Heath Graham Lebsanft v Oakey Abattoir Pty Ltd
[2011] FWA 3717
•23 JUNE 2011
Note: An appeal pursuant to s.604 (C2011/5069) was lodged against this decision.
[2011] FWA 3717 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Heath Graham Lebsanft
v
Oakey Abattoir Pty Ltd
(U2010/11565)
COMMISSIONER RYAN | MELBOURNE, 23 JUNE 2011 |
Termination of employment - alleged bullying and harassment of co-worker and breach of company’s code of conduct - unfair dismissal - reinstatement and loss remuneration ordered.
DECISION AND ORDERS
[1] The decision of the Tribunal in this matter is as follows:
- The application in this matter was made within the period required by subsection 394(2) of the Act.
- The applicant, Mr Lebsanft, was a person who was protected from unfair dismissal within the meaning of s.382 of the Act.
- The Small Business Fair Dismissal Code was not relevant to the matter.
- Mr Lebsanft was dismissed within the meaning of s.386 of the Act.
- The dismissal was not a case of genuine redundancy.
- The Tribunal, having taken into account each of the matters referred to in s.387, is satisfied that the dismissal was harsh, unjust or unreasonable.
- The Tribunal determines that a remedy for the unfair dismissal should be ordered.
[2] The Tribunal will order pursuant to s.391(1) of the Act that Oakey Abattoir Pty Ltd reinstate Mr Lebsanft to the position in which Mr Lebsanft was employed immediately before the dismissal.
[3] The Tribunal will order pursuant to s.391(2) of the Act that the continuity of Mr Lebsanft’s employment with Oakey Abattoir Pty Ltd is to be maintained.
[4] The Tribunal will order pursuant to s.391(3) of the Act that Oakey Abattoirs Pty Ltd pay to Mr Lebsanft an amount for remuneration lost by Mr Lebsanft because of the dismissal. If the amount cannot be agreed by Mr Lebsanft and Oakey Abattoir Pty Ltd the amount will be determined by the Tribunal by way of a further hearing in relation to his application at the request of either Mr Lebsanft or Oakey Abattoir Pty Ltd.
[5] The orders will be issued separately to this decision and each of the orders to be made in this matter will commence on 14 July 2011.
REASONS FOR DECISION
Background
[6] This matter involves an application for unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was made by Heath Lebsanft (Mr Lebsanft) and the respondent employer is Oakey Abbatoir Pty Ltd (Oakey).
[7] Mr Lebsanft was represented by Mr Merrell of Counsel and Oakey was represented by Mr Herbert of Counsel.
[8] Oakey Abattoir is a large operation employing approximately 700 employees. The Australasian Meat Industry Employees Union (AMIEU) has a strong presence at the Oakey Abattoir. Mr Lebsanft was the Shed President, the second most senior AMIEU representative on site at Oakey.
[9] In November 2009 a dispute occurred at Oakey between the AMIEU and Oakey “in relation to new slaughtering gangs, the manning levels for those gangs and the proper chain speed.” The dispute was referred to FWA and in late November 2010 FWA made a recommendation to the parties in relation to that dispute. 1
[10] Mr Lebsanft was dismissed by Oakey on 1 March 2010 for “allegedly leaving work early, contrary to the direction of a supervisor.” Mr Lebsanft filed an application for an unfair dismissal remedy with Fair Work Australia. The matter was settled before arbitration commenced and Mr Lebsanft recommenced work. 2
[11] In May 2010 Oakey Abbattoir sought to increase the chain speed in the kill floor from 155 dead animals an hour to 157 and to do so with an increase in the size of the gang on the kill floor. This was opposed by the AMIEU and the dispute was referred to FWA. Conciliation of the dispute occurred at FWA on 7 June 2010 but was unsuccessful and the matter in dispute was to be arbitrated.
[12] The chain speed in the kill floor is a major issue for both employers and workers in abattoirs. Increasing the chain speed not only increases the amount of work each employee must do in an hour but correspondingly increases the productivity of the abattoir through the increase in the number of animals slaughtered and processed each hour.
[13] On this occasion Mr Lander, a Sticker (also referred to as a Bleeder) on the kill floor offered, and subsequently made, a statement to management of Oakey which supported its claim that an increase in the chain speed was reasonable. He did so in an environment where the AMIEU was strenuously opposing the proposed increase in the chain speed on the kill floor.
[14] It quickly became known to workers on the kill floor that Mr Lander had made a statement in support of the employer’s claim for an increase in the chain speed on the kill floor.
[15] By making a statement in support of the employer’s position and against the position adopted by the union Mr Lander was very clearly “nailing his colours to the mast”. This is an apt description of what Mr Lander did. By his actions in making a statement in support of the employer’s position Mr Lander was making clear that he was firmly on the side of the employer.
[16] There is nothing wrong with what Mr Lander did. It makes no difference why Mr Lander did what he did, whether it was out of antipathy towards the union, or expectation of reward from the employer or even for more nobler reasons. He was free to choose to do what he did. He was free to choose to “nail his colours to the mast”. In that respect Mr Lander was no different from other employees of Oakey, such as supervisors, managers, HR advisers, etc, who were also on the side of the employer and who were working with the employer to advance its case in relation to increasing the chain speed in the kill floor.
[17] Mr Lander was then subject to booing when he left his work station on several days in July. Estimates of the number of people who may have booed Mr Lander at any particular point of time varied widely but could have been up to twenty.
[18] It is impossible to resist the conclusion from the evidence given in this matter that the booing of Mr Lander was initiated because he “nailed his colours to the mast” and that in initiating the booing it was clearly meant to remind Mr Lander that his actions were disapproved of by some of his fellow workers. Whilst I have no doubt that the person who initiated the booing on each day intended to remind Mr Lander that his actions were disapproved of by some of his fellow workers it is clear that once booing started others would join in even if they were unaware of the motives of the person who initiated the booing.
[19] Three employees were dismissed for booing Mr Lander. They were Mr Lebsanft (the applicant in this matter), Mr Wockner, who was suspended and terminated and who has “got put back on” 3, and Mr Peter Higgins, who made, but subsequently withdrew an application for a remedy for unfair dismissal and “went elsewhere”4.
[20] The application in this matter was filed on 16 August 2010. Conciliation before a Fair Work Conciliator took place on 7 September 2010. Arbitration of the application was listed for the 16 November, 17 November and 18 November 2010 in Brisbane.
[21] Hearing of the matter on 16 November 2010 was effectively abandoned after only a short time due to ill health of one of the counsel appearing. However it became apparent that initial proceedings including taking some of the witness evidence would be made easier if proceedings were held at Toowoomba.
[22] The Tribunal and the parties conducted an inspection of the kill floor of the Oakey Abattoir on 17 November 2010 with proceedings continuing on 17 and 18 November 2010, 16 and 17 December 2010 at Toowoomba and 27 and 28 January 2011 and 4 March 2011 at Brisbane. At the conclusion of the hearing on 4 March 2011 Mr Lebsanft’s counsel had not yet commenced his final oral submissions and at counsel’s request was given leave to file written submissions which were filed on 17 March 2011. Twenty witnesses gave evidence in the proceedings.
The Termination of Mr Lebsanft
[23] The termination letter given to Mr Lebsanft identified two specific reasons for his termination which related to two separate incidents of alleged booing of Mr Lander on 14 July 2010 and 16 July 2010. The letter contained a third instance of serious misconduct which related to an allegation that Mr Lebsanft had concocted an accusation against Mr Lander in relation to words allegedly spoken by Mr Lander to Mr Lebsanft at a wake on 4 August 2010. The terms of the termination letter are as follows:
“Dear Heath
Termination of Employment - Heath Lebsanft
The company has now had an opportunity to review all of the available evidence that has been presented on your behalf by way of interviews and several submissions from your union. After an examination of all of the evidence available, it has been concluded that your actions on the 14 July 2010 constitute serious misconduct in that you directly harassed and bullied David Lander by booing him as he was leaving his work station at the completion of this shift.
Your actions on 16 July in engaging in similar conduct which was witnessed by Brian Byers is also considered to be serious misconduct.
The evidence has also established that you were not alone in this unacceptable behaviour and that you were one of a number of employees who engaged in a group effort which was intended to humiliate and harass Mr Lander. The evidence strongly suggests that you may have been instrumental in organising this orchestrated and deliberate action against Mr Lander.
The evidence also strongly suggests that thisconduct toward Mr Lander was motivated in order to humiliate Mr Lander and dissuade him from giving evidence in a forthcoming industrial dispute which is currently Fair Work Australia (FWA). The conduct commenced almost immediately after Mr Lander provided his witness statement, and after you became aware that he had done so.
A number of witnesses including yourself have confirmed that Mr Lander was being "booed" in the workplace as he has alleged. You have conceded that this conduct may well be related to the fact that he gave a witness statement to the company for use in FWA proceedings. Your work colleague Peter Higgins has stated that this was certainly the reason why the booing (in which he has admitted he participated) was being undertaken.
Significantly, no person who was interviewed in this matter has attempted to explain any other reason for the booing other than the fact that the witness statement had been given by Mr Lander. In this context no credence whatsoever is given to the suggestion that employees were "mooing" as distinct from ''booing''. No other employee has suggested this was occurring, no supervisor nor several senior employees spoken to are aware of any such practice, and in your most recent interview you conceded that Mr Lander was being booed by others, but you denied that you were personally involved in that admitted conduct.
Not only does this type of behaviour constitute a breach of company policy, it may also breach several provisions of the Fair Work Act 2009 and also the Workplace Health & Safety Act.
When interviewed by management on 16 July 2010 you denied such behaviour as booing Mr Lander as he was leaving his work station on the 14 July and made the assertion that both Mr Lander and the witness Ambrose were untruthful despite the fact that another co-worker, Peter Higgins freely admitted to such conduct.
In exculpation of your evidence you have suggest that the booing of Mr Lander was probably mistaken for a mooing sound by employees when the cattle kick. The company has reviewed this assertion and the company records and video material, and considers this statement to be untrue. The company has examined the stoppage reports for the period between the 02 July 2010 and the 16 July 2010 and there is no recorded stoppage for kicking cattle at the time when Mr Lander was leaving the floor. This stoppage record is also corroborated by the relevant video footage.
The video footage depicting a short sequence of events on 14 July at your work area has been examined in light of the most recent submission by the union on Friday6 August. Mr Lander and Mr Ambrose have been re-interviewed, and have each provided a comprehensive and credible explanation for the events on that day, which is consistent with their earlier statement and the video footage.
Upon examination of the material, the Company rejects the assertion made in the most recent union correspondence and has identified moments on the video footage when it appears that you have booed at Mr Lander. The same video footage also clearly shows a work colleague standing to your left, Rowen Higgins, with facial expressions and movements that strongly suggest that he also booed Mr Lander a few seconds after you appeared to engage in this unacceptable behaviour. These events occurred about 13.39.53 and the next succeeding few seconds.
The video footage also clearly demonstrates that no cattle were kicking in your immediately work area that would prompt you to make a mooing sound when Mr Lander was leaving the floor.
