JBS Australia Pty Limited v Mr Gai Reng
[2013] FWCFB 5761
•14 AUGUST 2013
[2013] FWCFB 5761 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Mr Gai Reng
(C2013/44)
VICE PRESIDENT LAWLER | SYDNEY, 14 AUGUST 2013 |
Appeal against decision [[2012] FWA 10879] of Commissioner Ryan at Melbourne on 3 and 11 January 2013 in U2012/12197 – unfair dismissal – error of fact.
[1] This is an application by JBS Australia Pty Limited (JBS) for permission to appeal and, if permission is granted, an appeal against the decision and order of Commissioner Ryan allowing an application for an unfair dismissal remedy by the Respondent, Mr Gai Reng, and ordering his reinstatement with backpay.
Background
[2] The Respondent (Mr Reng or Tito) had been employed by JBS at its cold store facility in Brooklyn since February 2006 and has been employed as a forklift driver at the cold store since early 2012. Mr Reng has also been the National Union of Workers (NUW) site delegate since 2007 and an elected Health and Safety Representative since 2008.
[3] Mr Reng was dismissed for misconduct. The letter of termination records that the employer relied upon the following reasons for dismissing Mr Reng:
(i) Deliberately failed to follow your Supervisor and Manager’s instructions.
(ii) Acting violently in the workplace and, in particular, “placing at risk the workplace health and safety of your Manager by continually pushing the office door into her and standing over her in a threatening and abusive manner” in breach of the employer’s Workplace Health and Safety Policy.
[4] The dismissal arose out of an incident that occurred on 20 July 2012. The origins of the incident were not in dispute. Mr Reng was walking past a group of employees on a break. One of the employees uttered the vulgarity “fuck!”. Mr Reng considered that the remark had been directed at him and took offence. He proceeded to the office of Ms Chanel Matthews, the cold store manager. Ms Matthews said she was busy and asked Mr Reng to come back later.
[5] Mr Reng returned to the employees and remonstrated with them. One of the employees, Mr Riki Muru, took offence at Mr Reng’s approach and both he and Mr Reng went to Ms Matthews’ office.
[6] The misconduct relied upon by the employer is alleged to have occurred when Mr Reng returned to Ms Matthew’s office.
What Happened in Matthews’ Office
[7] Ms Chanel Matthews gave the following account in her statement (Ex R3):
“11. Literally 3 minutes [after she had told Mr Reng she was busy and to come back later], Riki came up the stairs in to my office with Tito right behind him and said “Chanel, what’s going on? This cunt is coming down to us telling us we are going to HR.”
12. Then Tito said “Did you hear what he called me, his threatening me!”
13. Riki said “I’m not talking to you, I want to know what’s going on!”
14. I then told Riki to sit down as I could see he was agitated.
15. I said to Tito “what’s going on? What are you doing?”
16. Then within the next 5 minutes Tito said to Riki ‘‘This is wrong, why are you
swearing at me?”
17. Riki said “We weren’t swearing at you, what’s wrong with you?”
18. But this whole time whilst everyone else was talking, Tito did not stop repeating
himself and didn’t give anyone a chance to talk.
19. Then that’s when Tito started on me.
20. He was standing over me and pointing in my face, his finger was about 10cm away from me.
21. Whilst pointing in my face Tito was yelling, “This is not right! You are siding with him, you are threatening me, you can’t do this.” Tito kept repeating this over and over again.
22. I said to Tito, “Tito I can’t address anything if you are in here yelling, I need you to leave the office.”
23. Tito said, “No you are threatening me, you can’t threaten me.”
24. Then I said “Kindly remove yourself from my office Tito.”
25. Tito still kept saying the same thing repeatedly and wasn’t listening.
26. Then I started counting and said “Kindly remove yourself from my office, one” and Peter [Peter Opacak, Cold Store Senior Supervisor] said to Tito “Mate you need to remove yourself from Chanel’s office”, I said, “two.”
27. Then I said to Tito “This is the last time mate, you need to go, three.”
28. He was still in my face yelling at me and repeating himself and not listening.
29. At this stage Tito was saying “Yeah you’re going to go to HR and they’re gonna deal with you!”
30. I signalled Peter with an eye look and said, “Can you remove Tito from my office please and take him to HR.”
31. As they got out the door I went to go shut the door, when Tito threw himself back into the door to get back into the office.
