v
Sepos Truck Trust T/A J&S Transport
(U2020/14495)

COMMISSIONER HUNT

BRISBANE, 20 AUGUST 2021

Application for unfair dismissal remedy - Applicant made aggressive and vulgar comment to customer’s employee – conflict of evidence – only part of the statement accepted as having been said – consideration of video footage - two reasons provided by Respondent as reasons for dismissal being conduct and capacity - Applicant’s dismissal not unfair in all the circumstances – application dismissed.

[1] On 5 November 2020, Mr Greg Chapman made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging he had been dismissed from Sepos Holdings Pty Ltd T/A J&S Transport (the Respondent) and that the dismissal was harsh, unjust or unreasonable.

[2] In his Form F2 application, Mr Chapman stated that his employment with the Respondent commenced on 11 June 2018 and came to an end on 16 October 2020. The Respondent does not dispute these dates. In short, and to be discussed more fully below, Mr Chapman’s dismissal arose out of an incident, said to have occurred on 7 October 2020, in which it was alleged that Mr Chapman said words to the effect, “Fuck me dead cunt” in an aggressive manner to a colleague. Mr Chapman denies the allegation.

[3] The Respondent provides services to its client, Ingham’s. The Respondent’s employees drive trucks transporting feed for the consumption of live animals.

[4] Pursuant to s.396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a) whether the application was made within the period required in ss.394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.

[5] There is no dispute, and I am satisfied, that the application was made within the period required in s.394(2) of the Act; that Mr Chapman was a person protected from unfair dismissal; that the business was not a small business; and that the dismissal was not a case of genuine redundancy.

Hearing

[6] The matter was heard by video on 17 and 18 February 2021, with final submissions filed on 30 March 2021. Leave was granted pursuant to s.596(2)(a) of the Act for Mr Chapman to be represented by Mr Nigel Saines, Solicitor, Cooper Green Lawyers, and for the Respondent to be represented by Ms Sarah Wood, Principal, Gilchrist Connell.

[7] The following people gave evidence and were cross-examined:

• Mr Greg Chapman;

• Mr Mark Sepos, General Manager, Respondent;

• Ms Alison Ross, Compliance Coordinator, Respondent;

• Ms Megan Lawrence, Group Accountant, Respondent;

• Mr Andrew Barker, Production Shift Manager, Ingham’s;

• Mr Tom Watkins, Queensland Operations Manager, Respondent;

• Mr Richard Sevil, National Feedmill Operations Manager, Ingham’s;

• Mr Stephen Barnes, Truck Driver, Respondent;

• Ms Katherine Croxford, Intake Operator, Ingham’s; and

• Mr Dustin Flood, Maintenance Fitter, Ingham’s.

[8] Mr Chapman tendered video recordings said to be relevant to the alleged conduct in this matter. Despite directions to do so, Mr Chapman did not file a witness statement in reply to the to the Respondent’s evidence. 1

Evidence of Mr Chapman

[9] Mr Chapman stated that on 5 April 2019, he was sitting in the Respondent’s lunchroom when he was approached by another worker, an employee I have decided to identify only as Mr W. Mr W pushed the table that he was sitting at into him, then said to him, “fucking cunt.” Mr Chapman felt very distressed by this and was fearful that Mr W was going to strike him in the face with his closed fist.

[10] Mr Chapman was away from work for approximately one month and successfully made a workers’ compensation claim, suffering from Post-Traumatic Stress Disorder (PTSD). He stated that he still thinks about the incident. He described the incident as a workplace assault and stated that it has left a lasting impression on him that he cannot seem to escape. He described it as a terrifying incident.

[11] Curiously, Mr Chapman did not give written evidence or in-chief evidence to the Commission that Mr W had threatened to kill him, yet it became evident throughout the Respondent’s witness evidence that it was accepted that Mr W had used the words he would kill Mr Chapman. Mr Chapman was certified as fully fit to return to work and did so from 7 May 2019. 2 He continued to perform his full duties from this time until the end of his employment.3

[12] In cross-examination, Mr Chapman stated that Mr W did not initially lose his job, but after intervention from Ingham’s, Mr W was dismissed by the Respondent.

[13] Mr Chapman’s evidence in relation to the events the subject of the allegation in this matter is relatively short so can be extracted in full, with paragraph numbering removed:

“On 7 October 2020, at about 2:37pm, I arrived at the Ingham’s Hemmant feedlot.

I parked at a stop zone, waiting for the weigh bridge to clear for about 10 minutes.

At about 2:47pm, I drove my truck onto the weighbridge.

I’d been sitting on the weighbridge for a couple of minutes when I observed two people (one male and one female) walking to the side of my truck.

The two people kneeled next to the rear axle; this is about 40 meters from the truck’s cab.

I was not sure what they were doing, I tried to look using the mirrors on the truck, but they were observed by distance.

I opened the cab door and stood on the top of the truck’s cab steps to get a better view.

I watched the two people working for about 20 second (sic), unsure what they were doing, however, formed the view that they were not damaging or interfering with the truck.

Once I was happy that they were not doing anything damaging, I got back into the cab.

After I closed the door to the cab, the female worker walked along the side of the truck, I believe she was inspecting the vehicle. She and I did not speak or have any contact.

After a couple more minutes, I went into the nearby weighbridge station.

About a minute later, the female worker also came into the station, we then had a conversation:

a. She said: “Hey did you just say something rude to me? Were you rude to me?”;

b. I said: “No, wasn’t me sorry, don’t know what you are talking about”.

I found this conversation to be very unusual, the woman was aggressive in how she spoke to me.

She appeared to be satisfied with my answer. No one else approached me or asked me anything.

I left the weighbridge station feeling upset, I walked back to my truck.

I then drove the truck around the corner.

At no time on 7 [October] 2020, was I rude to the female worker or the male worker, nor did I make the comments as alleged.” 4

[14] The female employee referred to by Mr Chapman is Ms Katherine (or Kat) Croxford. Ms Croxford has given evidence in these proceedings, dealt with below. Ms Croxford is an employee of Ingham’s, not of the Respondent.

[15] In cross-examination, Mr Chapman denied that he revved the engine of the vehicle when he entered the weighbridge after waiting 10-minutes. 5 He stated that at times there is no wait to enter the weighbridge, but there has been, on occasions a wait of up to one hour.6

[16] Mr Chapman agreed in cross-examination that it is not unusual for Ingham’s staff to approach the truck while it is on the weighbridge. 7 He said it was a “common occurrence”.8 Mr Chapman confirmed that he recognised both people that approached his vehicle on 7 October 2020.9

[17] In cross-examination, Mr Chapman maintained that these two employees were “at least” 10 40 metres away from him. Mr Chapman’s evidence at hearing was that the truck is maybe 26 metres long.11 Mr Chapman accepts that this means the truck is less than the 40 metres he has previously stated and that this means the other person were “standing further behind the truck”12 but were not looking at the truck.13 Mr Chapman denied that Ms Croxford was actually five metres away from him at the time of the alleged incident.14

[18] In cross-examination, Mr Chapman stated that he opened the cab door on his truck and stood on the steps to obtain a better view of the two employees. Once he was on the steps of the cab, he could see that they were attending to a bollard which deflects the tyres of vehicles hitting the weighbridge.

[19] It was put to him that it was a common occurrence for Ingham’s employees to be near the weighbridge, so why did Mr Chapman need to leave his vehicle to see what they were doing? He responded that he was curious, and because he couldn’t see them in his mirror, he decided to open the door and stand on the step to see what they were doing. He stated that he did so because there had previously been snakes and other things on the weighbridge.

[20] Mr Chapman stated that he had no interaction at all at this time with Ms Croxford. When Ms Croxford then came up beside the truck and went up on the gantry, she contacted him by radio and told him to move the truck forward so she can check the trailer. Mr Chapman did so, then put the brake on and took his paperwork into the office.

[21] When Mr Chapman went into the office to attend to paperwork, his oral evidence is that Ms Croxford approached him and said to him, “Hey, did you just say something rude to me? Were you rude to me?” He responded, “No, I didn’t say anything. I didn’t say anything. Why” Ms Croxford then said, “Because I thought I heard something.”

[22] Ms Wood put to Mr Chapman that his oral evidence was different to his written evidence at [13]. Mr Chapman said his oral evidence should be preferred over his written evidence. 15 He confirmed that his evidence is that Ms Croxford said to him, “Because I thought I heard something.”16

[23] Mr Chapman gave a further version of this interaction as follows:

“Ms Wood:	And you had a conversation with Ms Croxford in the office?
Mr Chapman:	Yes.
Ms Wood:	And didn't Ms Croxford say to you words to the effect of, or something like, "Did you just swear at me?"?
Mr Chapman:	"Were you rude to me?"
Ms Wood:	She said, "Were you rude to me?"?
Mr Chapman:	"Were you rude to me outside?"
Ms Wood:	And you said, "No, it wasn't me, I didn't say anything"?
Mr Chapman:	No.
Ms Wood:	No?
Mr Chapman:	I said, "Certainly not, why?"
Ms Wood:	Okay?
Mr Chapman:	And that's when she said, "Because I thought I heard something".” 17

[24] Mr Chapman accepted that it may have been a misunderstanding 18 and that Ms Croxford was mistaken.19 Mr Chapman considers that witnesses giving any evidence to the contrary are making it up and colluding.20

[25] Mr Chapman accepts that it wasn’t mentioned in his statement, 21 but after Mr Chapman left the weighbridge and went around the corner, he was approached by Mr Andrew Barker and a second person. Mr Barker said to Mr Chapman that an allegation had been made and requested Mr Chapman to park his truck and wait for further contact.

[26] What follows this is subject to some dispute and Mr Barker’s evidence concerning these interactions will be dealt with below but Mr Chapman disputes, or possibly doesn’t recall, that he was told that the allegation concerned bully and harassment 22 or that he responded to Mr Barker that “[Y]ou can’t be serious about that woman, she swears at me all the time”23.

[27] Given the absence of any written reply evidence regarding Mr Barker’s witness statement, and hearing Mr Chapman’s denial during cross-examination, the following was put and answered: 24

“Commissioner:	Mr Chapman, when you saw Mr Barker's statement, why didn't you put a reply statement on?
Mr Chapman:	I don't know. I can't explain. I don't know why. I didn't see the need to.
Commissioner:	Well, I've got witnesses saying one thing and then you've not told me, until today, that things haven't been said. I would have expected that to have been put in a reply statement?
Mr Chapman:	Yeah. This whole deal is just - it's too much for me to - I don't understand the process, what I'm supposed to do and what not.
Commissioner:	Well, you have your former employer's client's manager saying that this is what you said?
Mr Chapman:	Yeah.
Commissioner:	And you haven't refuted that when you've had the opportunity to put a reply statement on?
Mr Chapman:	Yeah, I - - -
Commissioner:	So you're saying today that that's not what you said to Mr Barker?
Mr Chapman:	No, I didn't. Yes, that's right.”