Another segment of video footage verifies the location of Mr Ambrose at the time of the event and coincides with the time segments on the video as identified by Mr Lander. Mr Ambrose has also viewed the video segment and confirmed his location on the floor where he observed you and Peter Higgins booing at Mr Lander.
As Mr Peter Higgins has freely admitted during the interview on] 6 July 2010, that he was booing Mr Lander, as Mr Ambrose has stated, it considered that Mr Ambrose' version of events has been corroborated In part, and is therefore likely to be reliable overall. As mentioned you did admit that David Lander was being booed at, but that you were not personally involved, and are unaware of the identities of those who were involved. On the balance of probabilities it is difficult to accept that you were unaware of who was booing, taking into account the close proximity of Mr Peter Higgins, Mr Rowen Higgins and other workers on the legging stand from where it appeared a large percentage of the booing was emanating.
As mentioned, the company has also considered the evidence of Mr Byers. In doing so, we have taken into account the very long familiarity and association of Mr Byers with yourself in identifying your voice, and have accepted his evidence. He has no known reason for making a false or careless statement wrongly implicating you in this matter.
We also accepted the evidence of David Lander as credible and reliable. He accurately identified Peter Higgins as a participant and when Mr Higgins was interviewed by management he freely admitted to his guilt. Under the circumstances there is no reason to discount Mr Lander’s evidence in relation to your involvement in these matters.
The evidence offered by Russel Ambrose has also been considered. He has identified you and Peter Higgins "as having engaged in loud booing at the time of the conclusion of Mr Lander’s shift on 14 July 2010. Despite your submissions as to the reliability of Mr Ambrose, based on past events that appear to have no bearing on this matter, no reason could be detected as to why Mr Ambrose would place himself in the position of falsely implicating you, and correctly implicating Mr Higgins, in these events.
Mr Ambrose has nothing to gain and much to lose if he was to give false evidence in this matter. In light of the fact that he was present, was able to observe the events, has been substantially corroborated in his evidence by others, particularly Mr Higgins, it has been decided to accept his evidence.
On Wednesday 4 August 2010 the company received an email from your union which stated the following,
"I have just taken instructions from Mr Lebsanft that at the wake conducted today he was approached by Mr Lander who directed a comment to Mr Lebsanft to the following effect:
''Me and Butch have rolled you and you'll be sacked tomorrow"
Mr Lebsanft, understandably appalled at this provocative, inappropriate and insensitive remark (at a wake of all things) told Mr Lander to leave his presence in no uncertain terms.
A Mr Sam Frayne and a Mr Brett Richards witnessed this event I am informed there may be another material witness as well.
I ask you to advise urgently what Oakey Abattoir's intentions are in respect to Mr Lander ”
Upon receipt of this information the Company launched an immediate investigation and located the two witnesses nominated by your union. Those persons stated as follows:
Sam Frame declined to make any formal statement but said that he had enough of his own issues to contend with. Brett Richards stated that he was out of the meatworks and wanted nothing to do with our investigations.
Due to the seriousness of the allegation the company continued to pursue the matter in order to establish the veracity of the allegation and consequently obtained a number of statements from people who attended the wake at the Oakey Football Club on the 4 August 2010, including Mr Lander’s wife who remained with him for essentially the entire time that he was at the wake.
The evidence that has been obtained so far from the witnesses interviewed has indicated that no such incident occurred at the Oakey Football Club as claimed by you. In fact, it appears that there was no contact at all between you and Mr Lander on that day at the wake.
At 10.41 am on 5 August the union sent a further email in which it was stated that you did not wish to pursue that matter any further, nor rely on it.
On the evidence to hand, it appears that the allegation in the first email was completely false and concocted by you to defame Mr Lander, and cause the Company to reject his evidence by damaging his credibility.
This is a most serious matter as it appears that you have seen fit to continue to pursue a campaign of vilification of Mr Lander, through the union, whilst you are suspended during an investigation into an allegation of bullying against the same person.
It is now very clear that there is no reasonable prospect of you being permitted to resume work at Oakey, as it appears that you will continue to bully or harass employees with whose actions you disagree, regardless of the facts. It is also entirely unacceptable that you published this untrue story to the Company through your union, and that the story was repeated without any of the "witnesses" being spoken to by the union beforehand to seek corroboration of this serious allegation.
Due to the seriousness of the allegations further investigations will continue and all such evidence obtained will be handed over to the Fair Work Ombudsman.
The company has significant responsibilities under safety and industrial legislation to protect workers from bullying and harassment in the workplace, and to protect their welfare and their fundamental right to speak out in legitimate ways without fear of humiliation and recrimination.
The type of behaviour described by Mr Lander as being directed towards him by yourself and others has the potential to deeply distress the victims and could ultimately place the psychological welfare of victims at risk. The company has a legal and moral obligation to act on this type of behaviour.
The company has decided to take firm action to stamp out the form of group harassment or bullying in which you have been found to have been involved. You have denied your involvement but your denials have been rejected. You were fully aware of the fact that Mr Lander had provided a statement in proceedings in which you were actively involved as a witness for the union.
Peter Higgins has stated that it is well known at Oakey that one does not "go against" the union viewpoint in such matters. It has been concluded that your conduct was designed to harass, bully and intimidate Mr Lander, especially as you did so in concert with numerous others so as to increase the effect of your conduct on Mr Lander.
No other credible explanation for your conduct, or the conduct of the others who admitted or were observed booing, has been advanced. It has not been suggested for example that the booing that was observed was for a jocular or inoffensive reason, nor that the reason admitted by Mr Higgins was untrue.
This matter is considered to be far more serious than other isolated instances of individual harassment or bullying that may have been detected in the recent past at Oakey, due to the organised "ganging-up" by a number of employees on the dates in question, and the fact that it appears to be an inescapable conclusion that the reason why this conduct occurred was because Mr Lander proposed to give evidence to FWA in pending proceedings. The Commonwealth Parliament has deemed such conduct, if proven in a prosecution, to be so serious that it has been declared to be an offence under the Fair Work Act and punishable by possible imprisonment.
Considering all of the facts and available evidence and the seriousness of your actions, including your recent attempt to defame Mr Lander, the company has no alternative but to terminate your employment forthwith for misconduct. It is not proposed to provide you with a further opportunity to make submissions as to penalty, as you have indicated your flat rejection of all the evidence against you, and the Company considers that you cannot be trusted to resume work without commencing some form of retribution against those employees who have now identified you as participating in this conduct.
Pat Gleeson
General Manager
Oakey Abbatoir Pty Ltd”
The Witness Evidence
Mr Gleeson
[24] Mr Gleeson, General Manager of the Oakey Abattoir gave evidence that at two meetings with supervisors on 12 July and 15 July that he was extremely upset that the booing of Mr Lander was occurring and that he gave the supervisors a blast and told them to stop it immediately. Mr Gleeson agreed that the language he used at those meetings was intended to get the message to the supervisors that their jobs were on the line if the booing wasn’t stopped 5.
[25] Those present at the meeting with Mr Gleeson on the 12 July 2010 were:
Lionel Penhaligon, Dale Meskin, Russell Ambrose, Brian Byers, Rodney Higgins, Christopher Hickey, Richard (Butch) Nothdurft 6
[26] Those present at the meeting with Mr Gleeson on the 15 July were:
Brian Byers, Dale Meskin, Lionel Penhaligon, Christopher Hickey. 7
[27] Mr Byers was at both of the meetings with Mr Gleeson. Mr Ambrose was at the meeting on 12 July but he wasn’t at the meeting on 15 July 8. Mr Dale Meskin, the supervisor of both Mr Byers and Mr Ambrose, was at both meetings.9
[28] Mr Gleeson in answer to a question from the Tribunal described the “blast” he gave his supervisors in the following language:
PN5623. To my recollection, Commissioner, the words to the effect were that, "I cannot believe that you have let this sort of inappropriate behaviour go on," and particularly Mr Byers because he was in charge of the red side where Mr Lebsanft worked. I said, "It is totally unacceptable to have any employee have to tolerate this," and I said, "I want it ceased immediately. I want it stamped out immediately."
[29] These words were said in a meeting where Mr Gleeson intended that his supervisors knew that there jobs were on the line if they did not comply with his directions. Mr Byers certainly acknowledged that he knew his job was on the line.
[30] In such circumstances the most logical action for any of the supervisors to do in order to comply with what Mr Gleeson said would be for the supervisors to go to employees on the kill floor and threaten them with disciplinary action if they did not immediately stop booing Mr Lander. If Mr Gleeson wanted the booing “ceased immediately” and “stamped out immediately” then some appropriate strong language from the supervisors to the workers on the kill floor would have been expected.
[31] However none of the supervisors approached Mr Lebsanft or Mr Peter Higgins and told them not to boo Mr Lander and there is no evidence that any supervisor approached any other worker on the kill floor to tell them that booing of Mr Lander was to cease immediately.
In fact the evidence of Mr Ambrose was that he was told to keep an ear out to find out who was booing. Mr Byers also gave evidence that he was intent on finding out who was doing the booing.
[32] I find it impossible to conclude that Mr Byers who was under threat of losing his job if he didn’t do what Mr Gleeson told him to do would then do something entirely different to what Mr Gleeson wanted. Rather I accept that Mr Byers did what Mr Gleeson told him to do.
The conclusion to be drawn is that Mr Gleeson did not tell the supervisors to ensure that the booing ceased immediately but rather he told supervisors to catch those who were booing.
[33] This conclusion is supported by the evidence in this matter that no booing occurred on 13 July 2010 when Mr Lander left his work station at the end of his shift because it was common knowledge on the First and Second Leg Stands that Mr Nothdurft, a supervisor, was standing under the stands waiting to catch anyone booing.
[34] At the very least it appears that Mr Gleeson’s priority was in catching the booers rather than stopping the booing. In other words Mr Lander could be permitted to suffer some more booing if it enabled Mr Gleeson the opportunity of catching the booers.
[35] The quite blunt approach from Mr Gleeson to his supervisors had the effect he wanted. The supervisors were prepared to identify, with absolute certainty, the booers, including Mr Lebsanft. However it is the very strength of the “blast” given by Mr Gleeson to the supervisors which, in my considered view, led the supervisors to concoct the evidence necessary to satisfy Mr Gleeson.
[36] I note that counsel for Oakey in making final submissions described the actions of Oakey in the following terms:
PN6694. The employer is confronted with a workplace bullying situation between these groups in the workplace which they have to deal with. They have no option but to deal with them and deal with them - if it's true - harshly and savagely in order to make sure that this is nipped in the bud as quickly as they possibly can and as decisively as they can.
PN6695. Essentially that's what they did and, with all due respect, one cannot complain about them doing that in the circumstances of the seriousness of what was going on.
[37] The “blast” from Mr Gleeson appears to have been part of this harsh and savage treatment of employees.
[38] A portion of Mr Gleeson’s evidence was aimed at discrediting Mr Lalor. As the cross examination of both Mr Weston and Mr Lalor by counsel for Oakey makes clear, Oakey was trying to paint the picture that Mr Lalor was acting in a manner which showed favouritism to Mr Lebsanft and in doing so the seriousness of allegations made against Mr Lebsanft in November 2009 were deliberately downplayed by Mr Lalor.
