Jetstar Services Pty Ltd v L Ishak
[2013] FWCFB 7030
•3 OCTOBER 2013
[2013] FWCFB 7030
The attached document, replaces the document previously issued with the above code on 3 October 2013. The reference in endnote 67 has been amended to read “[2013] FWC 2959, at para 5.”
Leanne Weeding
Associate to Senior Deputy President Watson
Dated 3 October 2013
[2013] FWCFB 7030 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
L Ishak
(C2013/5211)
SENIOR DEPUTY PRESIDENT WATSON | |
| DEPUTY PRESIDENT GOSTENCNIK COMMISSIONER WILSON | MELBOURNE, 3 OCTOBER 2013 |
Appeal against decisions [[2013] FWC 2959 and [2013] FWC 4794] of Commissioner Ryan at Melbourne on 10 May 2013 and 19 July 2013 and order [PR539125] on 19 July 2013 in matter number U2013/5656—permission to appeal granted, appeal upheld finding that the termination was harsh is quashed—matter reheard application dismissed.
[1] On 10 January 2013, Mr L Ishak (the Respondent) was dismissed from his employment with Jetstar Services Pty Ltd (the Appellant) following an investigation into an altercation with another employee, Mr G Samson, on 3 December 2012. An internal appeal by the Respondent against the termination under the Appellant’s Standards of Conduct Policy was unsuccessful.
[2] The Respondent applied for an unfair dismissal remedy 1 and the matter was heard and determined by Commissioner Ryan. On 9 May 2013 the Commissioner decided that the dismissal of the Respondent was harsh because of the differential treatment the Appellant had accorded to the Respondent when compared to Mr Samson.2 The Commissioner listed the matter for further hearing on the question of remedy. On 19 July 2013 the Commissioner determined that reinstatement of the Respondent was appropriate3 and issued an order for reinstatement together with an order maintaining continuity of service of the Respondent and the restoration of part of the remuneration lost by the Respondent because of the dismissal.4
[3] The Appellant filed a notice of appeal against the decisions of Commissioner Ryan on 19 July 2013 and on 22 July 2013 it filed an amended notice of appeal. The Appellant also sought a stay of the whole of the order for reinstatement. A stay order was made by Deputy President Gostencnik on 2 August 2013. 5
Approach to the Appeal
[4] A party may only appeal a decision or order made by a single member of the Fair Work Commission (the Commission) with the permission of the Commission. 6 Unlike appeals against decisions made under other provisions of the Fair Work Act 2009 (the Act), permission to appeal a decision related to an unfair dismissal remedy7 will only be granted if the Commission considers it to be in the public interest to do so.8 If an error of fact is said to have been made by the first instance decision-maker in an unfair dismissal matter, an appeal will only be available if that error of fact is a significant error of fact.9 More generally, other errors said to have been made by a first instance decision-maker must be of a kind identified in House v King.10
Appeal Grounds
[5] The Appellant raised numerous grounds of appeal in its amended notice of appeal, going to the finding of the Commissioner that the termination was harsh and the remedy ordered. We will deal with them to the extent necessary for the determination of the appeal.
Differential disciplinary action by the Appellant in respect of the Respondent and Mr Samson in circumstances where their conduct was comparable
[6] A central ground raised by the Appellant concerned the finding of Commissioner Ryan that the dismissal was harsh having regard to the termination of the Respondent’s employment by the Appellant and the continuation of Mr Samson’s employment, in circumstances where the Commissioner found that the conduct of each employee in respect of the 3 December 2012 incident was comparable. The Appellant submitted that the finding as to comparable conduct was against the evidence before the Commissioner and constituted a significant error of fact.
[7] The differential treatment finding was essential to the decision of Commissioner Ryan that the termination was harsh. In his decision, the Commissioner found that:
● The physical conduct of the Respondent in the altercation with Mr Samson provided a valid reason for dismissal; 11
● The Appellant had quite a comprehensive process in place where allegations were made and were put in writing, opportunities were given to the Respondent to respond and the Respondent was also given an opportunity to be represented; 12
● Section 387(e) of the Act was not a relevant issue in the matter; 13 and
● Nothing in ss.387(b), (c), (d), (f) or (g) of the Act “would weigh in favour of a finding that the dismissal is harsh, unjust or unreasonable”. 14
[8] The findings of Commissioner Ryan that the Appellant had a valid reason for terminating the employment, accorded procedural fairness to the Appellant and nothing in ss.387(b), (c), (d), (f) or (g) of the Act would weigh in favour of a finding that the termination was harsh, unjust or unreasonable were not challenged by the Appellant in the appeal. 15 The balancing of those considerations clearly supports a finding that the termination was not harsh, unjust or unreasonable.