[28] The evidence of Mr Barnes, dealt with further below, concerning the alleged statement to Ms Croxford was put to Mr Chapman in cross-examination with Mr Chapman maintaining his denial. 25 Mr Chapman was also taken to Ms Croxford’s evidence concerning the allegation and maintained his denial.26 In cross-examination he said that he would not swear in front of Ms Croxford because she had previously informed him that she is religious.27

[29] On 9 October 2020, Mr Chapman received email correspondence from the Respondent stating (formalities omitted):

“Opportunity to respond to allegations of serious misconduct

The Company has received a number of allegations about your conduct on 7 October 2020 (Allegations). The Allegations are listed below.

JS Transport Group (the Company) is giving you the opportunity to respond to the Allegations. A substantiated finding of misconduct may lead to disciplinary action, which may include termination of your employment in accordance with your employment agreement dated 9 July 2020 (employment agreement).” 28

(emphasis in original)

[30] The correspondence then extracts various portions of Mr Chapman’s employment agreement and Respondent policies. The allegations are then recited as:

“1. On 7 October 2020 at approximately 3.40pm, you drove truck number 292 onto Ingham’s Hemmant weighbridge in an aggressive manner;

2. While waiting at the entrance to the weighbridge, you opened your truck door and said words to the following effect to the female weighbridge operator “Fuck me dead cunt”;

3. The weighbridge operator confronted you and said words to the following effect. “did you swear at me” you responded, “It wasn’t me must have been someone else”.” 29

[31] If proved, the correspondence indicated that the Respondent “could” consider the conduct to constitute serious misconduct. The correspondence also stated that while the Respondent had not made any decisions, if proved, the Respondent may consider terminating Mr Chapman’s employment.

[32] Mr Chapman was directed to attend a telephone meeting to occur at 8:30am on Monday, 12 October 2020. Mr Chapman was suspended from employment with pay and without loss of entitlements.

[33] After receiving this correspondence, Mr Chapman was in “shock” 30 and was not able to think straight but he does recall needing support for his “ongoing health concerns”. In his first statement, Mr Chapman says that he attended hospital and received some care31 on 12 October 2020. In his supplementary statement, Mr Chapman says he attended the Cannon Hill Family Doctors on 12 October 2020 and was provided with a medical certificate.32

[34] Attached to Mr Chapman’s first statement is a medical certificate dated 12 October 2020, on the letter head of Cannon Hill Family Doctors. The medical certificate states:

“Mr Gregory Chapman has a medical condition and will be unfit for work from 12/10/2020 to 13/10/2020 inclusive.” 33

[35] Mr Chapman says that the medical certificate was provided to the Respondent.

[36] The doctor’s notes from 12 October 2020 were produced by Cannon Hill Family Doctors pursuant to an order made by the Commission at the request of the Respondent. Mr Chapman was shown the notes in cross-examination. The notes say:

“Greg Chapman

Seen by Dr Gunawardena
12.10.20

Still feeling unwell

Nil resp. symptoms
Nil fevers
Lethargy

Poor appetite but NOT nauseated / vomiting or diarrhoea

Examination:
General:
BP (sitting): 153/104
Pulse: 76

Reason for visit:
Hypertension
?? Viral illness

Plan:

Bloods as planned
BP discussed – NOW in the treatable range

R/v with bloods + BP Check
IF high – for tablets – PT: aware”

[37] Dr Gunawardena provided prescriptions for Esomeprazole, Lorazepam, Panadeine Forte and a medical certificate for 12 to 13 October 2020.

[38] In cross-examination, Mr Chapman accepted that he thinks the doctor’s notes are accurate. 34 Mr Chapman was taken to the doctor’s reference to “still feeling unwell” and questioned whether it was possible whether Mr Chapman was attending the doctor in relation to something previously reported to the doctor. Initially, Mr Chapman refused that this was the case35 but ultimately accepted that “maybe”36 and that it’s “possible”37 that he saw the doctor on 12 October 2021 because of something he had already reported to the doctor previously relating to hypertension and a possible viral illness.

[39] Also produced by Cannon Hill Family Doctors, and the substance of which Mr Chapman was cross-examined on, are Dr Gunawardena’s notes from a subsequent visit on 13 October 2020. Those notes say:

“Greg Chapman

Seen by Dr Gunawardena
13.10.20

Niggle chest pain since mid day
Radiating to neck / jaw
No palpitations / dizziness / sweating ot SOB

Examination:
General:
BP (sitting): 146/99
Pulse: 73

Ht – DR, No nurmurs

Chest clear

Reason for visit:
Chest pain – Possibly cardiac

Plan:

Given the site / Radiation – ACS need to be ruled out
To present to PAH ED”

[40] Dr Gunawardena’s notes indicate that he provided Mr Chapman a referral letter to the PA Hospital Emergency Department. That referral letter was produced to the Commission, the relevant parts of which state:

“Thank you for seeing Mr Gregory Chapman for assessment and management with a mild central chest pain radiating to the jaw with no autonomic features. His BP is 146/99 with regular HR and DR / no murmurs. Would appreciate your opinion on ruling our (sic: out) ACS.”

[41] The letter then sets out information concerning Mr Chapman’s medical history.

[42] Mr Chapman subsequently attended the PA hospital for the purposes of having an ECG (electrocardiogram). Mr Chapman had the following exchange in cross-examination: 38

“Ms Wood:	So you didn't go to the hospital to get care for a psychological condition because you were so stressed by this incident. You went to see your doctor for something you had reported previously, a pre-existing condition, and the doctor referred you for a test to go to the hospital, isn't that right?
Mr Chapman:	On the 12th or the 13th I had some chest pain, I think it was the 13th.
Ms Wood:	Sure?
Mr Chapman:	And he told me to go to the hospital.
Ms Wood:	And you had a test at the hospital?
Mr Chapman:	Yes.
Ms Wood:	Yes?
Mr Chapman:	Yes.
Ms Wood:	But you didn't really receive care at the hospital, you had a test?
Mr Chapman:	They said evidence checked out okay.
Ms Wood:	Sure?
Mr Chapman:	Yes.
Ms Wood:	But do see how at paragraph 30 of your statement, you say you attended hospital and received some care?
Mr Chapman:	Yes.
Ms Wood:	You didn't really receive care at the hospital, you just went to the hospital because that's where they do the test, the ECG, is that right?
Mr Chapman:	Yes. No. I received the care at the doctor's surgery.
Ms Wood:	You went - all right?
Mr Chapman:	Yes.
Ms Wood:	You reported to the doctor for a pre-existing condition and the doctor referred you to the hospital to take a test?
Mr Chapman:	Yes.”

[43] Also, attached to Mr Chapman’s statement, but not referred to in any of his statements, or in cross-examination, is a document on Queensland Government letterhead, from the Metro South Health Emergency Operations Centre. At the top of this document are various barcodes with Mr Chapman’s name and address. It appears that this document relates to a COVID-19 test undertaken by Mr Chapman on 12 October 2020, at 9:38am. This document provides instructions on the requirements to isolate until the results of the test are known and Mr Chapman is no longer showing COVID-19 related symptoms.

[44] It is not clear if Mr Chapman notified the Respondent of his need to take a test or why Mr Chapman took the test. The notes of Mr Chapman’s doctor of 12 and/or 13 October 2020 do not appear to reflect that Mr Chapman advised his doctor of the COVID-19 test or any symptoms that might indicate a COVID-19 test was required. Mr Chapman was not cross-examined on this point.

[45] On 13 October 2020, the Respondent, again by email, replied to Mr Chapman:

“Thank you for your medical certificate. We are sorry to hear you are unwell.

Please be advised that the show cause meeting will be rescheduled for 9am QLD time on Wednesday 15 October 2020 by telephone. We will contact you on [redacted]. Please let us know if you prefer to be contacted on an alternative phone number. If you prefer not to participate by phone but rather provide a written response to the allegations set out in our letter of 9 October 2020 please let us know.

We understand you asked Tom Watkins for CCTV footage from truck 292. As company property we are not obliged to provide a copy of the CCTV footage. In any event, the purpose of the CCTV footage is to capture incidents outside the truck cabin and does not film or record audio in side (sic) of the cabin unless there has been a notifiable event (ie breaking, truck collision, inattention ect (sic)).

Please confirm you will be attending the show cause meeting on Wednesday.” 39

[46] Mr Chapman states that he “really felt” that the Respondent wanted to push the process along with or without his involvement and he considered that they did not care that he was having mental health concerns. 40 Not attached to Mr Chapman’s evidence, but attached to the Respondent’s evidence, is an email from Mr Chapman to Ms Ross dated 13 October 2020:41

“Good morning I decline your invitation to attend meeting I did not swear at anyone.”

[47] In relation to the video footage, Mr Chapman’s view is that the footage would “exonerate” him and show that he did not make contact with anyone. In Mr Chapman’s view, the Respondent did not consider “fully” that, if he had engaged in the conduct as alleged, there would be some indication on the video.

[48] Mr Chapman stated that on 14 October 2020, he was struggling to deal with the allegations, and his mental health issues was making the process difficult. Mr Chapman submitted that the Respondent did not have any regard for his mental health issues. Mr Chapman’s evidence did not include this relevant email, however the Respondent’s evidence did. The following email was sent to Mr Chapman on 14 October 2020: 42

“We refer to your email of earlier today.

We confirm you have advised us that:

1. You deny the allegations; and

2. You decline to participate in a meeting with us to discuss the allegations or provide an alternative account.

It is important you understand that a failure to provide a proper response or alternative account of events of the Allegations means the Company will make a decision based on the information currently before it.”

[49] The correspondence continued that a further opportunity to respond to the allegations was provided to Mr Chapman at a telephone meeting the following day. The correspondence also advised that Mr Chapman “may provide a written response for consideration”. 43 The correspondence confirmed:44

“As noted above, if you continue to decline to participate in the meeting or do not provide a response to the Allegations, the Company will make a decision in respect of the allegations based on the information before it.”

[50] The Respondent corresponded with Mr Chapman further on 15 October 2020. That email correspondence stated:

“Allegations and findings

We refer to your email of 14 October 2020.

We understand from your email dated 13 October 2020, you deny the Allegations set out in our letter of 9 October 2020 (Letter), attached for your reference. You also declined to participate in a meeting with us to discuss the Allegations.

In response to the above, we wrote to you on 14 October 2020 advising you that a failure to attend a meeting to discuss the Allegations may result in the Company making a finding in respect of the Allegations without the benefit of your response to the Allegations.

We further advised you that if the Allegations are found to be substantiated, the Company may consider disciplinary action including terminating your employment. It was for this reason we again invited you to a further meeting to take place on 15 October 2020. You again declined to participate in the meeting or provide us with any further response to the Allegations.

We also invited you to provide a response in writing if you did not wish to attend the scheduled meetings by telephone. You also declined this offer.

The Company now provides its findings below.

Findings and reasons

The Company finds the Allegations provide for the reasons outlined below.

