Greg Pustkuchen v John Holland Pty Ltd

[2013] FWC 7865

[2013] FWC 7865

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Greg Pustkuchen
v
John Holland Pty Ltd
(U2013/7771)

COMMISSIONER WILLIAMS PERTH, 10 OCTOBER 2013

Termination of employment.

[1] This matter involves an application made by Mr Greg Pustkuchen (Mr Pustkuchen or the applicant) under section 394 of the Fair Work Act 2009 (the Act). The respondent to this application is John Holland Pty Ltd (John Holland or the respondent).

Background

[2] Mr Pustkuchen commenced employment with John Holland on 21 March 2011. Mr Pustkuchen was employed by John Holland to work as a Storeperson exclusively on an ongoing basis for John Holland Aviation Services (JHAS).

[3] A formal complaint in which allegations of workplace harassment and inappropriate conduct were made against Mr Pustkuchen.

[4] Following an investigation JHAS terminated Mr Pustkuchen’s employment. The letter of termination dated 14 March 2013 is set out below:

“Dear Greg,

RE: TERMINATION OF EMPLOYMENT

I confirm that your employment with John Holland Ply Ltd has been terminated due to your conduct. Specifically, you did not meet the standards and expectations of your role as per the disciplinary meeting on 14 March 2013. You were found to have:

• Left messages in the workplace and via phone texts directed towards your fellow workers that constituted threatening and intimidating language

John Holland Pty Ltd has carefully considered your responses to your conduct and does not find that your responses justify or excuse your failure to meet the required level of conduct.

The termination is effective from 14 March 2013. You will be paid five (5) weeks’ pay in lieu of notice and any applicable entitlements owing to you on termination.”

The evidence

[5] Mr Pustkuchen gave evidence as did Ms Aideen Gillies (Ms Gillies) an Employee Relations Advisor of the respondent.

[6] There is little conflict as to the events involved in this matter and I find as follows.

[7] Mr Pustkuchen’s contract of employment included provisions that he was bound to and must comply with the company’s policies and procedures as amended from time to time.

[8] Early in 2013, John Holland promulgated its People Policy, which sets out the standards and conduct expected of its employees and contractors to ensure positive working relationships and a safe and harmonious workplace. As part of this rollout, employees were educated on the People Policy. Mr Pustkuchen acknowledged he was aware of that policy.

[9] The respondent’s People Policy provides amongst other things that employees are required to treat others with dignity, courtesy and respect, care and fairness. The policy provides that employees are not to engage in unacceptable workplace behaviour, such as bullying or harassment. The policy requires employees not to engage in any out of work hours behaviour which creates a hostile workplace.

[10] The People Policy expressly says that non-compliance or breaches of the policy may result in disciplinary action which may include termination of employment.

[11] Mr Pustkuchen concedes he had sent a number of different emails to a range of employees and clients of the respondent that are in evidence before the Commission.

[12] One email dated 4 January 2013 was sent to 13 separate email addresses and includes a range of statements and sentiments that were highly critical of other employees and was generally aggressive in its tone. Sample extracts include:

“...we dont need to tell use the same answers time over time .. Is it the FACT that ppl are to shit scared to make a call on their own backs and MAN UP...” (sic)

“...BUT u cant hide from mistake or blame others for ur actions ... Things TAKE time not like a email any monkey can send one...” (sic)

[13] On 7 February 2013 Mr Brian Lofts, the Logistics Manager for JHAS, emailed the applicant as follows:

“Greg,

It appears you wernt in again last night, could you please give me a bell

Thanks...” (sic)

[14] In reply on 11 February 2013 the applicant sent the following email:

“Hey Brian

i wasnt in wed night and i did inform the engineers of this as well as i spoke to them on the phone as well as sms .. Plus i went thur with them on where they had to go to to pick up a AOG for them while i was on the phone and waited till they picked it up .. Since it was my last shift i havent been able to put it into the system yet and by the time if i sent u a sms that night it would of been pass midnight and im not going to be rude and send 1 at that hour

.. Can i ask Why i have to explan every thing Every single time when i have a day off ??? when i do the right thing every time and let the engineers know and always put it thur my place ... Plus its always a PLS expaln when its during the MONDAY TO FRIDAY if im off i get a email .. Which is ALWAYS when CHRIS is on and YES I AM PISSED OFF WITH THIS ... I think MY last EMAIL why you where on hols was PRETTY CLEAR when it got sent to SRT VIRGIN AND JHAS that if they have something to say to ME email ME bout it and speak to me if not dont include me in there shit BEACAUSE they dont like my feed back ... YES i HOLD things AGAISNT ppl cos i dont forget so i will be coming in tomorrow and having words with chris and any of the engineers who have a prob i will have words with them on my shifts im over all the pre primary school yard shit here where no 1 wants to take charge cos theymight get told off ..

