Laeth Ishak v Jetstar Airlines T/A Jetstar
[2013] FWC 2959
•10 MAY 2013
[2013] FWC 2959 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Laeth Ishak
v
Jetstar Airlines T/A Jetstar
(U2013/5656)
COMMISSIONER RYAN | MELBOURNE, 10 MAY 2013 |
Termination of employment - altercation between 2 employees - physical assault - valid reason - differential treatment - mitigating factor - dismissal harsh.
[1] The following decision (now edited) was issued following the conclusion of proceedings on 9 May 2013.
[2] Earlier today in proceedings, I made several findings relating to the initial matters that have to be considered before merits. I'm not going to repeat those matters now, but none were contentious in any event. This decision relates to the aspect that I now must consider, which is whether or not the dismissal was harsh, unjust or unreasonable, having regard to the criteria in section 387 of the Act. In considering the criteria in s.387 I am required to consider each criteria which is relevant and only those criteria which are relevant. 1
[3] The first criteria in section 387 is paragraph (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).
[4] The evidence in this matter describes events that happened on the tarmac of the Tullamarine Airport controlled by Jetstar at gate 27. The applicant, Mr Ishak, in his evidence said that he never grabbed Mr Samson. The evidence of Mr Samson and Mr Moore was that Mr Ishak did grab Mr Samson. Soon after the incident took place on the tarmac between Mr Samson and Mr Ishak photographs were taken by Mr Everitt of Mr Samson's upper right arm. Having regard to the evidence of Mr Ishak, Mr Samson and Mr Moore, I'm satisfied that Mr Ishak did grab Mr Samson. I'm also satisfied, having had regard to the medical reports submitted in support of Mr Samson's claim by his treating doctor, that the grip on the arm caused bruising, and I'm also satisfied that the grip by Mr Ishak on Mr Samson's arm was strong enough that when Mr Samson raised his arms to break the grip scratch-like marks were left on Mr Samson's arm.
[5] It's clear to me that Mr Ishak was not honest with management during investigation and that his evidence to the Commission on this point was not truthful. Mr Ishak said that he never chested Mr Samson. The evidence of Mr Samson and Mr Fisher was that Mr Ishak was chest to chest with Mr Samson. It's clear to me that Mr Ishak was not honest with management during their investigation and that his evidence to the Fair Work Commission on this matter was also not truthful.
[6] The two incidents of physical assault by Mr Ishak on Mr Samson I find proven on the balance of probabilities. The chest to chest contact is the lesser of the two contacts.
[7] The physical contact was, in my view, aggressive. The arm grabbing and the chesting provides a valid reason for the dismissal.
[8] The reason for dismissal was not limited to the act of the arm grabbing or the chesting, but to an additional element that Mr Ishak had not been honest about these matters to the persons investigating the matters. The combination of the arm grabbing, chesting and the dishonesty about them does, in my view, constitute a valid reason for the dismissal. It is sound, it's defensible and it's well-founded, and the reason is not capricious, fanciful, spiteful or prejudiced. 2
[9] The dismissal was also based upon Jetstar being satisfied that the allegation that - "On 3 December you had an altercation and you approached Mr Samson in a threatening matter" was proven. Jetstar was satisfied that this allegation had been substantiated through the evidence of Mr Samson and Mr Fisher. Mr Samson describes the conduct of Mr Ishak as being aggressive and that Mr Ishak commenced the altercation by approaching Mr Samson. In his email of 4 December 2012 to Mr Carter, Mr Samson describes this as follows:
“Leo came past on his tug blasting his horn and pointing. At no time I was hindering his operation and had talked only a minute or so. As I walked to my tug, Leo walked past and I said to him that I was talking to Daniel about training, in a very civil matter. Leo then said to me, "Don't you fucking talk to me like that". I said to him, "I'm talking about training". Leo then came at me in my face, abusive and threatening me. I said, "What is your problem?" He kept at me and grabbed me under my right arm, which I felt pain.”
[10] This portrays Mr Ishak in a very negative light and Mr Samson in quite a positive light. The allegation has two elements: the first is that there is an altercation; and the second, it's in the phrase, "You approached him in a threatening manner". The first part of the allegation is clearly established through the evidence of Mr Ishak, Mr Samson, Mr Fisher and Mr Moore. The second part of the allegation relates to the conduct of Mr Ishak driving his tug, honking his horn, pointing his finger and later turning around after passing Mr Samson and then coming at Mr Samson in an abusive and threatening manner. This part of the allegation is only supported by Mr Samson's version of events. It is not supported by Mr Fisher's version of events.
[11] Under cross-examination, Mr Samson agreed that when Mr Ishak was on the tug, he was pointing towards the rear of the aeroplane and not at Mr Samson. Mr Fisher's evidence was that Mr Ishak gave one small honk on the horn of his tug, not a long blast as described by Mr Samson. Mr Fisher's evidence was that Mr Samson approached Mr Ishak, who was doing paperwork on his tug, and not the other way around as Mr Samson described it. I prefer the evidence of Mr Fisher over the evidence of Mr Samson on these matters. On that basis, I am not satisfied that the second part of the first allegation could have been substantiated by Jetstar.