The statements from Katherine and Stephen Barnes provide:

1. On 7 October 2020 at approximately 3.40 pm, you arrived at Inghams’ Hemmant weighbridge;

2. You were required to wait until the Katherine Weighbridge Operator and Dustin Flood Maintenance Fitter, discussed a problem with a bollard at the entrance to the weighbridge;

3. Upon being given the all clear to enter, Stephen observed you drive truck number 292 onto Ingham’s Hemmant weighbridge;

4. Katherine and Dustin were standing at the weighbridge;

5. While on the weighbridge you said words to the following effect “Fuck me dead cunt” in an aggressive manner to Katherine;

6. Stephen who was standing at the weighbridge witnessed you open your door and make the above statement;

7. Katherine confronted you a short time later in the office and said words to the following effect, “Did you swear at me” or “were you being rude to me”. You responded with words to the following effect “It wasn’t me must have been someone else”;

8. There was no one else in the vicinity of the weighbridge at the time besides Katherine, Stephen and Dustin; and

9. You left the office, reentered your truck and drove to the vicinity of the ‘grain pit’. Katherine, who, by this time was also in the vicinity of the grain pit, left as she felt concerned for her safety.

We accept the above version of events for the following reasons:

1. The statements of Katherine and Stephen are credible and corroborative. There is no basis to find their version of events is anything but accurate;

2. Katherine confronted you following the incident on the weighbridge;

3. Katherine made the complaint to Andrew Baker, Inghams Mill Manager immediately after the incident;

4. Andrew Baker requested witness statements from Stephen very soon after receiving the complaint. Stephen provided statements on 8 October 2020;

5. You have blankly denied the Allegations without providing any alternative version of events or reasons for your denial;

6. The Company has viewed the CTV footage from the truck you were driving. The CCTV footage doesn’t assist because the cameras face out the window and not on you.

Considering the above, on the balance of probabilities, the Company finds the Allegations proven (Conduct).” 45 (emphasis in original)

[51] The correspondence continues that the Respondent finds the conduct to be a breach of the following policies and constitutes misconduct:

(a) The Respondent’s Code of Conduct;

(b) The Respondent’s Profanity and Swearing Policy; and

[52] The correspondence continued:

“Show Cause

Mitigation

While such Conduct is not acceptable in the Company’s or Inghams’ workplace, we have turned our mind to whether there may be mitigating factors to be considered in respect of your Conduct. For example, whether the comment to Katherine was provoked, formed part of a heated exchange or if this was a usual form of communication between you and Katherine.

Based on the information before us, there is no information which would suggest any mitigating factors.” 46

[53] The correspondence continued by considering what it called a “[H]istory of unacceptable conduct” concerning breaches of company policy. That ‘history’ was recounted as:

“1. On 23 October 2018, you approached Morgan Alley alleging he had deliberately tightened the fuel caps on truck 292. You said to Morgan you were not ‘someone to fuck with’ and asked him to meet you outside of work to sort the problem out. You were warned that this was not acceptable behaviour by Tom Watkins.

2. On 16 January 2019, you approached forklift operator at Inghams Wacol site and told him to meet you out front after a verbal altercation with him, and the driver stated that he finished at 10. You were warned that this is not acceptable behaviour by Tom Watkins.

3. On 5 April 2019, yourself and [Mr W] were involved in a verbal and physical altercation. It was found both parties had used unacceptable language towards each other. You were counselled by Tom Watkins.

4. On 9 April 2019, you were spoken to by Andrew Baker (sic: Barker) at Inghams and Tom Watkins from the Company about a safety breach while at the Hemmant site. Specifically, you drove on the weighbridge with no seatbelt and your truck door open. You were warned and counselled that this was not acceptable behaviour by Tom Watkins.” 47

[54] Except for the incident of 5 April 2019, Mr Chapman gives no evidence about this “history of unacceptable conduct” in his various statements in these proceedings. Mr Chapman was taken to these allegations in cross-examination.

[55] Mr Chapman disputes the 23 October 2018 incident. The following discussion occurred in cross-examination: 48

“Ms Wood:	And Mr Chapman, have you been involved in previous incidents involving your behaviour with J&S Transport?
Mr Chapman:	There was an allegation by Tom Watkins that I said something to another driver and that I was counselled and that's just not true. If I was counselled for anything there would be a record of it and I would've been made to sign something. This was brought up after I was dismissed and that's the first I'd heard of it.
…
Ms Wood:	Yes. And then wasn't there an incident on 23 October 2019 (sic: 2018) involving Morgan Alley?
Mr Chapman:	No. That's the one I was referring to before. That was the first I'd heard of that. I did ask him about the fuel caps on the truck and there was no drama at all and Tom Watkins claimed that he counselled me by asking him to go down the road and meet me somewhere and that never happened.
Ms Wood:	You didn't ask Morgan Alley to go down the road and meet you to fight?
Mr Chapman:	No. No, I did not.”

[56] In relation to the 16 January 2019 incident, Mr Chapman accepts 49 that a verbal altercation occurred but explains:50

“Well, what actually happened, the guy was driving the forklift like a lunatic behind me blowing the horn and I asked him to stop and then he told me to "F off", he (indistinct) and all the rest of it. As far as I knew it was over and done with. The next day he went in and made a complaint and I wasn't going to leave, he was sacked. He was told to go.”

[57] Mr Chapman accepts that he “may” have been told not to get involved in “stuff like that” following the 16 January 2019 incident. 51

[58] The 5 April 2019 incident is dealt with at the commencement of Mr Chapman’s evidence. The following discussion occurred in cross-examination: 52

“Ms Wood:	Didn't the company also speak to you about your language and your behaviour on that occasion?
Mr Chapman:	I didn't say anything to [Mr W] on that day.
Ms Wood:	Didn't the company counsel you about your involvement in that incident?
Mr Chapman:	That may have been - Chris Jones may have said something about it.
Ms Wood:	Yes?
Mr Chapman:	It was a fair while ago but Chris Jones may have said something in respect to that I'm not sure.”

[59] In cross-examination, Mr Chapman confirmed that he had participated in an online session dealing with workplace bullying and harassment. He completed this training on 22 January 2019. He confirmed he had been issued with the Respondent’s Profanity and Swearing Policy.

[60] In cross-examination, Mr Chapman also disputed the 9 April 2019 incident. 53 Mr Chapman accepts that he was spoken to by Mr Barker, and that Mr Barker said he saw Mr Chapman drive onto the weighbridge without a seatbelt on and with his door open.54 Mr Chapman maintains however that the truck was stopped, and the brake was on as he opened the door to exit the truck.55

[61] In viewing the CCTV footage relevant to the present matter, the issue of seatbelts re-emerged in an exchange that I had with Mr Chapman as follows: 56

“Commissioner:	And you have your seatbelt on at this point, do you?
Mr Chapman:	Probably not in the driveway most of us take seatbelts off in the driveway.
Commissioner;	And why is that?
Mr Chapman:	Sometimes get out and undo the tarps, et cetera. There's no need to have a seatbelt on in the driveway.
Commissioner:	Didn't you get in trouble earlier for not having a seatbelt on on the weighbridge?
Mr Chapman:	That was for opening the door because Stuart (sic) Barker believed that I didn't have a seatbelt on and the brake wasn't on but the brake was on.
Commissioner:	So you don't need a seatbelt on when you're in the driveway awaiting the gate to open up?
Mr Chapman:	No.
Commissioner:	Who's told you that?
Mr Chapman:	Well, no one's told me but everyone does that.
Commissioner:	Well, no one's told you that it's okay to have your seatbelt off?
Mr Chapman:	No. But it's a common practice by everybody.”

[62] And further: 57

“Commissioner:	Now, you get back in the vehicle eventually?
Mr Chapman:	Yes.
Commissioner:	And then you don't put your seatbelt on?
Mr Chapman:	No.
Commissioner:	Why not?
Mr Chapman:	No one does in the yard because you're in and out of the truck all the time. It's an accepted thing that - it's just accepted.
Commissioner:	And you know that to be allowed, do you?
Mr Chapman:	Well, no one's ever said it apart from the incident where I was challenged about it. It's never been a problem.
Commissioner:	Well, you were challenged about not putting your seatbelt on, weren't you?
Mr Chapman:	Yes. Yes.
Commissioner:	So maybe it is a thing that you need to put your seatbelt on?
Mr Chapman:	Well, he's said on the weighbridge they didn't say about putting a seatbelt - they did not say, "You must wear your seatbelt when driving around the yard."
Commissioner:	All right. So what are you doing, 20 kilometres an hour or so here, are you?
Mr Chapman:	I'd say about 10.
Commissioner:	All right. With no seatbelt?
Mr Chapman:	No.
Commissioner:	That's okay, is it?
Mr Chapman:	As far as I know, it is.”

[63] It was put to Mr Chapman that this history of incidents identifies a common theme, involving verbal altercations between Mr Chapman and people he works with. Mr Chapman denies that these incidents were regular. The following was discussed: 58

“Ms Wood:	But it's happened more than once?
Mr Chapman:	Yes. If my safety's threatened I'm going to say something to somebody and that's exactly what was determined in their investigation. He was blowing the horn, as I said, and driving the forklift like an idiot behind me.”

[64] Given the findings the Respondent made, and the matters identified as mitigation and the history, the Respondent advised Mr Chapman that it was considering terminating his employment. The letter gave Mr Chapman an opportunity to discuss the findings, mitigation and history before any decision was made. Mr Chapman was invited to attend a phone meeting for this purpose. The letter warned Mr Chapman that if he failed to attend without reasonable excuse a decision would be made in his absence.

[65] Mr Chapman’s evidence is that he could not bring himself to read the correspondence because of his mental health concern but did, nonetheless, respond to that correspondence at 7:42pm as follows: 59

“Good evening I decline to participate in any conference I have previously told you I did not swear at anyone your bullying and harassment have caused me considerable stress my mental state is not too good at the moment.”

[66] Mr Chapman was terminated from his employment by correspondence dated 16 October 2020. The termination letter states the reasons for dismissal as: 60

“1. Your Conduct was in breach of clause 7.1 of your employment contract and the below lawful and reasonable company policies:

a) the Company’s Code of Conduct;

b) the Company’s Profanity and Swearing Policy; and

c) the Company’s Harassment Policy. We note that ‘Simple Harassment’ is defined in the Policy as:

any form of behaviour that is not wanted and indeed not asked for and may include:

Humiliation of a fellow worker.
Offending a fellow worker.
Intimidating a fellow worker.

2. You have been banned from the Inghams sites. On this basis there is no practical alternative by which you can be retained in the Company’s employment.”

[67] Mr Chapman’s evidence concerning the first reason for dismissal contained in the letter of termination is recounted above. In relation to the second reason in that letter, Mr Chapman has given no evidence in his various statements. In cross-examination, Mr Chapman accepted that Ingham’s is the only client of the Respondent in Queensland. 61 Mr Chapman acknowledged in cross-examination that Ingham’s had banned him from its sites.

