[2016] FWC 3797

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Stone
v
Citywide Service Solutions
(U2015/15383)

COMMISSIONER RYAN

MELBOURNE, 21 JUNE 2016

Application for relief from unfair dismissal – allegation of serious misconduct - valid reason – dismissal was harsh, unjust and unreasonable.

[1] Mr Stone was dismissed for allegedly forcefully elbowing another employee in the side after leaving a meeting of employees at the workplace. Mr Stone said the incident never happened. The other employee, Mr Fisher said it did. The Respondent preferred the version of events given by Mr Fisher.

[2] The Respondent said that there were two witnesses to the incident who provided statements to the Respondent and that these witnesses supported the version of events provided by Mr Fisher. The identity of the two witnesses and the contents of their statements were not revealed to Mr Stone either before his dismissal or after the dismissal took effect. Nor were the identity of the witnesses or their statements made known to the Commission during the hearing. One other employee, Mr Farrugia, gave evidence about the time and place at which the alleged elbowing occurred but this evidence was not conclusive one way or the other.

[3] With the above setting the context of the hearing, the Commission was required to determine whether the dismissal was harsh, unjust or unreasonable within the meaning of s.387 of the Act.

Background

[4] Mr Stone was employed as an afternoon shift driver by the Respondent and Mr Stone drove a waste collection vehicle on a specific run around part of the City of Melbourne collecting waste from the City Council’s waste collection bins located at fixed spots along the various city streets. Mr Stone had another employee who would be in the vehicle with him. This other employee was referred to as a Filler and that employee’s job was to get out of the truck and pick up the waste collection bins along the street and empty them into the truck and then put the waste collection bins back into their metal frames. The Filler who normally worked with Mr Stone was Mr Farrugia.

[5] The Respondent organised its waste collection so that the truck that the Mr Stone drove on the afternoon shift was also used on the morning shift. On some occasions if the morning shift were running late in finishing their round then Mr Stone and Mr Farrugia would have to wait until the truck returned before they could commence their shift. Mr Fisher was normally the Filler on the morning shift in the same truck that Mr Stone used on the afternoon shift.

[6] Mr Stone’s brother had been employed by the Respondent as a driver and his Filler was Mr Fisher. Mr Stone’s brother was dismissed from his employment with the Respondent. Mr Stone’s brother had made threats against Mr Fisher and Mr Fisher had obtained an AVO against Mr Stone’s brother.

[7] The relationship between Mr Stone and Mr Fisher was poor. Mr Stone had used vulgar language in the workplace when referring to Mr Fisher.

[8] Mr Stone had a poor work record. At the time of the dismissal Mr Stone was on a Final Warning due to misconduct whilst driving one of the Respondent’s vehicles.

The Applicant’s Case

[9] In its final written submissions the Applicant contended that:

“Section 387(a) – there was no valid reason for dismissal

13. A valid reason is one, which is “sound defensible or well founded”.

14. The Respondent’s reason for dismissing the Applicant is that he elbowed Mr Fisher.

The Applicant denies that he elbowed Mr Fisher. In these circumstances, the Commission is required to make a finding as to whether that conduct actually occurred. The Commission’s assessment is not whether the Respondent believed on reasonable grounds the conduct occurred.

15. If the Commission is satisfied that the Applicant forcefully elbowed Mr Fisher, then the application must fail, and if the Commission is not satisfied that the Applicant elbowed Mr Fisher, then there is no valid reason for the dismissal and the application must succeed.

16. The allegation that the Applicant elbowed Mr Fisher is an allegation of serious misconduct. The ramifications of the allegation for the Applicant were summary dismissal. The Applicant accepts that if he were guilty of the alleged conduct that he would be guilty of serious misconduct and that summary dismissal would properly follow.

17. The Applicant submits that, given the seriousness of the allegation and the seriousness of the outcome for the Applicant, satisfaction on the balance of probabilities in this matter “should not be produced by inexact proofs, indefinite testimony, or indirect inferences or by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.”

43. Even if Mr Fisher’s evidence was uncontested, it would not be sufficient to satisfy on the balance of probabilities that the Applicant is guilty of the alleged misconduct. Mr Fisher very clearly and precisely recalls the Applicant standing in a position on the far side of the table in the kitchen immediately before Mr Fisher left the kitchen. Mr Fisher recalls that the Applicant was not moving toward the door when Mr Fisher left the kitchen.

44. The Applicant is an overweight 55 year old man. It is very unlikely that he could have moved from a standing start on the far side of the table in the kitchen, to where he allegedly elbowed Mr Fisher, in the same time it took Mr Fisher to take 3 or 4 steps. It is yet more improbable that the Applicant could have done so without drawing any attention. There is no evidence that any person noticed the Applicant rushing out of the kitchen.

45. The Applicant submits that on the balance of probabilities the Commission should not be satisfied the Applicant is guilty of the alleged misconduct.”
[citations omitted]

The Respondent’s Case

[10] The essence of the Respondent’s case was set out in its written submissions as follows:

“Did the Incident occur in fact?

23. The Company submits that the Incident did in fact occur on the balance of probabilities. During the investigation from 9-17 November the Company had (and the Commission, after hearing the matter, will have) ample evidence supporting the Company’s conclusion.

24. The Applicant also asserts in the Applicant’s Outline at paragraph 18 that it was unclear what evidence the Respondent relied on to conclude that the incident happened. In summary, the Company’s evidence will be that it relied on the following:

a. Written statement of Mr Tim Fisher dated 10 November 2015;
b. Email of Employee 1 dated 10 November 2015 who wished his statement and identity to be kept confidential from Mr Stone;
c. Written statement of Employee 2 who wished his statement and identity to be kept confidential from Mr Stone;
d. Written statement of Mr Michael Farrugia dated 16 November 2015;
e. Email of Mr Matt Williams dated 16 November 2015; and
f. The responses given by the Applicant and also Mr Paul Duncan in the meetings of 16 and 17 November 2015.

25. Further, the Commission can be satisfied that all of the material set out at paragraph 24 above was weighed and considered to arrive at the Company’s conclusion that the Incident had occurred. The finding of misconduct and the reason for termination was, in the Company’s submission, sound, defensible and well-founded.