[39] Mr Gleeson sought to blame Mr Lalor for the lack of records relating to the several issues initiated by the complaint from Mr Qualischefski against Mr Lebsanft.
[40] Both Mr Weston and Mr Lalor gave clear and concise evidence that Mr Gleeson made the decision that all material relating to the issues initiated by the complaint from Mr Qualischefski against Mr Lebsanft were to be destroyed. Mr Gleeson under cross examination from counsel for Lebsanft agreed that he had directed that all material be destroyed. Mr Gleeson also agreed with Mr Weston’s evidence as to the range of matters discussed at the meeting between the union and Oakey in December 2009 10.
[41] I note that Mr Gleeson corroborated Mr Lalor’s evidence that Mr Gleeson had only ever directed Mr Lalor to immediately report to Mr Gleeson the potential wrong doing of one employee - Mr Lebsanft 11.
Mr Byers
[42] Mr Byers was described by Oakey as a long serving and well respected supervisor. Mr Lebsanft also described Mr Byers in positive terms 12.
[43] Mr Byers who was at both of the meetings with Mr Gleeson certainly understood the “blast” he got from Mr Gleeson as Mr Byers believed that he was “a chance at getting the sack” over the continuing booing of Mr Lander 13.
[44] Oakey identified that the video evidence relating to the afternoon of the 14 July when Mr Lander was booed at when he finished his shift showed that Mr Byers was on the kill floor and in a position very close to Mr Lander when he was being booed but that Mr Byers ignored any booing and continued to do his work. As Oakey described it, Mr Byers was not doing his job.
[45] I accept that Mr Byers by 15th July 2010 was genuinely concerned about his own employment and being in such a vulnerable position it is clear that Mr Byers wanted to get the evidence necessary to put a stop to the booing. The evidence needed was for the booers to be clearly identified. Mr Byers had to point the finger at one or more persons as being the booers in order to protect his own job. In this climate ‘it might have been Mr Lebsanft’ quickly became ‘it was Mr Lebsanft’. The contention from Oakey that Mr Byers, in positively identifying Mr Lebsanft as a booer on 16 July 2010, was doing nothing more nor less than doing his job ignores completely the specific evidence of both Mr Byers and Mr Gleeson as to the consequences that might flow from not stopping the booing and catching the booers.
[46] In his statement prepared for this matter, Mr Byers states that:
“To the best of my ability the voices that I recognised prior to 14 July that have been doing the booing at David Lander belong to Ben Canning, and perhaps Grant Higgins, Joey Walong and Jason Beutel.” 14
[47] Mr Byers further states:
“It is my opinion from having heard this booing on a number of occasions that Heath Lebsanft would start the booing and the rest would follow.” 15
[48] Whilst Mr Byers never saw Mr Lebsanft booing Mr Lander he (Mr Byers) was able to state with certainty that a particular booing was made by Mr Lebsanft 16.
[49] Whilst Exhibit R13 was signed by Mr Byers on 5 November 2010 there were several attachments to Exhibit R13 which included at BHB2 an affidavit prepared by Mr Byers on 16 July 2010.
[50] In BHB2 Mr Byers affirmed at paragraph 21 that:
“To the best of my ability the voices that I recognised that have been doing the jeering at David Lander belong to Heath Lebsanft, Ben Canning, and perhaps Grant Higgins, Joey Walong and Jason Beutel.”
[51] There is a subtle but important difference between paragraph 21 of Attachment BHB2 to Exhibit R13 and paragraph 21 of Exhibit R13. That difference is that Mr Byers does not allege that Mr Lebsanft engaged in any booing or jeering of Mr Lander prior to the 14 July 2010. Yet booing of Mr Lander clearly occurred before 14 July 2010. It is clear therefore that paragraph 41 of Exhibit R13 is to be read as applying only to the period from 14 July 2010. This clearly means that Mr Byers has not identified any leader of the booing prior to 14 July 2010.
[52] The evidence of Mr Byers is that Mr Ben Canning was engaged in booing Mr Lander prior to 14 July 2010.
[53] I note the conflict between the witness statement of Mr Beutel and the evidence of Mr Byers and the conclusion I have drawn: see paragraph 134 below. I note that in circumstances where there is a clear conflict between two of the respondent’s witnesses where one is certain (Mr Beutel) and the other uncertain (Mr Byers) that I should prefer the certain statement over the uncertain statement. In this case it seems to me that the uncertainty surrounding Mr Byer’s identification of Mr Joey Walong and Mr Grant Higgins means that no reliance can be placed on this. Given Oakey’s acceptance of Mr Beutel’s quite strong statement that he did not boo Mr Lander the conclusion to be drawn is that Oakey accept that some of the finger pointing by Mr Byers was without foundation.
Mr Ambrose
[54] Mr Ambrose was a leading hand on the kill floor at the time of the dismissal of Mr Lebsanft.
[55] Mr Ambrose introduced into evidence the video footage taken from three separate cameras of activities on the kill floor on 14 July 2010.
[56] Mr Ambrose gave evidence that on 12 July 2010 he attended a meeting with more senior staff at which he was directed “to keep an ear out” for any booing or harassment of Mr Lander 17.
[57] In his witness statement, Mr Ambrose clearly states that he was standing at a specific position about the middle of the Horn/Hock area of the kill floor when he observed Mr Lebsanft and Mr Higgins booing Mr Lander 18. Mr Ambrose’s witness statement also included a video taken from that position and for the purpose of illustrating Mr Ambrose’s evidence. Mr Ambrose also relied upon the video footage taken from the installed cameras in the kill floor area to support his version of events. The video was Attachment DRA3 to Exhibit R18.
[58] Under cross examination Mr Ambrose admitted that he was not in a fixed position but was moving very briskly along the Horn/Hock area when he stated that he saw Mr Lebsanft and Mr Peter Higgins booing Mr Lander.
[59] An examination of the video in Exhibit DRA3 shows Mr Ambrose in almost constant motion in and around the Horn/Hock area.
[60] At the very best, Mr Ambrose would have only fleeting glimpses of persons working on the 1st or 2nd Leg Stands.
[61] In his witness statement Mr Ambrose said:
“When David was walking away from his work station and towards the exit of the room, I heard a loud booing from the legging stand and this caused me to look up to see who was doing it.” 19
and:
“At the time when I viewed these two people booing I had an unobstructed view of these two people at their work positions and there was no mistake in what they were doing.” 20
Yet under cross examination Mr Ambrose said:
“Yes, well, as I was going past - like it only takes - you don't have to turn your head to actually see up on that angle.” 21
and:
“So when you looked up to see who was doing it, it must have been a momentary glance given that you were walking very fast?---Yes, it was just - - -“ 22
A matter of a second or so?---Yes. 23
[62] Mr Ambrose gave evidence that Mr Peter Higgins who was working on the First Leg Changeover was 2-3 metres away from him and that Mr Lebsanft who was working on the second Leg Stand was 8-9 metres away.
[63] Upon careful examination of the video in DRA3 I conclude that Mr Ambrose’s evidence is simply not plausible.
[64] Mr Ambrose was walking very briskly along the side of the Horn/Hock Area and directly towards the end of the Leg Stands. Mr Ambrose did not turn his head but observed the workers on the First and Second Leg Stands through gaps in the dead animals on the chain. There were five workers clearly working on animals on the First Leg Stand, then Mr Peter Higgins was working on the same level as the First Leg Stand but in a position called First Leg Changeover, then at an elevation of about 1.5 metres was the Second Leg Stand with two employees working on animal before Mr Lebsanft. By the time Mr Ambrose was in a position to observe Mr Peter Higgins and Mr Lebsanft both of these two persons would have been at an angle in excess of 80° from the direction Mr Ambrose was facing. At this angle and without turning his head Mr Ambrose claims that he was able to identify two individuals who were at different elevations and distances.
[65] I simply do not believe Mr Ambrose on this matter.
[66] I am of the view that Mr Ambrose was subject to the same pressure as was placed upon Mr Byers. In Mr Ambrose’s case his position appears to be even more precarious than Mr Byers, given that Mr Ambrose had served a six month demotion from his supervisory position in 2009. I conclude that the need to find the booers led Mr Ambrose to state with absolute certainty that Mr Lebsanft was the booer whether or not such was the case.
Mr Lander
[67] Mr Lander was clearly the victim of a campaign of harassment, supported or initiated by the Union, because he had made a statement which the Union perceived undermined a Union case against increased chain speed on the kill floor. The harassment included, but was not limited to, booing him when he left his work station on several days. The booing had its desired effect. Mr Lander was clearly upset about it and complained to management. In making his complaint to management Mr Lander identified three booers on different occasions, Mr Lebsanft, Mr Peter Higgins and Mr Wockner. In his evidence in these proceedings Mr Lander maintained that on 14 July 2010 the two booers were Mr Lebsanft and Mr Peter Higgins.
[68] The issue for the Tribunal is whether any reliance can be placed on Mr Lander’s evidence. Mr Lander gave evidence confidently only when he was repeating his original claim that he saw Mr Peter Higgins and Mr Lebsanft booing on 14 July 2010. Under cross examination Mr Lander hesitated for lengthy periods before answering questions and when he answered his answers were often vague. For example when questioned about his second statement which he signed on 9 December 2010 24, Mr Lander could not recall who in the company asked him to make this statement, nor could he recall anything that was said by the person who asked him, nor could he recall when he was asked to make a second statement25. However Mr Lander was quick to answer, and strong in his answers, when denying the evidence given by others26.
[69] I carefully observed Mr Lander whilst he gave his evidence and given his overall demeanor in giving his evidence I find his evidence to be unreliable.
[70] In particular I accept the evidence of Mr Reddinger and Mr May that Mr Lander had booed them when the slaughter line slowed down in 2008 because one of the two hidepullers broke down. Both Mr Reddinger and Mr May gave clear and concise evidence and from their demeanour I accept the truthfulness of their evidence. In contrast Mr Lander had no recollection of any incident with the hidepuller breaking down in 2008 yet he was adamant that he never booed the hidepullers. I simply don’t believe Mr Lander. Mr Lander was clearly prepared to lie in order to deny any conduct which would put him in a bad light. Whether or not Mr Lander booed at the hidepullers in 2008 is a matter which has very little, if any, relevance to whether or not the termination of Mr Lebsanft is an unfair dismissal. The issue of Mr Lander booing at the hidepullers only has real significance in relation to Mr Lander’s credibility. This makes Mr Lander’s denial of having booed at the hidepullers more obviously an example of Mr Lander simply refusing to acknowledge any conduct on his part which portrayed him in a poor light. Mr Lander’s preparedness to lie on less important matters means that no reliance can be placed on any of his evidence on the central issues of this case.
Mr Lebsanft
[71] Mr Lebsanft gave evidence on his own behalf. Mr Lebsanft was subject to vigorous and thorough cross examination.