32. Lucky I was holding the door knob as the door just missed my face.
33. I said “Tito, get out of the doorway, what are you doing?”
34. At this point Tito was being really aggressive. I felt very scared and lucky that Riki was in the office with me.
35. Tito kept repeating “You are threatening me, you can’t do this! Why are you threatening me?”
36. Tito tried to get back in about 3-4 times after this very aggressively. Tito positioned his body between the door and the door frame so that I could not close door. Tito used the weight of his body and his right arm to prevent me from closing the door. This caused my arm to jar backwards with the force.
37. I then said to Tito, “You need to go to HR with Peter.
38. I went to close the door again and Tito again pushed the door back with his right arm. This happen twice.
39. On the forth occasion that I tried to close the door Tito did the same but on this
occasion the door handle came out of my hand and the door swung toward me
and out of instinct I put my foot in front of the door to stop it from hitting me in the
face.
40. Then after that I finally shut the door, to talk to Riki.
41. Riki asked me if I was alright because he commented that Tito is a Psycho.
42. Then I said to Riki, “What is going on?”
43. To which he couldn’t respond because Tito was still yelling out on the stack down
floor, so I went down stairs.
44. When I stood on the stairs I said to Tito “Be quiet and go to HR.”
[8] Mr Opacak described events as follows (Ex R2):
“12. “As Ricki came into Chanel’s office he said “Chanel, what the fuck is going on?
What’s this cunt on about? Please keep him away from me!”
13. That’s when Chanel and I both immediately jumped up and I said “Calm down! What’s going on? Riki take a seat; tell me what’s going on!”
14. At that point Tito yelled “He [Riki] called me a cunt, his threatening me, they can’t do this, they can’t swear its threatening! I want to take them to HR!”
15. I said “Whoa, Tito just calm down, just calm down” at the same time as Chanel was trying to tell him to calm down.
16. I then again tried to talk to Riki and I could not get a response from Riki due to Tito’s irate behaviour as he was still yelling and screaming. Tito said, “They called me a cunt, they called me a cunt, they can’t swear at me, I want them to go to HR”.
17. At this time Chanel and I were in a standing position. Chanel said to Tito, “Please leave the room and calm down and I will come to speak to you in a couple of minutes.”
18. Tito totally ignored Chanel. Chanel said to Tito again, “Please leave the room and calm down and I will come to speak to you in a couple of minutes. That’s the second time I’ve asked you Tito.”
19. About the same time I said to Tito, “Just leave the office” and that’s when he started personally attacking Chanel by standing over her in an intimidating stance about 10cm away from her, yelling and pointing his fingers in her face.
20. Tito accused Chanel of siding with Riki. Tito said, “He called me cunt [Riki] you heard him you are siding with Riki now, you have to go to HR you can’t call me a cunt.”
21. Chanel again said “Tito calm down that’s the third time.”
22. Tito still ignored Chanel and Tito continued to scream in her face. Tito said, “He
called me cunt [Riki] you heard him you are siding with Riki now, you have to go to
HR you can’t call me a cunt.”
23. That’s when Chanel said “Pete please take Tito to HR”, I then said, “Tito come on lets go to HR.’’
24. Tito was still screaming and yelling and accusing us of threatening him with HR and that we can’t do this.
25. Chanel said, “Tito you are going to HR, and we can sort it out over there.”
26. Tito kept repeating, “Why am I going to HR? He [Riki] threatened me he called me a cunt he should go to HR.”
27. Chanel said “You are going to HR for your attitude towards me, it has nothing to do with the swearing, why did you even go down and tell the boys that they’re going to HR? Please leave the office Tito and go to HR.”
28. That’s when I managed to entice [I walked close to Tito and asked him to come with me] Tito out of Chanel’s direct office, when Tito suddenly threw himself into the door that Chanel was trying to close.
29. Tito threw himself into the door yelling and screaming with his arm in the way of the door “You’re threatening me; you can’t close the door on me.”
30. Chanel nearly had the door closed and Tito launched himself through the door with one arm stopping it from closing and his other hand on the door.
31 . Chanel asked Tito to go to HR again and as she went to close the door Tito pushed door back and it went towards Chanel then it hit something on Chanel’s side then flicked back towards Tito. I thought it had hit Chanel.
32. Then Chanel said, “Tito you’ve got to go to HR” and Tito said “Yea I’ll got to HR and see what they going to do about you!”
[9] Mr Reng gave the following account in his statement (Ex A1), commencing at the point that leads to his return to Ms Matthew’s office:
“19. At that point, Mr Muru became involved and aggressively said to me words to the effect “you fucken walk around doing nothing” and “why are you picking on me?