26. The Commission, in making its determination, will have the same material as the Company had, but will also have the benefit of witnesses giving additional evidence before the Commission and having that evidence tested.

27. The Company submits that the Commission can be satisfied on the balance of probabilities, once it weighs all of the evidence before it, that the Incident occurred.

[11] In its final written submissions the Respondent contended that:

“Geoff Stone

29. The Commission also received evidence about Geoff Stone, in particular in terms of his interactions with Mr Fisher.

30. The Company submits that Mr Geoff Stone, being the Applicant’s brother, is very firmly in the Applicant’s camp and could have provided evidence to this matter.

31. His evidence was necessary to the Applicant’s case in the following ways. The Company’s case is that Tim Fisher took a number of actions in relation to Mr Geoff Stone which gave Mr Stone good reasons to be angry with him and which did actually make him angry with Mr Fisher. These included not giving evidence in a court proceeding, taking video of him resulting in his dismissal and taking out an AVO against Mr Stone. It would have been open to Mr Geoff Stone to give contradictory evidence, either as to his feelings about Mr Fisher, or as to any aspect of those matters which we say gave Mr Stone good reason to be angry with Mr Fisher, including what Geoff Stones actions were that caused Mr Fisher to take any of those actions, such as making threats or asking him to lie. At present the Applicant has given some evidence about these matters but it is largely hearsay, based on discussions between the brothers (PN721-726 of the Transcript).

32. Mr Geoff Stone was not called as a witness to provide evidence in relation to these matters for and on behalf of the Applicant. The Commission should draw an inference that Mr Geoff Stone’s evidence would not have assisted the Applicant’s case and should be more ready to accept Mr Fisher’s version of events in this regard.

33. The Company has put forward evidence from several witnesses as well as Mr Fisher himself about the history of the relationship between Mr Fisher and the Applicant The Company submits that the history that is established provides a sound basis for the conclusion that it is not likely than not that the Elbowing Incident happened.

34. At the very least, the Commission can conclude that in the year leading up to the dismissal in November 2015, the relationship was not a good one. The Applicant concedes he had good reason to dislike Mr Fisher. At a minimum, he conceded and the Commission should find that he called Mr Fisher an “idiot”, did call or might have called him a “dickhead”, told him he was ‘full of shit” more than once and unreasonably criticised Mr Fisher’s performance of his work.

35. The Company submits that, more than these minimum concessions, the relationship was in fact a toxic one. There is evidence on which the Commission can be satisfied that the Applicant abused Mr Fisher on occasions additional to those conceded by the Applicant. This situation was an ongoing one over a period of around 18 months, which was managed by Citywide to the best of its ability so as to minimise risk of further abuse. Ultimately the Elbowing Incident, the Elbowing Incident on 6 November, was another instance of this toxic relationship.

115. In their absence, the Commission will still be assisted by the accounts of those affected by the allegations – the victim and the alleged perpetrator, and must decide between their accounts. Only one can be correct on whether that Elbowing Incident occurred. The Commission must establish whose version is to be preferred, on the balance of probabilities.

116. But this is not just a “he said, she said” case, overall. The Company has put forward extensive evidence about the history of the relationship between the two protagonists. That evidence is circumstantial, but relevant to proving the facts in issue. The relevance of this history arises because if it is established then it shows that the Applicant had animosity towards Mr Fisher, whether through direct insult/criticism or in how he spoke to others about him and, given the number of events in which this was displayed, therefore had a propensity to abuse him.

117. If the Commission infers that this propensity to abuse existed, then the Commission can and should infer that the Elbowing Incident happened.

118. The Full Bench of the AIRC in King v Freshmore (Vic) P/L (Print S4213, Ross VP, Williams SDP and Hingley C, 17 March 2000) held in relation to propensity evidence:

“[70] ……….. Propensity evidence may be admissible if sufficiently relevant to the issues which arise for determination in the case.”

119. Further, in providing this history of the relationship between Mr Fisher and Mr Stone, the Company has also provided the Commission with an extended opportunity to observe the protagonists and other witnesses in how they give evidence and answered the questions put to them. What each of them has said about each issue is of course important, but how they have said it – their demeanour – whilst giving their evidence is also a significant factor that will assist the Commission in making its findings of fact.

120. The Commission is of course entitled to take into account a witness’s demeanour in assessing the evidence. This is so well understood that the case law in the Commission is more concerned with how a Full Bench is to treat the Commission’s findings at first instance on demeanour: see for example St John-Sweeting v University of Adelaide (Print R5960, Roos VP, Jennings DP and Hingley C, 23 June 1999).

121. Looking at the protagonists in the witness box, and reviewing their oral evidence in transcript, the Company submits that the Commission should find that Mr Fisher is a more reliable witness than Mr Stone.”

The Legislation

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.”

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

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

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

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

The Authorities

[12] The Respondent in its written submission drew attention to two appropriate authorities:

“21. The principles which apply to a termination of employment for misconduct are set out in Intercontinental Ship Management P/L v Culpeper, PR944547, Marsh SDP, Blain DP, Hoffman C, 23 March 2004):

"[19] Before turning to the first matter, we summarise the proper approach to be taken to a finding in respect of whether the termination based on misconduct was harsh, unjust or unreasonable:

● The Commission is obliged to make a finding as to whether or not there is a valid reason for the termination of the employment. (Edwards v Giudice, Moore J, 94 FCR 561)
● The reason must be "sound, defensible and well founded". (Selvachandran v Peteron Plastics Pty Ltd, Northrop J, 62 IR 371)
● The [employer] carries the onus of establishing a valid reason.
● In a matter in which the termination is based on the conduct of the employee, the Commission must determine that the conduct took place. (Edwards v Giudice, Moore J, 94 FCR 561)
● In determining whether the alleged conduct took place and what it involved, the Commission must make a finding on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination. (King v Freshmore, Ross VP, Williams SDP and Hingley C, Print S4213)
● It is not the Court's function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the Court but rather it is for the Court to assess whether the employer had a valid reason connected with the employee's capacity or conduct. (Walton v Mermaid Dry Cleaners Pty Ltd, Moore J, 142 ALR 681)
● In deciding whether there is a valid reason, the Commission must look at the applicant's conduct and determine on the balance of probabilities what that conduct was and whether it took place. (Farrugia v Transadelaide, SAIR 6, Stevens DP)
● In matters involving misconduct there is an onus on the employer to establish that the misconduct took place. (Yew v ACI Glass Packaging Pty Ltd, Wilcox CJ, 71 IR 201) ….”