[72] Mr Lebsanft at all times, both in records of interview conducted by Oakey and in evidence before the Tribunal, denied booing Mr Lander. Mr Lebsanft acknowledged that booing of Mr Lander had occurred but that he could not identify anyone who was booing.
Mr Guk
[73] I place no reliance at all on any evidence of Mr Guk. Nor do I place any reliance on any record of interview of Mr Guk which was made by Mr Hickey.
[74] Mr Guk gave evidence through an interpreter. The interpreter was quite unsatisfactory. Some long answers given by Mr Guk in Arabic were translated into very short answers by the interpreter. I got the sense that the interpreter was not translating the words spoken by Mr Guk but was interpreting the meaning of the answers given by Mr Guk. In a very real sense the evidence of Mr Guk was not being presented to the Tribunal.
[75] Mr Guk, who has limited English, did answer some questions in English, although this did not necessarily clarify his evidence.
[76] Mr Guk both denied statements he made in a recorded interview with Mr Hickey as well as denying the truth of statements that he admitted making to Mr Hickey.
I found Mr Guk to be totally unreliable and lacking any credibility whatsoever.
Mr Lalor
[77] Mr Lalor gave evidence for Mr Lebsanft.
[78] Mr Lalor was Human Resources Manager at Oakey from November 2008 to January 2010 which meant that none of his evidence related to the direct circumstances of Mr Lebsanft’s dismissal.
[79] Mr Lalor prepared two witness statements for this matter. The first prepared in October 2010 was for the purpose of making a claim that both the General Manager and Plant Manager at Oakey were unhappy with Mr Lebsanft and wanted to get rid of him. The second witness statement prepared in November 2010 was by way of rebuttal to statements made by Mr Qualischefski, Mr Gleeson and Mr Lander which reflected badly on Mr Lalor and his competency as a HR Manager.
[80] Mr Lalor was subject to cross examination in relation to his first statement. Mr Lalor readily agreed with a number of propositions put to him under cross examination. Firstly, that Mr Gleeson had made it clear that Mr Lebsanft was not to be treated more favourably than any other employee. Secondly, that Mr Gleeson had made it clear that Mr Lebsanft was not to be treated less favourably than any other employee. Thirdly, that Mr Gleeson had made it clear that Mr Lebsanft was to be treated the same as everyone else. Fourthly, that Mr Gleeson never suggested to Mr Lalor that he make up things about Mr Lebsanft.
[81] Under re-examination Mr Lalor stated that whilst he had been instructed by Mr Gleeson to report to him any potential wrongdoing by Mr Lebsanft that Mr Gleeson never gave the same instruction in relation to any other employee. 27
[82] In relation to events concerning Mr Lalor’s involvement in handling complaints made by Mr Qualischefski against Mr Lebsanft and complaints by Mr Lander against Mr Lebsanft and complaints from Mr Lebsanft against Mr Lander, Mr Lalor was subject to strong cross examination. It was put to Mr Lalor that he had acted in a manner which was partisan and which favoured Mr Lebsanft and that he acted in a manner inconsistent with his role by not taking a statement from Mr Lander. Mr Lalor strongly denied what was put to him.
[83] Mr Lalor made a statement to the union in April 2010 when asked to do so by the union, but only after Mr Lalor volunteered to the union the comment that Mr Lalor was aware that management at Oakey “have been chasing him (Mr Lebsanft) for ages”. 28
[84] This occurred in the context of Mr Lebsanft having been dismissed on 1 March 2010. Mr Lalor acceded to a request from the union to make a statement for the purposes of the present matter when asked to do so. His October statement was effectively the same as his April statement.
[85] Mr Lalor had no direct knowledge of any of the circumstances surrounding the dismissal of Mr Lebsanft in either March 2010 or July 2010. However on being told by the union the reason for the first dismissal Mr Lalor accepted the truth of what he was told 29and he considered the reason for the second dismissal to be unfair 30and in consequence he was willing to assist the case for Mr Lebsanft.
[86] Having carefully observed Mr Lalor give his evidence and in particular under cross examination I formed the view that Mr Lalor was trying as best he could to answer the questions asked of him and to answer them honestly.
[87] I did not see Mr Lalor as being on Mr Lebsanft’s side. Rather it was clear that Mr Lalor has a strong view as to what may or may not be fair and right and he was motivated by his sense of fairness and rightness. This is a far cry from being a partisan witness for one side against the other. The readiness with which Mr Lalor agreed to key statements put to him by counsel for Oakey clearly demonstrate that Mr Lalor was not partisan.
[88] I also note that Mr Lalor readily admitted where his memory was deficient, and where he could not remember events he conceded the possibility that what was put to him by counsel for Oakey could have occurred. However where his recollection was clear he maintained that his evidence was true.
[89] Overall I found Mr Lalor to be an honest witness. His evidence is consistent with that of Mr Weston in relation to critical issues surrounding the destruction of all material concerning the complaints by Mr Qualischefski against Mr Lebsanft and the complaints by Mr Lebsanft against Mr Lander.
[90] I note in particular that under cross examination counsel for Oakey, Mr Herbert, put the following to Mr Lalor:
“Mr Herbert - I will enlighten you and suggest to you that the evidence will be you did not tell anybody in management that Heath Lebsanft stood accused of actually making a comment like that about Tommy Gook. You did not tell anyone and Pat Gleeson did not know when he killed off this whole matter, he did not know that that allegation was afoot because you hadn't told him, do you accept that?
Mr Lalor - I don't remember whether I told him or not.” 31
[91] I note that Mr Lalor gave evidence that he did not take notes when preparing statements from employees but that he asked the employees questions and immediately typed their answers to create a statement. 32 To the extent that Oakey challenged Mr Lalor’s evidence it is apparent that as Oakey had access to the computer used by Mr Lalor when employed by Oakey that a forensic examination of such computer would have revealed the truth of the matter. No such forensic evidence was presented.
Ms Bronwen Black
[92] Ms Black gave evidence on behalf of Oakey. Ms Black was the treating psychologist for Mr Lander from 31 August 2010. Whilst Ms Black was able to give objective professional evidence as to the psychological state of Mr Lander the cause of the psychological state of Mr Lander could not be objectively determined. As Ms Black made clear in her evidence she had no objective evidence of the work circumstances of Mr Lander and that her opinion was “based on what he told me”. 33
[93] The most that Ms Black’s evidence can establish is that "Mr Lander appears to have significant levels of anxiety and depression and low frustration tolerance that has required and continues to require psychological intervention.” 34
Mr Qualischefski
[94] Mr Qualischefski gave evidence for Oakey.
[95] The tenor of his witness statement 35 was critical of the union and their involvement in proceedings concerning disciplinary action against Mr Qualischefski by Oakey in relation to a suspected act of harassment or intimidation directed towards Mr Lander at the same time the booing was occurring. In addition Mr Qualischefski repeated details of an earlier complaint he had made against Mr Lebsanft as well as making adverse comments about Mr Lebsanft and union members at Oakey.
[96] Mr Norris had given evidence of his recollection of events where the union represented Mr Qualischefski in the disciplinary matter in July 2010.
[97] Mr Qualischefski under cross examination agreed with some but not all of the evidence given by Mr Norris.
[98] Where there is a conflict between Mr Qualischefski and Mr Norris I prefer Mr Norris’s evidence.
[99] I note that Mr Qualischefski’s version of events concerning the altercation with Mr Lebsanft in November 2009 and a subsequent complaint made by Mr Qualischefski about Mr Lebsanft is significantly different from that given by Mr Lebsanft. Mr Lebsanft’s version of events is supported by a copy of his notes made contemporaneously with the event 36 and the record of interview taken by Mr Lalor, the HR Manager. 37
[100] I prefer Mr Lebsanft’s evidence on this matter to that of Mr Qualischefski.
[101] The very clear picture that is painted by Mr Qualischefski’s own evidence is that of a person who ‘runs with the foxes and hunts with hounds’.
[102] Mr Qualischefski sought and received assistance from the union when he was facing serious disciplinary action for what was being treated by Oakey as an act of harassment or intimidation of Mr Lander. The union were successful in their representations on behalf of Mr Qualischefski. Yet in his witness statement prepared for Oakey, Mr Qualischefski suggests or implies unprofessional conduct on behalf of the union.
[103] Mr Qualischefski’s relationship with Mr Lebsanft was not good given that Mr Qualischefski had previously made a complaint against Mr Lebsanft. The outcome of having made a complaint against Mr Lebsanft caused Mr Qualischefski to resign his employment at Oakey but then rescind the resignation when contacted by the Plant Manager who promised to look after him. 38
[104] Mr Qualischefski was friendly with Mr Lander and was told in confidence by Mr Lander that he had made a statement to Oakey supporting Oakey’s case for an increase in the chain speed on the kill floor. Mr Qualischefski then passed on this confidential information to Mr Lebsanft quite soon after receiving it.
Mr Federoff and Mrs Lander
[105] Mr Federoff and Mrs Lander both gave evidence on behalf of Oakey and their evidence was limited to events occurring at a Wake held at the Oakey Rugby League Club on 4 August 2010. Mr Federoff’s witness statement was Exhibit R12 and Mrs Lander’s witness statement was Exhibit R9. In their witness statements both gave evidence that they did not see Mr Lander talk to Mr Lebsanft. 39
[106] Both Mrs Lander and Mr Federoff were subject to cross examination. I accept that both were truthful.
[107] However the evidence of each of Mrs Lander and Mr Federoff does not account for every second of the time they were at the Wake. Given that the issue concerning the Wake involves an exchange of about five seconds between Mr Lander and Mr Lebsanft the evidence of Mrs Lander and Mr Federoff is not conclusive.
Mr Warneke
[108] Mr Warneke was not called to give oral evidence in this matter. Mr Warneke prepared a signed witness statement in support of Mr Lebsanft - Exhibit A14. Mr Warneke also prepared two sworn affidavits and one statutory declaration for Oakey - Exhibits R6, R7 and R8. Exhibit A14 was intended to provide significant corroborative evidence for Mr Lebsanft. Mr Warneke worked on the kill floor opposite the First and Second Leg Stands and in a position where he could have observed Mr Lander leaving his work station and workers on both First and Second Leg Stands.
[109] In his affidavits and statutory declaration prepared for the benefit of Oakey Mr Warneke retracts most of his corroborative evidence and admits that most of it was a fabrication done to support Mr Lebsanft.
[110] Mr Warneke stated that when he first lied he did so without any pressure from anyone and did so out of a sense of wanting to help Mr Lebsanft. Equally he stated that he retracted his first statement voluntarily and without any pressure from anyone.
[111] Mr Warneke stated in his affidavits and statutory declaration that this matter was having a significant effect upon him and that on occasions he had felt suicidal and that he was seeking professional help.
[112] It is impossible to draw any conclusions from the respective statement, affidavits and statutory declaration of Mr Warneke.
Mr Hickey
[113] Mr Hickey is the HR Manager for Oakey. Mr Hickey was not present on the kill floor at any relevant time. Mr Hickey did conduct interviews with a number of Oakey employees in relation to the issues surrounding the booing of Mr Lander. Mr Hickey coordinated or oversaw investigations undertaken on behalf of Oakey by private investigators. Mr Hickey also coordinated and participated in the procedural aspects of the dismissal of each of Mssrs Wockner, Higgins and Lebsanft.