ITs not hard for some1 to use there brains and do something em selfs.. I have NO PROBLEMS with you and i know ur trying to do your job .. I CANT do mine when i NEVER have a VAN or if i dont get things BRANG back to me i cant SEND em BACK.. BUT how HARD is it really if the part is sitting infront of ya to see it hasnt been sent and send since they would i read the email as well ... IM OVER the whole i wont do this so il leave it for him to do it ... IF use arent HAPPY with me then SACK ME BUT MAKE SURE USE HAVE GOOD GROUNDS TO DO SO .. IF NOT MAYBE I WILL HAVE A GOOD THINK BOUT MY FUTURE IN THE NEXT COUPLE OF DAYS AND DECIDE WHAT I WANT TO DO AND I WILL GET BACK TO YOU ON IT” (sic)

[15] On 13 February 2013 the applicant sent the following email to a fellow Storeperson Mr Moore and this was copied to Mr Sutherland:

“HEY CHRIS

AS this new email system in my eyes is shit, if there is scanned documents they cant be open and they dont appear on this email so the job cant be completed with out everything being sent over to em .. i checked traxs last night and it was already in the system but couldnt be booked out as it was waiting to be R.I ..I I WILL REPEAT AS I SENT BRIAN A EMAIL 2 DAYS AGO if YOUR NOT HAPPY WITH ME SACK ME BUT MAKE SURE ITS ON SOLID GROUND < IF NOT I WILL BE THINKING BOUT WHAT I WANT TO DO WITH MY FUTURE OVER THE NEXT COUPLE OF DAYS AS IM OVER THE SCHOOL YARD SHIT” (sic)

[16] The respondent also received complaints from one of its customers Virgin Australia about an email the applicant had sent which criticized Virgin employees in response to a query they had raised about a part that was to be installed.

[17] The applicant’s email which triggered the complaint was sent on 13 February 2013 and read as follows:

“Hi ALL

This part has been booked out on both jhas and virgin traxs onto xfa ... i have the red tag for HFE95-20D S/N 02069 POS;106 ML/WO MG299088 PORT; PER DATE; 07/02/13 and the part sitting in U/S ... AS WE HAVE NOTHING TO DO WITH THE PAPER WORK THIS IS ALL I CAN GIVE U .. SINCE THE PAPER WORK GETS SENT AND FAXED TO USE I HAVE NOTHING TO DO WITH WHAT USE DO WITH THAT ETHER SO I CANT HELP WHAT PPL LOSE ... NOW IF ITS PENDING TO BE INSTALLED ISNT THAT BECAUSE USE HAVENT DONE UR SIDE OF THIMGS BY REMOVING THE OLD AND INSTALLING THE NEW ON THE SYSTEM ????” (sic)

[18] On 14 February 2013 Mr Moore complained about a hand written note that had been stuck to his computer screen when he arrived at work that day.

[19] The note, which the applicant agrees he wrote, was in large capital letters and read as follows:

“GET A FUCKING COMP THAT WORKS COS THIS 1 WILL BE GETTING THROWN ACROSS THE STORE

GREG” (sic)

[20] Later that day again on 14 February 2013 the applicant sent the following SMS text message to Mr Moore:

“Hey chris its Greg if u want to talk shit bout me I will be catching up with u in the morning .. I’ve taken this personal now so it’s not a work issue .. Think I wont find out bout the shit u and bill talk bout plus any others think again” (sic)

[21] The applicant in his evidence said that the reference to ‘bill’ was to Mr Shergold.

[22] On 14 February 2013 the evidence is that the applicant exchanged SMS text messages with Mr Shergold. The full exchange was repeated in the statement of Ms Gillies 1.

[23] The applicant’s various text messages to Mr Shergold repeated the same issue mentioned in the text message sent to Mr Moore immediately above and were aggressive in tone.