22. In Australian Meat Holdings Pty Ltd v McLauchlan (Ross VP Polites SDP Hoffman C, Print Q1625, 5 June 1998) the Tribunal also held that the conclusion as to whether, on the balance of probabilities, there was a valid reason for the termination must be a reasonable conclusion to have been drawn upon the facts before the employer.

[13] Whilst other Full Benches have dealt with the same issue more recently, the matters identified in the two authorities relied on by the Respondent provide a useful basis for considering the present matter.

Consideration

[14] As to the matters required to be decided under s.396 the Commission decides as follows:

● The application in this matter was filed within the time frame set by s.394(1)
● Mr Stone is a person who is protected from unfair dismissal within the meaning of s.382 in that he has completed the minimum employment period of one year and an enterprise agreement applies to Mr Stone in relation to his employment with the Respondent.
● As the Respondent is not a small business then the Small Business Fair Dismissal Code does not apply.
● The dismissal of Mr Stone was not a case of genuine redundancy.

Was there a valid reason for the dismissal – s.387(a)

[15] The reason given by the Respondent for the dismissal of Mr Stone was that Mr Stone had engaged in serious misconduct. The serious misconduct was described as follows:

“On 6 November 2015 at approximately 2.05 pm you were involved in a physical altercation with another Citywide employee. ………when departing the Melbourne Waste contract toolbox meeting held at 85 Green st, North Melbourne you physically assaulted Mr Fisher by elbowing him forcefully in the left side of his torso.” 1

[16] The Respondent in its written submission properly asks the question: Did the incident occur? The Respondent contended that on a balance of probabilities that the Commission can be satisfied that the incident did occur and that the incident provides a valid reason for the dismissal of Mr Stone.

[17] The standard of proof required to establish a valid reason is the civil standard of proof on the balance of probabilities and not the criminal standard of proof beyond reasonable doubt. The nature of the civil standard was dealt with by the High Court in Briganshaw v Briganshaw 2.

[18] In Briganshaw v Briganshaw the High Court was dealing with an appeal from a single judge of the Victorian Supreme Court concerning a divorce matter. Latham C.J. at 348 describes the decision at first instance in the following terms:

“The reasons for judgment show, in my opinion, that the learned judge was left in a state of complete uncertainty on the issue of adultery. He was not prepared to accept or to act upon the evidence of any witness in the case. His Honour said: "I have read the evidence several times, and the more I read it the more difficult the case seems." He then recited the evidence against the co-respondent. He said: "In fact all the witnesses gave their evidence well, and I could gather nothing adverse to them from their demeanour." Coming to the case against the respondent he recited the relevant evidence, referred to discrepancies, and said: "I am unable to draw any certain conclusions from the discrepancies." He added: "Then there is a total denial by the" wife" on oath, and there was nothing in her demeanour in the box to suggest that she was lying." The nearest approach to a definite finding of fact is the statement of his Honour that the account of a particular conversation given by the co-respondent was "the more feasible."

His Honour concluded his judgment by saying :-" I do not know what to believe. I have been very troubled." After a reference to a witness who was not called, the learned judge said:-" I have done my best to decide, but the petitioner must satisfy me that his story is true. I think I should say that if this were a civil case I might well consider that the probabilities were in favour of the petitioner, but I am certainly not satisfied beyond reasonable doubt that the evidence called by the petitioner should be accepted."

At 349 Latham CJ said:

“If one regards only the evidence given (there being no findings of fact based on that evidence), this is an ordinary case of a conflict of evidence, with probabilities and improbabilities on both sides. The learned judge has been unable to make up his mind on the issue of adultery. The petitioner carries the onus of persuading a judge to make up his mind in his favour. If he does not succeed in so persuading a judge, he fails in his petition and the matter is at an end.”

[19] It is in this context that the High Court clarified what was expected in relation to proof on the balance of probabilities. The most oft quoted part of this decision is that of Dixon J. at 361 and 362:

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

Dixon J immediately went on to say:

“Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency………….. This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.”

[20] The Applicant relied upon the comment of Rich J at 350:

“In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.”

However it is necessary to have regard to the next sentence in the decision of Rich J.:

“The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.”

[21] In the same case McTiernan J gave an interesting example of the same principle enunciated by Dixon J when he said:

“English law adopts the reasonable rule that the strictness of the proof of an issue should be governed by the nature of the issue and its consequences. Lord Brougham's speech in defence of Queen Caroline describes an ascending scale of issues which illustrates this principle: "The evidence before us," he said, " is inadequate even to prove a debt, impotent to deprive of a civil right, ridiculous for convicting of the pettiest offence, scandalous if brought forward to support a charge of any grave character, monstrous if to ruin the honour of an English Queen."

[22] In the present matter Mr Stone, Mr Fisher and Mr Farrugia gave evidence as to what occurred at and after the meeting on 6 November 2015 and nothing in the demeanour of each suggests that they were not being truthful. Mr Farrugia’s evidence could be understood as being consistent with the evidence of each of Mr Stone and Mr Fisher.

[23] The Respondent specifically contended that the demeanour of the witnesses is relevant and I agree with this contention as a general proposition. The Respondent’s contentions portray Mr Fisher’s demeanour in the witness box in a positive light and both Mr Stone’s and Mr Farrugia’s demeanour in the witness box in a negative light. Demeanour is far more than the answers given by a witness, it includes non-verbal communication such as body language, it includes tone and volume. Simply because demeanour does include a wide range of matters on which a subjective view is formed by the Commission it is dangerous to put too much emphasis or reliance on a witness’s demeanour in the witness box. An observation made by Kirby J in 1999 has relevance to the present matter:

“There is a growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom. Scepticism about the supposed judicial capacity in deciding credibility from the appearance and demeanour of a witness is not new. In Societe D'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana"), Atkin LJ remarked that "an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour." To some extent, the faith in the judicial power to discern credibility from appearances was probably, at first, a consideration which the judiciary assumed that it inherited from juries. It was natural enough that trial judges, accustomed to presiding over jury trials, would claim, and appellate judges would accord, the same "infallible" capacity to tell truth from falsehood as had historically been attributed to the jury. Nowadays, most judges are aware of the scientific studies which cast doubt on the correctness of this assumption. Lord Devlin in The Judge quoted with approval a remark of MacKenna J: "I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability ... to discern from a witness's demeanour, or the tone of his voice, whether he is telling the truth." It was a becoming but entirely accurate modesty.” 3

[24] The analysis of the evidence of these three witnesses is as follows:

Mr Fisher

PN1867. Was anyone moving towards the door as you were about to leave?---No, I didn't see anyone. All I seen I'd looked around and I thought the guy who gives me a lift - "Ah, he's gone." Or he's outside having a cigarette. And once again all I did is see John Stone approximately at that table.