[114] Mr Hockey introduced into evidence the audio records of interview with a number of employees as well as a transcription of those audio records.
[115] Mr Hickey also introduced into evidence the show cause letters, the responses to the show cause letters and the letters of termination in relation to each of Mssrs Wockner, Higgins and Lebsanft.
[116] The primary purpose of Mr Hickey’s evidence was to paint the picture of the processes and procedures used by Oakey in dealing with the booing of Mr Lander and the dismissal of Mr Lebsanft. Mr Hickey was cross examined extensively about the processes and procedures used by Oakey.
Mr Norris
[117] Mr Norris, an Industrial Officer for the AMIEU, gave evidence for Mr Lebsanft. The effect of Mr Norris’s evidence was threefold. Firstly, he put into evidence a series of photographs taken in August 2010 from various positions around the kill floor whilst work was in progress. Secondly, he gave rebuttal evidence in relation to statements made by Mr Qualischefski in his witness statements. Thirdly, he gave rebuttal evidence in relation to statements made by Mr Gleeson in his witness statement.
[118] Mr Norris was cross examined on the second and third aspect of his evidence and he was also cross examined at length on his involvement in the preparation of the witness statements of Mr Warneke and Mr Lebsanft.
[119] There is a very clear conflict between the evidence of Mr Norris and both Mr Qualischefski and Mr Gleeson.
[120] In each case I prefer the evidence of Mr Norris. His evidence both through his witness statements and under cross examination was clear and concise. Mr Norris was careful to quote conversations or parts of conversations only when he was certain of the words used and when he was uncertain he carefully identified that he was recalling the effect of the conversation.
[121] As an advocate of longstanding before this Tribunal and its predecessor Mr Norris has much to lose if caught out in lying or misleading the Tribunal. Having carefully observed Mr Norris give his evidence in this matter I accept the truth of his evidence.
Mr Schmidt
[122] Mr Schmidt gave evidence for Mr Lebsanft. Whilst his witness statement 40 had the appearances of being certain about events it was clear under cross examination that Mr Schmidt was vague and had little recollection of events. On relevant issues Mr Schmidt’s evidence was quite unhelpful in adding any clarity to anything.
Mr Weston
[123] Mr Weston is the senior AMIEU representative at Oakey being the Shed Secretary. Mr Weston is employed as a Slicer. Mr Weston is not employed on the kill floor or near it.
Mr Weston’s evidence was primarily directed to the events concerning the complaint made by Mr Qualischefski against Mr Lebsanft and the way in which that was dealt with by the union and Oakey. The essential aspects of Mr Weston’s evidence concerning this event are contained in paragraphs 2 to 19 of Exhibit A7.
[124] Aspects of this evidence clearly contradict Mr Gleeson’s version of events and under cross examination no challenge was made to paragraph 5 or 6 of Exhibit A7 nor to the contents of attachment RCW1 to Exhibit A7. This evidence is in direct conflict with Mr Gleeson’s evidence at paragraph 58 of Exhibit R20. I note that Mr Gleeson under cross examination agreed with the evidence of Mr Weston. 41
I repeat here the evidence of Mr Weston at paragraphs 2 and 7 - 19 of Exhibit A7:
“2. Paul Qualischefski made a complaint to the HR Office at Oakey on 25 November 2009 that he had been abused by Heath Lebsanft.
...
7. After a number of statements had been taken by Mick Lalor in this investigation, Oakey indicated they were going to give Heath a written warning.
8. The Union strongly disputed a warning being given.
9. A meeting was held on 3 December 2009 where these matters were discussed.
Attached to this statement and marked “RCW2” is a copy of my diary notes for that
day.
10. In attendance were Pat Gleeson and Mick Lalor for Oakey. From the Union were myself, Heath Lebsanft, Ian McLauchlan and Lee Norris.
11. Prior to this time, the Union had received information that Dale Meskin, the slaugheter floor head supervisor, had approached John Warneke and encouraged him to make a complaint against Heath for calling him a “scab”. This had nothing to do with the altercation between Heath and Paul Qualischefski.
12. John Warneke regarded it as a joke amongst friends and didn’t follow Dale’s encouragement to put in a complaint.
13. Heath had also become aware that David Lander had approached Tommy Gouk and encouraged him to put in a complaint against Heath for allegedly calling him a “black cunt”.
14. Heath had also received information about statements Paul Qualischefski had made to a sports store owner to the effect that Pat Gleeson had told Paul that he would be looked after if he helped to build a case against Heath.
15. All of this was taken up with Pat and Mick Lalor at this meeting. So far as the Union was concerned, what started as an investigation into a one off verbal altercation between Heath and Paul Qualischefski had been turned into a half-baked royal commission into any dirt that could be found on Heath Lebsanft.
16. The altercation that occurred between Heath and Paul Qualischefski was the kind of thing that happens between workers at Oakey from time to time. Sometimes it happens between workers, sometimes it happens between a worker and a supervisor. If someone has flown off the handle as a “once off”, they’re normally told to pull their head in without a major investigation being undertaken. Quite a few supervisors have been just as guilty of this over the years as any workers.
17. I’ve never seen the company so keen to turn a verbal altercation into a major investigation with supervisors running around encouraging people to put in complaints about unrelated things that happened in the past.
18. Also, Heath and Paul were disputing each other’s version of events, with Heath adamant that Paul had started the heat in the conversation with a statement that Heath should follow his demands because “that’s what we pay you cunts money for”.
19. After all this was argued out, Pat Gleeson made a decision that all the statements about Heath would be ripped up along with the proposed warning, never again to be used again. This was the effect of the statement he made. He then made a statement to the effect that Lee Norris should do up a policy on how investigations should be done so we wouldn’t be in dispute over an investigation in the future. All of this was noted by me immediately after the meeting in my diary on the day.”
Mr Ben Canning
[125] Mr Canning gave evidence for Mr Lebsanft. Counsel for Mr Lebsanft did not put to Mr Canning the statement of Mr Byers that Mr Canning was identified as being a booer of Mr Lander prior to 14 July 2010. Under cross examination from counsel for Oakey Mr Canning was asked questions about the identity of booers of Mr Lander but was never asked directly whether he had booed Mr Lander. 42 The evidence of Mr Canning under cross examination was primarily that whilst booing had occurred he could not remember who was booing. This evidence is far from a denial that he booed at Mr Lander and far from a challenge to the specific evidence of Mr Byers.
[126] Mr Canning in answer to a question from the Tribunal described the kill floor as like a ghost town since the 16 July 2010 in that there is no yelling out by anyone on any occasion. 43
Mr May and Mr Redinger
[127] Both Mr May and Mr Redinger gave evidence for Mr Lebsanft.
[128] Counsel for Oakey strenuously objected to evidence being received by the Tribunal from both Mr Redinger and Mr May on the basis that it was “utterly irrelevant”. 44
[129] Notwithstanding this objection I decided to receive the evidence of both. 45 In considering the objection raised by counsel for Oakey I was of the view that the evidence of either Mr Redinger or Mr May would not go to any issue of credit in relation to Mr Lander simply because neither Mr Redinger nor Mr May were present on the kill floor at any time when Mr Lander was booed. Both Mr May and Mr Redinger were at all material times employed on the hidepullers, machines located in an area adjacent to but very much separate from the kill floor. Persons working on the hidepullers could not see any part of the kill floor although they could hear noises coming from the kill floor area. Whilst they could hear noises, including yelling or booing, coming from the kill floor they could not identify the source of any such yelling or booing.
[130] I found both Mr May and Mr Redinger to be truthful witnesses. The purpose of their evidence was to show that Mr Lander had booed them on an occasion when one of the hidepullers had broken down with a resultant slowing down of the chain speed in the kill floor. This meant that workers on the kill floor would have to work longer that shift in order to process the same number of animals.
[131] As Mr Redinger stated:
“David Lander booed us on and off for about a week coming back for our - going back to the hide puller.” 46
[132] Mr May added a further element to this booing by identifying that when Mr Lander started booing him others joined in. In other words Mr Lander was an instigator of group booing.
“PN1971. You've never been subjected to a situation where a whole room full of people, up to 15 people at one time, have given you really hard, insulting booing intended to belittle you or embarrass you or humiliate you, have you, you've not suffered that?---Yes, I have.
PN1972. Have you?---Yes.
PN1973. Where did that happen?---You know when they were booing, that time that Dave Lander was booing he had like - a couple joined in with him.”
[133] Both Mr May and Mr Redinger gave evidence that there was a culture of booing in the workplace over many years.
[134] Their evidence only became important in relation to Mr Lander’s credibility when Mr Lander flatly denied ever booing Mr May or Mr Redinger. I have no hesitation in preferring the evidence of Mr May and Mr Redinger over that of Mr Lander.
Mr Beutel
[135] Mr Beutel was not required by Mr Lebsanft for cross examination and his signed but unsworn witness statement was tendered by Oakey as Exhibit R16.
[136] Mr Beutel in a record of interview with Mr Hickey in July 2010 identified that about 20 employees were involved in booing Mr Lander but that he (Mr Buetel) never booed Mr Lander.
[137] Given that Mr Beutel was Oakey’s witness, his statement is at odds with the evidence given by Mr Byers on behalf of Oakey that Mr Beutel was “perhaps” also a booer of Mr Lander. I note that Mr Beutel states with certainty when interviewed by Mr Hickey on 19 July 2010 that he wasn’t involved in the booing of Mr Lander, “No, I didn’t boo.” However the evidence of Mr Byers in implicating Mr Beutel in the booing was suggestive but not certain. 47
[138] Oakey in relying upon both the witness statement of Mr Beutel and the evidence of Mr Byers must accept, as I do, that Mr Byers’ uncertain pointing of the finger at Mr Buetel is without foundation.
The Video of 14 July 2010
[139] The evidence in this matter included 3 video clips recorded by 3 separate cameras located in different areas of the kill floor. Each video clip recorded the same time frame on the afternoon of 14 July 2010. Each video included a timer. It was possible to then correlate all three video clips and thus obtain a view of three different areas of the kill floor activities at the same point of time.
[140] The benefit of the video clips was that the first video camera was focussed on the area where Mr Lander worked and the path he took to exit the kill floor at the end of his shift. This also showed Mr Byers carrying out some work. The second video camera was focussed on the First Leg Stand and included fleeting images of Mr Ambrose as he carried out his duties. The third video camera was focussed on the Second Leg Stand which included both Mr Lebsanft and Mr Rohan Higgins as they performed their work. None of the video included sound. The time frame of each video was sufficient to show Mr Lander complete his days work and leave the kill floor. This was the exact time at which it was alleged that Mr Lebsanft and others had booed Mr Lander.
[141] Counsel for both Mr Lebsanft and Oakey Abbattoir took me to each of the video clips and made detailed submissions as to what was shown on the video clips and how it related to the evidence given by various witnesses.
