Kim Maile v Inception WA Pty Ltd as trustee of the Araminta Trust T/A Jackson Asphalt

[2016] FWC 6176

[2016] FWC 6176

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kim Maile
v
Inception WA Pty Ltd as trustee of the Araminta Trust T/A Jackson Asphalt
(U2016/2883)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 31 AUGUST 2016

Application for relief from unfair dismissal – threat of violence – valid reason.

[1] On 17 June 2016 Mr Maile lodged an application, pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with Inception WA Pty Ltd as trustee of the Araminta Trust T/A Jackson Asphalt (Jackson Asphalt). This decision follows a hearing of that application in Perth on 25 August 2016.

[2] In that hearing, Mr Maile was represented by Mr Mullally, as agent and Jackson Asphalt, by Mr Uphill, as agent. In both instances, permission was granted pursuant to s.596(2)(a) of the FW Act.

[3] Jackson Asphalt, as its name suggests, is a bituminous paving contractor. Mr Maile was a foreman. He was dismissed on 2 June 2016 with effect from that date but with five weeks pay in lieu of notice. Mr Maile had worked for Jackson Asphalt for some 17 years although both parties acknowledge that the ownership of Jackson Asphalt had changed some two and a half years before Mr Maile was dismissed.

[4] The parties differ over the extent to which Mr Maile had been counselled or warned relative to his behaviour in the two years prior to the termination of his employment. I have addressed this issue further in this decision.

[5] The termination of Mr Maile’s employment followed an incident on 31 May 2016 where Mr Maile was alleged to have had a verbal altercation with another employee, a Mr Spencer whom he chastised for talking with a truck driver rather than working. When Mr Spencer objected to the manner in which Mr Maile communicated with him, he is alleged to have said: “I’ll fucking knock you out”. 1 Mr Maile had a different version of this event but did agree that he threatened to “smack him across the mouth”.2 I have further addressed this incident in this decision.

[6] The Jackson Asphalt Operations Manager, Mr Johnson and its Director, Mr Kitcher, met with Mr Maile on 2 June 2016 and discussed the incident. After a short break in this meeting, Mr Maile was advised that he was summarily dismissed. There is no dispute that, notwithstanding this, Mr Maile was paid five weeks pay in lieu of notice.

The Submissions

[7] Mr Maile agrees that his conduct on 31 May 2016 was unacceptable and should be characterised as misconduct but asserts that this behaviour, even when considered in the context of an earlier discussion about work related issues on 27 May 2016, was not sufficiently serious to warrant dismissal and that, accordingly, there was no valid reason for the termination of his employment.

[8] Mr Maile further contends that the termination of his employment decision took into account events that occurred in 2014, and that were, in any case, disputed. Additionally, he asserts that, given his age and long employment history the termination of his employment was harsh and hence, unfair. He initially sought reinstatement but changed his preferred remedy to compensation.

[9] The Jackson Asphalt position is that there was a valid reason for the termination of Mr Maile’s employment on the basis of the incident on 31 May 2016. In the context of a performance discussion with Mr Maile which occurred on 27 May 2016 Jackson Asphalt contended that it was able to properly characterise the termination decision as performance related. This employment termination was reinforced by the 2014 threats and physical assaults about which he had been previously warned. Jackson Asphalt asserted that the duration of Mr Maile’s employment had been taken into account in the termination decision making process and was weighed in the context of Mr Maile’s behaviour. Jackson Asphalt asserted that the process it followed which resulted in the employment termination was procedurally fair.

The Evidence

[10] Whilst I have considered all of the material provided to me in this matter, I have briefly summarised the witness evidence in the following terms.

[11] Mr Maile’s evidence went to his long employment history. His evidence relative to the incident on 31 May 2016, was that:

“9. On the day of the incident I saw Justin just standing around and I whistled to him to get on with the job. He rebuked me for whistling and stated words to the effect that he was not a dog and he should not be whistled at. I responded with words to the effect that I should not have to baby sit his work and he then starting ranting and raving to such an extent that I told him to shut up or I would smack him across the mouth.” 3

[12] Mr Maile advised that he was concerned at the productivity loss as a consequence of Mr Spencer’s discussions with the truck driver. He subsequently reported his concerns about Mr Spencer to Mr Kitcher. Later that same day he confirmed that he had a further telephone discussion with Mr Kitcher where his altercation with Mr a Spencer was discussed, and that this concluded on the basis that Mr Kitcher needed to further consider the matter.

