Leif Appenzeller v James Fisher Australia Pty Ltd
[2017] FWC 3755
•21 JULY 2017
| [2017] FWC 3755 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Leif Appenzeller
v
James Fisher Australia Pty Ltd
(U2017/1311)
| SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 21 JULY 2017 |
Application for an unfair dismissal remedy.
Mr Leif Appenzeller (the applicant) applied under s.394 of the Fair Work Act 2009 (FW Act) on 8 February 2017 for an unfair dismissal remedy in relation to the termination of his employment by James Fisher Australia Pty Ltd t/as JFD (the respondent), which occurred on 2 February 2017.
In a meeting on 2 February 2017 the applicant was summarily dismissed for serious misconduct. He was not paid in lieu of notice.
In dismissing him, the respondent said[1] that the applicant had acted in a way “that was substantiated and proven, and which included:
— engagement in physical conflict with [another employee]… deemed to be over and above what was a reasonable reaction;
· The use of strong and offensive language in [the] course of the altercation;
· The use of threatening behaviour; and
· In doing so therefore breaching Company policies”
The applicant disputes that his conduct warranted dismissal and asks the Commission to order the respondent to pay him compensation. He is not seeking reinstatement.
It is not in contention that the applicant was protected from unfair dismissal at the time he was dismissed. The issue to be determined is whether his dismissal was harsh, unjust or unreasonable.
The incident
The applicant’s employment with the respondent was terminated because the applicant was involved in a fight with another employee of the respondent (the second employee). The fight took place on the respondent’s property and within working hours, on 20 January 2017. The fight was captured on CCTV. It is accepted by the applicant and the respondent, and by me, that:
(a) the fight occurred;
(b) the applicant did not instigate the fight;(c)there was a history of animosity and unease between the applicant and the second employee;
(d)the second employee’s employment was terminated on or around the same date that the applicant’s employment was terminated; and
(e)CCTV footage was available and formed part of the investigation into the applicant’s termination (albeit it was not provided to the applicant until on or about 22 May 2017 as part of the respondent’s material filed in this matter).
The application was heard in Sydney on 29 May 2017. The applicant was represented by Mr S Mandarano. The respondent was represented by Mr G Fredericks, of counsel, instructed by Ms J MacKenzie.
The following material was tendered by the applicant:
(a) a statement by the applicant;[2]
(b)audio recordings made by the applicant of a meeting between him and the respondent on 2 February;[3] and
(c)audio recording by applicant of an appeal meeting between him and the respondent on 15 February 2017.[4]
The following material was tendered by the respondent:
(a) CCTV footage of the incident on 20 January 2017;[5]
(b) a statement by Mr Toff Idrus (General Manager);[6](c)notes of a meeting between the applicant and respondent on the morning of 2 February 2017;[7]
(d)notes of a meeting between the applicant and respondent on the afternoon of 2 February 2017;[8]
(e) an organisational chart;[9]
(e) a statement by Graeme Smith (Group HR Business Partner);[10] and
(f) an email from Graeme Smith dated 15 May 2017.[11]
The CCTV footage
While the CCTV footage of the fight was played, the applicant provided a description of what was occurring during the fight. The applicant’s description was supported by a chronology filed by him on 25 May 2017 in his reply to the respondent’s outline of submissions, which I replicate below:
| Time | Details of incident |
| 7:06:40 | [ ] arrives in foyer and proceeds to unit 13 from internal door. Not on CCTV initial attack by [ ] in unit 13 |
| 7:17:14 | [ ] walks into foyer turns and cocks his right arm and proceeds towards me threatening physical violence |
| 7:17:16 | To stop him hitting me I pushed him back he lost his balance and steadied himself on the table |
| 7:17:17 | I retreated back into unit 13 |
| 7:17:18 | He then initiated a third attack on me. We grappled |
| 7:17:21 | [ ] forcefully pulls me into the solid steel security bars in the foyer impacting my upper torso |
| 7:12:23 | [ ] pulls me to the ground lies on top of me and has me pinned |
| 7:17:28 | I manage to free myself and roll over |
| 7:17:58 | I got up as [ ] had calmed down enough |
| 7:18:00 | Then he grabbed my arm and attempted to escalate the attack again |
| 7:18:06 | [BH], [ ]’s driver enters into unit 13 through the roller door after seeing the incident without intervening or making any comment |
| 7:18:24 | As [ ] had finally calmed down we picked up our belongings and went to our respective work areas |
During his cross examination the applicant described the incident as ‘a scuffle’ rather than a fight.[12] He also said it was due in part to the ‘culture of the company’[13] and to poor management.[14] He said he had shown no remorse because he had done nothing wrong.[15]
The General Manager of the respondent, Mr Idrus, gave evidence.