20. After hearing this, I decided to go back to Ms Matthew’s office, which I did, while Mr Muru followed behind me.
21. Ms Matthew and Mr Opacak were still in the office when I entered. I advised Ms Matthew that Mr Muru had threatened me and spoken to me in an aggressive and threatening way.
22. As I was finishing explaining this to Ms Matthew, Mr Muru walked in the office and said to me on a number of occasions “you fucken cunt” while he pointed his finger in my face.
23. As he did this, I said to Ms Matthew words to the effect “look, he’s threatening me.
24. Ms Matthew then stated words to the effect of “Tito, leave the office” and further told me that if I didn’t leave the office that Mr Opacak would take me to Human Resources. She also said that she “would count to three” and then began counting.
25. All the while, Mr Muru continued to abuse me. I stated to Ms Matthew words to the effect of “I was coming to you to get the problem solved”. She then counted the number three and stated words to the effect “Peter, take Tito to HR.”
[10] The oral evidence given by Ms Matthews and Ms Opacak was consistent with their witness statements.
[11] The evidence of all involved is broadly in agreement that Mr Riki Muru and Mr Reng entered Ms Matthews’ office to complain, with Mr Muru complaining about Mr Reng. The issue was what occurred in Ms Matthews’ office. On her version, Mr Reng repeatedly refused to follow directions and behaved in a violent and aggressive - not to say frightening - way. In oral evidence Mr Reng denied the aggression alleged by Ms Matthews.
Issues on appeal
[12] This is an appeal from the application of a broad discretionary standard and subject to the well-known principles in House v The King (1936) 55 CLR 499 at 505. This Full Bench has no jurisdiction to interfere with the decision and order of the Commissioner through an exercise of the powers conferred by s.607(3) unless error is demonstrated and the requirements of s.400 are satisfied.
[13] This appeal involves a challenge to the factual findings of the Commissioner in relation to the events that occurred in Ms Matthews’ office on 20 July 2012.
[14] A key statement of principle was provided by Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission (1993) 177 CLR 472 where their Honours observed (at 479):
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his (or her) advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.”
(footnotes omitted)
[15] In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) Gaudron, Gummow and Hayne JJ referred to that passage in Devries with apparent approval (at 807) and concluded:
“It is true that the trial judge, in determining whether to accept the evidence of Mrs Page, was heavily swayed by his impression of her whilst giving oral evidence. However, this circumstance does not preclude a court of appeal from concluding that, in light of other evidence, a primary judge had too fragile a base to support a finding that a witness was unreliable.”
[16] In Fox v Percy (2003) 214 CLR 118 Glesson CJ and Gummow and Kirby JJ, speaking of an appeal court, concluded (at 27):
“If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.”
Consideration
[17] In this case, the Commissioner rejected the evidence of each of Mr Reng, Ms Matthews and Mr Opacak in key respects. The Commissioner’s key finding and conclusion on whether there was a “valid reason” for the dismissal was:
“[80] ... the picture of events painted by each of Mr Reng, Ms Matthews and Mr Opacak cannot be relied on and that the truth lies somewhere between the extremes painted by either side. I am reasonably satisfied that Mr Reng was agitated and that he was loudly remonstrating with Ms Matthews in relation to the conduct of Mr Muru and the approach being taken by Ms Matthews and that he did try to prevent Ms Matthews closing the door to her office as he was leaving but even so the picture that emerges is without the overt aggression claimed by Ms Matthews and Mr Opacak.
[81] I find that JBS did not have a valid reason for the dismissal of Mr Reng.”
Failure to make necessary findings
[18] In this case the employer had relied upon two distinct forms of misconduct as its reasons for dismissing Mr Reng. The Commissioner made findings in relation to the alleged physical aggression against Ms Matthews, but made no findings in relation to Mr Reng’s alleged repeated failure to follow reasonable and lawful directions of his employer (Ms Matthews’ repeated directions to Mr Reng to leave her office and or go to HR) as a valid reason for the dismissal.
[19] It is well established that in a case based on misconduct, in considering whether there was a valid reason for the dismissal (s.387(a)), the Commission must determine for itself whether the misconduct occurred and therefore must make findings of fact in relation to the reasons for dismissal relied upon by the employer: Edwards v Giudice (1999)94 FCR 561. The Commissioner’s failure to make findings on the alleged failure to follow lawful and reasonable directions involved error. The Commissioner was required to reach the appropriate standard of persuasion in respect of each individual allegation of material fact, as opposed to all the allegations combined: Qantas Airways v Gama (2008) 167 FCR 537 at [125] to [126] per Branson J (with whom French and Jacobson JJ agreed).