PN1873. So at that point when you're still facing into the room and just before you step out the door, was anyone else heading towards the doorway?---No. Only John Stone.
PN1874. Okay. So you've identified that Mr Stone is at the table? ---Yes.

PN1876. As you're about to step out of the room was anyone near the doorway with you?---No. They were just talking amongst themselves.

PN1883. No, no, no. I'm just asking you what you saw before you've left the room. What you're describing is Mr Stone is still at the table. Other people are in the room talking to each other?---Yes.

PN1886. So, stop. So is that how it was whilst you're in the room? Whilst you're in the lunch room?---Yes. Well, as I stood there and Mr Stone was there. I remember him looking at me - so and then I just went - he did look at me. Just in eye contact at me. And then I thought, "Well, I'll get going out here." And this is we're there. I was - - -

PN1888. Because you were right next to the door it wasn't - did you have to wait for someone else to leave? Like before you stepped into the doorway when you decided to leave was there anyone else about to leave?---No.
PN1889. In front of you?---No.
PN1890. Was there anyone who was about to leave immediately behind you?---No.
PN1891. Okay. So then as far as you can recall when you stepped into the passageway?---Yes.
PN1892. There would have been no one immediately in front of you or immediately behind you?---No, there was only people here in the foyer talking with their backs turned.

PN1896. ..So you've left the room by yourself?---Yes.
PN1897. Okay, right. Then you've taken three or four steps?---Yes.
PN1898. You're on the right side of the hallway?---That's right. On the right side.
PN1899. And you then feel the pain in your side?---Yes. A good whack and good - - -
PN1900. But you felt pain in your side?---Yes.

PN1914. ..You then say that you turned to your left?---To my left.
PN1915. And the only person you saw on your left hand side was Mr Stone?---That's correct.
PN1916. Okay. When you turn to your left and saw Mr Stone how long after the pain hit you? Was it instant? Or did you wait a bit? Or as soon as you felt the pain did you turn?---Straight away.
PN1917. Okay. So it's as soon as you felt the pain you've turned to the left?---Yes.
PN1918. Okay. And you say Mr Stone was there on the left?---That's right.

PN1920. No, no, no. But was Mr Stone directly level with you or was he a bit in front of you or a bit behind you?---Just a bit in front of me after I get elbowed.

PN1923. Okay. So you have identified that Mr Stone was there beside you?---Yes.
PN1924. But slightly in front. Did you at all then see if anyone was behind you?---No.

PN1930. Okay. Mr Stone has overtaken you?---After I've been hit on the - - -
PN1931. No, no. But he's overtaken you and he's kept going?---Yes.
PN1932. Did anyone else overtake you and go past you?---No. Like I said.
PN1933. So that was it. The only person who overtook you at that point during the walk along the hallway was Mr Stone?---That's right.
PN1934. Okay. And at any point up until you got to the doorway going into the foyer area was there anyone else behind you and close to you?---No, I didn't see anyone at all.
PN1935. Okay. Did you look to see if anyone was there?---No.

Mr Farrugia

PN292. Do you know whether Mr Fisher signed the sheet before or after you?---He signed before us, because when I leave - left the room and I came into the hallway, I saw Mr Fisher already down in the foyer.

PN298. So Mr Stone is sitting next to you?---Yes.
PN299. Did Mr Stone sign the sheet before or after you?---Before me.
PN300. Is that rank has its privileges? He's the driver, he gets there first or do you just - - -?---No, he just managed to get in before me. That's all.
PN301. So when you've signed, you say you signed the sheet after Mr Fisher signed the sheet?---Yes.
PN302. Do you know how long after? I mean, were you the next person after Mr Fisher? Were you several people after Mr Fisher?---Several people, I suppose, yes.
PN303. So when you signed the sheet, you then - what's the normal thing? Do you move away from the table or do you just stay near the table and walk around it?---You just walk around the table into the hallway, and go and get the keys, like everybody else does.
PN304. Right. Any person who had signed the sheet before you, they would have exited the room before you?---Correct.
PN305. And any people who sign the sheet after you would exit the room after you?---Correct.

PN311. When you exited the room, the lunch room and you were in the hallway, could you see Mr Fisher?---I did, yes. I seen him down to my right in the foyer.

PN117. So you are heading right with Mr Stone?---Yes.
PN118. He's in front of you?---Yes.

PN143. So there were other people in the hallway and in the corridor?---Yes.
PN144. And those people could have obscured your view of Mr Stone's back?---Not really, no.
PN145. They couldn't have?---Could have, but - - -

Mr Stone

PN909….. We heard, from Mr Farrugia, this morning that, in fact, he waited for other people to sign first, that the people who signed first were a lot of the early morning - the morning shift people who were in the meeting, do you recall that?---No, I was probably one of the first to sign it in the afternoon, I don't know who signed it in the morning.
PN910. No, no, no. Mr Farrugia said, in the meeting that you were in and he was in?---Yes.
PN911. That he hung back and did not sign the book - the attendance sheet straightaway, that he permitted or waited for some of the morning shift people, who were in your meeting, to sign and get out the door?---Yes, I'm not - I don't know when he - I don't know exactly when he signed it.
PN912. All right. He also says that you signed immediately before him?---I know I signed before he did, yes.

PN959. MS SEGBEDZI: ……. I think where we left off we were talking about Michael Farrugia following you when you went to get the keys. But you said, yesterday, that he was behind you, that's right?---I'm sure he was behind me, yes.
PN960. But you wouldn't have been able to see him if he was behind you, would you?---No, I would have been walking up to get the keys, yes.