[9] The Commissioner then went on to consider, under s.387(h) of the Act, differential treatment as between the Respondent and Mr Samson. 16 He found:
● “Mr Samson clearly was not honest with the investigators of Jetstar”; 17
● The physical actions of Mr Samson in the altercation were not “merely self defence, but appear to be for the purpose of striking” the Respondent. 18
[10] The Commissioner applied the approach in Parmalat Food Products Pty Ltd v Mr Kasian Wililo that:
“Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.” 19
[11] The Commissioner found:
“[32] . . . the differential treatment given to Mr Ishak and Mr Samson constitutes a significant mitigating factor. The conduct of Mr Ishak was that he assaulted Mr Samson and was not honest in his dealings with the investigators. The evidence makes clear that Mr Samson assaulted Mr Ishak and that Mr Samson was not honest with his dealings with the investigators. Mr Ishak was dismissed, Mr Samson was not.
[33] The conduct of both was worthy of significant condemnation and strong disciplinary action, including the possibility of dismissal. But where one person involved in an altercation is dismissed and the other isn’t, and where both have engaged in aggressive behaviour and physical assault against each other, the dismissal of one is harsh when the other has not been subject to the same or, as in this case, any disciplinary action. This harshness is even more so when both Mr Samson and Mr Ishak were not honest in their provision of accurate information to the investigators.” 20
[12] The Commissioner’s finding that the termination of the Respondent’s employment was harsh rested on his finding as to differential treatment by the Appellant of the Respondent as against its treatment of Mr Samson. That finding relied on the Commissioner’s underlying finding that the conduct of the Respondent and Mr Samson was comparable conduct in that;
● each was not honest with their employer during the course of the investigation; and
● each physically assaulted the other during the course of the altercation. 21
[13] In relation to differential treatment of employees with respect to disciplinary action, a Full Bench in Australian Postal Corporation T/A Australia Post v Nick Rushiti 22 (Australia Post) endorsed the following observations of Vice President Lawler in Sexton John v Pacific National (ACT) Pty Ltd23 (Sexton):
“[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been ‘harsh, unjust or unreasonable’ . . .
[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a ‘fair go all round’ within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing ‘apples with apples’. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.”
[14] For the purpose of our decision, we assume that in finding that Mr Samson assaulted the Respondent and was not honest with the Appellant’s investigators, the Commissioner found that Mr Samson’s conduct was “properly comparable” to the conduct of the Respondent. If we are wrong in that assumption, the Commissioner erred by misapplying the approach of Vice President Lawler, which was endorsed by the Full Bench in Australia Post.
[15] Proceeding on the basis that Commissioner Ryan properly applied the principle in Sexton, it is necessary for us to consider whether Commissioner Ryan erred in finding that the conduct of the Respondent and Mr Samson was properly comparable, as contended by the Appellant. This finding was essential to the Commissioner’s finding as to differential treatment.
The finding that Mr Samson assaulted the Respondent during the course of the altercation in a manner which was properly comparable to the assault by the Respondent
[16] In his decision, the Commissioner found that the Respondent grabbed Mr Samson’s arm, causing bruising and scratch-like marks and was chest to chest with Mr Samson. 24 The finding that the Respondent grabbed Mr Samson’s arm was clearly correct on the evidence:
● Mr Samson’s evidence that the Respondent grabbed his arm, causing pain and injury; 25
● The contemporaneous evidence of Mr S Moore, 26 his evidence to the investigation27 and his evidence before Commissioner Ryan;28
● Mr D Fisher’s evidence as to what the Respondent said to him on 3 December 2012; 29 and
● Evidence of the injuries sustained by Mr Samson and Mr Samson’s evidence as to the injuries, 30 as against:
● The denial by the Respondent that he grabbed Mr Samson’s arm.
[17] The Commissioner’s finding that the Respondent was chest to chest with Mr Samson and “chested him” was available to him on the evidence, 31 although probably more in the nature of posturing than assault.
[18] The evidence clearly supports a finding that the Respondent assaulted Mr Samson by grabbing his arm, with sufficient force to cause pain, bruising and scratching. The question then arises as to whether Mr Samson engaged in physical conduct against the Respondent, properly comparable to the Respondent’s conduct.
[19] Commissioner Ryan found thatMr Samson assaulted the Respondent. 32 He did so, on the basis of his observation of a demonstration by Mr Samson of his actions, at the request of the Commissioner,33 which was repeated for his benefit in slow motion.34 In his decision, the Commissioner described the action of Mr Samson as a fluid movement in which he raised both arms in a circular motion; his left arm making an anti-clockwise sweeping motion and his right arm making a clockwise sweeping motion, which broke the Respondent’s grip on Mr Samson's right arm. The Commissioner found that once free of the Respondent’s grip, “Mr Samson continued the circular motion of both arms so that his two hands met together in front of him”, continuing “the movement by using the momentum already created to push both his hands against Mr Ishak’s test [sic], forcing Mr Ishak to stumble backwards”.35
[20] The Commissioner then found that the continuous motion he described in his decision constituted two parts - a defensive and an offensive action:
“[22] The self defence aspect of Mr Samson’s actions is the commencement of a circular motion with his right arm, and continues until Mr Ishak is forced to release his grip.