[12] The first part of the allegation that there was an altercation is merely a part of the third allegation made against Mr Ishak, and that was that he grabbed his arm. The two are not able to be separated out as being two separate incidents. They comprise one single incident; an altercation and the grabbing of an arm. On that basis, whilst the altercation itself may have been established, the altercation, merely as an argument between persons, may not constitute a valid reason for dismissal. But where, within the altercation, there's physical conduct by Mr Ishak in grabbing the arm, as I've already identified, it is the grabbing of the arm and the chesting which does provide the valid reason for dismissal.
[13] Sections 387(b), (c) and (d) relate to processes or procedures applied by the respondent to the applicant or towards the applicant in terms of those matters which one would describe as being procedurally fair in putting issues to the applicant, giving him an opportunity to respond and giving him an opportunity to be represented in such a response. The detailed evidence that has been provided in this matter makes clear that Jetstar has a quite comprehensive process in place where allegations are made, they were put in writing, opportunities were given to Mr Ishak to respond, Mr Ishak was also given an opportunity to be represented. In that sense, I'm satisfied that procedural fairness has been accorded to Mr Ishak during the process leading to the termination.
[14] Section 387(e) relates to unsatisfactory performance. That's simply not a relevant issue in this matter.
[15] Paragraphs 387(f) and (g) relate to the nature of the employer's enterprise. They are always relevant. In this particular matter, Jetstar is a large employer. It does have industrial relations - human resource management expertise. That is reflected in the fact that it does have significantly detailed processes in place for dealing with unfair dismissal claims, and I'm satisfied that nothing in paragraphs 387 (b), (c), (d), (f) or (g) would weigh in favour of a finding that the dismissal is harsh, unjust or unreasonable.
[16] I now turn to section 387(h). I considered the evidence of Mr Samson. Mr Samson clearly was not honest with the investigators of Jetstar. Mr Samson didn't acknowledge to the investigators that he used aggressive language towards Mr Ishak whilst in conversation with Mr Fisher. Mr Samson didn't acknowledge to the investigators that he gave a two-handed push to Mr Ishak which made Mr Ishak stumble back a couple of paces. Mr Samson didn't acknowledge to the investigators that this two-handed push was after he had got out of Mr Ishak's grip. Mr Ishak didn't acknowledge to the investigators that he was "chest pointing", (using the description of Mr Fisher), at Mr Ishak or "chest poking" (as described by Mr Ishak), and that occurred during the altercation. Mr Samson didn't acknowledge to the investigators that he used aggressive language to Mr Ishak during the altercation. His statement has extremely mild language in it, whereas the evidence that has come out during these proceedings has Mr Samson using aggressive expletives. Mr Samson also didn't acknowledge to the investigators that he saw Mr Ishak pointing to the back of the aircraft while he was approaching on his tug. In his statement to the investigators, Mr Samson identified it as pointing, and additionally, gesturing to Mr Fisher to get the dollies, whereas under cross-examination and examination from the Commission, Mr Samson acknowledged very clearly and without hesitation that he understood and knew that Mr Ishak was pointing to the rear of the aircraft.
[17] Mr Samson gave very detailed and clear evidence in the witness box of the action he used to free himself from Mr Ishak's grip and to strike Mr Ishak.
[18] Mr Samson described a fluid movement in which he raised both arms in a circular motion; his left arm making an anti-clockwise sweeping motion and his right arm making a clockwise sweeping motion. In making this circular motion, Mr Samson broke the grip that Mr Ishak had on Mr Samson's right arm.
[19] At this point of time, Mr Samson was then free of Mr Ishak's grip.
[20] Mr Samson continued with the circular motion of both arms so that his two hands met together in front of him and relatively close to him.
[21] Mr Samson then continues the movement by using the momentum already created to push both his hands against Mr Ishak's test, forcing Mr Ishak to stumble backwards. At no stage did Mr Samson use his left arm to break Mr Ishak's grip on Mr Samson's right arm. Even as Mr Samson described it, the only consequence of moving his left arm in the circular motion away from where Mr Ishak was gripping Mr Samson's right arm was to have both hands in a position to strike at Mr Ishak.
[22] The self defence aspect of Mr Samson's actions is the commencement of a circular motion with his right arm, and continues until Mr Ishak is forced to release his grip.
[23] The continuation of the movement of the right and the whole of the movement of the left arm do not appear to me to be merely self defence, but appear to me to be for the purpose of striking Mr Ishak.
[24] I note that the photos show abrasions or scratching on Mr Samson's right arm, which is consistent with Mr Ishak being forced to let go of Mr Samson's arm through the movement of Mr Samson's arm. It would appear that the abrasions or scratches were not inflicted on Mr Samson by Mr Ishak through any deliberate decision of Mr Ishak. Having said that, the abrasions or scratching could only have occurred because of a firm grip by Mr Ishak on Mr Samson.
