Joseph Salloum v Jayco Unit Trust T/A Jayco Caravan Manufacturing

[2016] FWC 3746

[2016] FWC 3746

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joseph Salloum
v
Jayco Unit Trust T/A Jayco Caravan Manufacturing
(U2015/16916)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 10 JUNE 2016

Application for relief from unfair dismissal.

[1] On 18 December 2015, Mr Joseph Salloum made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by Jayco Caravan Manufacturing (Jayco).

[2] Mr Salloum was dismissed from his employment at the initiative of the employer on 10 December 2015. The dismissal took effect immediately and Mr Salloum was paid out his notice period and entitlements. Mr Salloum submits his dismissal was unfair.

Preliminary Matters

[3] Mr Salloum named the Respondent to his Unfair Dismissal Application as ‘Jayco Pty Ltd’. 1 The Respondent’s submission refers to the employing entity as ‘Jayco Corporation Pty Ltd’. The employee payslip refers to ‘Jayco Caravan Manufacturing’.2 The ABN referenced on both Mr Salloum’s payslip and the Respondent’s Form F3 (Employer Response to Unfair Dismissal Application) filed on 24 December 2015 is associated with the entity name ‘Jayco Unit Trust’ with the Trading name ‘Jayco Caravan Manufacturing’.3

[4] During the hearing I took submissions from both Mr Salloum and Jayco. On the evidence before me, I am satisfied that the name of the employer in this matter is Jayco Unit Trust T/A Jayco Caravan Manufacturing. I have utilised the discretion in s.586 of the Act to amend the application accordingly. For ease of reference during this matter I will refer to the respondent as Jayco.

Background and case outline

[5] Mr Salloum commenced employment with Jayco, a manufacturer of recreational vehicles, on 28 October 2013 as a full time Welder in the Chassis/Running Gear department.

[6] In his two years of employment, Mr Salloum had received a warning for bullying, a first and final warning on 3 December 2015 and another on 8 December 2015, prior to his dismissal. Jayco submitted that on 10 December 2015, Mr Salloum was verbally and physically abusive towards a junior employee, Mr Sands. This event was reported by an employee who was said to have witnessed the altercation. Mr Salloum was subsequently dismissed for his conduct.

[7] Mr Salloum submits that on 3 December 2015 he was feeling sick and asked for permission to go home. Mr Tibb (Manufacturing Manager) in the presence of Mr Blackwell (Chassis Manager) and a member of the HR team, warned him of the consequences should he leave the workplace without consent. Mr Salloum says there was no consideration for his health and safety, he proceeded to leave the workplace without consent and subsequently received a first and final warning. Jayco contends Mr Salloum received the warning not for going home sick, submitting the warning was for leaving the workplace without permission.

[8] Mr Salloum submits that he kept receiving warnings for things he hadn’t done and the circumstances that led to his termination were fabricated so that Jayco could terminate his employment. 4 Mr Salloum submits Mr Sands was not verbally or physically abused and that he was, in effect the one subjected to inappropriate behaviour as Mr Sands had snatched the tape measure from his hand when he was trying to identify if it was his equipment. Mr Salloum submits that in all of the circumstances in which he has received warnings he has in fact been the victim. Mr Salloum says his team leader didn’t like him and he had been threatened with being “sacked”5 on many occasions and that his dismissal was unfair.

[9] Jayco submits the altercation with Mr Sands that led to Mr Salloum’s dismissal involved Mr Salloum acting aggressively and verbally abusing Mr Sands. The verbal abuse turned physical when Mr Salloum pushed Mr Sands across the chest. The incident was reported to management by another employee, Mr Sheppard, a former Health and Safety Officer, who had witnessed the behaviour and was concerned for the junior employee.

[10] Jayco submits that Mr Salloum had previously been issued with a warning for a bullying incident and had received a number of first and final warnings of which one was for his aggressive behaviour towards another employee. He had undergone Bullying and Harassment training in an attempt to educate him on appropriate workplace behaviours. It was submitted that Mr Salloum was generally verbally abusive during disciplinary meetings and had to be counselled when he became abusive to a HR Advisor during a previous disciplinary meeting. It was submitted that Mr Salloum generally would not acknowledge his behaviour and responded to the last warning by saying it was ‘bullshit’ and he refused to sign or acknowledge any of the warnings issued to him.

