Harry Zoumas v TNT Australia Pty Ltd t/as TNT Express
[2010] FWA 2605
•22 APRIL 2010
Note: An appeal pursuant to s.604 (C2010/3561) was lodged against this decision- refer to Full Bench decision dated 23 October 2013 [[2013] FWC 5325] for result of appeal.]
| [2010] FWA 2605 |
|
|
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Harry Zoumas
v
TNT Australia Pty Ltd t/as TNT Express
(U2009/14789)
| COMMISSIONER LARKIN | SYDNEY, 22 APRIL 2010 |
Termination of employment – misconduct.
[1] On 21 December 2009 Mr Harry Zoumas (the applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) in respect to the termination of his employment by TNT Australia Pty Ltd t/as TNT Express (the respondent) on 9 December 2009.
[2] On 8 January 2010 the respondent filed Form F3, Employer’s Response to Application for Unfair Dismissal. The respondent stated:
“On 4 December 2009, the applicant was involved in a physical altercation with a fellow employee, a Mr Karim Anbar.”
[3] The matter was listed for the purpose of conciliation on 20 January 2010. The matter was not settled on that occasion.
[4] The matter was listed on 6 April 2010. Mr Zoumas appeared on his own behalf. Considering Mr Zoumas’ circumstances of presenting his case at hearing without the benefit of a representative my associate had provided to him relevant sections of the Act. Mr Zoumas was advised as to the nature of the proceedings, which he stated he understood. Mr Brennan, in house General Counsel, appeared on behalf of the respondent with Mr MacKenzie, General Manager Industrial Relations. At the commencement of proceedings I sought the views of the parties on whether or not they considered that a hearing would be the most effective and efficient way to resolve the matter, as required by ss.399(1) of the Act. After a consideration of those views I decided to hold a hearing to resolve the matter.
[5] The following witnesses gave evidence during the proceedings:
On behalf of the applicant
Mr Harry Zoumas The applicant
Mr Michael Fric Driver with the respondent company
On behalf of the respondent
Mr Brett Watkins Fleet Area Manager, Enfield Depot
Mr David Leak Depot Hub Manager, Enfield Depot.
BACKGROUND
[6] The applicant was employed by the respondent as a driver from 4 August 2003 until his termination of employment on 9 December 2009.
[7] On 4 December 2009 the applicant and Mr Fric were in the Enfield depot and in conversation with Mr Watkins. During this conversation another driver, Mr Anbar, walked along the dock area. The applicant called out to Mr Anbar and said words to the effect “Have you been cooking today” 1. The comment was in reference to a problem Mr Anbar had with his vehicle previously. Mr Watkins was then engaged in conversation with another employee. Mr Anbar approached the applicant and a physical altercation occurred, part of which was recorded on the CCTV footage.2
[8] Mr Watkins intervened and separated the two employees. Mr Watkins removed Mr Anbar from the area. Mr Watkins then separately spoke to Mr Anbar, the applicant and Mr Fric. Mr Anbar was then stood down from duty on full pay pending an investigation into the incident. The applicant returned to his duties. On 7 December 2009 the applicant was advised of his suspension from duties pending an outcome of the investigation of the incident.
[9] On 9 December 2009 the applicant attended a meeting with Mr Leak in the presence of a union delegate and a union official. The applicant’s employment was terminated.
[10] The letter of termination, dated 10 December 2009, stated:
“Dear Mr Zoumas,
Termination of Employment
I refer to our meeting of 9th December 2009, in the presence of Darren Wait, TWU Organiser and Kevin Jones, Union Delegate, regarding an investigation into your actions on the 4th December 2009 at the Enfield Depot.
Following a full investigation of the incident involving yourself and Mr Anbar, including reviewing statements made by yourself and Mr Anbar and having viewed the CCTV footage, it is clear that you verbally harassed and physically manhandled Mr Anbar when he made it clear to you that he would not continue to tolerate your verbal harassment.
During our meeting you were given an opportunity to justify your actions having regard to your clear knowledge that any form of harassment, intimidation or physical altercations in the workplace would not be tolerated and could lead to the termination of employment. Your explanation during our meeting was not acceptable and having given full consideration to this matter, I have formed the view that your behaviour amounted to serious misconduct and a breach of TNT’s policies which had been made very clear to you prior to this incident. Accordingly, it has been decided to terminate your employment with TNT Australia Pty. (sic) Limited effective immediately (9th December 2009).
Final termination payments including all outstanding entitlements will be made to your nominated bank account.
Yours faithfully,
David Leak
Depot Operations Manager
TNT Express – Enfield” 3
[11] The applicant seeks reinstatement.
THE CASE AND CONSIDERATIONS
[12] Section 387 of the Act states:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
[13] In a determination of the matter before me I am required to have regard to the above paragraphs of s.387 of the Act, where relevant to the issue. In arriving at a decision in the matter I will not address and/or refer to all the material before me. I have, however, had regard to that material where relevant to the issue I must determine.
