Ian Holliday v Coca Cola Amatil (Aust) Pty Ltd

[2014] FWC 7441

[2014] FWC 7441

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ian Holliday
v
Coca Cola Amatil (Aust) Pty Ltd
(U2014/1120)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 23 OCTOBER 2014

Application for relief from unfair dismissal.

[1] Mr Ian Holliday alleges that the termination of his employment by Coca Cola Amatil (Aust) Pty Ltd was unfair.

[2] Mr Holliday’s employment was terminated on 17 March 2014 for unsatisfactory conduct. He was paid in lieu of notice.

[3] On 26 February 2014, Mr Holliday was suspended on pay while an incident investigation took place. In the letter of suspension Mr Holliday was advised that if the allegations were substantiated his employment was at risk. 1

[4] On 28 February 2014, Coca Cola sent Mr Holliday a letter detailing the allegations:

Allegation 1: It was alleged that Mr Holliday engaged in inappropriate conduct by acting in an intimidatory and threatening manner, and using offensive language towards another employee.

Allegation 2: It was alleged that on 21 February 2014 Mr Holliday was absent from work without authority and did not notify Coca Cola of his absence. 2

Allegation 1

[5] It is not contested that Mr Holliday, whilst driving his forklift, was involved in a near miss incident with another employee. It was Mr Holliday’s evidence that whilst he was reversing his forklift the other employee walked across the path of the moving forklift. 3

[6] It was Mr Holliday’s evidence that he “yelled at Luke words to the effect of “are you stupid”. He said he did not recall using the word “bloody” or “f...ing” but he conceded he may have. 4

[7] Luke then said words to the effect of “you can’t talk to me like that” and Mr Holliday said “what you have done is dangerous.” 5 In cross examination Mr Holliday said his response was “what you’ve just done is bloody stupid.”6

[8] By contrast, Coca Cola alleged that Mr Holliday told Luke to “don’t be so fucking stupid” and when Luke said don’t speak to me like that Mr Holliday said “ Of course I’m going to fucking swear at you if you do that.” 7

[9] Mr Holliday reported the incident. In the incident report Mr Holliday stated that he had told Luke to “bugger off from the rear of [his] forklift, to which he got upset. I told him what he had done was bloody stupid.” 8

[10] Mr Holliday was invited to a meeting on 4 March, to discuss the allegations.

[11] Mr Holliday provided a written response to the allegations. 9 In that response Mr Holliday admitted that he “most likely swore at Luke” and that he did not include this in the incident report because using such language in the report would be inappropriate. He went on to say “the reason I got upset and very angry and abusive was that an individual had placed himself in such a dangerous position and nearly caused me to injury him. .........I will sincerely apologise to Luke for the language that came out of my mouth that occurred after the incident. I understand that this type of language is generally unacceptable but considering the circumstances that occurred, it was an action that was regrettably uncontrolled.”10

[12] Mr Holliday stated that if Luke insisted that he said “fucking” then he was not going to argue with it because he was very shaken up at the time. 11 Mr Holliday described his state at the time as upset rather than angry.12 He denied categorically saying “of course I’m going to fucking swear at you.”13

[13] Mr Holliday in cross examination did not accept that he spoke to Luke in a disrespectful way. 14

[14] Mr Holliday considered the language he used to be the “general lexion” in the factory. 15

[15] In cross examination, Mr Holliday disavowed part of his written response. In particular he stated the words from “I will sincerely apologise....” were not his words rather they were words included by his union representative to convince Coca Cola to soften its approach. 16

[16] Mr Holliday’s description of his conduct varied. In his written response he said he was “upset and very angry and abusive.” 17 In cross examination he said he was “angry.”18 He then said he was upset and shaken but had never said he was angry.19

[17] The other employee involved in the incident was not called to give evidence.

[18] Ms Katherine King, a Capability Manager with Coca Cola, spoke to Mr Holliday about the incidence on 26 February 2014. In that conversation Mr Holliday did not confirm or deny swearing at Luke because he said he was shaken up and angry at the time. 20

Allegation 2

[19] Coca Cola has non production days, and employees are given the option of taking an annual leave day. If the employee did not take the day off then the employee attends work as normal and is assigned work for the day.