[11] Jayco submitted that there was a growing concern when employees began to refuse to work with Mr Salloum due to his attitude and behaviour. Mr Salloum’s aggressive behaviour was a risk to the health and safety of other employees in the workplace, the reasons outlined above provided a valid reason for the dismissal, and that the dismissal was not harsh, unjust or unreasonable. Jayco opposes reinstatement and any award of compensation given the alleged conduct of Mr Salloum.

[12] It is not in contention that Mr Salloum was offered a support person and that he was provided with the reasons for the dismissal. The key dispute in this matter concerns the circumstances leading to, and the conduct of, Mr Salloum in and surrounding the altercation with Mr Sands and whether in that context a valid reason for dismissal existed. Further, an assessment is required as to whether the dismissal was harsh or unreasonable, given all of the circumstances of Mr Salloum and the workplace.

Procedural Background

[13] The matter was not resolved at conciliation and proceeded to arbitration before me in a Hearing conducted in Melbourne on 18 April 2016.

[14] Jayco filed a response to Mr Salloum’s application on 24 December 2015.

[15] Mr Salloum gave evidence on his own behalf. Ms Paxton, Human Resource Manager appeared for Jayco, and Mr David Blackwell attended the hearing and gave evidence on behalf of Jayco.

[16] The following witnesses gave evidence on behalf of Jayco by phone, after being sworn in by my associate:

• Mr Garry Sheppard,



• Mr George Sparrey



• Mr Simon Newlassie

[17] Mr Sparrey is a welder in the Chassis Shop and commenced employment with Jayco in November 2016 (sic). Mr Sparrey made a complaint to his team leader regarding the incident between himself and Mr Salloum which took place 3 December 2015 for which Mr Salloum received a first and final warning.

[18] Mr Newlassie is employed as a tractor driver for the Chassis/Running Gear Department. Mr Newlassie witnessed an altercation between Mr Salloum and Mr Sparrey in the lunch room on 3 December 2015.

[19] Mr Sheppard is a welder in the Chassis/Running Gear Department and has been employed by Jayco for approximately seven years. Mr Sheppard witnessed and reported the incident that took place on 10 December 2015 between Mr Salloum and Mr Sands.

[20] Mr Blackwell is employed as the Chassis Manager in the Chassis/Running Gear department. Mr Blackwell has been employed with Jayco for over 21 years.

[21] Mr Salloum made an application pursuant to s.590(2) of the Act for an Order requiring Mr Chris Tibb to attended the hearing. Directions were issued on 12 April 2016 by the Commission requiring Mr Salloum to submit reasons for his request by 13 April 2016. Mr Salloum complied with the Directions, the Commissioner considered the submission and the request for the Order was granted. Mr Salloum did not execute the order and consequently Mr Tibb did not attend the hearing.

The cases presented

Bullying and Harassment Training

[22] During the hearing Ms Paxton led evidence that Mr Salloum had attended Jayco’s EEO/Bullying and Harassment training after receiving a first and final for bullying behaviours. Ms Paxton provided a copy of the attendance sheet as evidence of Mr Salloum’s attendance. 6 Ms Paxton says during the training, Mr Salloum was shown a 15 minute video presentation and was provided with reading material containing definitions and examples as to what constitutes bullying and harassment.

[23] It is not in contention that Mr Salloum attended the training and he had signed an attendance sheet. Mr Salloum says he signed the attendance sheet because he had watched the video however he did not take the handout as he thought it would contain the same material that was in the video.

[24] Mr Salloum’s evidence was that by attending the training he was being forced to sign the attendance sheet and if he didn’t sign he would receive some sort of punitive outcome. Mr Salloum, when asked if he had attended the training and taken the relevant materials, responded stating “If I didn’t sign you make problem for me also” and “You forced me to sign it. You, say, ‘you watched the video, you sign it’. That’s what you do.” 7 I took this to mean that Mr Salloum’s view was that he only attended the training and signed the attendance form to avoid being disciplined.