[20] Even on the Commissioner’s findings, it is clearly more likely than not that Ms Matthews did repeatedly ask Mr Reng to leave her office and go to HR and that he repeatedly failed to follow that instruction.
Errors in fact finding
[21] To the extent the Commissioner found facts in relation to the incident on 20 July 2012, those findings are also affected by error.
[22] The Commissioner summarised Mr Reng’s case as follows:
“[54] The case for Mr Reng is that whilst he was complaining about the language used by Mr Muru to him and about him and whilst he complained to Ms Matthews about her attitude towards the swearing, he never threatened Ms Matthews, nor did he stand over her waving his finger in her face, nor did he push back on the door to Ms Matthews’ office to prevent her from closing the door.
[55] The case for Mr Reng is that he was the victim of three specific abusive comments and that Ms Matthews did not immediately deal with Mr Reng’s complaints in a timely or appropriate manner.”
[23] In relation to evidence of Mr Reng, the Commissioner made the following findings:
“[51] Mr Reng proved to be a difficult witness under cross examination. Part of this difficulty clearly arose from Mr Reng not understanding questions put to him and part arose from Mr Reng not expressing himself clearly in English. However it is apparent from an examination of the cross examination that part of the difficulty arose because Mr Reng did not listen to questions put to him and that he was more intent on making his point.
[52] If Mr Reng displayed to Ms Matthews on 20 July 2012 the same level of determination to get his point across as he displayed in the witness box whilst under cross examination there would have been a necessity to count to three to get Mr Reng out of the room.
[53] Given the conduct of Mr Reng in the witness box in dealing with the cross examination I find it completely implausible that Mr Reng acted in the meek and polite manner which he described in his two statements.”
[24] An examination of the transcript of the cross-examination demonstrates that those conclusions adverse to Mr Reng were inevitable.
[25] Having correctly rejected the reliability of Mr Reng’s evidence, the Commissioner could not find for Mr Reng unless he could properly reject the evidence of Ms Matthews, corroborated as it was, by Mr Opacak.
[26] The Commissioner made various findings adverse to Ms Matthews and Mr Opacak and their evidence. We approach the appeal on the basis that in making those findings the advantages enjoyed by the Commissioner may have influenced the findings in the manner discussed by Glesson CJ and Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118 at [23] to [31].
[27] The Commissioner’s reasons identify two matters that caused him to reject Ms Matthews’ evidence as untruthful:
(i) evidence from Mr Dau endorsing as correct Mr Reng’s claim that Ms Matthews swore at Mr Dau when Mr Reng was talking to Mr Dau; and
(ii) alleged inconsistency between an investigation statement provided by Ms Matthews and her witness statement to the Commission.
(i) Whether Ms Matthews swore at Mr Dau
[28] Mr Reng had recorded the following as having occurred after he left Ms Matthews’ office for the second time.
“26. We walked past Mr Dau on the way who asked Mr Opacak words to the effect “why are you taking Tito to HR?” and “is it because of Damien, Richard and Nila, you shouldn’t because they swore at me outside” to which Ms Matthews responded with words to the effect “you’re my fucking leading hand ... get back to work I’ll take you to HR.”
[29] There was no witness statement from Mr Dau. Ms Matthews gave the following oral evidence (T1424-1427):
“Are you aware that in Mr Reng’s evidence he says that you said to Mr Dau words to the effect, “You’re my fucking leading hand. Go back to work or I’ll take you to HR”?---That’s not correct.
What did you say? Did you swear in any way to Mr Dau?---I asked Atem to go with Tito to the HR office.
Are you aware of any statement as part of these investigations from Mr Dau where he also alleges that you swore at him?---There was a statement taken from Atem, but I’m not aware of it, no.
Would it be your general habit, or would there be occasions where you would, through frustration or other reasons, swear at your subordinate employees?---Swear at them? No.”
[30] The Commissioner called Mr Dau as the “tribunal’s witness”. The Commissioner showed Mr Dau paragraph 26 and asked him the following questions:
“If you read paragraph 26, do you agree with that paragraph?---Yes, I agree with it.
So that’s what happened on that day?---Yes.
Those - the paragraph says that Ms Matthews used those words to you. Did Ms Matthews say those words to you?---Yes, she say them.”