[23] The continuation of the movement of the right and the whole of the movement of the left arm do not appear to me to be merely self defence, but appear to me to be for the purpose of striking Mr Ishak.”
[21] He found that the purpose of the raising of both arms, rather than just the right arm which was being held and squeezed by the Respondent “was to have both hands in a position to strike at Mr Ishak” 36 and that the action as a whole was “used to free himself from Mr Ishak’s grip and to strike Mr Ishak”.37
[22] Mr Samson’s evidence as the actions he demonstrated 38 does not support a finding that he freed his arms for the purpose of striking the Respondent. The Commissioner inferred that the purpose of Mr Samson releasing the Respondent’s grip was to have his hands free to strike the Respondent. There is no evidence to support such a finding and all of the evidence is against an inference to that effect. The evidence is that the rotation of the arms and the pushing actions were all one sequence of events.39 Mr Samson’s evidence was that he had no intention of hitting the Respondent,40 his action in freeing his hands and pushing the Respondent away was motivated by fear41 and pain.42 The inference that Mr Samson freed his arms in order to facilitate an offensive action was not available to the Commissioner on the evidence before him.
[23] There is no evidence that Mr Samson struck the Respondent. The clear evidence is that the second part of the continuous motion demonstrated by Mr Samson was to push Mr Ishak away. 43 The pushing of the Respondent was conceded by Mr Samson during the investigation44 and throughout his evidence before the Commissioner, described by Mr Samson as putting his hands flat on the Respondent’s chest and pushing him away.45
[24] The Commissioner seemed to characterise the pushing action as striking and as an offensive action rather than a defensive action, by inference based on findings that:
● Mr Samson used language towards or about Mr Ishak which had a level of aggression in it; 46
● Mr Samson approached the Respondent and initiated a conversation with him; 47
● Mr Samson, in his statement to investigators on 5 December 2012, was that he and the Respondent did not get on; 48
● “The use of the expletives by Mr Samson is consistent with Mr Samson not getting on with Mr Ishak”; 49
● Mr Moore’s evidence was that the Respondent and Mr Samson were “really angry and upset”; 50
● “. . . the altercation would not have occurred if Mr Samson had not approached Mr Ishak and spoken to him, especially if such approach occurred immediately after Mr Samson had used expletive language towards or about Mr Ishak.” 51
[25] These matters do not go directly to the nature of the physical actions of Mr Samson or the purpose of them. The finding that the pushing action of Mr Samson was an offensive action and constituted assault was made, against the direct evidence as to the pushing and Mr Samson’s reasons for it, on the basis of indirect inferences based on evidence as to the general context of the relationship between the Respondent and Mr Samson and the circumstances surrounding the physical interaction of the two men on 3 December 2012. The inference is inconsistent with the direct evidence as to the nature of the physical actions of Mr Samson or the purpose of them and provides an inadequate reason for making a serious finding against Mr Samson’s interests 52 that he had assaulted the Respondent.
[26] The difficulty of the Commissioner’s reliance on indirect inferences to support the serious finding of assault against Mr Samson, is evident in his reliance on the propositions that Mr Samson approached the Respondent and initiated a conversation with him and that the altercation would not have occurred if Mr Samson had not approached the Respondent and spoken to him. We fail to see how the initiation of the conversation could support a finding that Mr Samson’s physical actions were offensive, for the purpose of striking the Respondent. The evidence of Mr Samson that the initial conversation was in the form of Mr Samson explaining to the Respondent why he was talking to Mr Fisher, 53 to avoid getting Mr Fisher into trouble,54 which was supported by Mr Fisher’s evidence about the content of the conversation conveyed to him by the Respondent55 provides no rational basis for inferring that the actions of Mr Samson in pushing the Respondent were aggressive, against the direct evidence in relation to the pushing and the reason for it.
[27] We note that although the Commissioner did not find that Mr Samson had been “chest pointing” or “chest poking” the Respondent when considering whether Mr Samson had assaulted the Respondent, he did rely on Mr Samson not disclosing such action during the investigation as one basis for finding that he had not been honest with his employer. 56 The Respondent stated both in the course of the investigation57 and in his evidence in the Commission58 that Mr Samson poked his chest with his hand. Mr Samson had no recollection of “chest poking” the Respondent.59 Mr Moore, who viewed the incident from the time the two men stood face to face until they separated, did not see Mr Samson poking the Respondent with his finger.60 In his 7 December 2012 statement to the investigation, Mr Fisher stated that Mr Samson then started “chest pointing”.61 Some clarification of “chest pointing” appears in Mr Fisher’s witness statement:62 “I saw Geoff [Mr Samson] put his finger up pointing at Leo [the Respondent]. I couldn’t see if he made contact to his chest”.63 In his evidence, Mr Fisher saw Mr Samson “put his finger up, and it looked like he was doing a pointing motion” at the Respondent but he “couldn’t see if he was touching his chest or not. But, yes he was making a pointing motion”.64 Mr Fisher illustrated the action, describing it as “he [Mr Samson] pointed up and he sort of did a few jabs. I couldn’t see if it actually connected with Leo’s chest”.65 He saw a “pointing motion”.66 The evidence as a whole does not support the Respondent’s evidence that Mr Samson poked the Respondent in his chest.