First and Final Warning for incident 3 December 2015

[25] Mr Salloum provided conflicting evidence for the events on 3 December 2015. Mr Salloum says Mr Sparrey was making fun of the way he walked and that this was unacceptable behaviour and he reported it to the team leader. He asked the team leader if the behaviour was unacceptable and nothing was done about his complaint. Mr Salloum says instead, the next day when he returned to work he received a warning for swearing. 8

[26] Mr Sparrey’s evidence was he had been sweeping the floor and went to put the broom back when all of a sudden a shovel came flying towards him landing only inches away. 9 He turned to see Mr Salloum standing there and asked Mr Salloum what his problem was and Mr Salloum told him to “fuck off”.10 Mr Sparrey says he later approached Mr Salloum in the lunch room and asked what his problem was and if they could sort it out. It is Mr Sparrey’s evidence that Mr Salloum again became abusive, telling him to “fuck off” and then called him a “fucking dickhead”.11 Mr Sparrey told Mr Salloum he would report the incident to management.

[27] Mr Salloum gave similar evidence regarding the events of the lunch room in that Mr Sparrey approached him in the lunch room, tapped him on the shoulder and said he was sick of him and that he was going to report him to management. 12 Mr Salloum’s version was that Mr Sparrey swore at him.13 In considering the evidence during cross-examination it was clear Mr Salloum had the view Mr Sparrey’s behaviour, making threats to report him to management, was the conduct that was inappropriate.14

[28] Mr Newlassie’s evidence was Mr Sparrey had approached Mr Salloum in the lunch room. Mr Salloum was very agitated and abusive towards Mr Sparrey. He says he heard comments from Mr Sparrey along the lines of “it’s fine if you don’t want to make up over this, but we could always go to management about your abusive behaviour.” 15

[29] Mr Salloum cross-examined Mr Sparrey and Mr Newlassie. Mr Salloum asked Mr Sparrey who started the incident of 3 December 2015. Mr Sparrey responded stating “You threw the shovel so I assume that means you started it”. 16 Mr Salloum did not dispute this and proceeded to ask the following questions of Mr Sparrey:

“Did the shovel touch you, hurt you or touch you? 17 Did I throw the shovel at you?”18

Mr Sparrey responded to the second question stating “Yes, you threw the shovel, yes.” 19

Mr Salloum then asked “so it hit you” 20 and Mr Sparrey responded “No”.21

Mr Salloum put the following to Mr Sparrey: “No, so it’s not throw it at you, that mean. Okay. What was your reaction after that?” and Mr Sparrey responded “I approached you and asked you what your problem was.” 22

[30] After cross-examining Mr Newlassie, Mr Salloum made the following statement:

“MR SALLOUM: Let me comment to that about the George Sparrey talking. He said he was hit by the shovel.” 23

THE COMMISSIONER: He didn’t say he was hit by the shovel from what I recall. 24

MR SALLOUM: Yes, he - but when I was asking him he said he did - has been hit by the shovel. That’s a point, you know, he was not hit - not hit by the shovel. It was far away from him. So what he said is not true.” 25

[31] In my view Mr Salloum’s argument was because the shovel had not hit Mr Sparrey, he could not argue that the shovel was actually being thrown at him. In considering the evidence given during the cross examination of Mr Sparrey, I accept it is highly probable Mr Salloum threw the shovel at Mr Sparrey.

[32] After considering the evidence from Mr Salloum’s cross examination of Mr Sparrey and Mr Newlassie, I accept that Mr Sparrey approached Mr Salloum in the lunch room to discuss what had happened. I accept that Mr Salloum became abusive and Mr Sparrey thought it best that management deal with the matter.

[33] On 3 December 2015, Mr Salloum attended a meeting with Mr Blackwell. Mr Blackwell had investigated the incident prior to the meeting, taking a number of witness statements. Mr Blackwell’s evidence was that Mr Salloum walked up behind Mr Sparrey and shoulder bumped him. 26 Mr Salloum in cross-examination questioned Mr Blackwell asking who provided witness statements and who was excluded. On the evidence provided, I am satisfied the investigation was conducted fairly. I am satisfied it is not in contention that Mr Salloum was told he could have a support person and declined.27 Mr Salloum says he was told of the reason for the meeting. Mr Salloum’s evidence was that he was told at the meeting he would receive a warning for his conduct and he could not recall how long after the meeting he received the warning.