[24] On Friday 15 February 2013 Mr Krishna Kumar (Mr Kumar) an employee of the respondent complained to the respondent about a message that had been written on the office whiteboard when he arrived at work that morning, which he took to be a threat. The writing on the whiteboard was as follows:

“JUST A FRIENDLY JESTER KEEP RUNNING YOUR MOUTH’S AND I WILL SHUT EM FOR YOU GOT IT. THIS MEANS THE PAIR OF USE MR K. KUNAR & MR C MOORE. THIS IS NOT A OUT OF WORK MATTER SINCE IT’S PERSONAL.

GREG.” (sic)

[25] It was put to the applicant in cross examination that he wrote this message on the whiteboard. The applicant was evasive in his response to this but ultimately in his evidence denied he wrote the message. The applicant in his evidence however went on to explain why the message in any event was not a threat.

[26] I found the applicant’s evidence on whether he wrote this message on the whiteboard to be unconvincing. Considering the other emails and text messages he did send to other employees around this time and that the syntax of the whiteboard message and the words the applicant used in his emails have some similarities (e.g. writing “use” instead of “you”) and that the sentiments are similar, my finding is that on balance of probabilities the applicant did write this message on the office whiteboard.

[27] As a consequence of complaints from other employees about the applicant’s communications to them the respondent conducted an investigation during which the email and text message exchanges set out above came to light.

[28] The respondent stood the applicant down pending the outcome of their investigations and considerations. The applicant was provided with a letter dated 19 February 2013 explaining the applicant was stood down on full pay pending an investigation into alleged misconduct.

[29] The respondent provided a letter to the applicant dated 22 February 2013 which detailed the allegations against the applicant. That letter explained that the allegations concerned an email sent to Mr Moore by the applicant on 13 February 2013, the applicant leaving a note on the store computer on 14 February 2013, sending text messages to Mr Moore and Mr Shergold on 14 February 2013 and writing a message on the office whiteboard on 15 February 2013.

[30] An interview was conducted with the applicant on 13 March 2013. The applicant declined the opportunity to have a support person present at the meeting.

[31] Other than the message written on the whiteboard the applicant agreed he had sent the various emails and text messages that the respondent raised with him.

[32] I accept the evidence that during the interview the applicant was uncooperative and somewhat aggressive in manner.

[33] His response generally was that he did not understand why people found his communications threatening or aggressive and it was just how he was and how he communicated.

[34] During the interview the applicant did not agree that a number of the communications were work-related rather asserting that they were personal matters that had nothing to do with work.

[35] The only concession by the applicant that his behaviour was in any way inappropriate was to concede that the message he had stuck to the computer in the office was inappropriate.

[36] Following the interview the respondent’s human resource personnel considered the matter with the Manager of Maintenance Support Mr Clarke and they concluded that there had been a pattern of threatening and intimidating conduct by the applicant in breach of the respondent’s policies and that the applicant was not accepting that his behaviour was wrong and he was not remorseful for his actions and so it was decided that dismissal was appropriate.

Submissions

The applicant

[37] The applicant’s submissions and argument in support of his case was limited. The applicant argues that others have given their own meaning to the text of his communications and for example where he said he would catch up with people in the morning he was simply referring to seeing them the following day because he only worked night shifts and this was not a threat.

[38] He says that he was not threatening anyone nor was he trying to intimidate anyone.

[39] He argues that the text messages were sent from his personal phone and not from John Holland’s phones.

[40] He argues that he had never been given any written warnings or verbal warnings over any of the issues beforehand.

[41] The applicant submits that he is being stereotyped and judged and misunderstood because of his age and the person he is. The applicant submits that everyone is different and everyone has the right to their own opinion and has the right to feel safe at all times at work or at home and at no point does he feel that he crossed that line.

The respondent

[42] The respondent submits it had a valid reason for dismissing the applicant, as the applicant repeatedly engaged in conduct in breach of the respondent’s People Policy and the applicant’s contract of employment.

[43] To determine a valid reason relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred.

[44] The respondent conducted an investigation into the allegations which were made against the applicant. The factual basis for the allegations was not denied by the applicant, and to a large extent, the activity was admitted. On the basis of the investigation, the allegations were found to be substantiated.

[45] There was substantial evidence to support the findings of the investigation that the applicant used intimidating and threatening language directed towards his co-workers.