[28] We find that the Commissioner has made a significant error of fact in finding that Mr Samson assaulted the Respondent. On the evidence, the physical actions were of a defensive nature - to extricate himself from the Respondent’s grip and push him away to create a physical separation from the Respondent. Commissioner Ryan’s finding was against the evidence and, upon the facts, unreasonable. It constitutes a significant error of fact. The physical actions of Mr Samson in the altercation are not properly comparable to those of the Respondent.
The finding that Mr Samson was not honest with his employer during the course of the investigation in a manner which was properly comparable to the Respondent
[29] Commissioner Ryan found that the Respondent “was not honest with management during their investigation” (and that his evidence to the Commission on this matter was also not truthful). 67 His finding was clearly correct on the evidence.
[30] The evidence from the investigation report of Mr M Carter 68 is that the Respondent denied that there was a physical altercation between himself and Mr Samson and that he had assaulted Mr Samson. He advised Mr Carter during the 3 December 2012 interview that “nothing happened today”.69 He responded to an allegation that he had approached Mr Samson in an aggressive manner, by stating “he came into me” and that he said to Mr Samson “do you want to punch me because I thought he looked like he was going to” and made generalised statements that Mr Samson “had a bad attitude” and “had been stood down for similar issues”.70 In a 4 December 2012 interview, the Respondent told Mr Carter that “we didn’t have contact or anything” but that Mr Samson “came into” him, it was “self defence”, and he “was intimidated and bullied”.71 In a 5 December 2012 interview, the Respondent was offered access to the Employee Assistance Plan but advised “he did not need support because nothing happened”.72 At a 6 December 2012 meeting, the Respondent failed to acknowledge any contact with Mr Samson in any way.73
[31] The Respondent’s account, in which he persistently denied physical aggression towards Mr Samson was plainly dishonest, having regard to the evidence as to what occurred which we have set out in paragraphs [15]–[19] above. That evidence established that the Respondent assaulted Mr Samson by grabbing his arm, with sufficient force to cause pain, bruising and scratching. Further, the Respondent’s account of the altercation is at odds with Mr Fisher’s account of what the Respondent told him had occurred, 74 which, as far as it went, is consistent with the evidence as to what actually occurred.
[32] The question then arises as to whether Mr Samson engaged in conduct during his participation in the investigation process was properly comparable to that of the Respondent.
[33] The recording of Mr Samson’s account of the 3 December 2012 incident during the investigation is contained in summary form 75 in Mr Carter’s investigation report.76 In contrast to the Respondent, Mr Samson provided the investigation with a substantive account of the incident under investigation and the physical altercation which occurred, including his actions to free himself from the Respondent’s grip and push the Respondent in the chest.77 The information provided by Mr Samson was fundamentally consistent with the facts disclosed by the evidence.
[34] The Commissioner made his finding that “Mr Samson clearly was not honest with the investigators of Jetstar” 78 on the following basis:79
● “Mr Samson didn’t acknowledge to the investigators that he used aggressive language towards Mr Ishak whilst in conversation with Mr Fisher.”
● “Mr Samson didn’t acknowledge to the investigators that he gave a two-handed push to Mr Ishak which made Mr Ishak stumble back a couple of paces.”
● “Mr Samson didn’t acknowledge to the investigators that this two-handed push was after he had got out of Mr Ishak’s grip.”
● “Mr Ishak [sic] didn’t acknowledge to the investigators that he was ‘chest pointing’, (using the description of Mr Fisher), at Mr Ishak or ‘chest poking’ (as described by Mr Ishak), and that occurred during the altercation.”
● “Mr Samson didn’t acknowledge to the investigators that he used aggressive language to Mr Ishak during the altercation. His statement has extremely mild language in it, whereas the evidence that has come out during these proceedings has Mr Samson using aggressive expletives.”
● “Mr Samson also didn’t acknowledge to the investigators that he saw Mr Ishak pointing to the back of the aircraft while he was approaching on his tug. In his statement to the investigators, Mr Samson identified it as pointing, and additionally, gesturing to Mr Fisher to get the dollies, whereas under cross-examination and examination from the Commission, Mr Samson acknowledged very clearly and without hesitation that he understood and knew that Mr Ishak was pointing to the rear of the aircraft.”