PN963. Okay. So it is possible that there were people between you and Mr Farrugia, as you went up the hallway to get the keys, isn't there?---That's possible, yes.
PN964. Now, when you get through the hallway I understand your evidence is that you got the keys and that you had a quick word to Matt Williams?---Yes.
PN965. And a quick work to Paul Duncan?---Yes.
PN966. When you were talking to Matt Williams it was in relation to Glen Matnick, wasn't it?---That's correct, yes.
PN967. Then you left to take your truck out on your shift?---Yes.
PN968. That's right. Now, Mr Farrugia has given evidence that he observed Tim Fisher in the hallway, heading up towards the office foyer?---Yes.
PN969. Mr Fisher says that you passed him and in passing him you elbowed him in the ribs?---Not at all.
PN970. I want to put it to you that that happened around about the time that you were going to get your keys?---That I elbowed Tim?
PN971. Yes?---No.
PN972. I want to put it to you that you elbowed him and then you continued to get your keys and then to leave to go to your shift?---No, I did not.
PN973. Now, in terms of your relationship with Tim Fisher, I think this morning, just through what we've talked about and last night, you have accepted that you had reason to dislike Tim?---Yes.

PN984. What I want to put to you, Mr Stone, and I have to do this, is you've conceded you had reason to dislike Mr Fisher, there are a number of incidents that other people report having observed and written emails about or, in some way, recorded where you have criticised or abused Mr Fisher, and that on 6 November you also had a go at Mr Fisher, by elbowing him in the ribs, didn't you?---I did not.

PN1027. THE COMMISSIONER: Mr Stone, I want to ask you some questions. In your earlier evidence you made it clear that where you were sitting, against the back wall underneath the window, you said you weren't aware Mr Fisher was even at that meeting?---I wasn't.
PN1028. Were you ever aware that Mr Fisher had attended that meeting at that time?---When I was called in the following week. I didn't take much notice of - - -
PN1029. Okay. When you left - when you had finished signing the sheet you obviously have to look up to navigate your way over to the door and get out the door, and then you have to navigate your way down to the key board?---Yes.
PN1030. Did you, at any time, become aware of Mr Fisher?---No.
PN1031. But as you picked up the keys and then you're leaving, did you become aware of Mr Fisher?---No, I did not.
PN1032. Okay. So the first time you became aware of Mr Fisher being at the meeting was after the event?---Yes. I know he was there because I was - - -
PN1033. But you became aware only because you were told that he was there?---Yes.
PN1034. Not because you ever saw him there?---No. Well, when I say I didn't see him, I can't recall - I didn't take any notice of if he was there or not. I didn't recall him being there, I just naturally thought he would have been on the morning shift to a watch meeting.
PN1035. Okay. So you had no memory of recalling his presence - - -?---No, not at the time.
PN1036. - - - either at the meeting, in the hallway, in the foyer or anywhere?---No.

[25] Any consideration of the evidence of Mr Fisher must take into account the fact that for Mr Stone to have forcefully elbowed Mr Fisher about halfway along the corridor from the lunch room to the foyer then Mr Stone would have to have moved at a significantly faster rate than Mr Fisher was moving. The Applicant contended that it is improbable that Mr Stone could have moved from where he was in the lunch room to the position where Mr Fisher said he was forcefully elbowed by Mr Stone.

[26] Mr Stone’s evidence is that he was intent on getting out of the meeting quickly, getting his keys and in commencing his work. 4 Mr Fisher’s evidence was that he left the lunch room walking very slowly.5

[27] It is clearly possible that Mr Stone passed Mr Fisher in the corridor between the lunch room and the foyer. Mr Stone’s evidence does not preclude this possibility.

[28] Any consideration of the evidence of each of Mr Fisher, Mr Stone and Mr Farrugia must take into account the inconsistencies which exist both in and between each of their evidence.

[29] Mr Fisher, in his witness statement, says that after he was hit in the side, “I stopped, for a good forty seconds. I saw his back, moving ahead of me, and I saw him pick up the keys from the key board on the left hand side of the wall, after the doorway through to the open foyer area.” 6 Yet in answer to questions from the Commission Mr Fisher identified that after he was hit in the side he kept moving.7 Mr Farrugia firstly said that when he left the lunch room he turned left and went to the truck and that he was following Mr Stone the whole time.8 Then Mr Farrugia said that after leaving the lunch room he turned right and followed Mr Stone to the foyer area.9 Mr Farrugia also said that while he was following Mr Stone to the foyer area that he saw Mr Fisher in the foyer.10 Mr Stone in his witness statement and in his early oral evidence gives clear and concise evidence as to when he left the lunch room but his evidence in cross examination and re-examination becomes significantly less clear about the order in which people left the lunch room.11 Mr Stone’s evidence in answer to questions from the Respondent as to the possible number of people in the corridor while Mr Stone was in the corridor, doesn’t easily fit with the evidence of Mr Fisher that he stood still for at least 40 seconds after being hit and watched Mr Stone moving down the corridor into the foyer and pick up his keys.

[30] The Respondent places significant reliance on what it describes as propensity evidence. The Respondent specifically contended as follows:

“116. But this is not just a “he said, she said” case, overall. The Company has put forward extensive evidence about the history of the relationship between the two protagonists. That evidence is circumstantial, but relevant to proving the facts in issue. The relevance of this history arises because if it is established then it shows that the Applicant had animosity towards Mr Fisher, whether through direct insult/criticism or in how he spoke to others about him and, given the number of events in which this was displayed, therefore had a propensity to abuse him.

117. If the Commission infers that this propensity to abuse existed, then the Commission can and should infer that the Elbowing Incident happened.”

[31] The contention that Mr Stone had a propensity to abuse Mr Fisher is not only well made but it is proven by the evidence of Mr Stone. But the real problem with this line of argument is that the alleged serious misconduct committed by Mr Stone against Mr Fisher was not verbal abuse but physical assault. Establishing that Mr Stone had a propensity to verbally abuse Mr Fisher does not and should not lead to an inference that Mr Stone had a propensity to physically assault Mr Fisher and that Mr Stone did in fact assault Mr Fisher.