[142] After the terminations had taken place it was revealed that video footage existed of activities on the kill floor on the afternoon of the 14 July 2010. It appears that Mr Lander, Mr Byers and Mr Ambrose were not aware of the existence of the video footage of the 14 July 2010 when they made their initial statements in July. However it appears that it was common knowledge that video cameras were located in a number of areas within the kill floor and that it was possible to record activities on the kill floor.
[143] When the video first came to light after the terminations had taken effect Mr Gleeson was shown the video and even though it appeared to show another employee, Mr Rohan Higgins, clearly booing Mr Lander as he left the kill floor at the end of his shift Mr Gleeson decided that he would not rely upon the video and that he would not take any action against Mr Rohan Higgins.
[144] Although Mr Byers, Mr Ambrose and Mr Lander each identified Mr Lebsanft and other employees as engaging in booing of Mr Lander when he left the kill floor on the 14 July at the end of his shift, not one of them identified Mr Rohan Higgins as a person who was booing Mr Lander.
[145] The video of events on 14 July 2010 suggests that it would have been relatively easy for at least one of if not all three of Mr Lander, Mr Byers and Mr Ambrose to have identified Mr Rohan Higgins as booing Mr Lander. The fact that no one identified Mr Rohan Higgins as a booer on 14 July 2010 is a telling point against the credibility of each of the three witnesses relied upon by Oakey Abattoir.
The Wake Incident
[146] The concluding paragraph of the termination letter given to Mr Lebsanft contained the following:
“Considering all of the facts and available evidence and the seriousness of your actions, including your recent attempt to defame Mr Lander, the company has no alternative but to terminate your employment forthwith for misconduct.” The reference to the “recent attempt to defame Mr Lander” was a reference to an allegation made by Mr Lebsanft that at a Wake on 4 August 2010 Mr Lander said to Mr Lebsanft, ‘Me and Butch have rolled you and you’ll be sacked tomorrow.’ Oakey concluded that the allegation was false and was a deliberate attempt by Mr Lebsanft to damage the credibility of Mr Lander.”
[147] The construction of the termination letter suggests that a reason for the termination included the “recent attempt to defame Mr Lander”.
[148] Mr Lebsanft’s case was conducted on the basis that this was one of the reasons for the dismissal. Mr Merrell, counsel for Mr Lebsanft, specifically sought to clarify with Mr Gleeson who issued the letter of termination that this was so.
[149] The following extract from transcript is relevant:
“PN5589 - Mr Merrill. Can you have a look at the dismissal letter - - -?-Mr Gleeson--Yes.
PN5590- - - the last page. You say, "Considering all the facts and available evidence and the seriousness of your actions, including your recent attempt to defame Mr Lander, the company has no alternative but to terminate your employment forthwith for misconduct." That's the letter that you've signed, isn't it?---That is correct.
PN5591. I'm correct in suggesting, aren't I, that on any plain reading of that paragraph, the seriousness misconduct the company had found Mr Lebsanft engaged in included the conduct at the wake. Is that right?---No.
PN5592. You disagree with that?---Yes.
PN5593. Can you go to the previous page in the third paragraph. "On the evidence to hand, it appears that the allegation in the first email was completely false and concocted by you to defame Mr Lander and cause the company to reject his evidence by damaging his credibility. This is a most serious matter, as it appears you have seen fit to continue to pursue a campaign of vilification of Mr Lander through the union whilst you were suspended during an investigation into an allegation of bullying against the same person." Do you want to reconsider your answer before that you gave me, that the finding of fact made about the wake didn't form part of the serious misconduct for which Mr Lebsanft was dismissed?---The finding of the wake validated our findings previously, Mr Merrell, for the booing and the harassment on the floor. If the wake had never happened the result would have been the same.
PN5594. So what occurred at the wake was - when you say validated, it confirmed your view about Mr Lebsanft's conduct?---Correct.”
[150] Mr Hickey was also cross examined on the same point. Mr Hickey agreed that Oakey had made a finding that Mr Lebsanft’s allegation against Mr Lander in relation to the Wake was false and was serious misconduct. 48 Mr Hickey acknowledged that he had created the draft of the termination letter but he did not make any admissions as to whether the actual termination letter was in the same form as the draft termination letter. Mr Hickey agreed that on a plain reading of the last paragraph of the termination letter that a reason for the dismissal of Mr Lebsanft was that he had engaged in serious misconduct by making a false allegation against Mr Lander on 4 August 2010. 49
[151] If as Mr Gleeson said, the wake incident was not a reason for dismissal, then there is no need to consider anything said in relation to the wake incident.
[152] However as Oakey had made a finding that the wake incident constituted serious misconduct on the part of Mr Lebsanft, then the wake incident could, in the absence of any other valid reason for dismissal, constitute a valid reason justifying the dismissal of Mr Lebsanft. 50
[153] In final submissions counsel for Oakey submitted that whilst the wake incident was not a specific ground relied on by Oakey to justify the dismissal of Mr Lebsanft it was corroborative of the conclusion drawn by Oakey as to Mr Lebsanft’s involvement in booing Mr Lander. As counsel put it, the wake incident confirmed to Oakey that Mr Lebsanft was “an unreconstructed bully and, therefore, that goes to the question as to whether there's any possibility of rehabilitating him back into the workplace”. 51
[154] Accordingly I have considered the wake incident as being a relevant matter in relation to determining whether or not the dismissal was harsh, unjust or unreasonable.
[155] Mr Lebsanft had been suspended from his employment without pay on 16 July 2010 whilst Oakey investigated the allegations made against Mr Lebsanft that he had, by booing Mr Lander, engaged in bullying conduct. During the period of suspension a person known to both Mr Lebsanft and Mr Lander died. The Wake for the deceased was held at the Oakey Rugby League Club on 4 August 2010. Both Mr Lander and Mr Lebsanft attended the Wake.
Late in the afternoon of the 4 August 2010 Mr Lebsanft contacted Mr Norris from the AMIEU to complain about the incident at the Wake. Mr Norris sent an email to Mr Hickey from his iPhone at 5.41pm. Mr Hickey did not access the email until the morning of 5 August 2010 and in replying to Mr Norris at 9.33am Mr Hickey advised that the complaint was being treated seriously and would be investigated and Mr Norris was requested to provide affidavits from Mr Lebsanft and two persons who Mr Lebsanft had nominated as potential witnesses. Mr Norris responded to Mr Hickey by email at 10.41am on 5 August 2010 advising that Mr Lebsanft did not wish to pursue the complaint against Mr Lander and that as Mr Lebsanft had been suspended for a period of 20 days as at 5 August that Mr Lebsanft wanted that matter to be resolved promptly. The email chain was attached to Mr Gleeson’s witness statement. 52
[156] Although Mr Lebsanft did not want to pursue his complaint against Mr Lander, Oakey considered that the complaint warranted investigation. Oakey engaged a private investigator to interview the two persons named by Mr Lebsanft as potential witnesses to the incident. Both persons declined to assist with Oakey’s investigation. 53
[157] Mr Hickey described the two persons as being hostile and uncooperative and effectively telling the investigator to “bugger off”. 54
[158] Oakey also interviewed Mr Lander, Mrs Lander and a Mr Federoff who was with them for most of the time at the Wake.
[159] Oakey did not interview Mr Lebsanft.
[160] Mr Lander denied making the statement to Mr Lebsanft at the wake.
[161] On the basis of Mr Lander’s denial and the statements made by Mrs Lander and Mr Federoff, Oakey concluded that Mr Lebsanft had deliberately and maliciously concocted a false allegation against Mr Lander for the purpose of undermining Mr Lander’s credibility.
[162] The material available to Oakey would have enabled Oakey to conclude that the allegation by Mr Lebsanft could not be proved.
[163] Oakey engaged in an extraordinary leap in reasoning to go from a position where there clearly was no evidence available to Oakey to support the allegation made by Mr Lebsanft to a position of finding that Mr Lebsanft had deliberately and maliciously concocted a false allegation against Mr Lander in order to undermine Mr Lander’s credibility.
[164] The investigation by Oakey was so one sided that it alone should have led Oakey to deal with the whole Wake incident cautiously.
[165] The examination of the witnesses in this matter paints a picture in which Mr Lebsanft gives evidence that Mr Lander did make the statement at the Wake and where Mr Lander denies making the statement and where the evidence of Mrs Lander and Mr Federoff is inconclusive. Even at its most favourable the evidence of Mr Federoff doesn’t support a conclusion that on the balance of probabilities that Mr Lander could not and/or did not say the words alleged to have been said to Mr Lebsanft.
[166] However when considered in the context of the entire application the balance of probabilities shifts steadily in favour of Mr Lebsanft and against Mr Lander. I note my findings as to the weight to be given to Mr Lander’s evidence and to that of Mrs Lander and Mr Federoff.
[167] The deviousness needed for Mr Lebsanft to:
(1) concoct an exchange between Mr Lander and himself at a Wake at which a large number of persons were in attendance and
(2) to have thought through the need to identify as potential witnesses only persons whom he was confident that they would not cooperate with Oakey and
(3) to leave the Wake at a critical time in order to add weight to the concocted exchange and then
(4) to plan to convey all of this through his union to his employer in a way intended to cause the employer to lose credibility in Mr Lander,
is quite staggering.
The demeanour of Mr Lebsanft as a witness in this matter was that of a person incapable of that level of deviousness. The finding by Oakey that Mr Lebsanft engaged in deliberate conduct in creating and communicating a false allegation against Mr Lander is simply unsustainable on the evidence in this matter. From a one sided investigation it appears that Oakey jumped to the conclusion they wanted rather than a conclusion that was warranted.
[168] Mr Hickey agreed that Mr Lebsanft was dismissed without first putting to him the conclusion reached by the company that Mr Lebsanft was continuing to bully Mr Lander by concocting false stories about Mr Lander. 55
Unfair Dismissal
[169] The issue for determination in this matter is whether the dismissal of Mr Lebsanft was harsh, unjust or unreasonable within the meaning of s.387. That section is as follows:
“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.
S.387(a) - Valid Reason relating to Conduct or Capacity
[170] For there to be a valid reason for the dismissal the reason should be sound, defensible or well founded or justifiable on an objective analysis of the facts. A reason will not be a valid reason if the reason is capricious, fanciful, spiteful or prejudiced. Equally a reason will not be a valid reason just because the employer believed that the termination was for a valid reason. 56
[171] In matters arising under the Unfair Dismissal jurisdiction of Fair Work Australia the Tribunal has to be satisfied on the balance of probabilities when considering the statutory requirements of the Act.
[172] The reference to proof on the balance of probabilities is to distinguish it from the more onerous level of proof in criminal matters which is proof beyond reasonable doubt.
[173] What proof is needed to satisfy the notion of proof on the balance of probabilities was discussed in Briginshaw v Briginshaw 57 at p362 - 363:
“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
[174] Rich J at p350 expressed the same sentiments in slightly different language when he said:
“In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.”
[175] It is important to keep in mind the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others, joint judgement of Mason, C.J, Brennan, Deane and Gaudron JJ, which cautioned that:
“2. The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J. commented in Briginshaw v Briginshaw:
• I am willing to unconditionally undertake to never engage in behaviour like this ever again.