[20] Mr Gary Parsons, Mr Holliday’s supervisor, told Mr Holliday that 21 February 2014 would be a non production day. Mr Parsons advised him that if he came in then Coca Cola would not engage a contractor for the day and he would be on the forklift. 21

[21] Mr Parsons later in the shift asked Mr Holliday if he could come in at 9am. This was not Mr Holliday’s usual starting time. Mr Holliday told Mr Parsons that he would not be in at 9am as he was going out after work that night. He told Mr Parsons that he would come in at his normal time or “not at all”. 22

[22] In cross examination Mr Holliday said that he told Mr Parsons that if he wanted him in at 9am he was not coming in. 23

[23] Mr Holliday said it was not unusual for employees to fill in the paperwork for the leave the day or days after the non production day. 24 This was corroborated by Mr Albert Camenzuli another employee who said that you can put in your leave application when you come back.25

[24] Further Mr Holliday said that other employees had previously not turned up to work on non production days when they were supposed to attend. 26

[25] Mr Holliday did not attend work the next day and he did not call in to advise that he was not coming in. Mr Holliday said that when he woke up at 9am the next morning “I decided against going in as I would be the only person from the crew in and there was no work for us to do. I did intend to call in.” 27

[26] Mr Holliday explained that he had left his phone at his neighbour’s house and he did not have the relevant phone numbers to enable him to call in. He said that he understood that Mr Parsons was aware that he might not come in. 28

[27] Mr Holliday said that if he had been able to he would have rung in. 29 While he had a landline, he said that on a previous occasion when he tried to use the central number he spent two hours trying to get through to a person.30 It was Mr Holliday’s evidence that there is only one central line for Coca Cola for the entire country.31 When it was put to Mr Holliday that there was a direct line for the site on the internet he accepted there might be now but he could not access the internet.32

[28] When asked why he had not looked up the number on his computer Mr Holliday said that his computer had crashed. 33 He also said he was not familiar with directory assistance.34 He also said that the requirement to ring in only applied if he was sick.35 Mr Stewart Anderson gave contradictory evidence about whether there was internet access at Mr Holliday’s house at the relevant time.36 In cross examination he stated that there was internet access at the house in February and in re-examination he stated that the computer had been damaged in February and had only been recently fixed.37

[29] It was Mr Holliday’s evidence that he only intended calling in to protect himself and not because he was required to call in. It was his evidence that there was no expectation that he would be there. 38

[30] Mr Holliday gave evidence that in the past he had never not phoned when he was sick or on leave or for any other reasons. 39

[31] Mr Parsons gave evidence that Mr Holliday told him that he did not want to take an annual leave day and he would be at work. He did ask Mr Holliday if he could start at 9am and he said that Mr Holliday said he would let him know but that he might start at this normal time. Mr Parsons said that was fine and there would be work for him to do. He asked Mr Holliday to let him know what he would be doing. 40

[32] Mr Parsons did not resile from this evidence in cross examination. 41

[33] Mr Parsons rejected the proposition that employees could submit leave forms after the non production day. 42 He accepted that this might happen for sick leave but he had never seen it for non production days.43 He did accept that an employee who had to take a day off at short notice may get verbal approval and subsequently submit the leave form.44 In response to a question about whether it was acceptable for an employee, who failed to notify in advance that he or she was not attending and to subsequently submit the form, Mr Parsons said “I guess they’d have to make a phone call and ring me or the manager and okay it. I suppose it would be, yes.”45

[34] Mr Parsons gave evidence that he spoke to Mr Holliday on 24 February about why he did not attend and he said Mr Holliday said that “he didn’t feel like coming in.” 46 Mr Parsons was not cross examined about this evidence. Mr Holliday, in cross examination, denied saying this to Mr Parsons.