[68] In cross-examination, Mr Chapman was asked why, if his position is that the incident was a misunderstanding or mistake, he declined to respond to the allegations. 62 Mr Chapman responded variously that the footage would have proven he didn’t do anything,63 that his responses wouldn’t have mattered anyway – he was “always going to be removed”64 – and that he doesn’t know why.65

[69] Ms Wood put to Mr Chapman that the allegations were true, that he was stressed in the days following because he had been “caught out” and that he did not wish to respond because he knew that the allegations “would be found proven”. 66 Mr Chapman responded:

“I had absolutely no reason to swear at Katherine or anybody else. There was no reason, nothing happened, there was no reason for anyone to swear and I certainly wouldn't swear in front of her because she previously told me that she was religious.” 67

[70] Mr Chapman accepts that his employment was governed by the terms of his employment agreement 68 and that it was a term of this agreement that he comply with all of the Respondent’s policies.69 Of those policies, Mr Chapman agrees that he was provided with the code of conduct at the commencement of his employment70 and he remembers seeing it.71

[71] In January 2019, Mr Chapman accepts that he completed an online induction program on work health and safety, 72 which included training on bullying and harassment and, specifically, the Respondent’s bullying and harassment policy.73 Mr Chapman also received,74 saw,75 and was trained on the Respondent’s profanity and swearing policy.76

[72] As is perhaps apparent from his evidence to this point, Mr Chapman strongly feels that the Respondent should have handled the investigation and discipline process with more care. Mr Chapman says this because the Respondent was aware that he has an accepted claim for PTSD and he says that he made the Respondent aware that “incident was causing [him] grief”.

[73] Mr Chapman also says he has since learned that the employee dismissed for assaulting him in 2019, Mr W, has been rehired. Mr Chapman’s view is that the Respondent wanted to get rid of him in order to rehire Mr W because Mr W has more friends within the company.

[74] Since his dismissal, Mr Chapman has again attended Cannon Hill Family Doctors. The following medical evidence was given relevant to an examination on 27 December 2020: 77

“I hereby certify that according to our records the above mentioned person has been diagnosed with left sided direct and indirect hernia which was confirmed with an ultrasound. He is therefore fit for duties where he should not be lifting any article that weighs more than 5kg. However, he is fit for driving.”

[75] Since the dismissal, and at the date of his third statement filed on 15 February 2021, Mr Chapman has not been able to find further employment. Mr Chapman states that he has been searching for work but has not actually applied for any jobs. 78 When Mr Chapman has searched for work in the past his “usual avenue”79 for searching for work is to contact friends and contacts within the industry to enquire about work. Mr Chapman has limited computer literacy and does not use social media, which impacts his ability to search for work via technology. In cross-examination the following was discussed:80

“Ms Wood:	And there's no shortage of truck driving jobs at the moment, isn't there?
Mr Chapman:	Well, I would be limited with a hernia. I'm not able to lift any more than five kilos.
Ms Wood:	You say you're limited from doing a truck driving job?
Mr Chapman:	Well, I can drive but I'm not allowed to lift anything more than five kilos.
Ms Wood:	Can you drive a truck?
Mr Chapman:	Yes.
Ms Wood:	And isn't that what you were doing with J&S Transport?
Mr Chapman:	Yes.
Ms Wood:	And you haven't applied for any jobs driving trucks since the termination of your employment?
Mr Chapman:	No.”

[76] Mr Chapman has an iPhone 81 and an email address.82 In response to a question from me, Mr Chapman stated:83

“Commissioner:	And you could go onto some job boards, digital job boards and look for ads, look for work?
Mr Chapman:	Yes. I've looked on sites like Gumtree and other sites, Jora, I think it's called but - yeah. There's been nothing as yet.”

[77] Despite this, Mr Chapman confirmed that, at the date of the hearing, he had not made any applications “as such”. 84

[78] Mr Chapman is 61 years of age, lives alone, 85 and because he has been without an income for a significant period, his financial situation has been challenging to manage. Mr Chapman has chosen not to apply for any welfare payments; he has been living off savings.86

[79] Following re-examination of Mr Chapman, I determined to ask Mr Chapman the following questions, noting that I had spent some time reviewing the footage: 87

“Commissioner:	All right. Now, I've watched this video and you know, it's easy to look down the line of the truck and we will obviously pay attention to where the two people go but I'd like to also look at what you're doing in the truck. Have a look at your - what you're doing. I want to suggest to you that you're quite erratic and you look agitated?
Mr Chapman:	No, not at all.
Commissioner:	Well, let's have a look. Play close attention. You're moving quite fast, in my view. You're doing things. You've wound the window down, you've wound it back up, you're moving - - -?
Mr Chapman:	Probably (indistinct) things on the dash (indistinct).
Commissioner:	All right. You're moving around quite a lot?
Mr Chapman:	Yeah. Yeah.
Commissioner:	Do you see there's a seatbelt on you there, or not, or is that just the grey of the - - -?
Mr Chapman:	No, I don't believe a seatbelt's on there, no.
Commissioner:	All right. It appears to me - I need to put it to you that you're quite - you look a bit agitated there?
Mr Chapman:	No, not at all. I don't know why I'm moving around but I'm not - I wasn't agitated that day. I had no reason to be.
Commissioner:	And you open the door, you say you stay at the door?
Mr Chapman:	Stand on the step. Yeah, I'm standing just inside the door looking back.
Commissioner:	You never take a foot onto the ground and walk down?
Mr Chapman:	No. No, not at all. It would show near the side of the door if I did.
Commissioner:	How would that show?
Mr Chapman:	I expect you would've been able to see it.
Commissioner:	So how far do you think away Kat is there, she's not 40 metres, is she?
Mr Chapman:	Yes, it would be.
Commissioner:	That's not 40 metres, you've - that's half a football field. She's not half a football field, is she?
Mr Chapman:	Maybe a bit less.
Commissioner:	Well, she's at or about the edge of the - end of the vehicle, isn't she?
Mr Chapman:	Yes. Right down the end of that.
Commissioner:	Well, you've agreed that it's not 40 metres long. I mean, that's only about - probably a best guess about 12 metres, isn't it?
Mr Chapman:	No, it would be a lot more than that.
Commissioner:	How long do you think the truck is?
Mr Chapman:	It's a bit deceiving the video.
Commissioner:	Well, I just saw how many steps she took. Let's count how many steps, let's go back, [Associate], thanks to how many steps she took from the position. We need to go back further, thanks. A little bit further. Yes, from here. Let's see when she moves, I'll count out loud. One, two, three, four, six, seven, eight, nine, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, one, two - and she's moving sideways there and she's taking very little steps there. There's no way that could be 40 metres, right, when she's taking steps that aren't even - not even half a metre. So you say you never put your feet to the ground?
Mr Chapman:	No, no. On the step only, the top step of the truck.
Commissioner:	All right. Where's Stephen when all this is happening?
Mr Chapman:	He's not there. That's the - - -
Commissioner:	Well, he says he's at the weighbridge?
Mr Chapman:	That's right. That he's not - - -
Commissioner:	All right. Well, we can't see him in this angle, we can't see him in the front angle but he could be to the right of your driver's door, right?
Mr Chapman:	The second part of the video where it's out the front of the truck was shut off early on the weighbridge. If that had have been a few more minutes around the back it would show that he's right around the back smoking a cigarette. He's halfway through a cigarette.
Commissioner:	Right. So you get out here and you go into the office?
Mr Chapman:	Yes.
Commissioner:	And at this point Kat she's still doing stuff up the gantry, isn't she?
Mr Chapman:	Yes. You can just see the shadow, a little bit of her up on the gantry, yes.
Commissioner:	Right. And I think then she - yes, I can see in the reflection of your mirror there she's just coming down the steps now and then she goes into the office?
Mr Chapman:	Yes. Yeah.
Commissioner:	So where she gives evidence that she went to the office first and you followed her in, she's not correct, is she?
Mr Chapman:	No. No, that's right.
Commissioner:	Right. Right?
Mr Chapman:	She couldn't have felt threatened.
Commissioner:	No, that's not what I've put to you. Her evidence is that she was in the office first and you followed her in?
Mr Chapman:	Yes.
Commissioner:	That's not right. You went in first, she went in second?
Mr Chapman:	Yes.
Commissioner:	Then it's here where this conversation occurred, is it?
Mr Chapman:	Yes. Yes.
Commissioner:	See where she confronts you, "Did you - were you rude to me, did you swear at me"?
Mr Chapman:	Yes. That's right.
Commissioner:	Right. So if I have the impression that you're agitated in the vehicle before you open your door, I'm wrong, am I?
Mr Chapman:	Yes. I wasn't agitated. No, I don't know why I was moving around but I certainly wasn't agitated.
Commissioner:	And so you open the door to see what they were doing, you satisfied yourself that they weren't causing any damage to the truck and then you closed the door?
Mr Chapman:	Yes. Yes. I took - - -
Commissioner:	And you didn't open your mouth at all?
Mr Chapman:	No, never said a word to anybody until I went inside and she asked me "Were you rude to me outside." I didn't speak to anybody.
Commissioner:	So they're all making it up, are they?
Mr Chapman:	Yes.
Commissioner:	And they've colluded, have they, to come up with a similar sort of statement?
Mr Chapman:	They certainly have.
Commissioner:	And Mr Barker's not being truthful when he said that you said "Kat swears all the time" or "That woman, she swears all the time"?
Mr Chapman:	Yeah, I don't - I didn't say that to him, no.”

Submissions of Mr Chapman

[80] Mr Chapman succinctly summarised his case in submissions as follows:

“In regard to the termination of employment, the Applicant contends that:

a. he did not engage in the alleged conduct as alleged;

b. Having regard to the ongoing mental health concerns, the Applicant was not capable of providing a significant or adequate reply to the Allegation letter or the Proposed Discipline Letter;

c. The Respondent has relied on video footage to make a determination; the footage does not support the position of the Respondent; and

d. in all the circumstances, the penalty for the alleged conduct was harsh, and disproportionate to the conduct.”

[81] In opening submissions Mr Chapman expressly relied upon ss.387(a), (c) and (h) of the Act. 88 In closing submissions, Mr Chapman relied upon ss.387(a) and (h) only.89

[82] As relates to s.387(a), Mr Chapman maintains his denial of the allegations made concerning his conduct. In his application, Mr Chapman submitted in the alternative that if he did make the comments as alleged it was not a valid reason for dismissal given the Respondent’s culture of swearing in the workplace. This alternative submission was not directly pressed in Mr Chapman’s submissions at hearing or in written closing submissions.

[83] Mr Chapman submitted that he had been dismissed on capacity and conduct grounds. Regarding the capacity grounds relied upon by the Respondent, Mr Chapman referred to a number of authorities, submitting that the Respondent is not able to simply assert that Ingham’s had banned Mr Chapman from attending its sites and therefore it had to dismiss him. It asserted the Respondent is required to examine all of the facts surrounding the instruction to remove the particular employee including taking into account if there is a valid reason for the dismissal. 90

[84] Further, it was submitted that the Respondent had relied upon, without confirming, that there were no alternative employment opportunities available as a vehicle to remove Mr Chapman from his employment.

[85] Regarding considerations of conduct, Mr Chapman referred to Briginshaw v Briginshaw below: 91

“... 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.... In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency…”

[86] In considering the evidence given during the hearing, Mr Chapman submitted the following:

(a) The truck door was open for 24 seconds;

(b) Mr Barnes gave evidence that Mr Chapman leaned out of the cab and yelled out;

(c) Ms Croxford gave evidence that Mr Chapman opened his door, exited the cab and came down onto the bridge, looking directly at her and approximately five metres apart;

(d) None of the witnesses looked perplexed by Mr Chapman’s alleged conduct.