[31] The Commissioner did not permit cross-examination beyond the topic of those questions. The Commissioner considered that evidence of Mr Dau was a sufficient basis to find that Ms Matthews had been deliberately untruthful in denying swearing at Ms Matthews.
[32] Mr Button for the employer had suggested that Ms Matthews may simply have a poor recollection of what occurred in the aftermath of the events in her office. The Commissioner held:
“[31] The speculation from Mr Button does not assist. It is clear to me that Ms Matthews was not being truthful in her evidence about what she said to Mr Reng and Mr Dau when she explicitly denied swearing at subordinate staff. What Ms Matthews said to Mr Reng and Mr Dau was not central to the case being made out by JBS against Mr Reng. However once it is established by the evidence that Ms Matthews was not truthful about a matter which was not central to the case against Mr Reng the Tribunal can have no confidence in any of the evidence of Ms Matthews.”
[33] In Smith v NSW Bar Association (1992) 176 CLR 256 per Brennan, Dawson, Toohey and Gaudron JJ observed
“37. There is a difference between the rejection of a person’s evidence and a finding that he or she deliberately lied. In some cases, a rejection of evidence may lead to a finding that that person lied on another occasion. ... On other occasions, other evidence may be of such a nature or of such weight that, in combination with the rejection of some particular evidence, it will justify a finding that that evidence was fabricated. But, as a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence.
...
39. ... A finding that a person deliberately lied when giving evidence is, in effect, a finding of perjury and, thus, it ought not to be made on “the single oath of another man, without any confirmatory evidence ...
40. ... But even if the evidence was sufficient to support the findings so made and even if that finding could properly be taken into account in determining the result, considerations of procedural fairness required that the appellant be given an opportunity to be heard as to whether the finding should be made. ...”
[34] The Commissioner’s approach is contrary to principle in two ways. First, a conflict in oral evidence does not, without more, provide a proper basis for finding that one of the witnesses is lying, as distinct from declining to accept the evidence of that witness. Second, a finding that a witness has been untruthful about one matter does not necessarily provide a basis for rejecting other evidence of the witness on other matters.
[35] Moreover, there was a denial of procedural fairness to JBS because the alleged untruth – central to the Commissioner’s fact finding process - was never put to Ms Matthews. She was never given an opportunity to provide a response to the evidence of Mr Dau. That, of course, was why Mr Button had been left to speculate in the fashion that he did. Ms Matthews had been praised by the Union organiser who had been dealing with her. In cross-examination he said that she was a “good manager” and, on the basis of his direct experience, that she tried to sort issues out with her delegates to the best of her ability before involving him (Transcript 1024ff). He gave the following evidence (T1050):
“What do you say about her and the time she’s worked?---She would probably, like, be one of the best managers they’ve ever had there, in all honesty.”
[36] Mr Button’s speculation was entirely plausible and that plausible explanation should have alerted the Commissioner to the unfairness of making a finding that Ms Matthews had given untruthful evidence on her oath generally in circumstances where she had not had an opportunity to give an explanation.
(ii) Alleged inconsistency between account given to employer investigation and account given in Ms Matthews’ statement.
[37] The second matter relied on by the Commissioner as adverse to Ms Matthews was inconsistencies between her investigation statement and her witness statement. The Commissioner said:
“[32] I make a further observation as to the evidence of Ms Matthews and that is that the witness statement, part of Exhibit R3, was prepared three months after the event yet attached to the witness statement and forming part of Exhibit R3 is a statement made by Ms Matthews on 23 July 2012. There are significant differences between Ms Matthews’ two statements. In her earlier statement Ms Matthews identified only one instance where Mr Reng tried to get back into her office but by the time of her second statement this had become 4 instances of Mr Reng trying to force his way into her office and the level of “aggressive” behaviour from Mr Reng appears to have escalated between the first and second statements of Ms Matthews.”
[38] This appeal bench is in as good a position as the Commissioner to determine, by comparison, the extent of such inconsistency (see Warren v Coombes (1979) 142 CLR 531 at 552-553). A comparison of the documents shows substantial consistency between the two. On a fair reading of the documents, the account given to the investigation corroborates Ms Matthews’ statement. We accept the submission of Mr Kite SC that, on a fair reading of the investigation statement, Ms Matthews was, as is commonly the case, giving a short summary of events and was not attempting to give an exhaustive account. What is recorded is not inconsistent with Mr Reng making a series of attempts to get back into Ms Matthews’ office. It is unsurprising that her witness statement in the Commission descends into greater detail.