[35] Ms Katherine King, the Capability Manager, gave evidence that she spoke to Mr Holliday on 24 February 2014 about his absence and he said words to the effect of “I didn’t want to come in. I didn’t think there was going to be any work to do.” He further said “it got to about 1pm and I just forgot” to call. 47 Ms King was not cross examined about this evidence. When Mr Holliday was cross examined about this evidence he said he had told Ms King that “[he] didn’t come in because I was told there was going to be no work to do.”48

[36] In cross examination, Ms King accepted that Mr Holliday was not definite about coming to work on 21 February. She agreed with the proposition that Mr Holliday said that “maybe he would be in depending on how the evening goes”. 49 Ms King also accepted that Coca Cola had accepted leave forms submitted after the event50 though she wasn’t sure if this applied during non production days.51 It was Ms King’s evidence that the problem was not the late submission of the form, the problem was that Mr Holliday did not make it clear before the start of the shift that he wasn’t coming in.52

Outcome of the investigation

[37] On 10 March 2014, Mr Holliday was advised that the allegations were substantiated. 53 That letter also advised him of a further allegation.

Allegation 3

[38] It was alleged that on 4 March 2014, in a phone call to a third party provider, Mr Holliday had reflected negatively on the image, reputation and best interest of Coca Cola.

[39] In 17 June 2013, Dr David Jones had provided an assessment to Coca Cola of Mr Holliday’s capability to perform his current duties and also possible alternative duties. 54 Dr Jones met with Mr Holliday before producing the report. Relevantly Dr Jones found no evidence of any underlying psychological issues.

[40] On 24 June 2013, a workplace assessment was produced by Injury Treatment. In that report it was stated that Ms Alysha Johansen, Coca Cola’s Human Resources Consultant, had advised that Mr Holliday was “not willing to participate in the assessment.” 55

[41] On 25 September 2013, Coca Cola sought a further report from Dr Jones. Attached to that request was Dr Jones’ original report and the workplace assessment. 56

[42] Dr Jones provided a supplementary report to Coca Cola but that report was not in evidence before me.

[43] Mr Holliday gave evidence that the supplementary report psychoanalysed [him] without interviewing him. 57 He also said that as a result a HR manager in a meeting had said he had “psychological issues.”58 As a result he demanded to see the report. He said the assessment was damaging to him.59

[44] Ms Johansen, gave evidence that on 4 March 2014 she received a phone call from Theresa from Dr Jones’ office. 60 Ms Johansen made a file note of the conversation. She said that Theresa advised her that Mr Holliday had called and he was very angry. She said that Mr Holliday said that he had a copy of the supplementary report from Dr Jones and he was angry about certain comments made by Dr Jones. Mr Holliday had demanded that Dr Jones retract the statement and if he did not do so, then he would report Dr Jones to the medical board. Mr Holliday told Theresa that Coca Cola had provided false information to Dr Jones in an attempt to dupe him into providing medical information favourable to Coca Cola. Theresa told Ms Johansen that she was quite shaken by the phone call and saw it as threatening.61

[45] Theresa was not called to give evidence.

[46] Mr Holliday accepted that he spoke to Dr Jones’ receptionist. He said that he told her that the doctor had written a report and that some of the information it was based on was inaccurate. The receptionist said he needed to speak to the doctor and she would get him to call back. Mr Holliday told her that it was important that the doctor do so because if he did not he would have to take it up with the medical council. 62

[47] Mr Holliday denied being angry when he made the call. 63 He accepted that he told the receptionist that Coca Cola had supplied false information to Dr Jones and that it had done so to dupe him into providing information favourable to Coca Cola.64

[48] Mr Anderson gave evidence that he overheard this phone call. He stated that Mr Holliday told the receptionist that he wanted to explain to the doctor that the assessment had been done in his absence and it was based on inaccurate or insufficient information. Mr Anderson said that Mr Holliday did not raise his voice, swear or speak in an aggressive manner. 65

[49] In cross examination Mr Anderson accepted that he was not present for the entire conversation. 66 He confirmed that Mr Holliday had told the receptionist that Coca Cola had provided false information to Dr Jones to dupe him into providing medical information favourable to Coca Cola.67

[50] Mr Anderson said that Mr Holliday was “very articulate” and “very structural with his conversation”. He said Mr Holliday was not angry. 68

[51] Mr Anderson said Mr Holliday was upset about Dr Jones’ report and he said that if Dr Jones did not retract the report he would report him to the medical board. 69

Show Cause Meeting

[52] Mr Holliday was invited to a meeting on 13 March 2014 “to show cause as to why [his] employment should not be terminated” and to “respond to the Medibank Solutions allegation.” 70

[53] Mr Holliday was told that Coca Cola believed it had a valid reason to terminate his employment but a final decision had not been made.