[32] In many respects the evidence concerning Mr Stone’s verbal abuse of Mr Fisher strengthens the evidence of Mr Stone that the alleged forceful elbowing of Mr Fisher did not occur. Mr Stone’s own evidence portrays himself as a verbal bully who readily resorts to verbal abuse but as can be the case the foul mouthed verbal bully can be a coward when it comes to physical bullying of a victim.

[33] The Respondent only has the evidence of Mr Fisher to support the contention that Mr Stone forcefully elbowed Mr Fisher.

[34] The Respondent contended that the Commission must accept one version of events over the competing version of events:

“115. …. the Commission will still be assisted by the accounts of those affected by the allegations – the victim and the alleged perpetrator, and must decide between their accounts. Only one can be correct on whether that Elbowing Incident occurred. The Commission must establish whose version is to be preferred, on the balance of probabilities.”

[35] The Respondents “either or” approach does not have to be followed. The better way of expressing the issue before the Commission is: Can the Commission have the necessary “comfortable satisfaction” or “reasonable satisfaction”, having regard to the evidence before it, that Mr Stone physically assaulted Mr Fisher by forcefully elbowing him in the side? This way of expressing the issue properly draws together the elements of satisfaction on the balance of probabilities as expressed in Briganshaw v Briganshaw with the specific conduct which the Respondent alleges against Mr Stone.

[36] In the circumstances of the present matter the probability that Mr Fisher received a blow of some description to his side whilst walking from the lunch room to the foyer is quite high. It is possible that the blow was an accidental blow from Mr Stone or from some other employee close to and behind Mr Fisher. It is also possible that it was a deliberate blow from an employee other than Mr Stone. It is possible that if a blow was given it could have been given by an elbow or a hand or an object. I don’t have to consider or determine whether of these possibilities occurred. The issue before the Commission is did Mr Stone physically assault Mr Fisher by forcefully elbowing him in the side.

[37] There is no contradiction in accepting the evidence of Mr Fisher that he received a blow to the left side of his body and in accepting the evidence of Mr Stone that he did not forcefully elbow Mr Fisher in the side. The blow has been variously described by Mr Fisher as: “elbowed in the left side very hard”; 12 “hit in my left side, The hit was hard”; 13 “he had struck me with his right elbow in my left side of my body”;14 “that’s where I’ve been elbowed severely”;15 “I’ve just been elbowed by John Stone”;16 “a good whack”;17 “after I’ve been hit”.18

Having variously described the blow Mr Fisher conceded that he did not see the blow being delivered only that he felt it. 19 However, Mr Fisher has drawn the conclusion that the only person who could have initiated the blow, hit or whack was Mr Stone and that it was done by Mr Stone deliberately.20

[38] Mr Stone’s evidence is that he did not recall seeing Mr Fisher at the meeting or immediately after the meeting. 21 Mr Stone very clearly denied that he elbowed Mr Fisher.
Mr Stone was emphatic in his denial when the allegation was first put to him and has maintained that emphatic denial on each occasion that the allegation was put to him. It is not surprising that Mr Stone was so emphatic in his denial given that his evidence was that he was not aware that Mr Fisher was at the meeting until after the allegations were put to him. It is also not surprising that Mr Stone was so emphatic in his denial when the allegation was so specific, i.e that he physically assaulted Mr Fisher by forcefully elbowing him in the side.

[39] There is a practical difficulty posed by the evidence of both Mr Fisher and Mr Stone. Mr Fisher’s evidence is only sufficient to establish that he received a blow, hit or whack to his side and is clearly insufficient to establish who did it or as to how it was done. Mr Stone’s evidence is only sufficient to establish that he did not physically assault Mr Fisher by forcefully elbowing him in the side and is clearly insufficient to establish that Mr Stone did not make any contact with Mr Fisher.

[40] In the present circumstance where the evidence of either Mr Stone or Mr Fisher cannot be preferred over the other and where the Commission accepts that Mr Fisher is correct in his evidence that he received a blow, hit or whack whilst walking along the corridor and where the Commission accepts that Mr Stone did not physically assault Mr Fisher by forcefully elbowing him in the side then the conclusion that must be reached is that the Respondent has not proved to the reasonable satisfaction of the Commission that Mr Stone physically assaulted Mr Fisher by forcefully elbowing him in the side.

[41] If the evidence cannot establish to the reasonable satisfaction of the Commission that Mr Stone physically assaulted Mr Fisher by forcefully elbowing him in the side then it must follow that the Respondent did not have a valid reason for the dismissal.

[42] Sections 387(b), (c), (d), (e) and (g) are not relevant.

Seciton 387(f) size of the Respondent’s enterprise

[43] This criterion is relevant. The Respondent’s enterprise is of significant size and the Respondent clearly has the capacity to have comprehensive procedures for dealing with allegations of misconduct by employees and for dealing with dismissal of employees. This criteria weighs in favour of the Respondent’s case.

Section 387(h) Any other matters that the Commission considers relevant.

[44] Under s.387(a) the Commission determined that there was no valid reason for the dismissal and that this determination was made having regard to the evidence before the Commission.

[45] There is another matter which is relevant to the overall determination as to whether the dismissal was harsh, unjust or unreasonable, and that relates to the two employees who the Respondent said gave statements which supported the version of events of Mr Fisher.

[46] It is understandable in the context of an investigation into allegations against a current employee that some employees who are prepared to provide information to their employer in relation to the allegations may not want to be identified to the employee against whom the allegations have been made. It is understandable then that the employer would not reveal the names of such employees to the parson under investigation. If the investigation clears the employee then difficulties in the workplace are avoided if the employee who was under investigation does not know which employees were involved in giving statements to the employer and against the interests of the accused employee. However, once an employee has been dismissed and thus removed from the workplace it appears strange that an employer defending itself against a claim that the dismissal of the employee was harsh, unjust or unreasonable would not put to the Commission the evidence of the employees.

[47] The evidence of Ms McConnell was that the statements of the two employees who provided statements to the Respondent arrived about the same time as the statement from Mr Fisher. There was nothing in the evidence of Ms McConnell or anyone else which suggested that the Respondent actively sought out employees to make witness statements in relation to the alleged elbowing incident. It appears that the two employees provided statements spontaneously and contemporaneous with Mr Fisher providing his statement. The alleged incident occurred on 6 November 2015. Mr Fisher made an oral complaint on that day and provided a written statement on 10 November 2015. The Respondent in its written submission identifies that it received the statements from the other two employees on 10 November 2015 and this was confirmed by Ms McConnell in her witness statement and oral evidence.