In paragraphs 24(f) and (g) of Mr Idrus’s statement, he says of the applicant:
“(f)whilst he did not instigate the physical violence, his actions were not a proportionate response to the initial provocation by [the second employee];
(g)by way of his reaction, the Applicant became the aggressor during the confrontation and proceeded to step towards [the second employee] wrestling him to the ground, which was unacceptable.”
Having viewed the CCTV footage, I find that while the second employee did indeed instigate the altercation, the applicant’s response was wholly disproportionate. Instead of backing away (as he would have easily been able to do) in response to what was little more than a relatively small push, the applicant launched himself forward against the second employee. He then pushed him on to a table. There then followed a wrestling match which I find bears very little relationship to the description of the event by the applicant. For the bulk of the time the applicant was on top of the second employee. This was not a minor scuffle. The applicant was not simply defending himself, but engaged in the fight with apparent gusto.
Following the incident, both participants were stood down from their duties, and asked to leave the site, until further notice (though the second employee was subsequently allowed to return to work for a period of two days.) Mr Idrus asked for an investigation to be conducted by Robert Tonkin, the ‘HSEQ Manager’. Mr Tonkin provided his investigation report to Mr Idrus on 27 January 2017.
On 29 January 2017 the applicant was invited by Mr Idrus to attend a disciplinary hearing on 2 February 2017. In the invitation letter the applicant was told what would be discussed at the hearing and was put on notice that he could be subject to a disciplinary sanction, ‘up to and or including dismissal’.
At the hearing the applicant was represented by Mr Mandarano. Mr Mandarano stated, amongst other things, during the hearing that:
· The applicant was not a violent person;
· His actions were purely in self-defence;
· The incident was not ‘violent’ and that the issue was ‘trivial’; and
· The applicant had been suffering in an environment of intimidation and bullying at work.[16]
Having considered all the relevant circumstances, Mr Idrus determined that summary dismissal was appropriate and advised the applicant accordingly.
During the proceedings, the applicant referred to a manager who he says was affected by drugs and/or alcohol and who had been charged with gross misconduct[17]. The applicant said in his statement that he had been encouraged to ‘dob in’ this manager by other staff. However the manager in question had only received a warning and given seven weeks of counselling.[18]
According to Mr Smith, the manager in question was not found guilty of ‘gross misconduct’ and he was given a written warning and was treated in accordance with the respondent’s drugs and alcohol policy.
Consideration
In considering whether the applicant’s dismissal was harsh, unjust or unreasonable the Commission is required to take into account the factors outlined in s.387 of the FW Act. These are:
‘(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.’
I am satisfied that the respondent had a valid reason to dismiss the applicant. He engaged in a violent physical altercation with a fellow employee on the respondent’s premises. While he was not the initiator of the incident, his response to the actions of the second person was wholly disproportionate, and cannot be described as an act of self-defence. Even if the applicant’s allegations that there were some deficiencies in management and workplace culture were true these do not lessen the applicant’s responsibility for his own misconduct. Nor was there any evidence that any complaints the applicant may have made about a manager had any bearing on the decision to dismiss him.
The applicant was clearly put on notice that the respondent was considering dismissing him for his misconduct. He was given an opportunity to respond at the disciplinary hearing on 2 February 2017.
The applicant was permitted to have a support person at the hearing on 2 February 2017.
The procedures adopted by the respondent in effecting the dismissal of the applicant were appropriate, having regard to its size and access to specialist human resources expertise.
I am satisfied that there were no other extenuating circumstances that would render the dismissal unfair. There was no evidence that the applicant was treated inequitably compared to other employees (including the manager about whom he had made a complaint).
In conclusion, I find that the dismissal was not harsh, unjust or unreasonable and the application is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr S Mandarano appeared for the Applicant
Mr G Fredericks, of counsel, instructed by Ms J MacKenzie, solicitor of Norton Rose Fulbright, appeared for the Respondent
Hearing details:
2017
Sydney
May 29
[1] Letter of termination dated 3 February 2017
[2] Exhibit A1
[3] Exhibit A2
[4] Exhibit A3
[5] Exhibit JFD1
[6] Exhibit JFD2
[7] Exhibit JFD3
[8] Exhibit JFD4
[9] Exhibit JFD5
[10] Exhibit JFD6
[11] Exhibit JFD7
[12] PN374
[13] PN379-380
[14] PN381
[15] PN386
[16] Exhibit JFD2, paragraph 20
[17] PN1164
[18] Exhibit A1, paragraph 21
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