[54] Mr Holliday provided a written response to the show cause letter. 71 In relation to the Allegation 3, Mr Holliday advised that that was a private matter between him and the doctor and he did not intend responding to the allegation.

[55] Mr Holliday attended a meeting on 13 March 2014 along with his union organiser and delegate. He again reiterated his view that the phone call to Dr Jones’ surgery was a private matter. 72

The decision to terminate Mr Holliday’s employment

[56] Mr Ezra Bibby, the Production Manager, made the decision to terminate Mr Holliday’s employment. He had regard to the allegations and Mr Holliday’s employment record.

[57] In the termination letter of 17 March 2014, Mr Bibby advised that Coca Cola had substantiated Allegation 3. In reaching his decision to terminate Mr Holliday’s employment, Mr Bibby had regard to the fact that Mr Holliday had received a letter of warning in August 2013.

The previous warning letter and the performance plan

[58] It is not disputed that Mr Holliday received a warning letter on 25 July 2013. 73 Coca Cola had found that Mr Holliday behaved in an inappropriate, unprofessional and disrespectful manner. The conduct was said to have breached the Working Together Policy and the Code of Business Conduct. It was said that Mr Holliday had previously received informal counselling about his conduct towards others. Mr Holliday was told that “a failure to meet the expected behaviours and performance, without reasonable cause, may result in further disciplinary action, including up to termination of employment.”74

[59] A dispute about these allegations was referred to the Fair Work Commission.

[60] On 20 August 2013, Mr Holliday received a final warning. Mr Holliday was found to have “engaged in misconduct in breach of his employment obligations pursuant to the Richlands Business Enterprise Agreement, CCA’s Working Together Policy and the Code of Business Conduct. [His] behaviour, conduct and demeanour at work have been unsatisfactory and have not accorded with CCA’s expectations.” 75

[61] Mr Holliday was placed on a performance improvement plan and Coca Cola’s expectations about his behaviour were clearly articulated.

[62] In particular, Mr Holliday was to ensure that his “communication, demeanour and interactions with colleagues and managers is respectful and professional at all times, including in any work related meetings or events.” 76

[63] The letter advised Mr Holliday that any failure to meet the expected standards of performance or conduct without reasonable cause may lead to further disciplinary action including termination of his employment. 77

[64] The letter advised Mr Holliday that he could appeal under clause s2.5.2 of the Agreement. Mr Holliday did not appeal the warning. 78

[65] The performance improvement plan set out Coca Cola’s expectations and relevantly one expectation was: “use of appropriate tone, words and manner at all times when communicating with others. We specifically call out that you must not make derogatory comments or behave in an intimidating manner” and must “respectfully raise any concerns about other’s performance or behaviours confidentially with your manager; not by withdrawing, criticising or confronting others.” 79

[66] Mr Holliday gave evidence that while he understood these expectations he did not understand how his past behaviour had not met those expectations. 80 As he correctly identified, he was to be given training so that he better understood how his behaviour needed to change.81

[67] Mr Holliday was to meet weekly with Mr Alan Potter his supervisor. This did not occur. It is not clear how many meetings actually occurred. Reports dated 4 September and 4 December 2013 and one undated report were tendered. 82

[68] It was Mr Holliday’s evidence that after the first meeting he did not meet with his supervisor again. 83 Certainly the reports tendered by Coca Cola were not signed by Mr Holliday.

[69] Mr Holliday said that when he first met with Mr Potter, Mr Potter said “I don’t know what they’re asking of you in this because I don’t even know what they mean by these statements that they are making.” 84

[70] Mr Potter was not called to give evidence and Ms Johansen, who was supposed to participate in this plan, gave no evidence of her involvement in the plan.