[25] Mr Samson also described the commencement of Mr Ishak's aggressive behaviour when Mr Ishak drove towards the front of gate 27. This is not supported by Mr Fisher's evidence, and in fact Mr Fisher's evidence and his statement to the investigators makes clear that Mr Samson used language towards or about Mr Ishak which had a level of aggression in it. If there was anything in Mr Ishak's honking his horn, once and briefly, and pointing to the rear of the aircraft, it was directed at Mr Fisher and not at Mr Samson. Mr Samson described the continuation of Mr Ishak's aggressive behaviour by saying Mr Ishak approached Mr Samson after Mr Samson had said to Mr Ishak that he was talking to Daniel about training.
[26] I'm not satisfied on the balance of probabilities that Mr Samson's version is accurate. It is not consistent with Mr Fisher's evidence that he saw Mr Samson walk towards Mr Ishak, who was doing paperwork at his tug. At the very least, it is clear that Mr Ishak had not approached Mr Samson to start a conversation. Rather, Mr Samson approached Mr Ishak and Mr Samson initiated the conversation. Mr Ishak's evidence was that Mr Samson approached him in an aggressive manner, whereas Mr Samson says that after making a neutral comment to Mr Ishak, that Mr Ishak became aggressive towards Mr Samson.
[27] Mr Samson, in his statement to investigators on 5 December, was that he and Mr Ishak did not get on. This puts the language used by Mr Samson towards or about Mr Ishak, when Mr Ishak drove past and honked his horn, into some context. The use of the expletives is consistent with Mr Samson not getting on with Mr Ishak. Given that Mr Samson acknowledges that he didn't get on with Mr Ishak, Mr Samson still approached Mr Ishak while Mr Ishak was doing his paperwork. What words were actually said between Mr Samson and Mr Ishak is difficult to determine. It is clear that both used offensive language to each other. It is clear that both were, and I quote, "really angry and upset", which is Mr Moore's evidence.
[28] I'm satisfied that the altercation would not have occurred if Mr Samson had not approached Mr Ishak and spoken to him, especially if such approach occurred immediately after Mr Samson had used expletive language towards or about Mr Ishak.
[29] Mr Carter's evidence was that the allegations made by Mr Ishak against Mr Samson were investigated but there was nothing to corroborate Mr Ishak's allegations and that the investigation ended. It's very clear that both Mr Carter and Mr Porter only had available to them the information gained through the investigation.
[30] I note that Jetstar had much more information available to it after the dismissal of Mr Ishak through the various witness statements in this matter. Nothing has been put to the Commission that Jetstar has acted on the information available to it to consider any action against Mr Samson.
[31] Mr Tracey drew my attention to several authorities, and in particular, to the decision of a full bench in Parmalat Food Pty Ltd v Kasian Wililo 3. Mr Tracey drew my attention to paragraph 24 of that decision, where the full bench said:
“Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness, it would only be if significant mitigating factors are present that a conclusion of harshness is open.”
In that particular matter, the full bench, on appeal, came to the conclusion that there were no discernible significant mitigating factors in the decision at first instance.
[32] The issue for me, therefore, is whether there are significant mitigating factors present in this matter? I consider that the differential treatment given to Mr Ishak and Mr Samson constitutes a significant mitigating factor. The conduct of Mr Ishak was that he assaulted Mr Samson and was not honest in his dealings with the investigators. The evidence makes clear that Mr Samson assaulted Mr Ishak and that Mr Samson was not honest with his dealings with the investigators. Mr Ishak was dismissed, Mr Samson was not.
[33] The conduct of both was worthy of significant condemnation and strong disciplinary action, including the possibility of dismissal. But where one person involved in an altercation is dismissed and the other isn't, and where both have engaged in aggressive behaviour and physical assault against each other, the dismissal of one is harsh when the other has not been subject to the same or, as in this case, any disciplinary action. This harshness is even more so when both Mr Samson and Mr Ishak were not honest in their provision of accurate information to the investigators.
[34] In concluding that the dismissal was harsh because of the differential treatment accorded to Mr Ishak and Mr Samson, I am mindful that Jetstar acted as they did on the basis of information known to them as at the date of dismissal and without the benefit of the evidence before the Commission.
[35] I do not intend in this decision to deal with any remedy at this time. I wish to hear from both parties on remedy at a further hearing after they have had the opportunity of considering this decision. I make clear that I have no view as to whether a remedy should even be granted, let alone what remedy would be appropriate if a remedy should be granted.
[36] I will list a further hearing of this matter in approximately four weeks.
COMMISSIONER
Appearances:
B. Baarini for the Applicant
J. Tracey for the Respondent
Hearing details:
2013.
Melbourne:
8, 9 May
1 Sayer v Melsteel P/L[2011] FWAFB 7498 at pns [14] and [20] and Chubb Security Australia P/L v Thomas Print S2679 at pn41
2 Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371 at 373, 7 July 1995, Northrop J.
3 [2011] FWAFB 1166
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