[87] Mr Chapman submitted that Mr Flood’s evidence was contradictory; first he said he heard Mr Chapman yell out in a forceful and aggressive manner but didn’t catch what was said, and then the later statement declared that he was wearing ear buds and didn’t hear anything due to the drill he was using.

[88] Mr Chapman referred to Mr Flood’s evidence given during the hearing and submitted the following:

(a) Mr Chapman did not set foot on the ground;

(b) Mr Flood was not aware of what was said;

(d) Ms Croxford’s scenario “just can’t happen” when discussing Mr Chapman allegedly walking off the truck;

(e) The statement of Mr Barker was incorrect regarding what Mr Flood told Mr Barker – Mr Flood never told Mr Barker that Mr Chapman hopped off the truck to walk towards Ms Croxford.

[89] Mr Chapman submitted that Mr Barker’s evidence was inconsistent with that of Mr Flood. It was submitted that during cross-examination, Mr Barker conceded the following:

(a) He did not tell the Respondent that Mr Chapman was suspended from the site;

(b) He did not tell the Respondent that Mr Chapman was banned from the site;

(d) He provided an inference that Mr Chapman would be allowed on the site by saying, “Mr Chapman has done nothing wrong to me. I’ve got no personal feelings either way. So he’d have to do the same thing, wouldn’t he?”

[90] Mr Chapman submitted that Ms Ross’ evidence was inconsistent. Ms Ross’s evidence is that Mr Sepos had stated that Mr Chapman was not allowed on any sites until Ingham’s investigation was completed, but during cross-examination, Ms Ross conceded that she:

(a) Viewed the footage as inconclusive;

(b) Accepted that it was odd that Ms Croxford did not look up at Mr Chapman after the alleged conduct;

(d) Has no problem with Mr Chapman being reemployed, if there is a position available, he’s right for the position and comes back and does all of his reinductions; and

(e) Was not informed Mr Chapman was banned from site.

[91] Mr Chapman submitted the following relevant to Mr Sevil’s evidence:

(a) Mr Sevil had informed the Respondent that Mr Chapman was not welcome on site while the Respondent was conducting its investigation;

(b) As at 7 October 2020 there was never a formal discussion to ban Mr Chapman from the site;

(d) He has not seen the footage.

[92] Mr Chapman had the following to say about Mr Barnes’ evidence:

(a) Mr Barnes’ written evidence is that he was a witness to Mr Chapman’s alleged misconduct, standing about 20m away from the weighbridge and was close enough to see and hear everything that occurred between Mr Chapman and Ms Croxford;

(b) His written evidence is that he then heard the discussion in the office where Ms Croxford asked Mr Chapman if he had said something rude to her;

(c) In cross-examination, he admitted to being untruthful, admitting that he didn’t hear or see the conversation between Ms Croxford and Mr Chapman in the office;

(d) Mr Barnes confirmed that Ms Croxford did not know what Mr Chapman allegedly said to her, and he was the one to inform her what was said.

[93] It was submitted that Mr Barnes’ evidence was unreliable.

[94] Regarding Ms Croxford’s evidence, Mr Chapman submitted that she was an unreliable witness, noting that on the morning of the hearing she changed her written evidence to say that she had followed Mr Chapman into the office, and had not entered the office first. Ms Croxford agreed she had been shown the video the morning before she gave her oral evidence. I cautioned Ms Wood on this issue, noting Ms Croxford should not have been shown the video without leave of the Commission, noting she had not been shown it earlier when she prepared her witness statement to the Commission.

[95] Mr Chapman submitted that it was put to Ms Croxford that she had engaged in a conversation with Mr Barnes when she went to enter the office, and Mr Barnes had helped fill in the gaps because she didn’t hear what was said. She responded, “No, No, I'd heard it. I probably didn't want to hear it but I - I heard it.” Ms Croxford stated that she was in shock. She noted that swearing was not uncommon in the workplace.

[96] It was submitted that Ms Croxford had exaggerated her evidence.

[97] With respect to the evidence given by Mr Watkins, it was submitted that he conceded that Mr Chapman’s history of workplace incidents was incorrect or had been mischaracterised. In particular, Mr Watkins agreed that Mr Chapman had not been given a warning relevant to the incident in January 2019.

[98] In submissions it was put that Mr Watkins had stated if he had a position, he would be agreeable to have Mr Chapman back. The submissions, however, cherry-pick Mr Watkins’ full response.

[99] Regarding the evidence of Mr Sepos, he agreed that during the incident of April 2019, Mr W threatened to kill Mr Chapman. Mr Sepos agreed the Respondent has reemployed Mr W from November 2020 following Mr Chapman’s dismissal. He stated that Mr W had been working for another supplier to Ingham’s, so he had not been banned from Ingham’s. He converted his employment across to the Respondent in November 2020. Mr W has been trained in bullying and harassment in the workplace.

[100] Mr Sepos was questioned as to why Mr Chapman couldn’t be afforded the same opportunity, returned to work and retrained. Mr Sepos answered, “In the event that he gets reinstated he will go through all of our company policies and procedures...”

[101] It was submitted that Mr Sepos made his decision to dismiss Mr Chapman without having reviewed the footage with a fine-toothed comb, and simply read the witness statements and had regard for Mr Chapman’s denial. He acknowledged that nobody interviewed the witnesses.

[102] Mr Sepos was asked the following in cross-examination: 92

“Mr Saines:	When coming to the decision to terminate Mr Chapman, the matter seems to be in relation to two things: (1) whether he engaged in the conduct; but the other, you're saying he was not allowed back onto the site. Did you consider any alternative kind of positions within Queensland or interstate that he might be able to undertake?
Mr Sepos:	No. In my past reference, not that termination has been involved in that, but in redundancy scenarios in my experience we haven't been able to relocate anyone further than 100 kilometres from their original residence. We don't have any other style of work, truck driving, that would be able to transfer Mr Chapman into anything else within Queensland or within that vicinity.
Mr Saines:	All right. But you didn't turn your mind to that anyway?
Mr Sepos:	I didn't believe it to be an option for us, no.”

[103] Relevant to s.387(h) considerations, Mr Chapman submits that if the Commission finds that he did make the statement, as alleged, the Commission should take into account the proportionality of dismissal with his conduct. Relying upon Parry v Hans Continental Small Goods Pty Ltd, 93Mr Chapman submits that poor language in the workplace can be distinguished from language that is tolerated or not considered offensive in the workplace in question.

[104] Mr Chapman also submits that the mental, financial and social impacts of the decision on him, his length of service, frustrations concerning workplace policy and mental health and workplace stress are matters that may be taken into account in coming to a conclusion that a dismissal was harsh.

[105] Mr Chapman has sought an order for reinstatement and compensation.

Evidence of the Respondent

Evidence of Mr Mark Sepos

[106] Mr Sepos is the General Manager of the JS Group. The group consists of eight privately-owned companies, of which the Respondent is one. The core business of JS Group is heavy road transport across Australia. The group was founded by Mr Sepos’ father who remains the managing director of the business. Mr Sepos has been involved in the business for over 25 years.

[107] Ingham’s Chickens (Ingham’s) is JS Group’s major client, however in Queensland, Ingham’s is its only client.

[108] Mr Sepos noted that Mr Chapman had been involved in an altercation with Mr W in April 2019. He stated that the pair had a difficult working relationship. Mr Chapman was counselled by Mr Watkins regarding the incident, and Mr W’s employment was terminated for breaching the Respondent’s swearing policy.

[109] As a result of the altercation with Mr W, Mr Chapman was off work with a psychological condition between 15-19 April 2019. He was then certified unfit for work on 23 April 2019 until 6 May 2019. He was certified fit for work on 7 May 2019.

[110] On 10 April 2019, Ingham’s reported that Mr Chapman breached safety rules at the Ingham’s site by driving onto the weighbridge with his driver-side door open and seatbelt undone.

[111] The Respondent’s swearing policy was annexed to Mr Sepos’ statement, reproduced below: 94

“The JS Group is an integrated transport, logistics, motor dealership and agricultural group of companies. We aim to achieve the highest possible level of service to our customers without compromising the safety of our employees or the general public. We believe the quality and reliability of our service is [the] basis upon which we can develop long term relationships with our customers and supplies and as a result, achieve our objective of long term growth and security.

We further aim to be the leader in our chosen markets through the implementation of full integrated management systems which incorporate environmental, workplace health and safety, government and legislative requirements and the pursuit of continuous improvement to ensure an outstanding reputation and pre-eminent position in the market place.

These fundamental business principals are underpinned by a management approach that requires the ongoing involvement and total commitment of all management, employees, contractors and suppliers to seek and achieve continuous improvement in everything we do.

Out Management Systems are designed to address the specific business requirements, whilst achieving and exceeding our customer’s needs. These systems may for example include but are not limited to:

Courtesy to all persons that staff come into contact with, therefore we expect all JS Group employees to act in a certain way that will not harm the company’s reputation or cause ill feeling amongst staff and customers.

JS Transport recognises swearing may be commonplace in certain situations, however as a commercial enterprise our conduct is a reflection on our business and we are required to show our clients and each other the utmost respect.

Swearing is forbidden in all office areas and in all areas where such language may be within hearing of our clients and must not in any circumstances be directed at any person.

This policy is to be adhered to at all times.”

[112] On 7 October 2020, Mr Sepos was contacted by Mr Sevil who informed him that Mr Chapman “had sworn” 95 at one of Ingham’s employees in a very aggressive manner. Mr Sevil informed Mr Sepos that Mr Chapman was no longer welcome on site if the allegations were true. Also on 7 October 2020, Mr Sepos was advised by Mr Barker that Mr Chapman drove his truck onto the weighbridge and proceeded to “swear in an aggressive manner” at a female Ingham’s employee.

[113] Mr Sepos instructed Ms Ross to investigate the incident, assisted by Ms Lawrence. Mr Sepos advised both Ms Ross and Ms Lawrence that Ingham’s had informed him that Mr Chapman would be banned from site if the allegations proved to be true. Mr Chapman was suspended from work on full pay.

[114] On 9 October 2020, the Respondent issued to Mr Chapman a letter of allegations at [29]. Mr Chapman was requested to attend a meeting by telephone on 12 October 2020. On 12 October 2020, Mr Chapman provided Ms Ross a medical certificate via text message stating that he was unfit to attend work that day. Accordingly, he did not attend the scheduled phone call.

[115] On 13 October 2020, Ms Ross confirmed receipt of the medical certificate via email to Mr Chapman and advised him that the show cause meeting had been rescheduled to 15 October 2020. Mr Chapman replied, “Good morning I decline your invitation to attend meeting I did not swear at anyone.”

[116] On 14 October 2020, Ms Ross responded to Mr Chapman’s email noting his denial but offering him a further opportunity to respond to allegations the following day, reproduced at [48]. On 14 October 2020, Ingham’s provided the Respondent with the statement from Ms Croxford dated 8 October 2020 which she sent to Mr Barker:

“Andrew,

Yesterday afternoon I was out checking bollards with Dustin on the bridge when Greg in truck 292 drove onto the bridge. When I turned and looked at the truck I saw Greg and he started yelling F*** me dead C**t. While he said these words he looked very aggressive and I became intimidated.