[14] This matter concerns an issue of conduct. There are a number of facts which are not contested. The applicant did make certain comments to Mr Anbar to which Mr Anbar took offence. Mr Anbar did approach the applicant, who was sitting on a carton at the rear of his vehicle. Mr Anbar then kicked the applicant’s foot and slapped the applicant’s face. 4 The applicant stood up and grabbed Mr Anbar in the upper area of his body by the shirt and safety vest. The applicant while maintaining his hold on Mr Anbar pushed him backwards towards the sort/conveyor belt. Mr Watkins intervened and separated the two employees. What is contested is whether or not the applicant used excessive force in the circumstances, which constituted serious misconduct.
[15] In his evidence the applicant stated that he had a good relationship with Mr Anbar and that they joked with each other. He stated that on the day in question he, the applicant, made a remark about Mr Anbar cooking his motor and that Mr Anbar took offence to the remark. The applicant stated:
“I just said, ‘Are you cooking anything today, Karim?’ I don’t know why he took offence to it. He came over, he kicked me, stood over me and slapped me across the face. That’s when I quickly jumped up and grabbed him, and pushed him backwards. I told him not to hit me anymore. I didn’t hit him – I never had any intentions of hitting him – and, basically, that was it. The CCTV camera at TNT doesn’t get the whole incident. That’s why I have to call an eyewitness because, basically, the only person who had seen the whole incident was Michael Fric, and that’s why I rely upon his testimony today. Basically, TNT stood down Karim Anbar immediately and they let me go back to work for two days, then I was called up to David Leak’s office and then I was stood down.” 5
[16] The applicant stated that on the day of the incident, Friday 4 December 2009, he pleaded with Mr Watkins to keep the incident in-house as he did not believe that it required that sort of attention. He stated that Mr Anbar had done something stupid and that he, the applicant, knew that Mr Anbar’s job was in danger. The applicant stated that Mr Anbar was stood down and that he, the applicant, returned to work. He stated that he felt pretty disappointed as he considered Mr Anbar to be a friend and that he felt bad that Mr Anbar would get the sack. He stated that he went home sick and resumed his normal duties on Monday 7 December 2009. He stated that when he returned to the depot he was called to Mr Leak’s office and stood down. He was told by Mr Leak that there was more evidence that incriminated the applicant and that he, Mr Leak, would see the applicant on Wednesday 9 December 2009.
[17] He stated that he attended the meeting on 9 December 2009. In attendance were Mr Leak, Mr Watkins and a couple of union delegates. He stated that Mr Leak gave him the opportunity to resign and told him to take lunch and think about it. The applicant stated that as he did not think he had done anything wrong he chose not to resign. He stated that he didn’t return to the meeting and that Mr Watkins called him and he told Mr Watkins that he would not be resigning and that he would take the matter further. The applicant’s version of the events of 9 December 2009 was not put to Mr Watkins or Mr Leak in evidence in chief or in cross examination.
[18] The applicant tendered into evidence a Recognising Excellence letter that he received from TNT on 16 February 2004. 6 The applicant stated that “[i]t’s a document of excellence for on-time delivery, diligence, and also good customer relations – which (sic) I’ve pretty much done the job for six and a half years for TNT without too many complaints from actual customers”.7
[19] The applicant stated that he sought reinstatement. I put the following question to the applicant to which he replied:
“Do you think that you could be reinstated to the position that you were employed in prior to the dismissal?
Yes, Commissioner, I do think that. I see that in some of the submissions that TNT has put forward, it says that the breakdown between TNT and myself is cut to an end, like, they cannot work with me but I don’t see how that it is. I didn’t have any dispute with any of the managers…I didn’t have any dispute with any of the managers nor a fallout with any of the supervisors or managers of TNT. In fact, I felt my relationship with my work colleagues and my employee (sic) were very good, and a very strong relationship because I basically consider myself a diligent worker. I did the best I could at my job.” 8
[20] In cross examination the applicant acknowledged that his comment to Mr Anbar on Friday 4 December 2009, sparked the altercation between them. The applicant said “Yes. For some odd reason, that’s what made him angry. I honestly don’t know why but that’s what made him angry”. 9The applicant did not remember, but he did not dispute that he may have made comments to Mr Anbar on the previous Wednesday. The applicant stated that he thought his comments were ““Karim, are you cooking anything today? Cooking? Cooking?” And, basically, that was it”.10
[21] The applicant in cross examination, when it was put to him that Mr Anbar was not happy with him, stated that they did have a friendship and that there were occasions when Mr Anbar took the “mickey” out of him as well.
[22] Mr Brennan took the applicant to a statement he had made on 7 December 2009 to Mr Ryan, TNT State Security Manager, during the investigation of the incident and also to the statement made by Mr Anbar to Mr Ryan on the same incident.