[35] Even if it accepted that each of the instances of dishonestly attributed to Mr Samson by the Commissioner is supported by the evidence, his conduct is clearly not properly comparable to that of the Respondent. The Respondent’s dishonestly was absolute, denying any contact between him and Mr Samson and denying any physical aggression on his part. The issues raised by the Commissioner in respect of Mr Samson are at worst a failure by him to disclose each and every aspect of the incident, in circumstances where there is no evidence that he was asked about the specific matters and provided a dishonest response. Even accepting that each instance of dishonestly attributed to Mr Samson by the Commissioner is supported by the evidence, there is no basis, on the evidence, for equating the conduct of Mr Samson with that of the Respondent—their conduct was not properly comparable. The Commissioner erred in finding that Mr Samson misled his employer in a manner properly comparable to the Respondent’s fundamental dishonesty in the investigation.
[36] Further, most of the Commissioner’s findings of dishonesty by Mr Samson in the investigation are not supported by the evidence in any case:
● As acknowledged by the Respondent, 80 Mr Samson did disclose to the investigators that he gave a two-handed push to the Respondent which made him stumble back a couple of paces, after he released himself from the Respondent’s grip;81
● As acknowledged by the Respondent, 82 Mr Samson did disclose to the investigators that he used aggressive language to the Respondent during the altercation.83 At worst, it was only open to the Commissioner to find that the investigation report does not disclose that Mr Samson recounted each and every instance of aggressive and offensive language used by him during the altercation; and
● As we have found in paragraph [27] above, the evidence as a whole does not support the Respondent’s evidence that Mr Samson poked the Respondent in his chest.
[37] The finding of dishonesty against Mr Samson that he did not acknowledge to the investigators that he saw the Respondent pointing to the back of the aircraft while he was approaching on his tug is made in circumstances where the evidence is that Mr Samson was unsure and confused by the Respondent’s pointing action. The evidence upon which the Commissioner found that Mr Samson clearly understood that the Respondent was pointing to the rear of the aircraft was a closer specification - probably “towards the rear of the plane”, 84 following less specific evidence that the Respondent was pointing toward the aircraft.85 This evidence provides no proper basis for suggesting that Mr Samson misled the investigators in a manner comparable to the Respondent.
[38] We find that the finding by Commissioner Ryan that Mr Samson clearly was not honest with the investigators of the Appellant in a way which was broadly comparable, let alone properly comparable to the nature of the Respondent’s dishonesty in the investigation was not, available to the Commissioner on the evidence before him and constitutes a significant error of fact.
Conclusion as to differential disciplinary action by the Appellant
[39] The ultimate finding that the termination was harsh rested wholly on Commissioner Ryan’s finding that the Appellant had applied differential disciplinary action against the Respondent and Mr Samson in circumstances where their conduct was comparable. In these circumstances, the significant error of the Commissioner in finding that the conduct was properly comparable discloses a serious mistaking of the facts and has the effect of producing an outcome which, upon the facts, is unreasonable or plainly unjust. In our view, allowing the decision to stand would involve a manifest injustice. It is in the public interest that such an outcome be reviewed.
[40] For these reasons we grant permission to appeal, uphold the appeal and quash the finding of Commissioner Ryan that the termination was harsh.
[41] It is unnecessary to deal with the other appeal grounds.
Rehearing
[42] Following our decision to quash the decision of Commissioner Ryan, we proceed to determine the Respondent’s application ourselves.
[43] In the proceedings before Commissioner Ryan, the Appellant conceded 86 that the Respondent is a person protected from unfair dismissal.87 We are satisfied that the Respondent is protected from unfair dismissal.
[44] A remedy for unfair dismissal may only be ordered if the Respondent has been unfairly dismissed. 88 Section 385 of the Act provides that:
“A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[45] We are satisfied that the Respondent was dismissed from his employment. In the proceedings before Commissioner Ryan, the Appellant conceded 89 that it is not a small business and that the termination “was not a genuine redundancy”. We are satisfied as to these matters. It follows that the Respondent will have been unfairly dismissed if we are satisfied that the dismissal was harsh, unjust or unreasonable.
[46] In considering whether dismissal was harsh, unjust or unreasonable, we are required to take into account the matters in s.387 of the Act:
“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Valid Reason
[47] The Appellant relied on its submissions before Commissioner Ryan and its submissions on appeal in seeking a finding that the dismissal was not harsh, unjust or unreasonable.
[48] In its submissions in relation to rehearing of the application, the Respondent focussed on the statutory criteria, dealing first with valid reason—s.387(a) of the Act.