He entered the office and I asked him if he was being rude to me and he replied it wasn’t me I didn’t say anything.

I had occasion to see Greg a short time later whilst I was at the grain pit, Greg was driving a truck and I left the vicinity of the area as I was concerned for my safety.

Note that Dustin Flood and Steve Barnes witnessed the aggressive behaviour around the bridge.”

[117] On 15 October 2020, Mr Chapman was provided with the findings of the Respondent’s investigation as per letter sent to him at [50]. An opportunity was provided to Mr Chapman to show cause why his employment should not be terminated. He was informed he would be phoned on 16 October 2020. Mr Chapman emailed Ms Ross that evening with the following:

[118] By 16 October 2020, Mr Sepos was of the view that Mr Chapman had refused a number of opportunities to meet with the Respondent and had not provided a written response of any detail. Mr Sepos made the decision to terminate Mr Chapman’s employment. Mr Sepos has given evidence of the matters he took into account as follows:

“5.2.1 all of Mr Chapman’s text messages and emails. The fact he had denied that the Incident occurred but provided no alternative version of events or explanation for why the Ingham’s staff would be making the allegation;

5.2.2 the CCTV from the truck. It did not show anything of benefit about the incident. Sound is not recorded in the cabin for privacy reasons and will only ever turn on if there is an accident. The reason why we looked at the CCTV footage was because Mr Chapman had requested it from us via text on 9 October 2020;

5.2.3 the medical certificate Mr Chapman had provided certifying him unfit for work on 12 and 13 October 2020. The certificate did not state what the condition was that was causing Mr Chapman to be unfit for work. There was no further certificate and I considered Mr Chapman fully fit from 14 October 2020 onwards;

5.2.4 the fact Mr Chapman said in his email dated 15 October 2020 that he considered he was being bullied and harassed. This was not an allegation which I considered warranted investigating. There was no detail around the allegation, and it occurred in the context of an investigation that was taking place into Mr Chapman’s conduct. There was nothing about the investigation steps that had been taken which on their face appeared capable of constituting bullying or harassment.

5.2.5 the statements from the Ingham’s employees;

5.2.6 the fact Ingham’s had informed me that Mr Chapman was no longer welcome on their sites (given the allegations had been found to be proven);

5.2.7 Mr Chapman’s disciplinary history; and

5.2.8 Mr Chapman’s length of service, which I did not consider to be long or warranting any reason why I shouldn’t decide to terminate the employment.” 96

[119] Mr Sepos’ evidence is that he was aware that Mr Chapman had a previous psychological injury which was accepted by the workers compensation insurer as work related after the encounter with Mr W. Mr Sepos noted that Mr Chapman received compensation for this injury, and he considered that he was fully recovered from his psychological injury on and after May 2019 when the Company received the medical certificate from his doctor.

[120] Mr Sepos confirmed that Mr W was re-hired by the Respondent on or around 18 November 2020. Mr W applied for an advertised role. His evidence is that Mr W was not re-hired out of spite or collusion. The Respondent was advertising for four truck driver roles. It is Mr Sepos’ experience the Respondent would typically receive 70-80 applications for one role, however for all four roles it received fewer than 20 applications and took months to fill. The roles were advertised on 18 November 2020.

[121] Mr Sepos stated that Mr W had been dismissed by the Respondent in April 2019 for breaching the Respondent’s swearing policy. In order for Mr W to re-commence employment, he was required to be retrained in the Respondent’s bullying and harassment, and swearing policies, and more generally, he was the best applicant for the role. In deciding to re-hire Mr W, Mr Sepos considered the circumstances of the incident on 5 April 2019. He said he took into consideration Mr W’s action and determined he had been provoked by Mr Chapman. Mr Sepos checked with Mr Sevil to see if Ingham’s was comfortable with having Mr W return, which was confirmed.

[122] In cross-examination, relevant to the incident on 5 April 2019 involving Mr W, Mr Sepos understands that Mr W had threatened to kill Mr Chapman. 97

[123] In cross-examination, Mr Sepos did not accept that Mr Chapman’s denials were a response to the allegations relevant to the incident on 7 October 2020. 98 Mr Sepos was interested in getting the other side of the story; he said that the hearing of the application in the Commission is the first time he has heard Mr Chapman’s version of events.99

[124] After the determination had been made that Mr Chapman had engaged in the conduct, Mr Sepos had another discussion with Mr Sevil, where Mr Sevil inquired if Ingham’s needed to do anything further. Mr Sepos’ evidence is that he informed Mr Sevil the Respondent had come to the decision that it believed the allegations were true based on the information it had before it. Mr Sepos informed Mr Sevil there was nothing further the Respondent required at that stage. Mr Sepos conceded that Ingham’s had not expressly stated following the Respondent’s findings that Mr Chapman was banned, but Mr Sepos relied on the earlier advice that had been communicated to him.

[125] It was put to Mr Sepos that in the footage, Ms Croxford did not appear to be upset or anxious. Mr Sepos stated that he doesn’t know Ms Croxford. Having viewed the footage, he formed the view it didn’t show much, and accordingly, he made his decision based on her witness statement and Mr Chapman’s denials.

[126] In cross-examination, Mr Sepos was taken to the potential tension between dismissing Mr Chapman for alleged verbal abuse on the “lower end of the scale”, and rehiring an employee dismissed for threatening to kill another employee. Mr Sepos said the following: 100

“So for me I guess we just determined that - I didn't consider it as a - that action that [Mr W] - that comment that he made to be - and I don't know him personally, but just from the - I guess - what's the word for me - the other information that I was supplied by my manager up there that it wasn't in his nature to carry out that act of what he made, it was just a general comment. And as I just felt the time was okay for us to review his re-employment status if he made the application. I can't put a time down on what I feel is - what I feel is a fair time.”

[127] Mr Sepos agreed that if sufficient time had passed, Mr Chapman might be able to be re-employed and that he would consider re-employing him if he was a suitable applicant at the time. 101

[128] I had the following discussion with Mr Sepos: 102

“Commissioner:	You've got two reasons there for the dismissal, one is because you think that the allegation is substantiated?
Mr Sepos:	Yes.
Commissioner:	And two is that he's not allowed on Inghams sites, so that frustrates the employment, doesn't it?
Mr Sepos:	It does, certainly.
Commissioner:	All right. So why is it that you didn't offer him work in another state? You can simply ask him, can't you?
Mr Sepos:	I could simply ask him. So we have different divisions of transport, so it takes a different ability to work in - so we have livestock, for an example, that's run out of Glen Innes in northern New South Wales, so that takes a different style of truck driver to be able to perform that duty. We have only two other trucks in New South Wales that perform the same duties as what Mr Chapman does in that chicken feed delivery, and both those trucks were full of employment, so we didn't have an alternative there. We have - in Adelaide we do a live bird pickup for Inghams, which is a different style of work to what Mr Chapman carries out as well. And those staff work a different shift rate as well.”

Evidence of Mr Tom Watkins

[129] Mr Watkins is the Queensland Operations Manager for the Respondent, having been employed by the Respondent for five years.

[130] Mr Watkins stated he tried to accommodate Mr Chapman’s work requests to only work eight hours per day, and he reconfigured the truck to accommodate his shoulder injury.

[131] At 2:30pm on 7 October 2020, Mr Watkins received a telephone call from Mr Barker, stating that Mr Chapman had referred to an Ingham’s employee, Kat, as a “cunt”. Mr Barker stated that he wanted Mr Chapman stood down while the matter was investigated. Mr Watkins determined that Mr Chapman should complete the shift.

[132] Mr Watkins immediately called Mr Sepos. It’s his understanding that Mr Sepos had already been informed by Mr Barker of the incident. At 3:30pm that day, Mr Watkins had a Microsoft Teams video call with Mr Barker and Mr Sevil. It was determined that a full investigation would occur and statements of nearby employees would be obtained.

[133] On 9 October 2020, Mr Chapman sent a text to Mr Watkins, requesting footage from the truck. Mr Watkins replied that he didn’t have the footage to show him and requested his version of events. Mr Chapman agreed he would attend a meeting, but then failed to attend all meetings scheduled by the Respondent.

[134] Mr Watkins stated he had no knowledge of Mr Chapman suffering from mental health issues.

[135] In cross-examination it was put to Mr Watkins that the Respondent had immediately stood Mr W down when he had engaged in the inappropriate conduct in April 2019, but Mr Chapman was not immediately stood down relevant to his alleged incident on 7 October 2020. Mr Watkins stated that was because Mr W had made early admissions, whereas Mr Chapman was still working his shift and the Respondent hadn’t heard his version of events that afternoon.

Evidence of Mr Richard Sevil

[136] Mr Sevil is the National Feedmill Operations Manager at Ingham’s and is Mr Barker’s direct manager. Mr Barker telephoned him on 7 October 2020 and advised him that he had spoken with both Ms Croxford and Mr Chapman, and it appeared that Mr Chapman had aggressively used the words “fucking cunt” towards Ms Croxford.

[137] Mr Sevil informed Mr Barker it was their job to ensure Ms Croxford’s safety. Mr Sevil telephoned Mr Sepos to advise him of the altercation. He said to Mr Sepos, “Greg (Chapman) is no longer welcome on site while investigations are undertaken” by the Respondent. He informed Mr Sepos it was up to him to investigate and discipline Mr Chapman, where appropriate.

[138] Further, Mr Sevil informed Mr Sepos that once the investigation is complete, if the allegations were founded, Mr Chapman would not be welcome at any Ingham’s site nationwide and would be formally banned to prevent a repeat of the incident.

[139] Mr Sevil stated that after the investigation was complete, he rang Mr Sepos and informed him of Ms Croxford’s wellbeing. He reiterated that Mr Chapman was no longer welcome at any Ingham’s site due to Ingham’s commitment to providing a safe and healthy working environment for its employees.