[23] In Mr Anbar’s statement, on 7 December 2009 to Mr Ryan, he stated that on the Wednesday the applicant had made comments to him of “cooking the motor”. He stated that he didn’t come into work on the Thursday as he was sick “because I got a lot of work on Wednesday and stress”. 11Mr Anbar stated to Mr Ryan that, on Friday, the day of the incident, the applicant continued and he, Mr Anbar, said to the applicant “What you talking about? What’s your problem? This is not your business if I burn the engine…”.12 He told Mr Ryan that when he came back the applicant “start the same harassment, like he want to piss me off or something like that. I am telling my way, ‘Why you asking?’ I just want to go to – to him to you know like just to explain to him what happened to my truck because I thought he was joking. At this time, I thought he was still joking with me. When I go, my – my – my accidentally, my – my foot, you know, hit his foot”.13Mr Anbar told Mr Ryan that to get the applicant’s attention he, with his right hand, “direct his face to listen to me. He suddenly change – turned over the situation from joke and he choke me and it’s still around more than 10 seconds till Brett coming and you know taking his hand off me…”.14Mr Anbar told Mr Ryan that he just wanted the applicant to stop talking as he pissed him off about the comments of cooking his vehicle. Mr Anbar told Mr Ryan that he had accidentally kicked the applicant’s foot. Mr Anbar told Mr Ryan that he didn’t slap the applicant’s face he just wanted to redirect his face to face him. He told Mr Ryan that the applicant stood up and said “Don’t touch me, don’t touch me”.15In reply to questions from Mr Ryan, Mr Anbar acknowledged that on an earlier occasion he also had a “joke”with the applicant when the applicant was on crutches and “So he didn’t bothering from my joke at that time but he feel I am you know like I am a bit angry about his joke with me too much, you know, this stuff”.16 Mr Anbar stated to Mr Ryan that he didn’t want to fight anybody and that the video would show this. He also stated that he was not doing anything and that the applicant was aggressive to him.
[24] I note here that Mr Anbar and Mr Ryan were not called to give evidence in the proceedings before me and, therefore, not subject to cross examination. I also note that Mr Anbar’s statement is not signed by him. I further note that the applicant, on my understanding is not legally qualified nor was he represented. The applicant did not object to the statement of Mr Anbar, which was recorded by Mr Ryan during the investigation of the incident, being put into evidence before me. The statements of Mr Anbar and the applicant were attachments to the statement of Mr Leak. Mr Leak was not present during the interviews conducted by Mr Ryan. Mr Leak did, however, have regard to the statements in considering the incident and the consequences arising from the incident.
[25] The applicant, in cross examination, stated that the kick to his foot delivered by Mr Anbar, while not a hard kick, was intentional. In reply to questions put to him, the applicant stated:
“After he kicked me – you’ve got to imagine, I’m sitting down on a case of wine. I’m actually sitting on a case of wine. After he kicked me, he moved closer to me, he stood over me and slapped me across the face…I’ll put it to you this way: It got my attention. It moved my face quite a bit. I wouldn’t say he put all his power behind it, but he did hit me and it was in an aggressive manner.” 17
[26] The applicant stated that he thought Mr Anbar was going to hit him again and that he felt threatened. The applicant disagreed with Mr Brennan that he was “throttling”Mr Anbar and that he, the applicant was the aggressor. The applicant stated that he was holding Mr Anbar and pushing him back and that “Mr Watkins did not physically get between us two. Mr Watkins put his hands there and said, ‘What are you doing? Let him go. Stop it.’ As soon as he did that, I let him go. There was no other thing – no other arguments from me. I didn’t try and hit Mr Anbar, I didn’t try and---”. 18
[27] It was put to the applicant that as Mr Watkins was only six feet away why had he not called out to Mr Watkins. The applicant replied that the depot, with all the activity of the conveyer belt, was very loud. He stated “Well yes, maybe I could have. I’m not denying that, but then again, you know, what’s to say he’s not going to keep on beating on me? How do I know that?”. 19
[28] The CCTV footage of the incident does not record the “kick” or the “slap”. It records Mr Anbar walking along the dock area of the depot, stopping and looking in the direction of the applicant who is off screen. The applicant acknowledged that he had made a “cooking” comment to Mr Anbar at this point. Mr Anbar appears to say a few words to, I presume to be the applicant, he then starts to continue to walk along the dock but he stops and he then leaves the screen at which point he approaches the applicant. While it is quite often difficult to gain a full picture of an incident from CCTV footage, in my view, Mr Anbar’s manner and stance gave the appearance of anger. The footage then shows the applicant holding Mr Anbar by the upper part of Mr Anbar’s shirt and pushing him backwards towards the area where Mr Watkins, who is on screen, was talking to another employee. I think it is correct to say that at this point the applicant was very angry. However, on my viewing of the footage it does not appear to me that he was overly aggressive to the point that one could say that he used excessive force. He is walking Mr Anbar backwards, saying something to Mr Anbar and quite clearly was very angry. Mr Watkins places his hands on, what appears to be, the shoulder of each gentleman but then turns around to place his folder on a nearby carton. Mr Watkins then parts the applicant and Mr Anbar. At this stage the applicant releases his grip from Mr Anbar’s shirt and vest.