[49] In respect of valid reason, the Respondent accepted “that there was a valid reason for his dismissal based on the manner in which he was found to be dishonest in his dealings with the appellant’s investigators”. 90
[50] However, the Respondent took issue, in a rehearing context to a “finding of valid reason constituted by the physical aspects of the altercation”. 91 In doing so, the Respondent relied on the approach in relation to cases involving fighting or assault summarised by a Full Bench of the Australian Industrial Relations Commission in Tenix Defence Systems Pty Ltd v Fearnley.92 The Full Bench, having reviewed the judgements in AWU-FIME Amalgamated Union v Queensland Alumina Limited,93 Torbet v Commissioner for Public Employment,94 Mobil Oil v Giuffrida95and Qantas Airways Limited v Cornwall.96concluded:
“We think these authorities support the view that in determining whether there is a valid a reason for a termination of employment arising from a fight in the workplace the Commission should have regard to all of the circumstances in which the fight occurred including, but not limited to:
- whether the terminated employee was provoked and whether he or she was acting in self defence;
- the employer's need to establish and retain discipline amongst its employees; and
- the service and work record of the employee concerned.” 97
[51] Applying this approach, we will have regard to all of the circumstances in which the altercation occurred including in assessing the conduct of the Respondent in the incident with Mr Samson in the context of s.387(a) of the Act.
[52] The Respondent submitted 98 that the relevant circumstances to be considered include:
● It was Mr Samson who approached the Respondent and Mr Samson instigated the conversation between them;
● Both the Respondent and Mr Samson used offensive language towards the other;
● The Respondent grabbed Mr Samson by the arm hard enough to cause bruising to Mr Samson’s arm, whilst Mr Samson pushed his hands flat into the Respondent’s chest;
● The Respondent’s action in grabbing Mr Samson by the arm with sufficient force to bruise him, whilst unacceptable, “is conduct which is manifestly at the low end of the spectrum in terms of what one might think of as physical altercations or fights in the workplace”;
● . . . the circumstances of the altercation were created by Mr Samson in approaching my client and instigating a conversation”;
● The conduct of the Respondent was a one-off incident: there is no evidence or suggestion of inappropriate physical dealings by the Respondent towards other employees or any previous disciplinary failings him;
● “Mr Samson ceased acting in self-defence [sic] at the moment [the Respondent’s] grip was released” and his “pushing the respondent away was not the same motion as part of the self-defence [sic]”.
[53] A further contextual matter—that both the Respondent and Mr Samson engaged in what is referred to as chest poking or chest pointing towards the other—was withdrawn. 99
[54] The Respondent submitted that his conduct does not constitute a valid reason for dismissal having regard to all of the circumstances of the altercation.
Conclusion in relation to valid reason
[55] As we have found in paragraphs [29]–[31] above, the Respondent’s account of the events of 3 December 2012, in which he persistently denied physical aggression toward Mr Samson was plainly dishonest, having regard to the evidence. The Respondent’s dishonesty during the investigation meant that the Appellant could not be confident that the Respondent would be honest with it in the future, destroying the relationship of trust between the Appellant as employee and Respondent as employer. 100
[56] As we have found in paragraphs [16]–[17] above, the evidence clearly supports a finding that the Respondent assaulted Mr Samson by grabbing his arm, with sufficient force to cause pain, bruising and scratching. However, we accept that this physical assault upon Mr Samson needs to be considered in the full circumstances of the altercation. In that regard:
● Having regard to our findings in paragraph [26] above, we do not accept that the approach by Mr Samson to advise the Respondent of the purpose of his conversation with Mr Fisher in any way justifies the Respondent’s action or diminishes the seriousness of them; and
● Whilst Mr Samson did push his hands flat into the Respondent’s chest, we find that it was a defensive action for the reasons set out in paragraphs [22]–[27] above.
[57] A further relevant circumstance, established by the evidence, is that the altercation and the assault occurred within sight of passengers disembarking an aircraft of the Appellant with the potential to damage the reputation of the airline.
[58] Against, that we find that the physical actions of the Respondent occurred in the context of a heated verbal exchange in which the Respondent and Mr Samson both used offensive language towards the other, in circumstances where there is no suggestion of prior inappropriate physical action by the Respondent towards other employees (or previous disciplinary action against him) and, whilst serious, the Respondent’s actions were at the lower end of the spectrum in terms of physical altercations in the workplace.
[59] Whilst serious and warranting disciplinary action, we are not satisfied that the nature of the physical assault by the Respondent, when assessed in the full circumstances, of the incident in itself provides a valid reason for the termination. However, we find that the physical assault, in combination with the dishonesty of the Respondent toward his employer during its investigation process does provide a valid reason for the termination of the Respondent’s employment.
Sections 387(b) to (g)
[60] The Respondent submitted that in respect of the statutory considerations, in ss.387(b), (c) and (d) of the Act, he was notified of the reason for his dismissal, given an opportunity to respond, there was no unreasonable refusal of a support person, and in respect of ss.387(f) and (g) of the Act, Jetstar is a large enterprise with a dedicated human resources staff. 101 These submissions are supported by the evidence. We find that nothing arises from the considerations in ss.387(b) to (g) of the Act which would support a finding that the termination was harsh, unjust or unreasonable.