[46] The pattern of conduct between 13 and 15 February 2013, considered together, amounted to unacceptable conduct of the applicant, which was inconsistent with the applicant’s contract of employment and the respondent’s People Policy.

[47] The contract of employment of the applicant signed 21 March 2011 provided that:

“19) COMPLIANCE WITH POLICIES AND PROCEDURES

a) You are bound by, and must comply with, the Company's policies and procedures, as amended from time to time...

d) Your return of the enclosed copy of this letter, signed by you, will be taken as your acknowledgement that you agree to comply with the Company's policies and procedures, and any relevant client, site/project specific and/or joint venture partner policies and procedures...”

“24) DISCRIMINATION AND HARASSMENT

It is a condition of your employment that you comply with all relevant State and Federal antidiscrimination laws. All employees are expected to ensure their work environment is free from any harassment, discrimination, victimisation or vilification. You are also required to comply with internal procedures for dealing with discrimination or sexual harassment complaints and accept any lawful direction by John Holland in respect of these matters.”

[48] The People Policy sets out various standards and conduct required of employees, including:

• Treat others with dignity, courtesy and respect and act with honesty, integrity, care and fairness;



• Not engage in unacceptable workplace behaviour, such as bullying, unlawful discrimination, harassment, vilification or occupational violence;



• Not engage in "out of work hours" behaviour which creates a hostile workplace, could cause reputational damage to the Company or behaviour which aids or encourages others to engage in this behaviour; and



• Non-compliance or breaches of this Policy may result in disciplinary action which may include the termination of employment or termination of contract.

[49] The respondent submits a pattern of conduct of this type has been accepted as justifying dismissal, even if individual instances within that pattern may not, in isolation, have constituted a valid reason. For example in Evan Dickinson v Calstores P/L [[2011] FWA 6858], a dismissal was upheld on the basis of numerous breaches of Company policies. In the course of finding the dismissal was not harsh, unreasonable or unjust, Fair Work Australia stated:

“...it might be said that taken individually, each of these incidents might not be regarded as particularly serious – minor indiscretions – and certainly not, on their own a sufficient basis to constitute a valid reason for dismissal. However each of the examples above cannot be disregarded from a consistent pattern of behaviour which was confrontationist, argumentative and insubordinate.”

[50] It was submitted that the respondent has a duty of care to its employees. This includes the duty to provide employees with a workplace which is safe and free from harassment.

[51] In regards to the text messages sent on the evening of the 14 February 2013, it is immaterial that they were sent out of work hours, as there was a clear connection between the conduct and the applicant’s employment.

[52] The respondent submits that the text messages sent on the 13 and 14 February had a relevant connection to the applicant’ s employment, as:

a) there was a history of threatening and intimidating behaviour;

b) the text messages were a consequence of the relationship of the parties as co-workers;

c) the conduct caused serious damage to the employment relationship between the respondent and the applicant;

d) the applicant’s conduct impacted the respondent’s ability to ensure that its employees are able to work in an environment free from bullying and harassment; and

e) the applicant’s conduct impeded the respondent’s ability to ensure the health and safety of its employees during work.

[53] Any suggestion in these circumstances that the text messages to co-workers about matters arising in the workplace were somehow “personal” or not connected with the workplace should be rejected. The employees who were subjected to the serious behaviours of the applicant rightly complained to the respondent, their employer, about it.

[54] The applicant was notified of the reason for his dismissal and was provided with an opportunity to respond to the allegations made against him.

[55] The applicant was stood down from his employment on 19 February 2013, on his full rate of pay.

[56] By letter of 19 February 2013, the applicant was notified that he was being stood down pending an investigation into allegations of misconduct, and that written particulars of the alleged misconduct would be provided as soon as reasonably practicable.

[57] The applicant was issued with a letter on 22 February 2013 containing the allegations made against him.

[58] The applicant met with the respondent on 13 and 14 March 2013 in relation to the investigation and to discuss the allegations made against him. The applicant was invited to respond to the allegations made at this investigation.

[59] The respondent considered the applicant’s responses before reaching its decision to terminate the applicant’s employment.

[60] The respondent confirmed the reasons for the termination of the applicant’s employment by letter dated 14 March 2013.

[61] The applicant was paid 5 weeks’ pay in lieu of notice, in accordance with his contract of employment.