• I am willing to assist in any measures that the Company may try to implement to educate employees against this type of behaviour and prevent its occurrence.
I believe the following matters should be taken into account in determining what disciplinary action, if any, should be taken against me:
- My unblemished work record over 4 years with Oakey Abattoir;
- The fact that I truthfully owned up to my actions immediately without any prompting or other form of pressure to do so;
- The fact that I co-operated fully and frankly with the Company when interviewed about the situation;
- The fact that I am willing to apologise to David immediately without being forced to do so and I am genuinely sorry for my actions;
- The fact that I unconditionally accept now how my actions were taken by David and the Company and I do not attempt to excuse my actions and accept the degree of seriousness that they have been treated with; and
- The fact that previous recent instances of serious workplace harassment at Oakey have not resulted in termination. In particular I refer to the punishments given to Mr. Russell Ambrose and Mr. Keith Voll.
I have been suspended for a period of 14 days as of today's date, including 1 working
days.
Consistent with my remorse over my actions, I am willing to accept the consequences of my actions and believe that a suspension without pay for a period of 10 working days would be appropriate. This entails a loss of $2000 earnings on my part.
Should you have any enquiries in relation to this matter, please do not hesitate to contact me.” 64
[202] The point made by Mr Peter Higgins that in the four years of his employment with Oakey that none of the five supervisors on the kill floor had cautioned him or other workers about booing does not appear to have been considered a relevant factor by Oakey in dismissing Mr Peter Higgins.
[203] When Mr Peter Higgins has indicated to Oakey that he could not identify any other booers it is clear that Oakey did not accept that Mr Peter Higgins could not identify other booers and treated his answers as if he said he would not identify booers whom he could identify.
[204] Having listened to the interviews it doesn’t seem to me that Mr Peter Higgins was saying anything other than the truth when he said he could not identify other booers.
[205] It appears to me that the conclusions drawn by Oakey as to Mr Peter Higgins’ future conduct totally disregarded the overt honesty of Mr Peter Higgins including his clear expression that he wouldn’t have engaged in booing if he had been warned of the consequences, and, that if he had been told that booing was unacceptable, that he would have complied with such a direction.
[206] The dismissal of Mr Peter Higgins suggests that Oakey was taking the hardest possible position in relation to the booers and that by not being able to identify other booers meant that no amount of remorse and no amount of undertakings as to future good behaviour was worth anything.
[207] The dismissal of Mr Peter Higgins has all the hallmarks of being a disproportionate punishment and being a harsh outcome. The dismissal of Mr Peter Higgins was consistent with the position adopted by Oakey that it had no option but to deal with the booers of Mr Lander “harshly and savagely”. Certainly Mr Higgins was treated harshly and savagely.
Mr Wockner
[208] Mr Wockner was identified by Mr Lander as having booed Mr Lander.
[209] Mr Wockner denied booing Mr Lander.
[210] Mr Wockner was suspended, given a show cause letter (CTH10 of Exhibit R4), given the opportunity to respond in which he emphatically denied booing Mr Lander (CTH11 of Exhibit R4) and was then terminated.(CTH14 of Exhibit R4)
[211] Mr Wockner was then put back on as an employee at Oakey.
Mr Ben Canning
[212] Mr Canning was identified by Mr Byers as having booed Mr Lander. Mr Byers identification of Mr Canning as a booer of Mr Lander was expressed with the same level of certainty that Mr Byers identified Mr Lebsanft.
[213] Mr Canning denied booing Mr Lander just as strongly as Mr Lebsanft denied booing Mr Lander.
[214] Mr Lebsanft was suspended, given a show cause letter, given the opportunity to respond and was then terminated.
[215] Mr Canning was neither suspended, nor given a show cause letter nor terminated.
[216] There is clearly no consistency in the treatment of Mssrs Lebsanft, Wockner, Higgins or Canning by Oakey.
[217] From the perspective of Oakey, as drawn from their conduct as identified in the evidence or material before the Tribunal:
- Mr Higgins told the truth about booing but lied about not being able to identify other booers and refused to identify other booers. In consequence he was terminated and was not subsequently put back on.
- Mr Wockner lied about booing, lied about not being able to identify other booers and refused to identify other booers. In consequence he was terminated but was subsequently put back on.
- Mr Canning lied about booing. In consequence no action was taken against him.
- Mr Lebsanft lied about booing, lied about not being able to identify other booers, refused to identify other booers and lied about Mr Lander at the Wake. In consequence he was terminated and was not put back on.
[218] What stands out in relation to this inconsistent treatment is that the only person who Oakey considered to be honest (Mr Peter Higgins) has been treated more harshly than a person who Oakey considered to have lied at every stage of the process (Mr Wockner).
[219] This inconsistency in the treatment of the above 4 employees is a relevant factor to be taken into account by the Tribunal in this matter.
Union position of Mr Lebsanft
[220] At no stage in the process of dismissing Mr Lebsanft was any mention or reliance placed on the fact that Mr Lebsanft was the second most senior union representative at Oakey and the most senior union representative on the kill floor. However it is clear that Mr Lebsanft’s union position is a relevant matter to be considered.
[221] During proceedings counsel for Oakey advanced an argument that Mr Lebsanft was the ringleader of the booers and that had he exercised his authority as the second most senior union representative at Oakey then the booing either would not have occurred or would have stopped after the first booing of Mr Lander. Oakey submitted that the inference to be drawn from the failure of Mr Lebsanft to take any action to stop his union members from booing Mr Lander was that Mr Lebsanft was engaged in the booing. 65
[222] The inferences or conclusions drawn by counsel for Oakey are not supported by the evidence.
[223] Firstly there had to be a person who initiated the booing on the days before 14 July 2010 and Mr Byers only identified with certainty one person booing before that time, namely Mr Canning. There was no evidence at all that Mr Lebsanft had been booing before 14 July 2010.
[224] Secondly, the evidence of several witnesses was that once booing started, for whatever reason, others would join in. This suggests that there didn’t have to be a ringleader or choir master to get booing going. Once one person started booing others would follow.
[225] Thirdly, the submissions are predicated upon there being a common understanding that booing was bullying and that in consequence Mr Lander was being bullied. The evidence of Mr Lebsanft was that he did not consider the booing of Mr Lander to be bullying. Mr Lebsanft conceded only that the booing of Mr Lander was to ensure that Mr Lander understood that his fellow employees were not happy with what he had done. 66
[226] I note that the position adopted by Mr Lebsanft was consistent with the position of Mr Peter Higgins who admitted booing Mr Lander but considered booing a fellow worker as normal conduct on the kill floor.
[227] Fourthly, booing had been occurring on the kill floor over a long period of time without the supervisors stopping it. Both Mr Lebsanft in his evidence and Mr Peter Higgins in his record of interview drew attention to the inaction by supervisors over a long period of time. Both also indicated that if the supervisors had made it clear that any booing was unacceptable that booing would most likely not have occurred.
[228] It is clear that Mr Lebsanft had a prominent position at Oakey given his leadership position within the union at Oakey. In this position Mr Lebsanft was the focal point in any disputes between the union and Oakey in relation to kill floor issues. Mr Lebsanft was the unions key witness in relation to disputes over the chain speed and gang size in the kill floor .
[229] Mr Lebsanft had been dismissed from his employment at Oakey on 1 March 2010. Mr Lebsanft described the reason for dismissal as, “allegedly leaving work early, contrary to the direction of a supervisor.” . 67 Mr Gleeson described the reason for dismissal as “walking off the job”.68 An application for an unfair dismissal remedy was filed with FWA and prior to arbitration the matter was resolved and Mr Lebsanft recommenced work.
[230] There is absolutely nothing which suggests that the dismissal of Mr Lebsanft in March 2010 had anything to do with his dismissal in August 2010.
[231] However both the issue of Mr Lebsanft’s status as a senior union representative at Oakey and the issue of his dismissal on 1 March 2010 and subsequent recommencement are relevant contextually to a consideration of the application in this matter. Neither issue has any direct bearing on the central issue in this application but both issues assist in painting the broader picture of relationships at Oakey. This is relevant simply because any dismissal of any worker from any workplace must exist in the context of the workplace and those matters which go to painting the picture of the workplace and the relationships often assist the Tribunal in carrying out its tasks under the Act.
The Oakey Abattoir Conduct Policy
[232] In March 2006 a Notice to All Employees was issued at Oakey which was signed by both Oakey and the AMIEU. The notice arose out of proceedings before the AIRC. The notice made clear that “unruly behaviour” was not acceptable and the notice described a number of elements included in “unruly behaviour” Employees were put on notice that engaging in “unruly behaviour” could lead to termination of employment. 69
[233] On 23 October 2007 an “Oakey Abattoir Conduct Policy” was promulgated by Oakey and advised to all employees. The examples of “unruly behaviour” in the Policy expanded upon the inclusive list in the 2006 notice. 70
[234] Oakey also had a Workplace Harassment and Bullying Prevention Policy dated 17 June 2004. 71
[235] Oakey have relied upon the existence of the Workplace Harassment and Bullying Prevention Policy when dismissing each of Mr Lebsanft, Mr Wockner and Mr Peter Higgins. Oakey concluded in the case of each of them that their behaviour constituted a breach of Company policy.
[236] What is clear from the evidence in this matter is that different employees at different times have been subject to booing or other forms of yelling which could be offensive, intimidating or humiliating. In these proceedings each of Mssrs May, Redinger, Peter Higgins, Lander, Beutel 72, Lebsanft73, Qualischefski 74have all identified that they were booed at on different occasions. Additionally one employee Mr Munchow claimed that “I had porno put up on my locker with obscene language on it”75. Further Mr Rohan Higgins also indicated that another employee with the nickname of Bullrider was booed at for going to the toilet76. In most instances the employees did not complain and apart from the present matter Oakey took no action against the persons engaging in the booing or yelling.
[237] Section 4 of the Workplace Harassment and Bullying Prevention Policy includes the statement that:
“Managers and supervisors must ensure that workers are not harassed.”
[238] Mr Schmidt raised a specific complaint in his record of interview on 22 July 2010 in which he identified Mr Richard Nothdurft, who is a Supervisor on the kill floor, as using extremely offensive language to describe a group of employees in the hearing of employees. 77 A more generalised complaint in relation to the same issue was also made by Mr Ben Canning in his record of interview.78 The record of interview of Mr Schmidt shows that Mr Hickey was already aware of the complaint as the same complaint had been raised with Mr Hickey by Mr Weston, the senior union representative on site.79
[239] What the above suggests is that the managers and supervisors have not ensured compliance with the policy since its inception. The evidence in this matter makes clear that there are always supervisors present when workers are at work. So whenever any worker has been booed a supervisor would have been present in the workplace.
[240] The very fact that both Mr Ambrose and Mr Byers and Mr Nothdurft had to be given a “blast” from Mr Gleeson suggests that prior to that “blast” that the policy was not enforced. Mr Byers’s own evidence was that prior to the “blast” from Mr Gleeson that he had identified Mr Ben Canning as booing Mr Lander but that this was not reported. Equally the video evidence of Mr Byers ignoring the booing which was occurring on 14 July 2010 suggests that until Mr Gleeson gave the supervisors a “blast” in relation to the booing of Mr Lander that nothing would have been done by the supervisors in relation to any booing, mooing, whooing, cooeeing, barking or yelling directed against any employee for any reason.