Section 387(h)
[61] The Respondent relied on a number of matters it raised in the context of valid reason in the context of s.387(h) of the Act and raised additional considerations which militate in favour of a finding that the termination was unfair:
● The altercation was a one-off incident, a physical altercation at the low end of the scale;
● The Respondent was employed for seven years;
● There is no evidence of prior disciplinary infractions in his employment;
● The significant adverse effect of the termination on his future employment prospects: it is inherently damaging to his future employment prospects in circumstances in which he is from a non-English speaking background who emigrated to Australia as an adult, further limiting his future employment prospects;
● the impact of his dismissal on his personal and financial circumstances: his evidence was that he had one young child and his wife was pregnant with another and that he had a substantial financial commitment in terms of a mortgage;
● absent any significant error in relation to the differential treatment between Mr Samson and the Respondent, this consideration is a further relevant matter to be considered.
[62] For the reasons set out at paragraphs [16]–[38] above, we are not satisfied that the conduct of the Respondent and Mr Samson was properly comparable. There is no basis for finding that the Appellant applied differential disciplinary action against Mr Samson and the Respondent in respect of properly comparable conduct.
[63] We accept, as we did in considering valid reason in the broader circumstances of the altercation, that the Respondent’s conduct in the altercation reflected a one-off instance and whilst serious, was at the lower end of the scale of physical conduct within an altercation or fighting in the workplace. We also accept that the Respondent worked for the Appellant for seven years, without evidence of previous inappropriate conduct or disciplinary action. These considerations lend some limited support to the proposition that the sanction of the termination of employment was harsh.
[64] The termination of an employee’s employment will in almost all circumstances impact adversely on their future employment prospects and personal and financial circumstances. We accept that the impact is likely to be greater in the Respondent’s personal circumstances, although not significantly more so than in most cases of termination of employment. However, we are satisfied that the particular personal circumstances of the Respondent, elevate to a limited degree the impact of the termination of the Respondent’s employment.
Conclusion - was the termination harsh, unjust or unreasonable?
[65] We have found that:
● there is a valid reason for the termination of the Respondent’s employment;
● nothing arises from the considerations in ss.387(b) to (g) of the Act which would support a finding that the termination was harsh, unjust or unreasonable; and
● some considerations arising under s.387(h) of the Act lend limited support to a finding that the termination was harsh.
[66] Weighing up our findings in relation to each of the statutory considerations in s.387 of the Act, we find that the termination was not harsh, unjust or unreasonable.
[67] Given our finding that the termination of the Respondent’s employment was not harsh, unjust or unreasonable, it follows that we are not satisfied that the Respondent has been unfairly dismissed.
[68] The application by the Respondent for relief in relation to the termination of his employment by the Appellant is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
J Tracey of Counsel with C Best for Jetstar Services Pty Ltd.
S Moore of Counsel and A Forsyth of Counsel for L Ishak.
Hearing details:
2013.
Melbourne:
September 2.
1 Section 394 of the Fair Work Act 2009.
2 Edited reasons for the decision were published by the Commissioner on 10 May 2013; see [2013] FWC 2959.
3 [2013] FWC 4794.
4 PR539125.
5 PR539291. Reasons were provided in [2013] FWC 5254.
6 Section 604(1) of the Fair Work Act 2009.
7 Part 3–2 of the Fair Work Act 2009—Unfair dismissal.
8 Section 400(1) of the Fair Work Act 2009.
9 Section 400(2) of the Fair Work Act 2009.
10 (1936) 55 CLR 488.
11 [2013] FWC 2959, at para 12.
12 [2013] FWC 2959, at para13.
13 [2013] FWC 2959, at para 14.
14 [2013] FWC 2959, at para 15.
15 See Appeal Transcript, at para 607.
16 [2013] FWC 2959, at para 16–33.
17 [2013] FWC 2959, at para 16.
18 [2013] FWC 2959, at para 23.
19 [2011] FWAFB 1166, at para 24.
20 [2013] FWC 2959.
21 [2013] FWC 2959, at para 32.
22 [2012] FWAFB 7423.
23 PR931440.
24 [2013] FWC 2959, at paras 4–6.
25 See, for example, Transcript before Ryan C, at paras 1442–1444, 1455–1460.
26 Exhibit R6, Attachment GP1 in U2013/5656; Appeal Book p.634 and Transcript before Ryan C at paras 1789–1790.
27 Exhibit R4, Attachment MC3, at p.12 in U2013/5656.
28 Transcript before Ryan C, at paras 2063, 2067 and 2085.
29 Transcript before Ryan C, at para 949.
30 Exhibit R1, at para 29 in U2013/5656; Exhibit R4, Attachment MC3, at p.14 in U2013/5656; Exhibit, R6 Attachment GP1 in U2013/5656; Appeal Book p.626 and Transcript before Ryan C at para 1772.