[13] Mr Maile’s evidence about the interviews that resulted in his dismissal was that:

“11. I was interviewed by Brad on two occasions regarding the incident. On the second occasion which was the day of the dismissal he said that there were some options available in dealing with my conduct namely either transferring to another crew or a demotion. However before we could even speak about the alternatives he said that he was going to terminate me which he did.” 4

[14] Mr Maile disputed Jackson Asphalt’s description of the incidents in which he had been involved in 2014 but, in any event, asserted that these were minor in the context of a robust work environment and were not at his instigation.

[15] Mr Maile confirmed his involvement in a discussion on 27 May 2016, about the expectations on him as a foreman. In the course of that discussion he recalled Mr Kitcher confirming that threats of violence were as unacceptable as violence itself.

[16] Mr Maile confirmed that, some four weeks after the termination of his employment, he obtained alternative employment with another asphalt contractor and that he continued to work for that contractor.

[17] Mr Kitcher is the Jackson Asphalt Director and bought the business in late 2013. His evidence was that, in March 2014 he was advised that Mr Maile kicked a former client in the back of the leg whilst on a worksite and that he advised Mr Maile that this behaviour was unacceptable. Mr Kitcher noted that no further work had been obtained from this client since that incident.

[18] Mr Kitcher advised that also in March 2014, he witnessed Mr Maile involved in a punching fight with another employee on a work site. He broke up that fight and subsequently gave Mr Maile a first and final warning in response to this incident. Mr Kitcher’s evidence was that soon after this incident he told Mr Maile that if he ever punched someone again he would lose his job. 5 In terms of the October 2014 incident, Mr Kitcher was advised that Mr Maile threatened to punch a contractor in the head following an incident on a site. His evidence was that he again confirmed to Mr Maile that his behaviour was unacceptable and that repetition of it would result in dismissal.6

[19] Mr Kitcher and the Jackson Asphalt Operations Manager, Mr Johnson met with Mr Maile on 27 May 2016. Mr Kitcher’s evidence was that, in this discussion, he detailed various performance related concerns and that, in the course of this discussion, Mr Maile joked that he would not hit anyone. Mr Kitcher’s evidence was that:

“… I responded by saying that verbal abuse or threatening behaviour is as serious as hitting someone and grounds for dismissal. …” 7

[20] Mr Kitcher confirmed that Mr Maile advised him on 31 May 2016 that Mr Spencer’s work behaviour was unacceptable. After receiving separate advice of the altercation between Mr Maile and Mr Spencer on 31 May 2016, Mr Kitcher later spoke with Mr Maile and advised that he would consider the situation. Mr Kitcher agreed that he did not seek to stand Mr Maile down and allowed him to continue working. Mr Kitcher’s evidence about the termination considerations was that:

“8. At approximately 3.00pm on Thursday 2 June 2016 Dexter Johnson and I met with Kim Maile. We discussed his work performance and the incident with Justin Spencer on 31 May 2016. I gave Kim Maile a chance to express his views and said that I intended terminating his employment. I gave Kim Maile a further opportunity to comment on the likelihood of him reoffending. I was not comfortable with the answer and, after a short adjournment, confirmed that he would be dismissed.

9. Prior to dismissing Kim Maile I considered his long service and alternatives such as a warning or demotion but decided that they were not appropriate or practical. I believe that there was too great a risk of Kim Maile re-offending and threatening or assaulting an employee or client.

10. I chose not to dismiss Kim Maile for misconduct (due to the incident with Justin Spencer) because of his long service and because it provided a better termination payment and also because it assists him in finding alternative employment.” 8

[21] Mr Kitcher expanded on this in his evidence, in the following terms:

Mr Mullally:
In Item 9 of your witness statement you say that you considered Mr Mailes long service and alternatives such as a warning or demotion but decided they were not appropriate or practical. Can you tell us in more detail why you thought they were not appropriate or practical?