[48] It is a very convenient coincidence for the Respondent to have received two statements from employees on the same day that it received the statement from Mr Fisher. It suggests that employees who were not asked by the Respondent to make statements about an alleged incident simply took it upon themselves to do so. In many respects this appears to be too neat and timely an occurrence to be real.

[49] Whilst I do not draw an adverse inference against the Respondent (as urged by the Applicant) or against the evidence of Mr Fisher the very lack of evidence from the two employees who provided statements to the Respondent leaves the Commission in the position that a determination as to whether Mr Stone forcefully elbowed Mr Fisher can only be determined on the evidence of Mr Stone and Mr Fisher and the other witnesses and this has been properly considered in the discussion under s.387(a).

[50] Another relevant matter is the previous conduct of Mr Stone and the fact that Mr Stone had received a First and Final Warning in March 2015. An inordinate amount of time was spent during the hearing in dissecting the conduct of Mr Stone in relation to this incident and the process followed by the Respondent. Mr Stone’s evidence in relation to this event was highly credible. Several very clear pictures are painted by the evidence given about the March 2015 incident.

[51] Firstly, Mr Stone’s evidence paints a picture of himself as an aggressive personality when performing his driving duties. Yet his openness about his aggressive actions clearly shows that he has little real appreciation of the inappropriateness of such conduct. However, his openness in giving evidence about the March 2015 incident lends strength to the credibility of his evidence about the alleged elbowing incident in November 2015.

[52] Secondly, the Respondent’s evidence shows a reasonably dysfunctional approach to the handling of the March 2015 incident with two managers doing different things in relation to the same incident.

[53] Thirdly, it is clear that not only was the First and Final Warning fully justified but it is most likely that had Mr Stone been dismissed for that conduct the Respondent would have had a valid reason for doing so. The very fact that the Respondent chose only to give Mr Stone a First and Final Warning is relevant to a consideration as to whether the dismissal of Mr Stone was harsh, unjust or unreasonable. I note that the Respondent in its final written reply submissions of 17 June 2016 specifically withdrew the First and Final Warning incident from being a reason for the dismissal.

[54] Another relevant matter is the evidence of Ms McConnell and Mr Bright in which both portray Mr Stone in a negative light in terms of his engagement in the workplace. It is also relevant that Ms McConnell gave evidence as to her fear of Mr Stone as an aggressive person yet had not prior to the incident giving rise to the dismissal made any complaint or expressed any concern about this to the Respondent.

[55] Another relevant matter is the ongoing relationship between Mr Stone and Mr Fisher in the workplace and the Respondent’s actions. Mr Fisher made a number of complaints about the seat in the truck being wet when he was to commence his day shift in which he clearly blamed Mr Stone. Whilst the Respondent confirms that on these occasions the seat in the truck was wet it could not be established that Mr Stone was to blame. The Respondent went to some lengths to ensure that at the end of his shift Mr Fisher did not come into contact with
Mr Stone by providing assistance to Mr Fisher in relation to his transport arrangements between work and home. However, the Respondent continued to have Mr Fisher work as the Filler on day shift in the same truck that Mr Stone was the driver of in the afternoon shift.
Ms McConnell’s evidence as to why the Respondent did not separate Mr Stone and Mr Fisher further by having them work in different trucks suggests that the Respondent was abrogating part of its management of the workplace and allowing the employees to control the allocation of employees to vehicles or vehicles to employees.

Conclusion

[56] The requirement of s.387 is for the Commission to consider each of the relevant criteria and to weigh those relevant criteria together and form a conclusion as to whether the dismissal is harsh, unjust or unreasonable. No one criteria takes precedence over any other criteria. As the authorities make clear the fact that there was a valid reason for a dismissal doesn’t excuse the Commission from being required to weigh all of the relevant criteria under the section before deciding whether the dismissal was harsh, unjust or unreasonable. Similarly, in the present matter the finding that there was no valid reason for the dismissal does not mean that the dismissal was harsh, unjust or unreasonable. The Commission must consider all of the relevant criteria under s.387 before coming to a concluded view. Just as the presence of a valid reason for dismissal may be outweighed by other relevant criteria in s.387 to produce a decision that a dismissal was harsh, unjust or unreasonable it is possible for the absence of valid reason for dismissal to be outweighed by other relevant criteria under s.387 to produce a decision that the dismissal was neither harsh, unjust or unreasonable.

[57] In the present matter the Commission has taken into account the relevant criteria under s.387 namely paragraphs (a), (f) and (h). Whilst the criteria under s.387(f) and some of the matters considered under s.387(h) weigh in favour of the Respondent they are very heavily outweighed by the criteria under s.387(a) and some of the matters considered under s.387(h).

[58] The Commission is satisfied that the dismissal of the Mr Stone was harsh and unjust and unreasonable.

[59] I find that the dismissal of Mr Stone was an unfair dismissal within the meaning of s.385 of the Act.

Remedy

[60] The starting point for any consideration of a possible remedy for unfair dismissal is s.390 of the Act.

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[61] The grant of any remedy after a finding of unfair dismissal is discretionary subject to two conditions precedent. So much is clear from the introductory words in s.390(1).

[62] In the present matter the conditions precedent for the exercise of the discretion are present.

[63] The Commission considers that in the present matter a remedy should be granted to Mr Stone for to do otherwise would be to compound the unfairness of his dismissal.

[64] The structure of s.390(2) makes clear that reinstatement is the primary remedy. Compensation cannot be considered as a possible remedy unless there is a positive finding by the Commission that reinstatement is inappropriate.