[29] Mr Brennan referred to a letter to all employees and subcontractors, dated 24 June 2009, which, inter alia, stated:
“TNT has a nil tolerance policy in place, which does not tolerate any instance of violence, aggression, intimidation or bullying in the workplace. If an employee engages in such behaviour their employment with the Company will be terminated if such action is substantiated. Such a policy is essential to ensure the occupational health and safety of all employees.” 20
[30] The applicant acknowledged that, while he did not actually remember a briefing on 14 September 2009 in relation to the above correspondence, as he had put his run number on the attendance sheet, he would have been briefed. He also stated that he agreed with the TNT policy of nil tolerance towards fighting and aggressive behaviour in the workplace. In relation to the incident in question and the requirements of the TNT policy, the applicant stated that all he did was stop somebody from hitting him and he didn’t see that as aggressive behaviour. He stated that in the circumstances he did his best to protect himself. He stated that he didn’t hit or punch Mr Anbar. He grabbed Mr Anbar and stopped Mr Anbar from hitting him. Mr Brennan put to the applicant that he knew he could be sacked for fighting. The applicant replied:
“There was no intent to fight him on my behalf. I’ll tell you something, Mr Brennan, without being rude or disrespectful: if I had fighting in my mind – I have been aware where the camera’s (sic) can get and can’t get. Now, when I grabbed Mr Anbar and pushed him towards there, I was aware where the cameras were and I was aware where my manager was and, quite frankly, I was pushing him towards there because I was being hit, and that’s all there was to it. Now, if I wanted to instigate a fight, I would have grabbed him and pushed him the opposite way into the back of my truck and then there would have been a fight, but I was never interested in a fight. I never have been interested in a fight. I don’t go to work to fight, I go to work to work.” 21
[31] In closing his evidence the applicant reiterated his view of the incident with Mr Anbar and stated:
“And at the end of the day, I wasn’t sacked on the spot. I was still allowed to go back to two days, so if TNT really thought what I did was really that bad, you know, I should’ve been sacked there and then as well – I should’ve been suspended – sorry ‘sacked’ is the wrong word. I should’ve been suspended, but I wasn’t…But at the end of the day, there was no violent intent, and nor is there any hard feeling toward the company. I just think that everything has been blown out of proportion and I’ve been trying – they’re trying to make an example, like, here we are: you can’t step out of line, you can’t talk, you can’t do anything, you’ve just got to sit down and cop it. And, at the end of the day – look, like I said, I was a baker 15 years. I used to see four walls, and to come out and to socialise with the general community, I’m really happy to have a job like that and I’m really sad we couldn’t come to any agreement with TNT, and it’s sad…” 22
[32] Mr Fric provided a statement 23 of his evidence in relation to the incident in support of the applicant. In his evidence in chief Mr Fric acknowledged that he and the applicant were friends and they occasionally socialise outside the work environment. Mr Fric stated that his evidence was not biased towards the applicant. Mr Fric outlined the words said to him by the applicant prior to Mr Fric being interviewed by TNT representatives on the day of the incident. Mr Fric’s evidence was:
“Basically, all I was asked was, when I go upstairs, is not to lie – basically, not to tell any untruths because it may – you don’t know how far the actual incident might go. I took it as that if it were to go further, I’d be only getting myself in hot water if I were to say – if I were to lie about the incident in any way, shape or form.” 24
[33] In cross examination, Mr Brennan took Mr Fric to his statement made to Mr Ryan on 7 December 2009, 25 at point 6 of that statement, where Mr Fric stated:
“A short time later Karim was walking back towards his truck and when he was behind our trucks I heard Harry say to him again, ‘Cooking, cooking.’ Karim obviously took exception and walked over to Harry and I saw him lash out with his right foot and kicked Harry to his right boot. It wasn’t an overly hard kick, but it was a kick. I heard Karim say words like, ‘F… you.’ I looked at Harry as he was still sitting on the carton. I saw Karim walk closer to Harry and lent over him. Karim said something like, ‘F… you.’ I saw Harry look up at Karim and as he did so Karim slapped him with his open right hand to Harry’s cheek area. It wasn’t a hard slap but it was hard enough to get Harry’s attention. I saw Harry jump up from the carton and with his hands he grabbed Karim to the front of his shirt and I heard him say, ‘Don’t f… touch me.’ As Harry was holding him he pushed him across the dock approximately 2 metres and then Brett Watkins broke it up. A short time later I continued with my normal duties.”
[34] Mr Brennan put to Mr Fric that his statement to Mr Ryan was more detailed than the statement tendered in these proceedings. Mr Fric stated that “Obviously, it was more fresh in my mind at that stage”. 26Mr Brennan put to Mr Fric that the kick was not an overly hard kick, to which Mr Fric replied that it was a kick. Mr Fric agreed with Mr Brennan that the distance that the applicant had pushed Mr Anbar was more than 2 metres, as stated above, and possibly approximately 5 metres.
[35] Mr Fric’s evidence in the proceedings was not seriously challenged. I have no reason to doubt Mr Fric’s evidence as a truthful version of the incident in question. I accept his evidence.
[36] In his statement, Mr Watkins stated:
“Whilst I did not see the commencement of the altercation I observed Mr Zoumas using both hands to firmly grip the front of Mr Anbar’s shirt/safety vest and roughly push him backwards using excessive force, I was required to intervene and separate both Mr Zoumas and Mr Anbar. As a result of the incident, Mr Anbar was immediately stood-down from duty on full pay and an investigation of the incident commenced by Mr Robert Ryan (Security Manager NSW & ACT). As part of the investigation, I made a statement to Mr Ryan dated the 8 December 2009, (a copy of which I have attached at Annexure A)” 27
[37] In reply to a question I put to Mr Watkins, in relation to the applicant’s comments to Mr Anbar prior to the incident, Mr Watkins gave the following evidence:
“How was that actually said, can you remember?