Mr Kitcher:
Um Yeah .. I verbally went through all the options out loud between myself and Dexter Johnson and Kim Maile was there and I went through what I considered were my options which were demotion within the crew which I felt that wouldn’t have worked. I don’t think Kim would have actually been able to handle that role and I don’t … the bad egg situation is what I was thinking and I said that out loud. I considered moving across from the major team to the minor team which we started three or four months ago, a minor asphalt team … um, there was no room for him there and I know that he does have an issue with a shoulder that he gets physio and massages on, and it is a lot more manual labour … it’s all manual labour actually so I said I didn’t consider that an option. I considered him going off on holidays or long service leave to, I don’t know, just to have a bit of a break from everything, but then I figured that once he comes back I’m still probably faced with the same issues, and then I considered another warning and I figured it’s gonna happen again because it has happened several times before so I figured history is just gonna repeat itself. Then I felt I was only left with termination which I did say that termination is immediate. 9

[22] Mr Spencer was the employee involved in the altercation on 31 May 2016. His evidence was that:

“3. At 10.30am on Tuesday 31 May 2016, while at a site in Alkimos, WA, I was talking to Rob, a truck driver employed by McSweeny about a work matter.

4. I heard Kim Maile, the foreman, whistle at me and say “Get on your roller and do your fucking job”.

5. I said “Don’t talk to me like that, I am 43, don’t swear at me”.

6. Kim Maile said “I’ll talk to you how I like”.

7. I walked back to the roller and as I did so Kim Maile said “I’ll fucking knock you out”.

8. I was concerned that I would be assaulted by Kim Maile and I feared for my safety.” 10

[23] Mr Spencer confirmed the extent to which he was concerned for his safety when Mr Maile threatened to hit him and that he then used his plant (a roller) to take him away from Mr Maile 11 where upon he telephoned Mr Johnson and asked to be taken off site.

[24] It is appropriate that I note that, in the course of the evidence given by Mr Spencer, I informed Mr Maile that I considered his gestures toward Mr Spencer from the court room to be entirely inappropriate and that, if they continued, I would require him to leave the court room. I have not taken this court room incident into account in reaching my conclusions about the termination of Mr Maile’s employment.

[25] Mr Johnson, the Jackson Asphalt Operations Manager gave evidence relative to the two March 2014 incidents involving Mr Maile. His evidence was that he saw Mr Maile kick Mr Sciorilli in March 2014. He further observed Mr Kitcher break up a substantial fight at work in March 2014 between Mr Maile and another employee, Mr Harrigan. He advised that both men had torn clothes and had landed punches on each other. Mr Jackson’s evidence went to his participation in the meeting between Mr Kitcher and Mr Maile on 27 May 2014 and the discussions at that meeting. He also participated in the meeting on 2 June 2016 and gave evidence to the effect that the 31 May 2016 incident was discussed and that, after Mr Maile expressed his views about the incident, he was dismissed. Later that evening, he received a text message from Mr Maile in the following terms:

“Thu, 2 June, 8:04 PM

You fuck wits said my last day was next Tuesday why am I not in msg for tomorrow? ……..coward cunt! U r a spineless jellyfish with yr nose so far up yr boyfriends ass that it makes me laugh! I hope with all my heart u two burn and rot in hell.” 12

Findings

[26] On the evidence before me I have reached the following relevant conclusions.

[27] There is no information before me in relation to Mr Maile’s work performance or conduct prior to 2014. However, I have preferred the evidence of Mr Johnson and Mr Kitcher and have concluded that Mr Maile did kick a person at work in March 2014 and was involved in an active fistfight with another employee on a separate worksite in that same month. I have accepted the evidence of Mr Kitcher, such that Mr Maile was then given a first and final warning.

[28] The duration of the effectiveness of a warning is affected by the seriousness of the behaviour involved and the nature of the warning given. In this respect a physical assault is generally regarded as a serious incident which represents a valid reason for employment termination. 13 If Mr Maile was not previously aware of the obvious prohibition on physical violence in the workplace, the events of March 2014 should have made this clear to him.

[29] Further, I have accepted Mr Kitcher’s evidence that:

“5. At 12.30pm on 13 October 2014 while working at the Duncraig High School, Wayne Sherman, a contractor, accidently threw some asphalt onto Kim Maile’s legs, Kim responded “If you ever throw mix over the mat again and it hits my legs I will punch you in the head, alright”. As a result of the incident coming to my attention I told Kim that any verbal threat or violence would result in the termination of his employment. The Hazard/Incident Report Form is Attachment BK1.” 14

[30] Again, this must have reaffirmed to Mr Maile, that behaviour of that nature would result in the termination of his employment.