[241] Whilst the “blast” from Mr Gleeson had the desired effect in getting the supervisors to identify booers of Mr Lander it would appear that Mr Nothdurft engaged in the use of extremely offensive language to describe workers after the “blast” from Mr Gleeson.
[242] The difficulty with the above is that although some of it was given as evidence much of it is drawn from the records of interview of employees and was not presented to the Tribunal by way of sworn evidence. However as all of the records of interview were introduced by Oakey and no objection was taken by Mr Lebsanft to any of the unsworn material I have taken it into account. It is relevant to a consideration of whether the dismissal of Mr Lebsanft, was harsh, unjust or unreasonable.
Available Video Records
[243] Oakey has asserted that the video of 14 July 2011 corroborates the evidence of their witnesses. However this is clearly not the case. As I have already concluded in relation to Mr Ambrose the video not only does not corroborate his evidence but in fact calls it into question. Prior to the hearing of any witness evidence an inspection of the kill floor was undertaken by the Tribunal in the presence of counsel for both sides. Oakey took me to the spot where Mr Ambrose was said to be standing when he had a clear view of Mr Higgins and Mr Lebsanft booing Mr Lander. Far from there being a fixed spot from which Mr Ambrose viewed the two Legging Stands the video shows Mr Ambrose moving quite quickly at the time he said he viewed Mr Lebsanft and Mr Higgins. In the absence of the video the position of Oakey was that the evidence of Mr Ambrose was clear and unambiguous as he was in a fixed position with a clear and uninterrupted view of Mr Lebsanft and Mr Higgins.
[244] Oakey management installed the video cameras in the kill floor and knew what they were capable of recording. Oakey management also knew of the retention practice in relation to video footage recorded. Mr Lander made his first complaint to HR on 12 July and on the same day Mr Gleeson gave his first blast to the supervisors. Mr Lander made a second complaint on 14 July 2010. Mr Gleeson gave the supervisors his second blast on 15 July 2010. Mr Lander attended the HR office on the 16 July 2010 to make a statement.
[245] Notwithstanding all of the concern of Mr Gleeson to catch the booers it appears that no one in Oakey management sought to view, let alone preserve, the video records for these days. It appears that the video records of 14 July 2010 are only available because someone, other than senior management, asked for a portion of the days video record to be preserved.
[246] Just as the presence of the video of 14 July 2010 poses serious challenges to some of the evidence on which Oakey relies to justify the dismissal of Mr Lebsanft the absence of video record on 12 July, 15 July and 16 July permits Oakey to rely solely on the word of its witnesses and avoids one possible challenge.
Conclusion as to Unfair Dismissal
[247] A finding that a dismissal is an unfair dismissal under s.387 can only be made after the Tribunal has considered each of the elements of s.387. (Coal and Allied Mining Services Pty Ltd v Lawler 80)
[248] In the present matter I have found that there was no valid reason for the dismissal but that finding alone is insufficient to make a finding that the dismissal is an unfair dismissal. I note the decision of the Full Bench of FWA in Parmalat Food Products P/L v Wililo 81 which observed:
“24.....The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair.”
[249] Notwithstanding the correctness of this observation the absence of a valid reason cannot be determinative of a consideration as to whether a dismissal is an unfair dismissal. It may be possible even in the absence of a valid reason that the Tribunal could not be satisfied that a dismissal was harsh, unjust or unreasonable. Thus the Act requires that each and every element of s.387 be considered before the Tribunal can be satisfied that a dismissal was harsh, unjust or unreasonable.
[250] I have considered each element of s.387 as discussed in paras [170] - [243] above. I am satisfied, having regard to the cumulative value of the separate consideration of each element of s.387, that the dismissal of Mr Lebsanft was an unfair dismissal.
Remedy
[251] Once a finding is made that the dismissal of Mr Lebsanft was an unfair dismissal within the meaning of s.387 it is necessary to consider whether a remedy should be given and if so what remedy.
[252] Section 390 provides the power to grant a remedy but does not require a remedy to be given.
“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.”
[253] The condition precedent for granting a remedy as set out in s.390(2) has been met. The language of s.390(3), although expressed in the negative, establishes that the primary remedy for an unfair dismissal is reinstatement.
[254] Section 390(1) provides that reinstatement is a discretionary remedy. In this matter Oakey strongly oppose the reinstatement of Mr Lebsanft.
[255] The issue of the asserted loss of trust and confidence in Mr Lebsanft by Oakey is a relevant factor, amongst others, which may be taken into account in considering the appropriateness of reinstatement as the remedy for an unfair dismissal. (Britax Rainsfords P/L v Jones) 82. However, to paraphrase the decision in Perkins v Grace Worldwide (Aust) P/L83, ‘it is important that the Tribunal carefully scrutinise any claim by Oakey that reinstatement is impracticable because of a loss of confidence in Mr Lebsanft’.
[256] In this matter it is clear that Oakey’s loss of confidence and trust in Mr Lebsanft flows directly from Oakey’s conviction that each of the allegations made against Mr Lebsanft are true. Much of the heat in Oakey’s position should be removed through this decision. There are clearly questions of degree in relation to quantifying the level of trust and confidence that an employer may have in an employee and that level may move up or down in the course of the relationship. In this matter I doubt that the level of trust and confidence that Oakey would have in Mr Lebsanft would ever be at the highest level. But that is not necessary. The real issue is whether there is an irrevocable loss of trust and confidence by Oakey in Mr Lebsanft and I am not convinced that that has occurred.
[257] Reinstatement is an appropriate remedy in this matter.
[258] Reinstatement is dealt with in s.391 which is as follows:
“391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”
[259] Section 391(1) permits one of two possible orders. In this matter Mr Lebsanft is a knife hand of considerable experience and he has been employed as a knife hand on the kill floor for a long time. Nothing has been put to me which would suggest that reinstatement should be to any position other than the position Mr Lebsanft was employed in immediately prior to the dismissal.
[260] Having considered all of the circumstances of the matter I am of the view that it is appropriate to maintain the continuity of Mr Lebsanft’s service. To do otherwise would be to inflict a loss of entitlements on Mr Lebsanft in circumstances where the dismissal of Mr Lebsanft was unfair.
[261] I also consider it appropriate to order that Oakey pay to Mr Lebsanft the amount of remuneration lost by him since the dismissal. I note that Mr Lebsanft gained employment with another abattoir but that as a new employee his wage rate was less than the wage rate he was paid at Oakey as an experienced knife hand. Failure to order the payment of lost remuneration would be an effective punishment of Mr Lebsanft in circumstances where the dismissal of Mr Lebsanft was unfair.
COMMISSIONER
Appearances:
Mr J Merrell of Counsel for Mr Heath Lebsanft
Mr A Herbert of Counsel for Oakey Abbatoir Pty Ltd
Hearing details:
2010
Brisbane
16 November
Toowoomba
17, 18 November
16, 17 December
2011
Brisbane:
27, 28 January
4 March
Final written submissions:
2011
17 March
1 Exhibit A4, paragraphs 8-12
2 Exhibit A4, paragraph 13
3 Transcript at PN1131 and PN1133
4 Transcript at PN1134
5 Transcript at PN5621-PN5631
6 Transcript at PN5446-PN5454
7 Transcript at PN5461-PN5468
8 Transcript at PN5466
9 Transcript at PN5452 & PN5464
10 Transcript at PN5426-PN5432
11 Transcript at PN5410 and PN2326
12 Transcript at PN1026 -PN1032
13 Transcript at PN4759
14 Exhibit R13 at para 21
15 Exhibit R13 at para 41
16 Exhibit R13 at paragraphs 26, 27, 28, 33, 35, 38, 39, 40 and 43
17 Transcript at PN5131- PN5139
18 Exhibit R18 at paragraph 17
19 Exhibit R18 at paragraph 13
20 Exhibit R18 at paragraph 14
21 Transcript at PN5263
22 Transcript at PN5267
23 Transcript at PN5268
24 Exhibit R11
25 Transcript at PN3987-PN4032
26 Transcript at PN4466 - PN4469 and PN4472 - PN4475
27 Transcript at PN2326
28 Transcript at PN2041
29 Transcript at PN2062 - PN2070
30 Transcript at PN2113, PN2120- PN2121
31 Transcript at PN2286
32 Transcript at PN2256
33 PN4872
34 Exhibit R15 at para 8(1)
35 Exhibit R17
36 Attachment HGL1 to Exhibit A5
37 Attachment HGL2 to Exhibit A5
38 Transcript at PN5073
39 Paragraph 19 of Exhibit R9 and paragraphs 18 and 19 of Exhibit R12
40 Exhibit A6
41 Transcript at PN5426 - 5432
42 Transcript at PN1751-PN1764
43 Transcript at PN1767-PN1770
44 Transcript at PN1777 - PN1780
45 Transcript at PN1783
46 Transcript at PN1836
47 Exhibit R13 at para 21
48 Transcript at PN2438
49 Transcript at PN2466
50 Transcript at PN6715
51 Transcript at PN6699
52 Exhibit R20 attachment PGG2
53 Exhibit R20 attachment PGG3
54 Transcript at PN2594
55 Transcript at PN2674
56 Selvachandran v Peteron Plastics Pty Ltd,(1995) 62 IR 371 at 373, 7 July 1995, Northrop J. and Rode v Burwood Mitsubishi, Print R4471 at pn 19, 11 May 1999, Ross VP, Polites SDP, Foggo C.
57 (1938) 60 CLR 336 per Dixon J
58 (1992) 110 ALR 449 at 449-450
59 Exhibit R4
60 Exhibit R4, attachment CTH10
61 Exhibit R4, attachment CTH11
62 Exhibit R4 at para 43
63 Exhibit R4 attachment CTH14
64 Exhibit R4 attachment CTH11
65 Transcript at PN6662 and PN6680
66 Transcript at PN504-505, PN551, PN559, PN631, PN697-698 and PN1165
67 Para 13 of Exhibit A4
68 Transcript at PN5415
69 Exhibit R4, attachment CTH16
70 Exhibit R4, attachment CTH16
71 Exhibit R4, attachment CTH16
72 Exhibit R2 at pages 4 and 6 of tab 2
73 Exhibit R2 at page 9 and 10 of tab 11
74 Exhibit R2 at pages 9 and 10 of tab 11
75 Exhibit R2 at page 5 of tab 13
76 Exhibit R2 at page 4 of tab 10 and page 4 of tab 7
77 Exhibit R2 at page 5 of tab 16
78 Exhibit R2 at page 5 of interview at 12.45pm at tab 3
79 Exhibit R2 at page 5 of tab 16
80 [2011] FCAFC 54, Cowdroy J at paras 4- 7
81 [2011] FWAFB 1166
82 PR908112 at [43]
83 (1997) 72 IR 186 at 191
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