[71] In around October/November Mr Holliday was off work due to an injury to his shoulder. There is no evidence, apart from the report of 4 December 2013 that any further action was taken to comply with the performance improvement plan. Mr Holliday’s evidence about how the performance improvement plan was implemented was not challenged. Mr Bibby did not seem surprised that the plan had not been followed. 85 Mr Bibby accepted that it could have been done better but it was his view that as there had been numerous conversations with Mr Holliday over the previous 12 months, particularly about outbursts and aggressive behaviour towards other employees, it should have been clear to Mr Holliday what was expected.86

Jurisdiction of the Fair Work Commission

[72] There is no dispute that Mr Holliday is a person who was protected from unfair dismissal. The Fair Work Commission has the jurisdiction to determine the application.

Was the termination of employment harsh, unjust or unreasonable?

[73] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, Fair Work Australia must take into account the following:

s387(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);

[74] Coca Cola accepted that in assessing whether there was a valid reason for the termination of Mr Holliday’s employment, the Commission in this case, must decide if the conduct occurred.

Allegation 1

[75] The only direct evidence of what Mr Holliday said to Luke was given by Mr Holliday. I find that Mr Holliday swore at Luke and at minimum told him to bugger off and that what he had done was bloody stupid. I also find that Mr Holliday was angry and upset by the incident and that more likely than not he used words other than “bloody.” I make this finding because Mr Holliday in his written response to Coca Cola at the time recognised that the language he used was generally unacceptable. He also accepted that he had not recounted in the incident report all the words he used. Mr Holliday did not consider the word “bloody” to be problem as it was used commonly in the workplace. I therefore conclude that Mr Holliday used more extreme language than this. I also find that at the time, Mr Holliday was angry and abusive. Mr Holliday attempted to resile from the apology given in his written statement. I do not accept that evidence because in his witness statement he described the written statement as his response and only sought to resile from the response during cross examination. Further Mr Holliday in cross examination made it clear he would never apologise for something he had not done. 87

[76] However, I am unable to conclude that Mr Holliday said to Luke that “of course I am going to fucking swear at you if you do that.” Luke did not give evidence in this matter. Ms Johansen gave evidence of what was said but she did not hear the conversation. This part of the allegation, if established, would support a finding that even when put on notice, that he had caused offence, Mr Holliday was indifferent to his obligations to his colleagues. I am unable to find on the balance of probabilities that Mr Holliday made this statement.

[77] Whilst it was inappropriate for Mr Holliday to swear at Luke, the circumstances of the incident cannot be ignored. Luke had walked behind a moving forklift and caused Mr Holliday to have to stop suddenly. Had Mr Holliday not been able to stop Luke could have been seriously injured. I accept that at the time he swore at Luke, Mr Holliday was shaken and angry. I accept he was abusive towards Luke. Mr Holliday had been given warnings about inappropriate interactions with other employees, and he should have chosen other language to express his concerns. It is clear that Mr Holliday had difficulty responding appropriately when he was upset. The performance improvement plan was intended to address this conduct. That plan failed because Coca Cola did not take steps to ensure it was implemented. In effect Mr Holliday was exhorted to change his ways without being given the necessary skills to affect that change. In contrast, another employee who was recognised as having anger management issues was given anger management training. Appropriate training was not provided to Mr Holliday. While it is a reasonable expectation that employees control their anger in the circumstances of a near miss, I accept that the use of inappropriate language is not uncommon in such circumstances. In all the circumstances I do not consider that Mr Holliday’s conduct on this occasion warranted the termination of his employment.

Allegation 2

[78] I find that Mr Holliday told Mr Parsons that he intended coming into work at his normal starting time. I prefer Mr Parsons’ evidence to that of Mr Holliday. Mr Parsons was required to find out who would be at work and who would not, so that work could be allocated to staff who would be attending. For example, he had advised Mr Holliday that Coca Cola might use him to replace a contract forklift driver. Further that Mr Holliday was coming to work is supported by his evidence that “I decided around twelve on the Thursday that I was not bothered going in, to do the supposed rework that had been there on the previous three times to do but wasn’t.” 88 Further Mr Holliday would not have needed to consider calling Coca Cola to explain his absence if he had already told Mr Parsons that he might not be coming. I do not accept his explanation that he only thought about ringing in to protect himself. This explanation was given for the first time at the hearing and contradicts his earlier statements.