Incident of 10 December 2015

[34] Mr Salloum’s evidence of the events of 10 December 2015 was that he went to Mr Sands’ work bench to check if Mr Sands was using his tape measure. He says Mr Sands snatched the tape from his hand. Mr Salloum submits he said “I’m just checking if it’s my tape, that’s all.” 28 Mr Salloum first gave evidence that he was called to the office at about 2:30pm and told his job had been terminated.29 During cross examination Mr Salloum gave evidence that he had been spoken to earlier in the day and advised of the allegations that he had verbally abused Mr Sands and he had denied the allegations. During the meeting in which he was dismissed he was told the matter had been investigated and that they had witness statements to support Mr Sheppard’s statement. Mr Salloum submits that Mr Sheppard made everything up, however he provided no reasons for why Mr Sheppard would be inclined to do so.

[35] Mr Blackwell’s evidence was Mr Sheppard approached him on 10 December 2015 and reported an incident between Mr Salloum and Mr Sands. Mr Blackwell submits that Mr Sands was a young guy and was intimidated by Mr Salloum. 30

[36] Mr Sheppard’s evidence was he had been standing approximately 1.5 meters away from Mr Sands when Mr Salloum approached him and grabbed the tape measure from Mr Sands’ hand and at the same time pushed him whilst swearing at him. 31 Mr Sheppard’s submission was that Mr Salloum said “You’ve stole my fucking tape you stupid little shit” and that he kept yelling and swearing calling Mr Sands a “cunt” and saying he was “fucking stupid.”32 Mr Sheppard says he reported the incident because Mr Sands was too frightened to do so.33 Mr Sheppard submits he felt obliged to report the incident as he had been an Occupational Health and Safety Officer in the past and an employee representative and he had the “workers best interests at – in heart - heart, especially the new starters.”34

[37] Mr Salloum cross-examined Mr Sheppard asking what was Mr Sands’ reaction when he pushed him. Mr Sheppard’s response was that Mr Sands didn’t do anything. 35 Mr Salloum did not challenge nor dispute Mr Sheppard’s version of the events.

[38] Mr Sands did not give evidence. Ms Paxton submits Mr Sands left Jayco after successfully obtaining an apprenticeship and they did not have his current contact details.

[39] Mr Blackwell’s contemporaneous notes record that he spoke to a number of witnesses separately regarding the incident and he says each of the witnesses gave similar accounts of the events. 36 He then met with Mr Salloum and put the allegations to him. After his meeting with Mr Salloum, Mr Blackwell met with HR before bringing Mr Salloum back to the meeting. Mr Salloum was brought back 15 minutes later and advised he was being dismissed for behaving aggressively and verbally abusing Mr Sands.

[40] Mr Blackwell’s oral evidence was that upon receiving the complaint he took a number of witness statements including a statement from Mr Sands. He then put the allegations to Mr Salloum and sought his response. Mr Blackwell then consulted with Human Resources before deciding to meet with Mr Salloum again. Mr Salloum was called back to the office to attend another meeting in which he was advised of the outcome, being his employment was terminated.

Consideration

Protection from Unfair Dismissal

[41] An order for reinstatement or compensation may only be issued where I am satisfied Mr Salloum was protected from unfair dismissal at the time of the dismissal.

[42] Section 382 of the Act sets out the circumstances that must exist for Mr Salloum to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[43] There is no dispute, and I am satisfied, that Mr Salloum has completed the minimum employment period. Mr Salloum’s annual rate of earnings was below the high income threshold and the Vehicle Manufacturing Repair Services and Retail Award 2010 was the applicable award. I am therefore satisfied Mr Salloum was protected from unfair dismissal.

[44] Section 396 of the Act requires me to decide four specified matters before the merits of the application may be considered.

s.396(a) Whether the application was made within the period required in sections 394(2)

[45] Mr Salloum’s employment was terminated on 10 December 2015 and his unfair dismissal application was received by the Commission on 18 December 2015. As such, I am satisfied that Mr Salloum made his application within the required 21 day period in s.394(2) of the Act.

s.396(b) Whether the person was protected from unfair dismissal

[46] As outlined in paragraph [43] above, I am satisfied Mr Salloum was protected from unfair dismissal. This is not in dispute.

s.396(c) Whether the dismissal was consistent with the Small Business Fair Dismissal Code

[47] At the time of the dismissal, Jayco employed approximately 1058 employees. Therefore, I am satisfied that the Small Business Fair Dismissal Code does not apply.

s.396(d) Whether the dismissal was a case of genuine redundancy

[48] It is not disputed and I find that this is not a case of genuine redundancy.