[140] In cross-examination, Mr Sevil stated that he has worked at Ingham’s for 39 years. He was asked if Mr Chapman has been banned from the relevant Ingham’s site. The following was discussed:

“Mr Saines:	But did they notify you of the outcome of their investigation, that being J&S Transport and then Inghams made a decision to ban him from site?
Mr Sevil:	In my conversations with Mark, he - it was an ongoing investigation because it wasn't - being it was being handled by J&S Transport my best interests for my staff being Andrew and his employee was that there wasn't going to be further contact until we got some sensibility out of it. From that I would say that Mark had been in communication with me and from that my discussion would have been with him is, you know, if this is to be proven to be true and it's - and through a fair assessment of the likelihood of this being accurate, then from the incident the company would have a policy where we would not want a further exposure to any of our staff. Okay? So to answer that through - from an exact amount of time on what we're saying as far as the transport company, giving a total ban, the driver was not totally banned at that site at the time of the incident. There was an investigation and from that, given that it seemed to peter out and I had less communication with J&S as they were investigating it at the end of it they'd made the statement of their - of their outcome and the driver was let go, and from that I said, well that's - given that, the driver will no longer be available to work at our site. So I would see that as the arrangement.
Mr Saines:	Right. So the answer is no?
Mr Sevil:	Yes. The answer is no. There's been - - -
Mr Saines:	All right. So my understanding is that J&S Transport is not the only trucking entity or business that you also have working at your site there. Is that correct?
Mr Sevil:	Well, as far as contractors, that's correct. There is another one, being Chambers Transport, and there's many, many other freight businesses that come into that site that are not basically - they work on delivered contracts. Other people have - we don't pay those people. But we pay J&S Transport and we pay Chambers Transport.
Mr Saines:	So you would have had no problem. I mean, if he wasn't permanently banned, if he got a job with another one of those contractors or other entity and was visiting the site?
Mr Sevil:	Not necessarily. No, that's not correct.
Mr Saines:	Okay?
Mr Sevil:	I wasn't going to follow an employee's career through the process of if he got re-employed to - to stop him from working for anyone, but if he came to the site, and I have to be realistic, I would have seen that there would have been a conflict of interest with our employee and I would have - I would have probably held that driver from entering the site and that's - that's through, you know, duty of care to my employees I would have done that.
Mr Saines:	All right. So Inghams takes a pretty strong view that that kind of conduct just won't be tolerated and people won't' be allowed back on the site?
Mr Sevil:	Yes. We've got very strong bulling and harassment policies with - and the welfare of their - their staff at work. Their duty of care.
……
Mr Saines:	Right. So if, for instance, hypothetically, if J&S Transport had turned around and said, "Look, he engaged in the conduct as alleged, but we are just going to give him a written warning", you would have said he's allowed on site?
Mr Sevil:	I would have then - I would have then conducted what I would consider - what effect that would have on my - on the duty of care of the staff that had the incident occur. And the workspace. So to answer the question, it would have taken it probably further in my requirement to look into it more closely from my end, from the impact on the people. Whilst ever the person wasn't at site and it was held out on a stand-down position my - to be- you know, I was in a position where I was comfortable I wasn't exposing my staff any more to any incidences.
Mr Saines:	Right. So then if, for instance, they found that he didn't engage in the conduct as alleged you still would have undertaken your own investigation?
Mr Sevil:	I would have - I would have further discussed that issue with - with the staff and gone through it and I would have got - I would have gone back to my people and seen how they felt about that position and that position could have been - could have been re-evaluated, given if my staff felt a little bit more comfortable about the - we were reacting on Sepos' investigation, because that's their role to do that with their staff and I was - and the company was looking - looking at it and knowing that it was a stand-down situation and the driver was being investigated or trying to be interviewed through a process of interviews with the company - with J&S Transport to try and get a handle on it.”

[141] In cross-examination, Mr Sevil confirmed he was aware of the incident between Mr Chapman and Mr W on 5 April 2019. He was not aware Mr Chapman had suffered a psychological injury as a result of the incident. Mr Sevil stated he was not aware that Mr W was providing services through a different employer to Ingham’s and was now employed by the Respondent to provide services to Ingham’s. It was Mr Sevil’s understanding that Mr W had resigned his employment in April 2019 on account of something he had said during the incident.

[247] I find that Ms Croxford heard Mr Chapman say “cunt”, but she did not hear if he said anything prior to that. Her evidence that she was flustered, yet still carried on with her job, is reasonably credible. Ms Croxford does appear to me to rush from the gantry to the office after she has finished sampling. I also accept that she was a short time into the role and is not an assertive person. She did not need to rush for Mr Chapman, yet she did.

[248] Noting the question Ms Croxford posed to Mr Chapman in the weighbridge office, I consider that she had heard him say the word “cunt”, but she wasn’t sure what had been said prior to that. If she had heard, I consider she would have asked him a different question.

[249] I find that Mr Chapman was not truthful towards Ms Croxford in the weighbridge office when he denied having been rude towards Ms Croxford. He had been rude to her at the weighbridge.

[250] In squaring up the evidence given by Mr Barnes and Ms Croxford, I find that after Ms Croxford held the discussion with Mr Chapman in the weighbridge office, she then had a discussion with Mr Barnes where he sought to fill in the blanks for her. I do not accept that Ms Croxford had clearly heard more than one word. I conclude that Mr Barnes took the opportunity to inform her of what he considered he had heard.

[251] Mr Barnes was clearly an unreliable witness, evident in the transcript above. His evidence was extremely disappointing. I cannot accept that he heard Mr Chapman say, “fuck me dead cunt” from a distance of around 20 metres, when he gave such poor evidence to the Commission relevant to having heard the second discussion between Mr Chapman and Ms Croxford.

[252] I am of the view that he said to Ms Croxford that that was what Mr Chapman said, and Ms Croxford then believed that was what she heard. I do accept Mr Barnes’ evidence that he helped Ms Croxford understand what Mr Chapman said, and Ms Croxford accepted this to some degree in cross-examination, whilst still maintaining she heard the full sentence.

[253] I consider that once Mr Barnes had informed Ms Croxford of his understanding of what Mr Chapman said, Ms Croxford then became more upset, and adopted the full sentence as what she believes she heard Mr Chapman say. For the sake of clarity, I do not believe Ms Croxford heard any word other than “cunt”. Mr Barnes sought to fill her in, and she now believes she heard Mr Chapman say, “Fuck me dead cunt.”I accept Ms Croxford’s statement made contemporaneously to Mr Barker that she felt intimidated, and Mr Chapman looked aggressive when he said it. Having observed how agitated Mr Chapman was, I expect he would have appeared aggressive when he said this in her direction.

[254] I accept that Mr Barnes immediately told Mr Flood after the incident of what he believed he heard. This is evident on the footage. Disappointingly, Mr Flood did not seek to involve himself in the matter. He could have, as an Ingham’s employee, sought to immediately become involved and question Mr Chapman in the weighbridge office where Mr Chapman was. He chose not to.

[255] I find that Ms Croxford followed Mr Chapman into the weighbridge office in the normal course of her duties, and her earlier evidence that she was followed in by Mr Chapman is incorrect. She corrected her evidence the morning of the hearing.

[256] Having determined that Mr Chapman said at least the word “cunt”, I find that there was a conversation between Mr Chapman and Mr Barker a short time later. I accept that Mr Barker informed him there was an allegation, and Mr Chapman responded with either:

"Are you fucking kidding me? That fucking woman does nothing but swear at me."

"You can't be serious about that woman; she swears at me all the time."

[257] Mr Chapman made no effort to deny Mr Barker’s written evidence until he gave oral evidence. He provided no satisfactory evidence why he chose not to put a reply witness statement before the Commission.

[258] In deciding to accept Mr Barker’s evidence, it demonstrates that Mr Chapman is suggesting it is ridiculous that Ms Croxford would be making a complaint of swearing when he suggests that she swears at him all of the time. It is my view that he was not denying that he had sworn at Ms Croxford; simply, if he had sworn at her it is not offensive as she swears at him all of the time.

[259] I accept Ms Croxford’s evidence that she is not a prolific user of swear words in the workplace. This is supported by Mr Barker’s evidence. I accept she might occasionally swear, she does not swear at people, and she hasn’t sworn at Mr Chapman. Oddly, Mr Chapman gave evidence to the Commission that he knows Ms Croxford to be religious and that is why he would not swear at her, yet I have found he sought to mitigate his conduct when he suggested to Mr Barker that she swears at him all the time.

Not immediately stood down

[260] Mr Chapman was not immediately stood down from work and was permitted to continue his shift. This was a decision made jointly by Ingham’s and the Respondent. It appears to me it was made as a matter of convenience and does not support the seriousness of the matter before both Ingham’s and the Respondent.

Investigation

[261] I consider it appropriate for Ms Ross and Ms Lawrence to have been tasked by the Respondent to investigate the allegations. The Respondent did not simply take the position that Ingham’s had banned Mr Chapman from the site and therefore there was no work for him to perform. It took on an investigative function, as was appropriate for it to do so.

[262] Noting the difficulty the Respondent might have faced in interviewing Ms Croxford, Mr Flood and Mr Barker, all employees of Ingham’s, with the good relationship between Ingham’s and the Respondent, I consider it would have been appropriate for those people, together with Mr Barnes to have been interviewed by Ms Ross and Ms Lawrence. Any inconsistencies in their evidence could have been determined at that stage. It is clear there are some inconsistencies in their evidence.

[263] Mr Chapman refused to participate in the investigation, other than to send brief emails saying he would not participate and denied swearing at anybody. How he considered the investigation could properly consider his position is impossible to understand. Mr Chapman provided no evidence of any mental condition he was suffering, and in fact didn’t inform his employer that he was required to isolate having undertaken a covid test. No explanation has been provided on this matter.

[264] Of course, the test before the Commission is not what the Respondent could or should have done with the information before it. The Commission must be satisfied there was a valid reason for the dismissal.

[265] On the evidence before me, I am satisfied that Mr Chapman was highly agitated and impatient at the relevant time. He was frustrated by not being attended to promptly. He opened his truck door and aggressively said some words towards Ms Croxford. Only one of those words is known with certainty; he finished with “cunt”. On the balance of probabilities, I find he said some other words preceding that word, but I am not prepared, on Mr Barnes’ evidence to find that he said, “fuck me dead”.

[266] In these circumstances, aggressively saying some words towards Ms Croxford and completing the sentence with “cunt” is unacceptable. I do not consider that he said it to Ms Croxford and Mr Flood collectively, as he was impatiently awaiting Ms Croxford to attend to him. I find he said it to Ms Croxford.

[267] Ms Croxford was a relatively new Ingham’s employee, and one whom I accept was not particularly assertive in the workplace. She is one of three women who work in a largely male-populated workplace. She does not deserve to go to work and be told by a supplier’s employee that she is a cunt. Having regard to the aggressive manner in which it was said, and not at all part of any workplace relationship where there was some jovial or cordial bantering between the pair, the statement was, I accept, highly offensive.

[268] As submitted by the Respondent, I concur with Commissioner Williams in Rikihana where it should be appreciated that there is a distinction between regularly using swear words as part of everyday descriptive language and swearing aggressively and maliciously at another person.

[269] It was not the case that Mr Chapman remained in his vehicle, and if he considered necessary to swear, did so with the windows closed, or even with the windows open, and was overheard. Instead, he opened his door and directed his foul language at Ms Croxford. I accept it was intimidating to Ms Croxford. Further, it was in breach of the Respondent’s Swearing & Profanity Policy where it states:

“Swearing is forbidden in all office areas where such language may be within hearing of our clients and must not in any circumstances be directed at any person.”

[270] The Respondent’s Code of Conduct and its Harassment Policy was not included in its evidence for consideration, although the relevant parts of the policies were included in the letter of allegations to Mr Chapman. Having regard to those extracts, I am satisfied that in breach of the Harassment Policy, Mr Chapman did offend and intimidate Ms Croxford. I am satisfied that in breach of the Code of Conduct, Mr Chapman harassed Ms Croxford.