[79] While I accept that there might be situations where an employee completed a leave form after taking the leave, there is insufficient evidence to support a finding that employees were able to make up their minds on the non production day whether they were attending work or not.

[80] I find that Mr Holliday, having advised Mr Parsons that he would attend work at his normal time, did not attend work and I find he made no attempt to contact his employer to advise them of his absence. While I accept his evidence that he did not have his mobile phone I do not accept his evidence that there was no way he could contact his employer. An internet search would have provided him with the phone number. I do not accept his evidence that he was unable to access the internet. Even if I accepted that his home computer did not work, there are other ways to access the internet. Mr Holliday clearly formed the view that it didn’t matter if he turned up or not because of the work that was usually performed by him on such days.

[81] Mr Holliday was obliged to advise his employer in advance if he did not intend coming to work on such a day. Mr Holliday’s disregard of his obligation to advise his employer of his non attendance is in breach of Coca Cola’s policy. However, there is no evidence that Mr Holliday had a history of unauthorised absenteeism. Of itself, this conduct did not warrant the termination of his employment.

Allegation 3

[82] It is not disputed that Mr Holliday called Dr Jones’ surgery and it is also not disputed that Mr Holliday told the receptionist that if Dr Jones did not call him back or retract his report that he would report him to the Medical Board. It is also not disputed that Mr Holliday told the receptionist that Coca Cola had given Dr Jones false information to get Dr Jones to provide a report favourable to Coca Cola. So much was confirmed by Mr Holliday and Mr Anderson. The receptionist did not give evidence in this matter.

[83] I am unable to conclude that Mr Holliday’s statement about Coca Cola giving false information to Dr Jones’ receptionist was in fact untrue. Dr Jones had prepared a report on Mr Holliday in June 2013. 89 That report was provided to the consultant who conducted a workplace assessment report. Mr Holliday complained that that report had stated that he would not attend the workplace assessment. The workplace assessment stated that this information came from Coca Cola. That information was included in the workplace assessment which had been provided to Dr Jones. Mr Holliday was not at work when the assessment was done and there is no evidence that he was invited to participate in the workplace assessment and refused. Therefore, the information provided to the workplace assessor and then Dr Jones was inaccurate.

[84] Dr Jones’ supplementary report was not in evidence before me. Mr Holliday complained that the report included a negative psychological assessment of him which had been reported back to him in a meeting with Coca Cola. Dr Jones’ original report made no reference to a negative psychological assessment. There is no evidence that Dr Jones saw Mr Holliday after the original assessment. There was no negative psychological assessment made in the workplace assessment. Mr Holliday’s evidence that this negative assessment had been raised with him by Coca Cola was not challenged. Mr Holliday was therefore entitled to seek an explanation of how Dr Jones came to this assessment. Without seeing the report and further evidence I am therefore unable to find that Mr Holliday’s statement to the receptionist was untrue.

[85] I do not consider advising the receptionist that if Dr Jones did not return his call or retract the report, he would report him to the Medical Board was a threat. Mr Holliday had concerns about Dr Jones’ report. It was his view that Dr Jones had based his report on inaccurate information and was seeking to have Dr Jones modify his report. Mr Holliday is entitled to challenge information provided to Dr Jones and provide him with additional information. If his concerns were unresolved Mr Holliday was entitled to take his concerns about this to the Medical Board. I do not accept the submission that Mr Holliday’s response to the receptionist was intemperate or over the top. 90 While Mr Holliday may have reflected negatively on Coca Cola, I am unable to find that this was a breach of his duty of good faith and fidelity.

Previous warnings

[86] I have had regard to the fact that Mr Holliday had received a final warning in August 2013. Mr Holliday did not lodge a grievance about that warning. There was material filed to explain the basis of that warning but Coca Cola did not rely on those allegations to justify Mr Holliday’s dismissal. I was not asked to find that that conduct had occurred. Coca Cola submitted that Mr Holliday was aware of its expectations of him and that the allegations were not isolated acts of misconduct. 91 It was submitted that these incidents occurred not long after Mr Holliday had been placed on a performance management process.92

[87] I accept that Mr Holliday knew what was expected of him and that Mr Holliday was put on a performance management plan. I am unable to find that Coca Cola followed through with this plan. On the evidence before me there were no issues with Mr Holliday after he was given the warning and before these incidents. There is no evidence that Mr Potter provided guidance to Mr Holliday about what was and what was not acceptable behaviour. There was no evidence that the planned weekly discussions took place. It appears that all Mr Potter did was report positively on Mr Holliday’s behaviour. The lack of follow through is surprising given the circumstances that led to the warning.