It was in a jovial way. It was, ‘Have you been cooking today?’ to Karim, and that’s why I thought nothing of it, in all honesty.
So it wasn’t said in an aggressive way or---?
No, I think what – my personal opinion. I think what sort of – I guess put it over the edge was I guess Michael was beside him laughing and I don’t think Karim – I assume Karim felt intimidated by it…” 28
[38] The “Michael” referred to by Mr Watkins in his evidence was Mr Fric. The above evidence is Mr Watkins’ view that “what sort of…put it over the edge” and prompted Mr Anbar’s reaction to the applicant’s comments, was Mr Fric’s laughter. In all probability this situation, of the comments and the laughter, was the catalyst for the altercation that followed.
[39] As stated previously, after the incident and Mr Watkins’ discussion with the people concerned, Mr Anbar was suspended and the applicant returned to his duties. In his statement Mr Watkins used the terms “roughly push him backwards using excessive force”. 29 If Mr Watkins, at the time of the incident, which he witnessed, was of the view that the applicant used excessive force in his handling of Mr Anbar it is perplexing that both were not suspended on the day in question pending the investigation. I put these questions30 to Mr Watkins for clarity as to the seriousness of the applicant’s action at the time. Mr Watkins stated:
“Yes, but to let him – not to stand him down then and there but to let him know that, pending further investigation, he may be stood down, and that’s what happened the next day once the video footage was shown and other people got to see and they had their thought process through it and how it actually happened on the day, and then he was – they deemed it to be – he be stood down as well.” 31
[40] After Mr Watkins separated the applicant and Mr Anbar, the applicant advised Mr Watkins that he had been kicked and hit in the face, which Mr Fric collaborated. At that point, Mr Watkins thought that Mr Anbar was the instigator and, therefore, he was suspended. It was after the CCTV footage had been viewed by “other people”,which I presume to be managers, that the applicant was suspended. Mr Watkins was the person who viewed this altercation at first hand in the work area in which it occurred. In my view, on the balance of probability, I doubt that Mr Watkins, at that point, seriously thought the applicant used excessive force in his handling of Mr Anbar.
[41] Mr Leak, in his statement, 32 stated that upon his viewing of the CCTV footage on 7 December 2009 he instructed Mr Watkins to suspend the applicant and that he requested Mr Ryan to obtain witness statements in relation to the incident. He stated that on 8 December 2009 he received and reviewed Mr Ryan’s report. He also reviewed the CCTV footage. He arranged for Mr Anbar and the applicant to attend the depot, with their union representatives, on 9 December 2009. Mr Leak stated:
“In light of the results of the investigation undertaken, the CCTV footage of the incident and my view that both Mr Anbar and Mr Zoumas had full knowledge and understanding of TNT’s policy with respect to harassment and violence in the workplace, I formed a preliminary view that on the information I had before me both Mr Anbar and Mr Zoumas had breached TNT’s requirements of appropriate behaviour in the workplace. I formed this view on the basis of my awareness of an incident which occurred at the Enfield Depot in mid June 2009, when it was necessary by agreement and support of the Transport Workers Union, to Tool Box every employee to ensure they were aware of the consequences of Violence, Intimidation and Bullying in the Workplace. The Tool Box was followed up with a memorandum to each employee dated 22 June 2009, copy attached at Annexure ‘B’.” 33
[42] Mr Leak outlined what he put to the applicant in the meeting on 9 December 2009, which was attended by a delegate and an official of the union. 34 He stated that he adjourned the meeting for approximately one hour. He stated that when the meeting was reconvened he advised the applicant of his decision to terminate his employment and outlined his reasons to the applicant as follows:
“Primarily the company policy reiterated to you in September 2009 clearly indicated a nil tolerance to behaviour you have demonstrated.
There is no evidence to support the scale of the assault you say you were subjected to by Mr Anbar.
Your response was not only defensive, but aggressive as you did not simply push Mr Anbar away, you physically grabbed him and pushed him for at least 3 metres and only stopped when it was necessary for Mr Watkins to physically separate you both.
Your actions were therefore disproportionate, unacceptable and contrary to the company policy regarding violence in the workplace.
Your employment is terminated immediately and I will confirm this decision in writing to you tomorrow.” 35
[43] Mr Leak stated that he then interviewed Mr Anbar. After his meeting with Mr Anbar, Mr Anbar tendered his resignation, which the respondent accepted.
[44] Mr Leak set out his reason for the decision to terminate the applicant’s employment and the need for consistency and transparency in the manner in which the respondent dealt with harassment, intimidation and violence in the workplace. Mr Leak stated that he was “also aware that Mr Zoumas had previous warnings during his employment with the company for incidents of aggression and abuse towards customers and TNT employees for which he received written and verbal warnings”. 36
[45] In cross examination the applicant put questions to Mr Leak, to which Mr Leak replied as follows:
“Quite simply, where does the policy stand on someone that's being assaulted? Have you not got the right to at least stop a person from hitting you?
