John Whittaker v EDI Rail-Bombardier Transportation (Maintenance) Pty Ltd T/A EDI - [2013] FWC 7908

[2013] FWC 7908

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Whittaker
v
EDI Rail-Bombardier Transportation (Maintenance) Pty Ltd T/A EDI
(U2013/11545)

DEPUTY PRESIDENT MCCARTHY

PERTH, 14 OCTOBER 2013

Application for relief from unfair dismissal.

Background

[1] Mr John Whittaker (the Applicant) was dismissed from his employment by EDI Rail - Bombardier Transportation (Maintenance) Pty Ltd (the Respondent) on 10 July 2013. He had been employed since June 2009 as a yardmaster. The Respondent maintains trains for the Perth Transport Authority and the duties of the Applicant involved scheduling and moving trains around the yard. The work required him to work with one or two other employees that helped him with shunting trains.

[2] The Applicant lodged an application for unfair dismissal remedy (the application). In the application the Applicant asserted that on the 9 July 2013 as he was clocking off for the day he was seriously assaulted by another employee, Mr Lee Frodsham. He claims that the assault by Mr Frodsham was unprovoked and in defending himself the Applicant Mr Frodsham as he believed he was under threat of being serious injured.

[3] The Respondent asserts that the Applicant engaged in an incident of violence that involved a combination of verbal and physical altercation/assault at a work site with another worker. The incident was investigated by the Respondent following the incident. Several employees including the Applicant were interviewed by management about the incident. The Respondent decided that the Applicant had not acted appropriately in the circumstances. The nature of the incident was considered serious misconduct.

[4] The approach to be taken by the Fair Work Commission (FWC) in matters involving fighting or assault is conveniently set out in the FWC Benchbooks for Unfair Dismissal matters. 1 There it outlines that:

“Generally, in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. 2

Extenuating circumstances include:

the circumstances in which the fight occurred, such as whether the dismissed employee was provoked or acting in self-defence

length of service, including the work record of the dismissed employee, and

whether or not the employee was in a supervisory position.” 3

The authorities are clear that the Commission must take into account all of the circumstances surrounding the incident and not merely establish who the aggressor was. 4 (Culpeper v Intercontinental Ship Management Pty Ltd (2004) 134 IR 243, 256 [49] [Culpeper]).

[5] Another consideration is the right for an employer to establish and maintain discipline amongst its employees and ensure that all employees are not at any risk including through any acts of violence.

[6] Here, it is not asserted that the Applicant was not involved in a physical altercation. What is asserted is that the involvement was as a consequence of the Applicant being assaulted and defending himself.

[7] The Full Bench in Culpeper found that approaches to self defence, who the aggressor was is not the determinative factor. Once the fact is established that the Applicant hit the other employee it is up to the Applicant to establish that the act or acts were in self-defence. In order to establish whether the act or acts were in self-defence in this matter it is necessary to address (i) the holding of the belief 5, (ii) whether there were reasonable grounds to hold the belief, (iii) whether a means of escape was available, (iv) the type of force used and whether it was excessive 6 and not out of proportion to the danger seeking to be avoided7, and (v) the circumstances giving rise to the incident.

The evidence and considerations

[8] The Applicant stated that “There was a history regarding the other worker (Mr Frodsham).” The history appeared to involve criticisms of Mr Frodsham by the Applicant regarding his performance, conduct and regular errors. The Applicant raised these concerns with Mr Michael Doust, the Yardmaster/Presentation Supervisor.

[9] On 9 July 2013 the Applicant says Mr Frodsham came in late, at about 8:20 am. At 12 noon Mr Frodsham came off his break. The Applicant had a train on the cleaning platform which he had to move and also another train that he had to move. He asked Mr Frodsham to follow him with the other train and couple up, which Mr Frodsham either failed to do or did the move incorrectly. The Applicant commented to Mr Frodsham that “he was at least consistent with his “f###ups!”. A slanging match then developed. The Applicant asked Mr Frodsham to come into the office and sort it out. He could not find anyone (in authority) so he continued working.

[10] The Applicant states that Mr Frodsham then conducted himself on the radio in a silly way making out that he could not understand the Applicant’s instructions. Mr Doust contacted the Applicant and instructed him to ignore it. Mr Doust and Mr Dave Garner, (the Fleet Manager), later met with the Applicant and spoke to him about the slanging match and in the Applicant’s version “counselled him to walk away from it”.

[11] The Applicant states that:

“I then left and went to my car, but realised I had not clocked off. I went back into the shed two off and noticed Lee was seated next to the clock off machine, he mumbled something towards me, I am not sure what he said. I clocked off I picked up a foolscap envelope which was near the clock off machine for me. Lee came right up to me and faced me closely and stated words to the effect that he was going to make my life a misery and hurt me really bad. I responded yeah whatever, do it.

I didn’t see the punch coming but he hit me in the jaw. I looked at him and he was in a rage and coming at me again. I punched out at him to defend myself and the next thing I knew I was on the floor. Another worker called Nathan dragged Lee away from me & he was still trying to get at me. Another worker Woody helped me up and retrieved my glasses.”

[12] The Applicant sustained a deep cut on his lip, two chipped teeth and bruising on his back and thigh. There is no evidence of injuries to Mr Frodsham.

[13] The following day on 10 July 2013 the Applicant says he met at 1 pm with Mr Carl Delaney, (the General Manager) and Mr Garner and Mr Doust. He claims that he was not given the chance to give his side of the story and his employment was terminated.

[14] The Respondent says that Mr Delaney conducted an investigation into the incident and various allegations were put to the Applicant at the meeting on 10 July 2013. The allegations included the Applicant entering into a verbal altercation with Mr Frodsham and then engaging in a physical fight with him. Evidence was given by Mr Delaney, Mr Doust, and Mr Garner that in that meeting that the Applicant admitted that he was involved in a physical altercation with Mr Frodsham but that he asserted that he was acting in self-defence.