[88] I have found that Mr Holliday did not attend work when he was required to attend. However this was a once off event. I have found that he swore in an abusive manner at another employee. I have not found all the allegations relied upon by Coca Cola to terminate Mr Holliday’s employment were substantiated. I have not found that Mr Holliday has exhibited a pattern of aggression towards others and had a lack of regard to his employer’s expectations. 93 I accept that Mr Holliday was warned that his employment was at risk. However Coca Cola did not rely upon the allegations that led to that warning as justifying termination. They relied upon the warning only to support their contention that Mr Holliday knew what was expected of him.

[89] Therefore, while Mr Holliday’s conduct in swearing at Luke and not attending work as required was not acceptable, I do not consider that the conduct taken together justified the termination of his employment and therefore there was no valid reason for the termination of his employment.

s387(b) whether Mr Holliday was notified of that reason;

[90] It is not disputed that Mr Holliday was notified of the allegations before the decision to terminate his employment.

s387(c) whether Mr Holliday was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[91] It is not disputed that Mr Holliday was given an opportunity to respond. While it was submitted that this was not a genuine opportunity to respond, there is no evidence to support such a submission.

s387(d) any unreasonable refusal by the employer to allow Mr Holliday to have a support person present to assist at any discussions relating to dismissal;

[92] Mr Holliday was represented in the discussion.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Mr Holliday had been warned about that unsatisfactory performance before the dismissal;

[93] Mr Holliday’s dismissal was not related to unsatisfactory performance.

s387(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;

[94] Coca Cola is a large employer. As I have found that Mr Holliday was afforded procedural fairness, this criterion is neutral.

s387(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;

[95] Coca Cola has dedicated human resource management specialists and expertise. This criterion is neutral.

s387(h) any other matters that the Fair Work Commission considers relevant.

[96] Mr Holliday was a relatively long serving employee.

Conclusion

[97] Coca Cola did not have a valid reason to terminate Mr Holliday’s employment. He was afforded procedural fairness. I have found that Mr Holliday did engage in some of the misconduct alleged. Apart from the incident with Luke, there was no evidence, that since he had been warned, that he had behaved inappropriately towards others. While he should have advised Coca Cola that he was not attending work on 21 February, this was a one off event and is of an entirely different character to the behavioural issues relied upon by Coca Cola. The decision to terminate his employment was disproportionate to his conduct. I find that the termination of Mr Holliday’s employment was harsh, unjust and unreasonable.

Remedy

[98] The matter will be relisted for hearing to determine the appropriate remedy.

Permission to appear

[99] Mr Murdoch of Counsel, sought permission to appear for Coca Cola at the hearing. Ms Kerry Inglis, an industrial officer of the Communications, Electrical, Electronics, Energy, Information, Postal, Plumbing and Allied Services Union (the CEPU) represented Mr Holliday.

[100] Mr Murdoch submitted that given the disputed facts and the disputes about admissibility of certain evidence, granting permission would enable the matter to be dealt with more efficiently. It was submitted that while Coca Cola had an experienced human resources practitioner but given she was a witness, it would be inappropriate for her to be the advocate. It further submitted that Mr Holliday is represented by an experienced advocate so no issue of unfairness to Mr Holliday arises. It was also submitted that the CEPU had been on notice from the early stages of the proceedings that Coca Cola had engaged external lawyers to represent it and the CEPU only advised Coca Cola the night before the hearing that it opposed permission being granted. It was submitted in those circumstance the Commission should exercise its discretion to grant permission.

[101] Ms Inglis submitted that this matter involves disputed facts, not legal complexities and therefore there is no substance to Mr Murdoch’s submission that granting permission would enable the matter to be dealt with more efficiently. It was submitted that Coca Cola is a large multinational corporation which has many experienced staff who could appear in this matter. It was submitted that to allow representation would create unfairness as the CEPU does not have the level of resources available to a solicitor or a barrister.