[65] The Respondent contended that reinstatement is inappropriate. In its final written submissions the Respondent contended that reinstatement is inappropriate because the conduct of Mr Stone in verbally abusing Mr Fisher put the health and safety of fellow employees at risk. The Respondent also contended that the evidence shows that both Mr Fisher and Ms Connell are fearful of Mr Stone if he is reinstated into the workforce. The Respondent further contended that because Ms Connell and other members of management had the benefit of the statements from two employees which supported Mr Fisher’s allegation then these management persons have lost the necessary trust and confidence in Mr Stone and that “(t)hey could not have any confidence that the Applicant would if reinstated refrain from abusing or physically intimidating Mr Fisher or others again.” In its final reply submissions the Respondent contended that the testing of Mr Stone’s conduct through these proceedings further strengthens the Respondent’s lack of trust and confidence in Mr Stone. 22

[66] A very real difficulty with this line of argument from the Respondent is that the conduct of the Respondent and its managers and supervisors is inconsistent with what the Respondent is now putting in its final submissions.

[67] It is very clear that the verbal abuse by Mr Stone towards Mr Fisher had been observed by supervisors in the past without appropriate action being taken by the Respondent to stop Mr Stone from continuing such behaviour. To the extent that Ms Connell had previously been afraid of Mr Stone she never reported her fears to management nor sought that anything be done about Mr Stone. The evidence clearly shows that the Respondent tolerated conduct from Mr Stone which many other employers would never have tolerated.

[68] Mr Stone specifically seeks reinstatement. As Mr Stone put it all he wanted was to get his job back “go on my way, do my work and hopefully retire peacefully.” 23

[69] In the circumstances of this matter reinstatement is appropriate.

[70] These proceedings have subjected Mr Stone and his workplace conduct to very intense scrutiny. As I have noted earlier in this decision the picture of Mr Stone, which his own evidence paints, is extremely unflattering. Mr Stone has listened to the evidence of his supervisors and managers and would understand their views as to his conduct. Mr Stone is sitting on a Final Warning and the Commission is satisfied the penny would have dropped with Mr Stone that his previous conduct is unacceptable in the workplace.

[71] It is relevant to note that Mr Stone was not dismissed for his previous inappropriate workplace conduct but was dismissed for physically assaulting Mr Fisher by forcefully elbowing him. As the Respondent failed to satisfy the Commission that the alleged physical assault occurred it would be wrong to deny Mr Stone reinstatement. Reinstatement is not a case of simply putting Mr Stone and the Respondent back into the same relationship which existed between them before Mr Stone was dismissed. The dynamics of that relationship will have changed as a result of the proceedings in this matter. It is also relevant to note that there remains an outstanding conduct issue involving Mr Stone which can only be addressed after Mr Stone’s reinstatement: “the death wish incident”. The Commission notes the contentions of the Respondent that this remains a live issue for the Respondent. 24 However, prudence may suggest that given the amount of time that has elapsed since that event it may be unwise for that incident to be further dealt with.

[72] The Commission is satisfied that a proper working relationship can be re-established as between Mr Stone and the Respondent. A perfect working relationship is not required to be established following reinstatement. What is required is a sufficient level of trust and confidence to make the relationship viable and productive. 25 The Commission is satisfied that there is a sufficient level of trust and confidence to make the relationship viable and productive.

[73] Once reinstatement is considered to be appropriate s.391 directs the process for implementation of that remedy.

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

[74] Section 391(1) provides for two alternatives and the Commission has a discretion as which of the two alternative forms of reinstatement will be ordered.

[75] In all of the circumstances of this matter I consider that it is appropriate to order that the Respondent reinstate Mr Stone by appointing Mr Stone to another position on terms and conditions no less favourable than those on which Mr Stone was employed immediately before the dismissal.

[76] I have had regard to the fact that Mr Stone is on, and will remain on, a First and Final Warning and that Mr Fisher is not in the same position. It makes eminent sense to separate
Mr Fisher and Mr Stone from each other whilst maintaining the employment of Mr Stone. An order made under s.391(1)(a) would most likely have the practical effect of putting both
Mr Stone and Mr Fisher back into the same position as existed at the time of the dismissal. An order under s.391(1)(b) provides the Respondent with the opportunity to either place
Mr Stone at North Melbourne but on duties which lessens or obviates the possibility of interaction or contact between Mr Stone and Mr Fisher or to place Mr Stone at another location performing afternoon shift driving duties.

[77] Mr Stone has sought that the Commission make an order under s.391(3). I decline to do so.

[78] In the circumstances of the present matter I have had regard to the fact that Mr Stone was on a First and Final Warning at the time of his dismissal and whilst the dismissal was unfair it doesn’t remove the fact that conduct of Mr Stone in March 2015 warranted the First and Final Warning. I am of the considered view that it would send the wrong message to everyone to reward Mr Stone for his period of unemployment by requiring the Respondent to pay him an amount equal to his lost remuneration.

[79] The Commission will make an order under s.391(2) to maintain both the continuity of Mr Stone’s employment and the period of Mr Stone’s continuous service with the Respondent. In doing so I note that Mr Stone was paid his accrued long service leave on dismissal. 26 The real effect of an order under s.391(2) is to put beyond doubt that Mr Stone is not subject to a new minimum employment period once he has been reinstated.

COMMISSIONER

Appearances:

Mr S. Shepherd of the Australian Municipal, Administrative, Clerical and Services Unionon behalf of the Applicant.

Ms N. Segbedzi of the AI Groupfor the Respondent.

1 Letter of termination of employment dated 17 November 2015.

2 [1938] 60 CLR 336.

3 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3 at 88).

4 Transcript at PN929.

5 Ibid at PN1678.

6 Exhibit R1, para 42.

7 Transcript at PN1927.

8 Exhibit A1, paras 12-14.

9 Transcript at PN122.

10 Ibid PN132-PN311.

11 Exhibit A2, para 14 and Transcript at PN650, PN652, PN911, PN913, PN921 and PN931.

12 Exhibit R1, attachment TF9.

13 Ibid, para 40.

14 Ibid, para 41.

15 Transcript at PN1607

16 Ibid at PN1716.

17 Ibid at PN1899.

18 Ibid at PN1930.

19 Ibid at PN1616 – PN1620.

20 Ibid at PN1677 – PN1678.

21 Ibid at PN1027 – PN1036.

22 Respondent’s final reply submissions dated 17 June 2016 ,paras 62-76.

23 Ibid at PN702 – PN704.

24 Respondent’s final reply submissions dated 17 June 2016 ,para 56.

25 Nguyen v Vietnamese Community in Australia[2014] FWCFB 7198).

26 Respondent’s final reply submissions dated 17 June 2016 ,para 79.

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John Stone v Citywide Service Solutions