[15] Mr Delaney asserts that from his investigation he formed a view that both employees played a part in the physical altercation and that either the Applicant or Mr Frodsham could have walked away before the first punch was thrown. The investigation involved talking immediately after the altercation with some of the other employees who were in the vicinity. Mr Delaney could not establish who had hit who first but that either could have diffused the situation by walking away and that there were clear and easy exits to escape.

[16] Mr Doust gave evidence about the 10 July 2013 meeting and stated that the incident was discussed and the Applicant given an opportunity to respond. The Applicant’s responses were mainly criticisms of Mr Frodsham and assertions that he had acted in self defence. Mr Doust’s evidence is consistent with that of Mr Delaney in all of the main elements of what transpired. Mr Garner also gave an account of the meeting which was also consistent with the account given by Mr Delaney.

[17] Both Mr Doust and Mr Garner also gave accounts of incidents earlier in the day involving the Applicant and Mr Frodsham including what they regarded as an instruction to avoid contact with Mr Frodsham. Whether there was an actual instruction or whether it was advice and whether the advice or instruction was precise and clear was a matter of some difference between the Applicant and the Respondent witnesses. The message was clear enough that he should “cool it” and to “stay clear of Mr Frodsham”. In other words he was informed that he should avoid allowing any confrontational type situation to develop.

[18] The evidence is not contested that the Applicant was involved in a physical confrontation. The evidence is also not contested that there was angst between the Applicant and Mr Frodsham on the day of the incident and mostly likely previously.

[19] What is not clear is whether Mr Frodsham was also given advice to avoid any potential for further conflict. It is also not clear who started the verbal altercation in the immediate lead up to the physical confrontation. Nor is it clear who “threw” the first punch. It is also unclear whether the Applicant used excessive force including whether he continued making unnecessary blows. It is quite possible that he did not use excessive force and he did not throw blows except for those to protect himself from blows being thrown at him. It is equally as possible that he used excessive and unnecessary repeated blows.

[20] What is clear and I find accordingly is that the Applicant could have avoided the confrontation. He had choices including turning around and walking away when the verbal interchange started, he could have not involved himself in the verbal interchange, and he could have exited the scene through a number of avenues. It was incumbent on the Applicant to establish to my satisfaction that those types of options were not available to him or were not practicable. He did not establish any of those factors. Indeed, throughout the day it would seem that even if the Applicant was being provoked he was probably more a provoker than Mr Frodsham. The evidence of the Applicant left me with the view that he would more likely confront a potentially volatile situation than avoid one. Whilst there may be occasions in other environments where that is a reasonable approach, the workplace is not such an environment.

Conclusions

[21] I find that there was a valid reason for the dismissal of the Applicant. That reason was his involvement and the nature of that involvement in a physical altercation with a fellow employee. I do not accept that the altercation was unavoidable and nor has the Applicant established to my satisfaction that he had reasonable grounds to believe that he was in immediate danger. Nor do I accept that he had no alternative but to trade blows with the other employee. Furthermore he was counselled earlier in the day to avoid such a situation and he ignored that counsel.

[22] I also find other verbal exchanges earlier during the day in question that the Applicant was as much a provoker of those exchanges as Mr Frodsham and he thus contributed to the instigation of the acrimonious verbal exchange immediately prior to the fighting.

[23] I also do not consider that the Applicant was treated differently to the way other employees would have been treated nor was the discipline of termination of employment disproportionate to the conduct he was engaged in. The conduct could also affect the safety and welfare of other employees.

[24] I find that the Applicant was notified of the reason and given an opportunity to respond. Whilst he disputes this was the case the evidence to the contrary is consistent and clear that he was given that opportunity. Certainly, the process could have been better, but in the circumstances where there was such a confrontation the immediacy of the investigation and the dealing with the matter I consider should be commended rather than criticised because of potential minor and procedural flaw.

[25] The Applicant did not request a support person to be present at the discussion that resulted in his dismissal.

[26] The dismissal was not a result of and nor was there any influence in the dismissal from any performance related issues.

[27] The employer is a relatively large one and there was access to human resource expertise. Neither of those matters affected the procedure involved nor the decision to dismiss.

[28] The Applicant is just over 50 years of age and he had been employed by the Respondent for a reasonable period of time. He evidenced a clear commitment to the job he was performing and to the Respondent. Indeed his passion for the job contributed to his criticism of Mr Frodsham. What eventuated from that criticism is unfortunate but as I stated above it was avoidable. The personal effect on the Applicant is substantial.

[29] Taking all of the above into account I find that the dismissal was not harsh unjust or unreasonable. The application for unfair dismissal it dismissed.

DEPUTY PRESIDENT

Appearances:

Mr P Mullally (Workclaims Australia) for the Applicant

Mr E Mentiplay (Norton Rose Fulbright Australia) for the Respondent

Hearing details:

2013

Perth

October, 2.

2 AWU-FIME Amalgamated Union v Queensland Alumina (1995) 62 IR 385; cited in Tenix Defence Systems Pty Ltd v Fearnley (unreported, AIRCFB, Ross VP, Polites SDP, Smith C, 22 May 2000) Print S6238 [22].

3 ibid.

4 Culpeper v Intercontinental Ship Management Pty Ltd (2004) 134 IR 243, 256 [49].

5 See Miller v Sotiropoulus [1997] NSWCA 204 and also Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 661, 662 judgement of Wilson, Dawson and Toohey JJ.

6 Pearce v Hallett [1969] SASR 423 Bray CJ at 428.

7 Howard v Wing [2000] TASSC 147 Crawford J at 38.

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