[49] I will now consider if the dismissal of Mr Salloum by Jayco was unfair within the meaning of the Act.

Was the dismissal unfair?

[50] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“385 What is an unfair dismissal

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.”

Was the applicant dismissed?

[51] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for the purpose of Part 3-2 of the Act. Section 386 of the Act provides:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

…”

[52] As outlined above, on 10 December 2015, Jayco terminated Mr Salloum’s employment (s.385(a) of the FW Act).

[53] No issue was raised in relation to ss.385(c) and (d) of the Act and I reiterate my findings at paragraphs [47] and [48] above.

Harsh, Unjust Unreasonable

[54] Having been satisfied of each of the matters prescribed by s.385(a), (c) and (d) of the Act, I now must consider whether Mr Salloum’s dismissal was harsh, unjust or unreasonable.

[55] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable:

“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.”

[56] The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd. 37 McHugh and Gummow JJ explained as follows:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 38

[57] I will now consider each of the matters set out in s.387 of the Act.

Was there a Valid Reason for the dismissal- s.387(a)

[58] Jayco submit the reason for the dismissal of Mr Salloum was related to his conduct. Mr Salloum had received training and prior warnings relating to his aggressive and abusive behaviour towards other employees. Jayco submit that Mr Salloum’s abusive behaviour towards other employees was a breach of their bullying and harassment policy.

[59] Specifically Jayco submit the events of 10 December 2015 in which Mr Salloum was verbally and physically abusive towards a young employee posed a risk to the health and safety of Mr Sands and he posed a risk to other employees. Jayco submit, taking into account Mr Salloum’s prior warnings, these events provide a valid reason for the dismissal.

[60] There is a conflict in the evidence of Mr Salloum and the four witnesses requiring me to make a decision for each incident. Mr Salloum, on all accounts, denies the events took place as they were reported and witnessed. Mr Salloum’s submission was that each of the witnesses had lied, however he provided no alternative recollection for the events of 3 December 2015. He did provide a statement to the effect that the incident with Mr Sands had not occurred as submitted by the witness and he was in fact the one who had the tape measure snatched from his hand.

[61] In considering the incident of 3 December 2015 for which Mr Salloum received a first and final warning, it became apparent during the cross-examination of Mr Sparrey that the conduct alleged, throwing the shovel, had occurred. Whether or not it hit Mr Sparrey is irrelevant in the circumstances. I am satisfied Mr Sparrey and Mr Newlassie provided an accurate account of the conduct that occurred in the lunch room. I do not accept Mr Salloum’s argument, being Mr Sparrey informing him that he was going to report the incident to management, was threatening behaviour. Having regard to the evidence of each of the witnesses to the incident and the evidence of Mr Blackwell, I am of the view that the conduct as described by Mr Sparrey and Mr Newlassie did occur and that Mr Salloum did verbally abuse Mr Sparrey which included swearing.

[62] Mr Sheppard gave evidence in relation to the incident of 10 December 2015 and again, the facts are in dispute. I found Mr Sheppard to be a consistent and reliable witness. Mr Sheppard had concerns for a young employee and relied on his experience as a former Occupational Health and Safety Officer and Employee Representative. Mr Blackwell gave evidence of how the investigation was conducted and the witness statements he relied upon in making his findings. Mr Salloum’s evidence was that everyone is lying and Mr Sands snatched the tape measure from him. In considering the evidence submitted for the incident of 10 December 2015, I am satisfied the conduct occurred and that its nature was as described by Mr Sheppard.

[63] The language used by Mr Salloum may be language that is commonly used in many workplaces. However, attention must be given to the distinction between the general use of the language as opposed to using it in an abusive manner directed towards another employee. I have no doubt that directing such language in an abusive manner towards other employees would amount to gross insubordination and warrant dismissal.

[64] The evidence establishes that Mr Salloum continued to behave in an aggressive and abusive manner in the workplace despite being counselled and receiving previous warnings for his behaviour. The first and final warnings state the consequence of a further breach would result in termination of employment. I consider the conduct in question amounts to a valid reason for termination of Mr Salloum’s employment, in that it was a sound, defensible and well-founded reason.