(iii) Mr Opacak – denial of disciplinary action
[39] The Commissioner found that Mr Opacak’s evidence was “suspect” (Decision at [36]) and that much of his evidence was “completely cooked and fabricated” (Decision at [42]-[43])
[40] The principal matter relied upon was a finding that “Mr Opacak’s claim that a counselling session, unrelated to the incident and involving Mr Opacak personally around 2 years ago, was “completely blanked in [Mr Opacak’s] mind” when giving his evidence was not credible and that Mr Opacak’s denial of ever having engaged in the conduct for which he was counselled to be “less than convincing”“ (Decision at [40]).
[41] The Commission set out the following extract from the cross examination of Mr Opacak: (Decision at [38], TS PN1308 - PN1313):
“Just onto your own record at the company, have you had any disciplinary issues yourself at the company in a managerial capacity? Have you had warnings? Have you had counselling sessions?---Do I need to answer that?
THE COMMISSIONER: Yes?---Yes, I have been reprimanded on an occasion.
Mr PORTELLI: What was that for?---Inappropriate use of a radio, which I was having a joke around, and telling a joke over the radio, and mimicking a voice, and I was reprimanded for that.
What was the problem with using a voice? I don’t understand?---I was mimicking a character voice.
Like a cartoon character?---Yes.
Has that been the only warning or counselling session you have been subjected to in your time with the company?---I do not believe so, no. But none that are subject to anything with today’s case.”
[42] There was debate over an objection in the absence of the witness and then the evidence resumed:
“(PN1313) Mr PORTELLI: Mr Opacek, have you received any warnings, or have you been subject to any disciplinary action, in relation to more serious matters than inappropriate use of a radio?---No.
Have you been subject to any disciplinary action, including counselling, warnings, in relation to an incident relating to Gabriel Uchel, which I think is spelled U-c-h-e-l?---Mr Uchel, yes. Actually, yes. Yes, I have. Yes. It was - - -
What was the nature of that incident and the disciplinary proceedings? ---- - - alleged I pushed Mr Uchel down stairs, and I was stood down pending an investigation. That was within my first month employed at JBS.
Can you explain to the tribunal how, in your mind, that was less serious than inappropriate use of a radio?---I’m sorry, that’s completely blanked in my mind, because it was early on in my career at JBS. I didn’t even remember that.
...
THE COMMISSIONER: Mr Opacek, did you get a warning, counselling, reprimand - - -?---Yes, I did. I received a written warning.
A written warning in relation to that incident?---Yes.
What was the written warning?---Basically there was - they couldn’t quite make substantial evidence either way. They couldn’t support me and they couldn’t support Mr Uchel and I don’t know how they come out with that outcome, I just copped it on the knuckles and went on doing my job so - which I must say, Mr Uchel now is one of my leading hands in the cold store so there was a lot of history back when I first started there. There was a very racially-inclined workplace. It was - my ex-leading hand did make a lot of the workers feel threatened and was an alcoholic drinking on the job and I believe it was a ploy of his to try and get rid of me at the time. So I believe it was completely cooked and fabricated.
But you accepted a reprimand?---Yes, I did. It was a condition of me coming back to work, I accept that, or, yes, maybe I wouldn’t be working there now.”
[43] The Commissioner addressed the evidence in the following way.
“[40] What emerges from the evidence is that Mr Opacak was aware that there were other warnings he had received when he gave his answer at PN1313. This was the last question he answered before being asked to leave the hearing room for a short period. Yet in his very first answer after he resumed giving evidence Mr Opacak at PN1339 denied receiving warnings or counselling for anything more serious than misuse of a radio. In the very next question when the specifics of a particular incident were put to him Mr Opacak agreed that he had been counselled for conduct more serious than misuse of a radio. Mr Opacak’s claim that this incident was “completely blanked in my mind, because it was early on in my career at JBS. I didn’t even remember that” is not credible. It is clear that Mr Opacak did not want his behaviour to have been brought to light in this matter. Mr Opacak’s denial of ever having engaged in the conduct for which he was counselled is less than convincing.”
[44] With respect to the Commissioner, Mr Opacak’s evidence did not provide a proper foundation for the adverse finding that he made. Mr Opacak readily admitted the matter when given a name that jogged his memory. His claim that he was “blanked” in his mind when he answered the question at PN1313 was entirely plausible, particularly given that Mr Opacak had always been of the view that he was not guilty of the misconduct in question and the incident had occurred shortly after he commenced employment with JBS. There was no proper basis in the evidence for the Commissioner’s conclusion in the last sentence of the extract. The evidence in question did not provide a fair or proper basis to conclude, as the Commissioner did, that much of Mr Opacak’s evidence was “cooked and fabricated”.