[271] I am satisfied Mr Chapman engaged in misconduct towards Ms Croxford. I have had regard to the consideration in s.387(a) relevant to the conduct of Mr Chapman and its effect on the safety and welfare of other employees. I do not consider such consideration is narrowed to the employees only of the Respondent; it can include consideration of employees of Ingham’s. Ms Croxford was, in my view, reasonably shaken after she had taken time to consider what Mr Chapman said to her. I consider she was informed by Mr Barnes of the other words attributed to Mr Chapman which exacerbated her concern. As I have earlier said, I’m not prepared to accept that those other three words were said by Mr Chapman.

[272] In determining if there was a valid reason based on conduct, it is suggested that if the word(s) were said by Mr Chapman, there could have been an alternative to dismissal. That, it seems, is always a matter to be contemplated. In my view, and in the particular circumstances before me, aggressively yelling at a female employee “[something], [something] cunt” constitutes a valid reason for the dismissal.

[273] In relation to capacity, I accept that Ingham’s informed the Respondent that if the Respondent determined the words were said by Mr Chapman, he would be banned from the site. This was said by Mr Sevil to Mr Sepos, notwithstanding that Mr Sevil believed the words used were “fucking cunt”. The Respondent satisfied itself the words were said, and therefore it adopted the position earlier stated to it by Ingham’s.

[274] I do not consider it necessary for the Respondent to have had to check in with Ingham’s or be formally advised in writing. Mr Sevil had made his position clear to Mr Sepos. I do not consider it necessary for the Respondent to have had to report to Ingham’s that it had concluded its investigation, made its findings, and requested Ingham’s reconsider its earlier stated position.

[275] Accordingly, the Respondent acted on the basis that Mr Chapman was not welcome at the Ingham’s site, resulting in there being no capacity to continue Mr Chapman’s employment. There was no alternative site to put Mr Chapman to work.

[276] Accordingly, on the capacity consideration I am satisfied there was a valid reason for the dismissal.

Notification of the valid reason – s.387(b)

[277] Mr Chapman was notified of one of the reasons given by the Respondent for the dismissal - conduct. The show cause letter issued to Mr Chapman on 15 October 2020 omitted the reference to Mr Chapman having been banned from the Ingham’s site – capacity.

[278] It is Mr Chapman’s evidence he was not feeling well when reading the letter of 15 October 2020.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[279] Mr Chapman was provided with an opportunity to respond to the reasons provided by the Respondent. Mr Chapman did not take up the opportunity, other than to issue short emails saying he denied swearing at anybody and he did not wish to meet.

[280] Mr Chapman emailed on 15 October 2020 suggesting he was being bullied and was not in a good mental state, however he did not request an extension in which to reply or meet with the Respondent. It was clear Mr Chapman was not willing to engage with the Respondent.

[281] No medical evidence was offered by Mr Chapman; his medical certificate had taken him only until 13 October 2020. It is noted that Mr Chapman was expressly invited to provide any mitigation the Respondent could take into consideration, such as whether he had been provoked by Ms Croxford, or this was a usual form of communication with Ms Croxford. Instead, Mr Chapman stated in the email that he wished to decline any conference. (my emphasis)

s.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 dismissal

[282] Mr Chapman refused to meet with the Respondent to discuss the allegations or findings, accordingly this is a neutral consideration.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[283] While it is noted the Respondent paid to Mr Chapman two weeks’ wages in lieu of notice on dismissal, he was, essentially dismissed for misconduct (and capacity). This criterion is relevant for when an employee is dismissed for performance reasons.

s.387(f) - Whether the employer’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

[284] I consider that the Respondent made every effort to encourage Mr Chapman to respond to the allegations and afforded him a reasonable period of time to do so. I note the Respondent does not have a dedicated human resource management specialist, and this had some impact on the decision by the Respondent not to interview Mr Barnes and Ingham’s witnesses.

s.387(h) - Other matters

[285] Mr Chapman made much ado about the Respondent’s decision to re-employ Mr W in November 2020, one month after Mr Chapman’s dismissal. It was put that if the Respondent and Ingham’s could forgive Mr W of his sin, and afford him a second chance, why could Mr Chapman not have been afforded some leniency?

[286] Threatening to kill a colleague is far worse a case of misconduct than aggressively swearing at a colleague. Mr W made an appropriate and prompt admission and was dismissed for his misconduct. As it appears, Mr W had been working for a different employer at an alternative Ingham’s site for some part of 2020. He applied for a role with the Respondent in November 2020, having responded to an advertisement; he was not invited to apply.

[287] Both the Respondent and Ingham’s have turned their mind to whether Mr W can safely perform his work. They have assessed that he can, having undertaken relevant review of the Respondent’s policies.

[288] It is a matter for the Respondent and Ingham’s to decide if Mr W is an appropriate person to have in their workplaces. It is noted that approximately 18 months passed between Mr W’s dismissal and when he was rehired.

[289] It is noted that the Respondent, in considering Mr Chapman’s past conduct, put to him a number of historical issues, informing him that he had been counselled on those issues by Mr Watkins. Mr Chapman refused to properly respond to the letter of 15 October 2020, where he could have disputed some of those matters. Mr Chapman didn’t deal with this historical issues until he was cross-examined on them. He denied them when cross-examined, but chose not to respond to the matters in the 15 October 2020 letter sent to him, or in his witness statements to the Commission. I accept the veracity of the information within the letter dated 15 October 2020, but for Mr Watkins’ concession at [97], and accept that Mr Chapman was verbally counselled in respect of all three of the four incidents.

[290] Mr Chapman had just over two years’ service with the Respondent. It is not a long period of time.

[291] I have had regard to the fact Mr Chapman is 61 years of age.

[292] In considering whether the decision to dismiss Mr Chapman was disproportionate to the conduct engaged in, I have had regard to the following Full Bench decision in DP World Sydney Limited v Lambey 110 and in particular paragraph 26, which is extracted as follows:

“[26] [The factors in section 387] although not an exhaustive list, are a strong indicator of evidence of a fair dismissal. In circumstances where a valid reason is found to exist, and procedural fairness has been afforded. significant mitigating circumstances are required in order to lead to a conclusion that the termination is nevertheless harsh, unjust or unreasonable. In order to give those factors appropriate weight, they need to be seen as such and balanced against factors that might otherwise lead to the characterisation of a dismissal as harsh, unjust or unreasonable. The balancing of factors involves discretion, but a conclusion must be reached after giving full effect to the findings on all relevant circumstances. Different employers may approach a misconduct matter differently and take different disciplinary actions. A tribunal member determining whether 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.” (my emphasis)

[293] I have determined that there were two valid reasons to dismiss Mr Chapman. I have also had regard to the fact that he chose not to usefully participate in the investigation, other than to deny swearing at anybody. The investigation was not rushed, and all opportunities to be involved were afforded to Mr Chapman.

[294] Mr Chapman did not propose any sort of sanction on a finding of misconduct; because he denied the conduct. He did not propose to the Respondent that if a finding was made that he had engaged in the conduct, he should be issued with a written warning, for example. By denying the conduct, he asserts that Ms Croxford is not telling the truth. That is an uncomfortable future for Mr Chapman being an employee to the Respondent, servicing the customer, Ingham’s.

[295] Noting that I have not found that Mr Chapman said all of the words attributed to him, but he certainly said something beyond the one offensive word to Ms Croxford, I do not consider the dismissal to have been disproportionate to the conduct engaged in by Mr Chapman. Employees are entitled to attend work and not have an offensive word, the word used by Mr Chapman, directed at them in an aggressive, unwarranted and unexpected manner.

[296] On the evidence before me, I do not find that this particular workplace is an environment where employees swear a great deal, nor do they commonly swear at each other.

[297] Mr Chapman’s relatively short years of service, his advanced age and his declared mental state have been taken into consideration, however, they do not constitute an appropriate level of mitigation that would equate to the dismissal being harsh, unjust or unreasonable.

Conclusion

[298] I have determined that the two reasons provided by the Respondent as the reasons for the dismissal are valid reasons for the dismissal.

[299] I have considered alternatives to dismissal were available to the Respondent, but with an employee denying the allegations in full, refusing to properly participate in the investigation and a client who was satisfied that if the allegations were true, Mr Chapman was not welcome on its site, the decision made by the Respondent to dismiss was not disproportionate to the conduct engaged in.

[300] Having regard to all of the circumstances, the evidence and the submissions before me, I am satisfied that Mr Chapman’s dismissal was not harsh, unjust or unreasonable. Accordingly, I find that the dismissal was not unfair. The application is dismissed.

COMMISSIONER

Appearances:

N.Saines of Cooper Green Lawyers for the Applicant.
S.Wood of Gilchrist Connell for the Respondent.

Hearing details:

Brisbane.

17, 18 February 2021.

Final written submissions:

Applicant, 30 March 2021.

Printed by authority of the Commonwealth Government Printer

1 See for example PN222 to PN250.

2 PN146 to PN147.

3 PN148.

4 Exhibit A1, paragraphs 11 to 27.

5 PN153.

6 PN154.

7 PN158 to PN162.

8 PN171.

9 PN163.

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24 PN222-PN226.

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26 PN337.

27 PN395.

28 Exhibit A1, CG1.

29 Exhibit A1, CG1; Exhibit A2, CG1.

30 PN353.

31 Exhibit A1, paragraph 30.

32 Exhibit A2, paragraph 1.

33 Exhibit A1, CG2; Exhibit A2, CG1.

34 PN368.

35 PN361.

36 PN365.

37 PN367.

38 PN372 to PN381.

39 Exhibit A1, CG3.

40 Exhibit A1, paragraph 32.

41 Exhibit R1, MS-6.

42 Exhibit A1, CG4.

43 Exhibit A1, CG4.

44 Exhibit A1, CG4.

45 Exhibit A1, CG5.

46 Exhibit A1, CG5.

47 Exhibit A1, CG5.

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59 Exhibit A1, CG6.

60 Exhibit A1, CG7.

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77 Exhibit A2, CG2.

78 Exhibit A3, paragraph 3; PN451 to PN452; PN521.

79 Exhibit A3, paragraph 5.

80 PN453 to PN457.

81 PN517.

82 PN519.

83 PN520.

84 PN521.

85 PN524.

86 PN522 to PN523.

87 PN473 to PN507.

88 Written submissions on behalf of Applicant, undated, paragraph 31.

89 Closing written submissions on behalf of Applicant, undated, paragraph 9.

90 Star v WorkPac Pty Ltd T/A WorkPac Group[2018] FWC 4991.

91 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (30 June 1938).

92 PN701.

93 [2010] FWA 9013.

94 Exhibit R1, MS-1.

95 Exhibit R1, paragraph 3.1.

96 Exhibit R1, paragraph 5.2.

97 PN661.

98 PN674.

99 PN674 to PN678.

100 PN664.

101 PN665 to PN666.

102 PN763 to PN765.

103 PN1882.

104 (1995) 185 CLR 410, [465].

105 Sayer v Melsteel[2011] FWAFB 7498 at [20].

106 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.

107 Edwards v Justice Giudice [1999] FCA 1836, [7].

108 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

109 PR922612.

110 [2012] FWAFB 4810.

Greg Chapman v Sepos Truck Trust T/A J&S Transport