[31] Mr Maile met with Mr Kitcher and Mr Jackson on 27 May 2016. I have concluded that, whilst this meeting may have identified some performance issues, these were not the factors that led to the termination of Mr Maile’s employment. The evidence of Mr Kitcher confirms this position. 15 Notwithstanding the nature of this discussion, I consider it is relevant in terms of confirming to Mr Maile the extent to which violence or threats of violence were fundamentally inconsistent with his role. Mr Maile confirmed that Mr Kitcher advised him, at this meeting, that threats of violence were as bad as violence itself.16

[32] I have accepted Mr Spencer’s version of the events of 31 May 2016 and also accept that the manner in which Mr Maile threatened to knock him out created significant anxiety. I have concluded that, in this respect, Mr Maile’s behaviour represented serious misconduct. Mr Maile held a supervisory position and, bluntly, should have known better than to have behaved in that manner. I am not satisfied that there was any provocation which could reasonably have explained the threat made by Mr Maile.

[33] Mr Kitcher’s evidence demonstrates that he was aware of the incident later that afternoon and spoke briefly with Mr Maile about it. Mr Kitcher did not, however, take steps to stop Mr Maile from continuing to work until the meeting of 2 June 2016. I consider the extent to which Mr Maile was permitted to continue to work was inconsistent with the decision to dismiss him.

[34] In terms of the meeting on 2 June, I have accepted Mr Kitcher’s and Mr Johnson’s evidence. I have concluded that Mr Maile did not request a support person be present even though he was on notice that the issue would be discussed. I have concluded that Mr Kitcher indicated that he proposed to terminate Mr Maile’s employment but Mr Maile had the opportunity to respond in the course of the meeting and before the meeting was paused for a short time. Mr Maile was then dismissed.

[35] The text message Mr Maile sent to Mr Jackson after he was dismissed was, simply put, disgusting. Mr Maile’s evidence was that he sent this in anger about his dismissal. On the basis of this evidence I have concluded that, even if Mr Maile had been dismissed with notice or understood he would be working for a few extra days, the same sentiments would have been expressed. Mr Maile’s evidence 17 confirms that he regarded language of this nature as acceptable.

[36] Section 387 of the FW Act states:

“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.”

[37] I have considered each of these factors.

Valid Reason

[38] Notwithstanding subsequent legislative changes, I have adopted the general position set out in Selvachandran v Peterson Plastics Pty Ltd,¹⁸ such that, to be valid, the reason for termination must be sound, defensible and well-founded.

[39] I have concluded that Mr Maile was dismissed for threatening physical harm against another employee. Simply put, he said “I’ll fucking knock you out” in a manner and context which meant that this other employee had substantive concerns for his own safety. I am satisfied that Mr Maile’s behaviour in this respect represented a valid reason for the termination of his employment. Not only was it inconsistent with his obligations as an employee, it was also fundamentally inconsistent with his supervisory functions.

Notification of the reason

[40] Mr Maile was clearly told that the threat he made to Mr Spencer was the reason for the termination of his employment at the interview that culminated in that termination on to June 2016.

Opportunity to respond

[41] I have concluded that the interview on 2 June 2016 was conducted in a manner which gave Mr Maile the opportunity to respond to the proposition that his employment may well be terminated. I am satisfied that Mr Kitcher outlined a series of options which he then progressively discounted, leaving only the option of employment termination.

Unreasonable refusal to allow a support person

[42] Mr Maile has not argued to me that he was unreasonably refused access to a support person in the discussions on 2 June 2016.

Warnings about unsatisfactory performance

[43] I have concluded that Mr Maile was warned in 2014 that violence in the workplace was unacceptable and that a repetition of this type of behaviour would result in the termination of his employment. Mr Maile clearly heeded that warning until the events of 31 May 2016.

[44] The time between the last 2014 occasion and 31 May 2016 favours a more lenient approach toward Mr Maile. However, notwithstanding this, the discussions which Mr Maile participated in on 27 May 2016 made it absolutely clear that Mr Maile was aware that threats of violence were as inappropriate as violence itself, the nature and severity of the threat which Mr Maile made against Mr Spencer was significant.