[45] The Commissioner also observed:
“[41] Mr Opacak identified that Mr Reng had engaged in previous aggressive behaviour which Mr Opacak considered to be serious matters. Yet under cross examination Mr Opacak conceded that he did nothing about the earlier incidents.”
[46] The Commissioner appears to have treated this concession as being adverse to Mr Opacak’s credibility. The concession did not go to Mr Opacak’s credibility. Mr Opacak did not dispute the proposition being put. That concession was relevant only to the ultimate consideration of whether the dismissal for the misconduct in this case represented inconsistent treatment warranting a conclusion that the dismissal was “harsh, unjust or unreasonable”. There was insufficient evidence to ground such a conclusion in any event.
[47] The Commissioner placed adverse reliance on differences between Mr Opacak’s investigation statement and his witness statement in the Commission. We reach the same conclusion as we did in relation to the equivalent point with Ms Matthews. Those differences are do not reflect adversely on Mr Opacak or his evidence.
[48] To adapt the words of Gaudron, Gummow and Hayne JJ in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 at [63], the Commissioner had “too fragile a base to support a finding that [Mr Opacak] was unreliable.”
Conclusion re errors of fact
[49] The errors that we have identified, and the manner in which the Commissioner treated the evidence of Ms Matthews and Mr Opacak, lead to a conclusion that the Commissioner palpably misused the advantage that a trier of fact at first instance has in seeing and hearing the witnesses give their evidence (cf Abalos v Australian Postal Corporation (1990) 171 CLR 167 at 179).
Permission to appeal – s.400
[50] Section 400 applies:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by FWA in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
[51] We agree with the submissions of Mr Kite SC that there is a case where it is clearly appropriate to grant permission to appeal, consistent with the principles governing a grant of permission to appeal set out in GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266 (at 273-274, [26]-[27]). We are satisfied there would be a substantial injustice if permission to appeal was refused.
[52] The appellant has relied on the ground that the decision involved significant errors of fact and, for the reasons given, has established that ground.
[53] The requirements of s.400 are met and, given the errors we have identified, in the exercise of our discretion we are grant permission to appeal.
Re-hearing
[54] We are satisfied that the evidence properly permits a rehearing by this Full Bench.
[55] Mr Reng was not protected from unfair dismissal unless his dismissal was “harsh, unjust or unreasonable” (s.385(b)). This case turns on whether Mr Reng’s dismissal was “harsh, unjust or unreasonable”. In considering that question we are obliged to consider the matters specified in s.387.
Section 387(a) - Valid Reason
[56] On the rehearing we adopt the Commissioner’s adverse view of the reliability of Mr Reng’s evidence. As noted, the transcript unquestionably supports that view.
[57] The Commissioner was “reasonably satisfied that Mr Reng was agitated and that he was loudly remonstrating with Ms Matthews in relation to the conduct of Mr Muru and the approach being taken by Ms Matthews and that he did try to prevent Ms Matthews closing the door to her office as he was leaving.” (para [80])
[58] Having found that Mr Reng “did try to prevent Ms Matthews closing the door to her office as he was leaving” the Commissioner was implicitly rejecting Mr Reng’s denials. Nevertheless, the Commissioner found that “the picture that emerges is without the overt aggression claimed by Ms Matthews and Mr Opacak” (para [80]).
[59] For the reasons we have given, there is no proper basis disclosed in the Commissioner’s reasons to reject the evidence of either Ms Matthews or Mr Opacak. We can discern no such reason. Given the findings referred to in paragraph [57], Ms Matthews’ account of the aggressive way in which Mr Reng is entirely plausible. Ms Matthews had no demonstrated motive to embellish her account with aggression that had not in fact been shown.
[60] Ms Matthews and Mr Opacak gave broadly consistent accounts and corroborate one another. Mr Reng’s version of events in Ms Matthews’ office was not corroborated by any other witness and is contrary to the probabilities in the circumstances.
[61] Mr Reng conceded that Ms Matthews resorted to counting. Counting is a rhetorical device notoriously used when a person is refusing to act as instructed. The fact of the counting lends weight to Ms Matthews’ evidence that her repeated directions to Mr Reng to leave her office and go to HR (clearly a reasonable and lawful direction) were being ignored by Mr Reng. We find that the applicant repeatedly failed to follow the reasonable and lawful instructions of his manager, Ms Matthews.