31 Exhibit A3, at para 8 in U2013/5656.
32 [2013] FWC 2959, at para 32.
33 Transcript before Ryan C, at paras 1504–1514.
34 Transcript before Ryan C, at paras 1510.
35 [2013] FWC 2959 at paras 17–21.
36 [2013] FWC 2959 at para 21.
37 [2013] FWC 2959 at para 17.
38 Transcript before Ryan C, at paras 1406–1555.
39 Transcript before Ryan C, at paras 1496, 1539 and 1550.
40 Transcript before Ryan C, at para 1198.
41 Transcript before Ryan C, at paras 1198 and 1216.
42 Exhibit R1, at para 14 in U2013/5656 and Transcript before Ryan C, at para 1488.
43 Transcript before Ryan C, at paras, 1489–1490, 1497, 1509 and 1514.
44 Exhibit R6, Attachment GP1 in U2013/5656 and Appeal Book p.628.
45 Exhibit R1, at para 14 in U2013/5656 and Transcript before Ryan C, at paras 1203–1204, 1216, 1313, 1497, 1509 and 1514.
46 [2013] FWC 2959 at para 25.
47 [2013] FWC 2959 at para 26.
48 [2013] FWC 2959 at para 27.
49 [2013] FWC 2959 at para 27.
50 [2013] FWC 2959 at para 27.
51 [2013] FWC 2959 at para 28.
52 Briginshaw v Briginshaw (1938) 60 CLR 336.
53 Transcript before Ryan C, at paras 1141–1144.
54 Transcript before Ryan C, at para 1142.
55 Exhibit R6, Attachment GP1 in U2013/5656 and Appeal Book p.635.
56 [2013] FWC 2959 at para 16.
57 Exhibit R4, Attachment MC2 in U2013/5656.
58 Transcript, at para 143.
59 Exhibit R1, at para 28 in U2013/5656 and Transcript before Ryan C, at paras 1121 and 1148.
60 Transcript before Ryan C, at para 2174.
61 Exhibit R6, Attachment GP1 in U2013/5656 and Appeal Book p.635.
62 Exhibit A3 in U2013/5656.
63 Exhibit A3, at para 8 in U2013/5656.
64 Transcript before Ryan C, at paras 732 and 868–872.
65 Transcript before Ryan C, at para 868.
66 Transcript, before Ryan C at para 870.
67 [2013] FWC 2959, at para 5.
68 Exhibit R4, Attachment MC3 in U2013/5656.
69 Exhibit R4, Attachment MC3, at p. 8 in U2013/5656.
70 Exhibit R4, Attachment MC3, at p. 8 in U2013/5656.
71 Exhibit R4, Attachment MC3, at p. 10 in U2013/5656.
72 Exhibit R4, Attachment MC3, at p. 11 in U2013/5656.
73 Exhibit R4, Attachment MC3, at p. 12 in U2013/5656.
74 Exhibit R6, Attachment GP1 at 635 in U2013/5656.
75 Transcript before Ryan C at paras 2686, 2718 and 2821.
76 Exhibit R4, Attachment MC3 in U2013/5656.
77 Exhibit R6, Attachment GP1 in U2013/5656 and Appeal Book p.628, at para 7.
78 [2013] FWC 2959, at para 16.
79 [2013] FWC 2959, at para 16.
80 Exhibit R1, in this Appeal at para 15.
81 Exhibit R6, Attachment GP1 in U2013/5656 and Appeal Book p.628 (the Police Statement which was provided to the investigators - Exhibit R4, Attachment MC3, at page 7 in U2013/5656).
82 Exhibit R1, in this Appeal at para 16.
83 Exhibit R6, Attachment GP1 in U2013/5656 and Appeal Book p. 628 (the Police Statement which was provided to the investigators - Exhibit R4, Attachment MC3, at page 7 in U2013/5656).
84 Transcript before Ryan C, at para 1609.
85 Transcript before Ryan C, at para 1608.
86 Transcript before Ryan C, at paras 3416–3418.
87 Section 382 of the Fair Work Act 2009.
88 Section 390(1)(b) of the Fair Work Act 2009.
89 Transcript before Ryan C, at paras 3420–3422.
90 Transcript in this Appeal, at para 607.
91 Transcript in this Appeal, at para 607.
92 Print S6238.
93 (1995) 62 IR 385 at 393.
94 I.138/1993 at p. 9.
95 Print N4832.
96 (1998) 83 IR 102 at 109-110.
97 Print S6238, at para 25.
98 Transcript in this Appeal, at paras 626–635.
99 Transcript in this Appeal, at para 618.
100 [2008] AIRCFB 15, at para 23 [Majority decision of SDP Acton and SDP Cartwright].
101 Transcript in this Appeal, at para 665.
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