[62] Other matters relevant are that the applicant had a relatively short period of service. In the circumstances of this short period of employment, the termination of his employment when compared to the gravity of his conduct cannot be considered ‘harsh’ or ‘unjust’.

[63] Also the applicant’s behaviour during the investigation was uncooperative. In particular, he was evasive. He refused to confirm or deny whether he had written the note left on the whiteboard, or whether he had sent the text messages.

[64] Further, the applicant failed to acknowledge that his conduct between 13 and 15 February 2013 was unacceptable workplace behaviour. He showed no evidence of contrition or remorse for his actions. He continually failed to recognise that his conduct was an unacceptable way to behave in the workplace.

[65] Consequently the respondent submits the application should be dismissed.

Consideration

[66] The criteria to be considered when determining whether a dismissal was harsh, unjust or unreasonable are prescribed in section 387 of the Act.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

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

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

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

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

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

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

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

[67] Considering these in turn, the facts are that the applicant on a number of separate occasions in his emails to a range of other employees expressed himself in a manner which objectively was aggressive, confrontational and derogatory. These emails were sent on various occasions to other storepersons and to staff including his immediate supervisor and more senior managers within the respondent’s operations.

[68] The applicant also sent text messages to two employees of the respondent that were aggressive and objectively could have been interpreted by the recipients as threatening.

[69] The applicant in an email to employees of a client of the respondent, Virgin Australia, expressed himself in a manner which was rude and openly critical of those staff of the client to he was emailing.

[70] The applicant left a handwritten note on a computer directed at an employee of the respondent which was written in an aggressive style.

[71] The applicant also left a handwritten message on the office whiteboard which was both aggressive and threatening and which personally named two employees whom the message was intended for. This whiteboard was in an office where it could be viewed by any number of other employees and other persons, including representatives of the respondent’s clients, who may pass through the area.

[72] Considering all these emails, text messages and hand written notes and messages I am satisfied that the aggressive and sometimes threatening manner in which the respondent communicated with other employees, the derogatory statements he made about his colleagues and the rudeness of this communication with a client of the respondent was a valid reasons for his dismissal related to his conduct.

[73] I am also satisfied that the applicant’s communications with other employees was contrary to the respondent’s People Policy. As such this behaviour by the applicant was a breach of his contract of employment and so amounted to a valid reason, related to applicant’s conduct, for his dismissal.

[74] I am satisfied that the applicant was notified of the reasons for his dismissal. The applicant was put on notice in writing prior to being interviewed as to the reasons the respondent was standing him down and the detail of the complaints that had been made against him which were being investigated.

[75] The applicant at the interview had an opportunity to respond and did actively put his view to the respondent.

[76] There was no refusal by the respondent to allow the applicant to have the support person present indeed this was offered to him.

[77] The dismissal did not relate to unsatisfactory performance.

[78] The respondent is a large employer which does have dedicated human resource management specialist and expertise and the procedure followed in effecting the dismissal was consistent with this.

[79] The applicant had been employed for approximately two years.

Conclusion

[80] There clearly were valid reasons for the dismissal of the applicant in this instance. The conduct of the applicant had upset a number of his fellow employees to the point where they have complained to their employer and also damaged the reputation of the respondent with one of the respondent’s clients.

[81] The applicant when interviewed by the respondent about these matters did not accept that the way in which he expressed himself when communicating with others was inappropriate (except for the note he left on the computer which he agreed was wrong) nor did he agree it was aggressive or that it could be seen as threatening by the recipients in some cases. It was apparent from his evidence that the applicant maintains this view and effectively says that this is his way of communicating and others should just accept that. The applicant obviously had, and still has, no regard for the respondent’s policies concerning acceptable workplace behaviour nor for the negative effect his style of communication has on other employees and clients.

[82] The applicant’s behaviour was not an isolated once off instance but was repeated through various mediums over a period of a month and a half and affected a range of others in and outside the workplace. The applicant has not shown any remorse and has been employed only for two years. In all the circumstances I am satisfied that the dismissal of the applicant was not harsh, unjust or unreasonable. The applicant was not unfairly dismissed.

[83] This application will be dismissed and an order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

G Pustkuchen on his own behalf.

R Wade, solicitor for the respondent.

Hearing details:

2013.

Perth:

September 26.

 1   Exhibit R1, Attachment AG-13.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR543016>