I think that would be reasonable, but during the course of this investigation - this was the view that I formed which essentially led to your termination: is that your actions were not defensive, they were aggressive. We could put a different ‘what if’ to the room. Had Brett Watkins not been present and on site and right next to you and been able to break that up, maybe we would have been looking at something a little more damning. My role and my responsibility is to manage risk in the workplace, and for our business and our organisation, and that was the view that I formed.
I do agree with you on the view that you formed, but I disagree with you on the formula that you used in the sense that, okay, if Brett Watkins wasn't there. But never did you see me in the CCTV video, or never did you see me strike Karim. Did you ever see me - besides physically grabbing him and pushing him back, did you ever see me throw a punch? Did you see me slap or kick to equal force, which I got assaulted in?
Again, the scale or nature of the assault that you were subjected to, in my own summary, I don't think is conclusive. The only thing that was concluded is that there was contact. In terms of what happened next, I think what the CCTV footage does show is one guy with his arms down by his side and another guy with his arms around his throat who had to be pulled off by a supervisor. As a result, the policy that we established in June was very clear.
Yes?
Overtly aggressive behaviour would not be tolerated in - - -
Again - you keep on coming back to that and I agree with you a hundred per cent. I do not dispute that. But at the end of the day, like I've been saying to you, you're actually sitting there in a very sheltered way and you're telling the Commissioner and you're telling myself that where you're caught between two minds of whether I did get hit or I didn't get hit, but yet you are saying on the other hand, if I did get assaulted, everybody has got the right to at least stop somebody assaulting them. Is that correct?
If you were being assaulted you would have the right to defend yourself and stop that assault.
Okay, so - - -?
What I was asked to look at was an investigation that clearly shows you went well past that.
To your opinion?
It was my reasonable belief that led to your termination.” 37
[46] The letter of termination states that “it is clear that you verbally harassed Mr Anbar and physically manhandled Mr Anbar when he made it clear to you that he would not continue to tolerate your verbal harassment”. 38
[47] In relation to the verbal harassment allegation, on the applicant’s evidence, which was not seriously challenged, and on Mr Anbar’s statement to Mr Ryan, the investigator, the two employees did joke with each other. In the statement to Mr Ryan, Mr Anbar stated “Yeah, I joke with him, as he joke with me now”. 39 It appears from this statement that Mr Anbar’s view was that the applicant went too far on this occasion. I note, as I have done previously, that Mr Anbar’s statement was not signed by him and he was not called to give evidence in the proceedings. On the material before me I am not persuaded that the applicant verbally harassed Mr Anbar. In my view, Mr Anbar’s reaction to the applicant’s continued comments in relation to the vehicle issue was excessive in the circumstances. I do not condone the applicant’s behaviour in this regard. While the applicant may have been of the view that he was joking, as he and Mr Anbar had done in the past, continual joking of this nature in the type of work environment in which the respondent operates is not to be condoned.
[48] I am not persuaded that the next allegation, that the applicant physically manhandled Mr Anbar after Mr Anbar had made it clear that he would not tolerate the verbal harassment, is valid in the circumstances. It can not be disputed that the applicant grabbed Mr Anbar and pushed him backwards and, on anyone’s view of the CCTV footage, the applicant was very angry. However, I am satisfied that the applicant was unaware of the effect his comments were having on Mr Anbar and Mr Anbar did not, in my view, make clear to him that effect. On the CCTV footage, it appears to me that Mr Anbar moved towards the area where the applicant was sitting in an angry and aggressive manner. Mr Anbar, whether intentionally or not, kicked the applicant’s foot. It is not to the point whether the kick was hard or soft. The kick occurred. I am not persuaded that Mr Anbar “put both my hands on his face and moved his head towards me so he would pay attention” 40 as he told Mr Watkins after the incident. On the CCTV footage, Mr Anbar was holding a folder in his left hand as he approached the applicant and the folder was still in his left hand when the applicant is seen pushing him backwards. On the evidence, I am persuaded that Mr Anbar did slap the applicant on his face. The applicant’s evidence was that “I wouldn’t say he put all his power behind it, but he did hit me and it was in an aggressive manner.”41In all probability, this is what occurred. The applicant did not retaliate by any violent force towards Mr Anbar. It is true that the applicant grabbed Mr Anbar’s shirt and did push him backwards. It is also true, in my view, that the applicant was very angry that Mr Anbar had slapped him in the face. However, I am not persuaded that the applicant’s behaviour could be characterised as “violence, aggression, intimidation or bullying in the workplace”42 and in breach of the respondent’s policies in the circumstances of the case.
[49] I do not condone the applicant’s response to Mr Anbar’s behaviour. I am, however, persuaded that he was provoked into the action that he took. The applicant was wrong in grabbing Mr Anbar by the shirt. He should not have touched Mr Anbar in any manner at all. However, I am not satisfied that the applicant’s action in the circumstances should have lead to his termination of employment.