Notification of the Valid Reason –s.387(b)

[65] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether the person was notified of the reason. 39 Procedural fairness requires that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment.40 The notification of the valid reason must be in explicit, plain and clear terms.41

[66] I find that Mr Salloum was notified of the reasons for his dismissal in a meeting with the Manufacturing Manager at the time of his dismissal. Mr Salloum’s evidence was that he was provided with the reasons. The reasons were then confirmed by the Human Resource Manager and later again in a letter from the CEO.

Opportunity to Respond –s.387(c)

[67] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person. 42 An employee must be notified of the reason for termination and must also be given an opportunity to respond to that reason before the decision to terminate is made.43 This process does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly.44 Where an employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of this section.45

[68] I find that Mr Salloum was given the opportunity to respond, although there was a dispute as to the nature of his response at the time, he nevertheless was provided with the opportunity.

Unreasonable Refusal of a Support Person – s.387(d)

[69] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal. 46 With respect to this consideration, the Explanatory Memorandum states:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them. 47

[70] Mr Salloum’s evidence was he did not request a support person although he was offered one on each occasion involving disciplinary meetings. I am therefore of the view that Mr Salloum was not unreasonably refused a support person to be present at the meetings.

Warnings regarding Unsatisfactory Performance – s.387(e)

[71] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal. 48 Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct.49 The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance.50

[72] I do not consider the matter to involve unsatisfactory performance. Rather, the termination was on account of Mr Salloum’s conduct therefore s.387(e) is not relevant to the circumstances of this matter.

Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(f)-(g)

[73] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal. 51 Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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.52

[74] Jayco is of considerable size and has an established Human Resource function with considerable expertise. I do not consider that the matters dealt with in s.387(f) and (g) affect the circumstances in this matter.

Other Relevant Matters – s.387(h)

[75] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any other matters that the Commission considers relevant. 53

[76] I consider there is a further issue relevant to this matter. Mr Salloum had previously received a first and final warning for bullying behaviour towards an employee and as a consequence, Mr Salloum was directed to attend Bullying and Harassment training. The training has had no bearing on Mr Salloum’s conduct in the workplace. Mr Salloum’s attitude was that the training was a source of punishment and by his actions he failed to understand the message intended, a message reiterated to employees in a Jayco memo dated 26 August 2015 being:

“Here at Jayco we have a zero tolerance towards bullying and harassment. All employees at Jayco are to be treated with respect and dignity.

…

Possible forms of bullying can include, but are not limited to:

• Verbal Abuse



• Intimidation to another employee



• Or threats to another person.” 54

[77] Mr Blackwell gave evidence that an incident had taken place not long before the hearing in which an altercation turned physical and both employees were dismissed. Mr Blackwell submitted that physical and verbal attacks are just not tolerated. It is evident by Mr Blackwell’s and Mr Sheppard’s evidence that Jayco were building a culture of non-tolerance towards abusive behaviours in the workplace and to condone the behaviour of Mr Salloum would undermine Jayco’s intent.

First and Final warning 8 December 2015

[78] Mr Salloum submits after he had been advised he would be receiving a warning for the events that took place on 3 December 2015, he went home sick. Mr Salloum’s submission was the warning was unfair and that it formed part of the reason for his dismissal. Jayco submit Mr Salloum received a third first and final warning for leaving the site on 3 December 2015 without approval, however this was not the reason for Mr Salloum’s dismissal. Mr Salloum says he was unable to work because he felt sick. Mr Salloum says he notified everyone in the office he was leaving because he was sick. 55 Mr Salloum says he was told of the consequences if he left the premises.

[79] Mr Blackwell’s evidence was that after the meeting, Mr Salloum returned to his work area and 10 minutes later he returned and said he didn’t feel well and he was going home. Mr Blackwell says he told Mr Salloum “You’re not actually unwell. You seem pretty healthy and fine.” 56 Mr Salloum then left the premises.