[62] We are satisfied that Ms Matthews’ evidence should be accepted and we find that Mr Reng engaged in the conduct of which she gave evidence, corroborated by Mr Opacak. We find that Mr Reng did act in the violent and aggressive fashion alleged by the company in dismissing Mr Reng.
[63] We are satisfied that Mr Reng’s misconduct constituted a valid reason for his dismissal. It is well established that a dismissal may be harsh notwithstanding the existence of a valid reason for the dismissal. Accordingly, it remains necessary to consider whether the dismissal harsh, unjust or unreasonable notwithstanding the existence of the valid reason we have found.
Section 387(b) and (c) – notice and opportunity to respond
[64] On 26 July 2012 the employer sent Mr Reng a letter giving him an opportunity to respond to the misconduct allegations. Mr Reng gave evidence, accepted by the Commissioner, that he did not receive the letter. The letter was sent to Mr Reng’s postal address. It was reasonable for the employer to provide an opportunity to respond in that fashion. The fact that Mr Reng may not have received the letter does not lead to a conclusion that the employer failed to give Mr Reng an opportunity to respond. In the circumstances of this case, the factor in s.384(b) does not weigh materially in favour of a finding that the dismissal was harsh, unjust or unreasonable.
s.387(d) and (e)
[65] There were no discussions held relating to the dismissal. Section 387(d) is not applicable.
[66] The dismissal related to misconduct rather than unsatisfactory performance. Section 387(e) is not applicable.
s.387(f) and (g)
[67] Section 387(f) and (g) provide:
“(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;”
[68] JBS is a large employer. It has dedicated human resource management specialists. Both of those matters would be likely to impact on the procedures followed in effecting this dismissal. However, we are not persuaded that the procedures followed by JBS in this case were flawed to the point where they weigh materially in favour of a finding that the dismissal was “harsh unjust or unreasonable”. To the extent that JBS might be criticised for not taking steps to ensure that Mr Reng had received notice of his opportunity to he heard, that matter cannot be accorded substantial weight in this case. Mr Reng has had a full opportunity to be heard before the Commission in deciding whether he was guilty of the misconduct alleged.
s.387(h) - any other matters that the FWC considers relevant.
[69] We have considered the evidence generally but have given particular consideration to the following matters as relevant:
(i) Mr Reng’s age and length of service.
(ii) The likelihood that dismissal would cause significant hardship for Mr Reng and his dependents.
(iii) Mr Reng had what he believed was a genuine grievance against Mr Muru and behaved in the way that he did because he genuinely believed that he was not being treated fairly.
(iv) Mr Reng’s disciplinary history.
Harsh, unjust or unreasonable
[70] We turn to consider whether, in all the circumstances of the case, Mr Reng’s dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of the valid reason and having regard to the other matters specified in s.384.
[71] In determining whether a misconduct dismissal was “harsh, unjust or unreasonable” the Commission gives effect to the principle of “a fair go all round”. That is, it takes account of the reasonable perspectives of both the employee and employer.
[72] Mr Reng’s aggression towards Ms Matthews was wholly unacceptable and the employer was entitled to treat it as a serious matter. Ms Matthews was understandably frightened by the incident. Given Mr Reng’s disciplinary history of insubordination the employer was right to be concerned about the need to take effective action to protect the occupational health and safety of Ms Matthews and other employees.
[73] In all the circumstances, when weighed against the seriousness of the misconduct we have found, we are not persuaded that the discretionary factors favouring Mr Reng are sufficient to render his dismissal “harsh, unjust or unreasonable”. JBS was fairly entitled to draw the line at the sort of conduct Mr Reng engaged in.
[74] Accordingly, on the rehearing we are obliged to find that Mr Reng was not “unfairly dismissed” because the requirement in s.385(b) is not satisfied. Mr Reng’s application for an unfair dismissal remedy must be dismissed.
Conclusion
[75] We allow the appeal, quash the decision and order of the Commissioner and we dismiss the originating application.
VICE PRESIDENT
Appearances:
Mr. P. Kite SC of Counseland Mr. G. Boyce of Counsel on behalf of the Appellant.
Mr. A. Portelli on behalf of the Respondent.
Hearing details:
2013:
Brisbane,
February 14.
Final written submissions:
20 February 2013.
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