[50] I am not persuaded, having regard to the evidence and the circumstances that occurred on 4 December 2009, that the applicant’s action constitutes serious misconduct. I am not persuaded that there was a valid reason for the dismissal related to that conduct (including its effect on the safety and welfare of other employees).
[51] I am satisfied that the applicant was notified of the reasons for his termination of employment and afforded an opportunity to respond to those reasons. Albeit, I am not persuaded that those reasons were valid reasons.
[52] There is no evidence that the respondent unreasonably refused to allow the applicant to have a support person to assist in the discussions relating to the dismissal.
[53] The dismissal did not relate to unsatisfactory performance, therefore, paragraph (e) of s. 387 is not relevant. I doubt that paragraphs (f) and (g) s.387 are relevant to the matter before me.
[54] Other matters relevant concern the respondent’s argument at hearing and its reliance upon other previous incidents related to the applicant’s employment.
[55] It is not correct to submit, as the respondent did in written submissions, that the applicant had received four warnings in relation to his behaviour from 2003 to 2009.
[56] The applicant acknowledged that he received a warning on 22 September 2005 43 in relation to words he used in addressing a manager. He stated, however, that this incident had a history. He stated that the original complaint made against him by the manager was that the applicant had head-butted him. He stated that he was suspended at the time, however, the CCTV footage showed that there was no head-butting. He received the warning for calling the manager names.
[57] The incident reported to the respondent on 11 April 2008 44 from a customer was that the driver, the applicant, was intimidating staff and “[h]as been asked to leave the frt (sic) outside but he threatens he will take it back and won’t get the freight at all”.45The applicant in cross examination stated that the customer did not want to sign for the freight and he had explained that if he did not sign for the goods it was company policy that the goods would go back. The applicant stated that he was delivering to Potts Point and, to be as quick as possible, he was parked illegally “so if I do seem like I’m being rude and abrupt, it’s only because I’m parked illegally”46. He stated that the incident was discussed with Mr Watkins and was left at that. He stated that he did not receive a warning. No warning to the applicant was put into evidence on this incident.
[58] The next incident raised by the respondent concerned the applicant delivering to the dental hospital at Surry Hills 47 and a complaint received from the foreman on a construction site next door to the dental hospital. The applicant stated:
“A guy at a construction site – if I may tell the story – a guy at a construction site came out because there’s a loading dock right next to the construction site. Their loading dock is about 30 metres up on the other side. Anyway, they had cones out. Now, there was a van parked out halfway across the loading dock, and I had a – look, I drive a small truck; a three-tonne truck – I had a very small space, and as I swung it in I did hit a cone, which I went back, picked it up and put it up. By that stage, I’d opened up the back of my truck and a bloke from the construction site came down abusing the shit out of me. Now, I thought to myself, ‘I don’t know what this bloke is on about,’ but anyway, he kept on going. I got the freight, I delivered the freight and he said he wanted to put in a complaint. I told him my run number, which is 441, I said, ‘My run number is 441 and the number is up there. Call TNT if you’ve got any complaints.’ He was rude, he was aggressive, and I honestly don’t know why.” 48
[59] The applicant stated that Mr Ryan investigated the matter and that he, the applicant, didn’t hear anything else on the matter. Mr Ryan’s report concludes with the recommendation “Due to conflicting statements perhaps a file note should be made regarding this complaint”. 49 The applicant did not dispute Mr Watkins’ evidence, in cross examination, that they had a chat about the incident and, what appeared to be, Mr Watkins’ concern that the applicant was “sort of heading in the wrong direction”.50While it appears that no actual verbal warning was recorded, I am prepared to accept that Mr Watkins was attempting to warn the applicant that he may have been “heading in the wrong direction.”
[60] On my understanding, there was no evidence before me in relation to an alleged incident on 4 September 2003 as stated in the respondent’s written submissions at point 10(d).
[61] There is a further consideration in relation to warnings. The respondent did not rely upon any past issues in its decision to termination the applicant’s employment as evidenced by the letter of termination and the respondent’s response to the applicant’s application that “TNT submits that his prior performance in his role as PUD Driver is not relevant to these proceedings”. 51 Mr Leak, in his statement tendered in these proceedings, states that he was also aware of written and verbal warnings, which, it would appear from his statement, he took into account in his decision making process. Mr Leak does not say, however, that these issues were put to the applicant at the time of termination.
[62] The applicant’s evidence on this point, which I accept, was:
“Basically, Commissioner, the things that I mostly try to stand out was there was a few times that I’d been chatted to – I did not deny or try to hide those issues. But never was there a time that I was ever given – bar the Pedro (sic) Villa incident – sorry, I must state – bar the Pedro Villa incident where it was for swearing and, again, there were circumstances outside that which really don’t concern these matters. But bar the Pedro Villa incident, I’ve never copped a verbal warning or a written warning by TNT – bar the Pedro Villa incident.” 52
CONCLUSION
[63] On the evidence and material before me I am satisfied that the dismissal of the applicant’s employment with the respondent was, in the circumstances, harsh, unjust and unreasonable for the reasons outlined in this decision. Having determined that the termination was harsh, unjust and unreasonable I will now address remedy.