[80] When Mr Salloum returned to work on 7 December 2015 he attended another disciplinary meeting. Although Mr Salloum’s submission was that he received a warning for being sick, Mr Salloum gave oral evidence he was told he was being issued with a warning for leaving work without permission. 57 Mr Salloum says he was offered a support person and didn’t elect to take up the option.58 Mr Salloum was issued with the warning on 8 December 2015. The warning provided to Mr Salloum states:

“… you have been issued with a first and final warning for leaving the site without prior approval from your Manager, which is in breach of the terms and conditions of your employment.” 59

[81] The action by Jayco in refusing to let Mr Salloum go home after issuing a first and final warning and then subsequently giving a first and final in the circumstances outlined above may have been disproportionate to the circumstances. As Mr Salloum had been issued with a first and final warning, it is reasonable that his state of mind may have been affected, and it is plausible that he would have felt unwell as a consequence. In my view it would likely have been a greater risk to the health and safety of Mr Salloum and other employees having him remain at work. However, in considering whether there was a valid reason for the dismissal of Mr Salloum, or whether his dismissal was harsh, unjust or unreasonable, I have considered Mr Salloum’s submission and I accept that Jayco did not rely on the warning for leaving the premises without permission as part of the reason for Mr Salloum’s dismissal. Rather, it was the sequence of warnings for aggressive and abusive behaviours towards others in the workplace that led to the dismissal of Mr Salloum.

Finding

[82] I have considered this matter together with the other matters dealt with in s.387 of the Act, and in all the circumstances I am not satisfied that the dismissal was harsh, unjust or unreasonable. Jayco and its employees are entitled to a culture of non-tolerance towards abusive behaviours in the workplace. Given the findings I have made, Mr Salloum’s application for an unfair dismissal remedy is dismissed.

[83] An order dismissing Mr Salloum’s application will accompany this decision.

COMMISSIONER

Appearances:

Mr J Salloum on his own behalf

Ms D Paxton for Jayco Unit Trust T/A Jayco Caravan Manufacturing

Hearing details:

2016.

Melbourne:

April 18.

 1 F2 Application.

 2   Exhibit A1.

 3 F3 Employer Response.

 4   Exhibit A1.

 5 F2 Application.

 6   Exhibit R1 at attachment 1.

 7   Transcript PN208, 210 and 212.

 8   Transcript PN131-137.

 9   Transcript PN682 and 684.

 10   Exhibit R5.

 11   Exhibit R5.

 12   Transcript PN139.

 13   Transcript PN142.

 14   Transcript PN792 - 795.

 15   Exhibit R6.

 16   Transcript PN708.

 17   Transcript PN715.

 18   Transcript PN716.

 19   Transcript PN716.

 20   Transcript PN718.

 21   Transcript PN718.

 22   Transcript PN720.

 23   Transcript PN808.

 24   Transcript PN809.

 25   Transcript PN810.

 26   Transcript PN348.

 27   Transcript PN155 and PN156.

 28   Transcript PN186.

 29   Transcript PN191.

 30   Transcript PN364.

 31   Transcript PN620-622.

 32   Exhibit R4.

 33   Transcript PN624.

 34   Transcript PN655.

 35   Transcript PN638.

 36   Exhibit R3.

 37 (1995) 185 CLR 410.

 38   Ibid at 465.

 39   Fair Work Act 2009 (Cth) s.387(b).

 40   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151: Gooch v Proware Pty Ltd T/A TSM (The Service Manager)[2012] FWA 10626.

 41   Previsic v Australian Quarantine Inspection Services (unreported, AIRC, Holmes C, 6 October 1998) Print Q3730.

 42   Fair Work Act s.387(c).

 43   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 44   Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14 citing Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).

 45   Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14-15 citing Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).

 46   Fair Work Act 2009 (Cth) s.387(d).

 47   Explanatory Memorandum, Fair Work Bill 2009 (Cth) [ 1542].

 48   Fair Work Act (Cth) s.387(e).

 49   Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.

 50   Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie[2012] FWA 2 [58].

 51   Fair Work Act (Cth) s.387(f).

 52   Fair Work Act (Cth) s.387(g).

 53   Fair Work Act (Cth) s.387(h).

 54   Exhibit R1 at attachment 4.

 55   Transcript PN221 - PN224.

 56   Transcript PN358.

 57   Transcript PN221.

 58   Transcript PN238.

 59   Exhibit R1, attachment 6.

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