[102] While this matter is finely balanced, I granted permission to appear. As with many unfair dismissal cases there is no complex issue of law to be resolved. The case clearly involved the application of settled law to the facts. However I considered that granting permission to appear would enable the matter to be dealt with more efficiently having regard to the nature of the disputed facts.

DEPUTY PRESIDENT

Appearances:

K. Inglis from the CEPU on behalf of the Applicant.

C. Murdoch of Counsel for the Respondent.

Hearing details:

2014.

Brisbane:

8 and 9 September.

<Price code C, PR556828>

 1   Exhibit A1 at IH6.

 2   Ibid at IH3.

 3 Ibid at [22].

 4 Ibid at [23].

 5 Ibid at [24].

 6   Transcript PN 461.

 7   Exhibit A1 at IH4.

 8   Exhibit R4 at attachment 2.

 9   Exhibit A1 at IH5.

 10   Ibid.

 11   Transcript PN 470.

 12   Ibid at PN 474.

 13   Ibid at PN 478.

 14   Ibid at PN 486.

 15   Ibid at PN 499.

 16   Ibid at PN 568-571.

 17   Exhibit A1 at IH5.

 18   Transcript PN 471.

 19   Ibid at PN 474.

 20 Exhibit R4 at [16].

 21   Transcript PN 332.

 22 Exhibit A1 at [31].

 23   Transcript PN 338.

 24   Ibid at PN 346 and PN 361.

 25   Ibid at PN 900.

 26   Ibid at PN 361.

 27 Exhibit A1 at [32].

 28   Ibid at [31]-[32].

 29   Transcript PN 347.

 30   Ibid at PN 358.

 31   Ibid at PN 340.

 32   Ibid at PN 377-378.

 33   Ibid at PN 388.

 34   Ibid at PN 389.

 35   Ibid at PN 393.

 36   Ibid at PN 1083-1089.

 37   Ibid at PN 1103-1107.

 38   Ibid at PN 396.

 39   Ibid at PN 399.

 40 Exhibit R5 at [10].

 41   Transcript PN 1657-1703.

 42   Ibid at PN 1647.

 43   Ibid at PN 1651.

 44   Ibid at PN 1652.

 45   Ibid at PN 1656.

 46 Exhibit R5 at [19].

 47 Exhibit R4 at [10].

 48   Transcript PN 409.

 49   Ibid at PN 1502.

 50   Ibid at PN 1503.

 51   Ibid at PN 1504.

 52   Ibid at PN 1507.

 53   Exhibit A1 at IH7.

 54   Exhibit A4.

 55   Exhibit R6 at attachment 12.

 56   Exhibit A1 at IH2.

 57   Transcript PN 601.

 58   Ibid at PN 623.

 59   Ibid at PN 627, 631 and 632.

 60 Exhibit R1 at [32].

 61   Ibid at AJ13.

 62 Exhibit A1 at [42].

 63   Transcript PN 649-650.

 64   Ibid.

 65   Exhibit A3 at [4] and [6].

 66   Transcript PN 1052.

 67   Ibid at PN 1057 and 1077.

 68   Ibid at PN 1069-1070.

 69   Ibid at PN 1072-1076.

 70   Exhibit A1 at IH7.

 71   Exhibit R1 at AJ15.

 72 Exhibit A1 [45] and Exhibit R1 at [35].

 73   Exhibit R6 at attachment 8.

 74   Ibid.

 75   Ibid at attachment 10.

 76   Ibid.

 77   Ibid.

 78   Transcript PN 173.

 79   Exhibit R6 Attachment 1.

 80   Transcript PN 110.

 81   Ibid at PN 115.

 82   Exhibit R1 at AJ10.

 83   Transcript PN 98 and 130.

 84   Ibid at PN 95.

 85   Ibid at PN 1868.

 86   Ibid at PN 1930.

 87   Ibid at PN 554.

 88   Exhibit A1 at IH5.

 89   Exhibit A4.

 90   Transcript PN 2007.

 91   Ibid at PN 2008.

 92   Ibid at PN 2010.

 93   Ibid at PN 2071.

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