Size of the Jackson Asphalt business - impact on procedures and access to human resource management specialists

[45] Jackson Asphalt advised in its Employer’s Response to the application that, at the time of the termination of Mr Maile’s employment, it engaged 17 employees. There was no dispute to this estimate of employee numbers. There is nothing before me that indicates that, as a relatively small business, Jackson Asphalt had any form of sophisticated human resource management policies and procedures or that there was any capacity to access specialist human resource management expertise. I have taken these considerations into account in reaching a conclusion.

Other matters considered relevant

[46] Notwithstanding that Mr Maile’s evidence was not particularly clear in this respect, I have considered the extent to which the discussion about his job role and performance on 27 May 2016 may have placed him under some pressure in terms of his long-standing supervisory function. I have concluded that, even if this was the case it does not represent any acceptable basis for his threat of violence against Mr Spencer.

[47] I have considered the extent to which Mr Maile’s evidence appears to suggest that the Jackson Asphalt work environment was a place where robust language was commonplace. Mr Maile was not however, dismissed for using foul language and I am not satisfied that the workplace accepted violence or threats of violence.

[48] Mr Maile was clearly aware from the discussions on 27 May 2016 that violence or threats of violence were not tolerated or consistent with his position.

[49] Mr Maile was a very long standing employee. There is no information available to me that pre-dates the events of March 2014 which was not long after Mr Kitcher took over the company. Nevertheless, I have taken Mr Maile’s long service into account in considering the extent to which the termination of his employment was harsh. In this respect, I have also noted that Mr Maile gained alternative employment some four weeks after his dismissal. Had it been the case that his prospects of gaining alternative employment were demonstrably remote, this would then need to be factored into to my conclusions.

[50] The Jackson Asphalt decision to leave Mr Maile at work pending the discussion which ultimately occurred on 2 June 2016 is difficult to reconcile with the ultimate decision to terminate his employment. I have concluded that this substantially reflects the lack of appropriate policies and procedures or access to human resource management expertise.

[51] In considering Mr Maile’s circumstances, I have taken into account the extent to which he was paid five weeks pay in lieu of notice.

Conclusion - harsh, unjust or unreasonable

[52] I do not consider that the termination of Mr Maile’s employment was harsh in the circumstances. He made a serious threat to harm another employee only a few days after his obligations in this respect had been confirmed to him. He held a supervisory function and an unprovoked threat of this nature was proportionate with the ultimate decision to terminate his employment. I do not consider that the termination of Mr Maile’s employment was unjust. Mr Maile made a substantial and serious threat to harm another employee and was guilty of serious misconduct in this respect. The termination of Mr Maile’s employment was not unreasonable in that it was based on an appropriate assessment of the circumstances rather than being reliant on inferences.

[53] For these reasons, I do not regard the termination of Mr Maile’s to be unfair. The application must, accordingly, be dismissed. An Order (PR584834) to this effect will be issued.

Appearances:

P Mullally agent for the Applicant.

J Uphill agent for the Respondent.

Hearing details:

2016.

Perth

August 25.

 1   Exhibit R3, para 7

 2   Exhibit A2, para 9

 3   Exhibit A2, para 9

 4   Exhibit A2, para 11

 5   Transcript, Audio recording, 25 August 2016, 11.14am

 6   Exhibit R2, para 5

 7   Exhibit R2, para 6

 8   Exhibit R2, paras 8 - 10

 9   Transcript, Audio recording, 25 August 2016, 11:09:58am – 11:12:12am

 10   Exhibit R3, paras 3 – 8

 11   Transcript, Audio recording, 25 August 2016, 11.47am

 12   Exhibit R4, Attachment KM1

 13   see the Full Bench decision in Tennix Defense Systems Pty Ltd v Fearley (Print S6238)

 14   Exhibit R2, para 5

 15   Exhibit R2, para 10

 16   Transcript, Audio recording, 25 August 2016, 10.41am

 17   Transcript, Audio recording, 25 August 2016, 10.47am

18 (1995) 62 IR 371 at 373

Printed by authority of the Commonwealth Government Printer

<Price code C, PR584833>