REMEDY
[64] The relevant sections in relation to the remedy that Fair Work Australia may determine state:
“390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”
[65] I am satisfied that the applicant was protected from unfair dismissal at the time of being dismissed. The applicant had completed the minimum employment period, an enterprise agreement applied to the applicant and his annual rate of earnings were less than the high income threshold. No submissions to the contrary were made during proceedings. I am satisfied that the applicant has been unfairly dismissed.
[66] The applicant seeks reinstatement. I am satisfied that reinstatement is appropriate in the circumstances of the case.
[67] Mr Brennan put to Mr Leak his view if the applicant were to be reinstated. Mr Leak replied as follows:
“Having sort of instigated the investigation and viewed all the evidence myself, obviously I formed the view that the policy had been breached and that the employee was a risk, essentially, in the workplace. If he was reinstated the policy that we reached agreement with the TWU over in terms of people’s health and safety would be meaningless. I mean, zero tolerance was intended to be just that. If we were to reinstate, having established behaviours that were not acceptable, the policy that we’d agreed on in June would no longer be of any value, in my opinion.” 53
[68] I do not have any concerns in relation to the respondent’s policy and would agree, given the nature of the work environment and the duties performed by the employees, that a zero tolerance to violence, harassment and intimidated in the workplace and/or in the performance of an employee’s duties is an appropriate policy in the circumstances. However, life is not always black and white. There are at times shades of grey. A workplace policy, in my view, must be applied having regard to the particular circumstances of an incident and/or situation that may arise. I reiterate what I have previously stated, that I do not and would not condone the applicant’s behaviour. However, given the circumstances, I do not believe that his termination of employment was warranted.
[69] I have determined that I will make an order, pursuant to paragraph (a) of ss. 391(1) of the Act, that the respondent: reinstate the applicant, on 3 May 2010, by reappointing him to the position in which he was employed immediately before the dismissal and maintain the applicant’s continuity of employment with the respondent.
[70] A consideration of ss. 391(3) and (4) is more problematic.
[71] I am satisfied that it is appropriate to also make an order to restore lost pay. I have two concerns in this regard. First, there is no evidence before me in relation to the applicant’s actual remuneration lost. Secondly, I am not satisfied, in all the circumstances of the case that I should make an order to restore all pay lost by the applicant. On the second point, I have previously stated my view that the applicant should not have reacted to Mr Anbar’s actions in the manner in which he did. The applicant must bear some responsibility for his actions. The applicant was dismissed on 9 December 2010 and the order of reinstatement has been made on 22 April 2010. This is a period of approximately four and a half months. I have decided that an order to restore lost pay should not apply to the period between 9 December 2009 to 9 January 2010, inclusive. Any earnings by the applicant from employment or other work during this period is not to be had regard to for the purposes of paragraph (a) of ss. 391(4).
[72] I do not have any evidence of any amount earned by the applicant from employment or other work during the relevant period, being 10 January 2010 to the date of the reinstatement order. Furthermore, I do not have any relevant material before me to ascertain the remuneration reasonably likely to be so earned during the period between the making of the order and the actual reinstatement.
[73] I have decided that I will make an order for reinstatement and continuity of employment. I will re-list the matter for hearing in relation to an order to restore lost pay (ss.391(3) and (4)) on 28 April 2010 at 10am in Sydney.
COMMISSIONER
Appearances:
Mr H Zoumas, on his own behalf.
Mr Brennan, in house General Counsel, on behalf of the respondent.
Hearing details:
Sydney.
2010:
April, 6.
1 Exhibit R7 at 5.
2 Exhibit R9 at annexure A.
3 Attachment to Form F3.
4 Form F3 at 8.
5 PN101.
6 Exhibit A1.
7 PN136.
8 PN144; PN145.
9 PN159.
10 PN164.
11 Attachment to Exhibit R9 - Mr Anbar’s statement at page 2.
12 Ibid.
13 Ibid.
14 Ibid at page 3.
15 Ibid at page 5.
16 Ibid.
17 PN227; PN233.
18 PN263.
19 PN307.
20 Exhibit R5.
21 PN513.
22 PN602.
23 Exhibit A2.
24 PN645.
25 Exhibit R9 at attachment A.
26 PN661.
27 Exhibit R7 at point 6.
28 PN789; PN790.
29 Exhibit R7 at point 6.
30 See PN797 to PN814.
31 PN814.
32 Exhibit R9.
33 Ibid at paragraph 13.
34 Ibid at paragraphs 14 to 21.
35 Ibid at paragraph 22.
36 Ibid at paragraph 24.
37 PN896 to PN901.
38 Exhibit R9 at attachment C.
39 Attachment to Exhibit R9 - Mr Anbar’s statement at page 5.
40 Exhibit R7 at attachment A, point 7, Mr Watkins’ statement to Mr Ryan on 8 December 2009.
41 PN227; PN233.
42 Exhibit R9 at attachment B; Exhibit R5.
43 Exhibit R1.
44 Exhibit R2.
45 Ibid.
46 PN373.
47 Exhibit R3.
48 PN399.
49 Exhibit R3.
50 PN752; see also PN770.
51 Form F3 at page 3, point 1.
52 PN939.
53 PN842.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR995642>
0
0