Leon Zamojski v Sydney Trains

[2016] FWC 8758

[2016] FWC 8758

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leon Zamojski
v
Sydney Trains
(U2016/5347)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 5 DECEMBER 2016

Application for relief from unfair dismissal – valid reason found – procedural fairness provided – provocation and bullying raised as other relevant matters but not substantiated on the evidence – dismissal not unfair – application dismissed.

[1] Mr Leon Zamojski has applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against his former employer, Sydney Trains (the respondent). Before his dismissal, Mr Zamojski operated a front-end loader at the respondent’s Ballast Recycling Centre in Chullora, NSW (Chullora BRC).

The hearing

[2] I dismissed the respondent’s application under s.587 of the Act to dismiss Mr Zamojski’s application on 28 October 2016. Mr Zamojski’s application was heard on 14 November 2016. At the hearing, Mr Zamojski appeared in person. The respondent was represented by Mr Fagir of counsel and Mr Reaburn, solicitor.

[3] Mr Zamojski tendered:

• two of his own witness statements; 1



• a bundle of documents produced by Safe Work NSW in response to a request he made under the Government Information (Public Access) Act 2009 (NSW); 2 and
• an email from Anthony Anetts, Senior Manager, Network Logistics & Supply Chain, to a human resources staff member of the respondent regarding Mr Zamojski’s alleged behaviour towards his immediate manager, Mr Azzam Bayad. 3

[4] The respondent tendered:

• a witness statement of Alison Bruchhauser, employed by the respondent as Human Resources Lead Business Partner; 4


• a witness statement of Hayden Donoghue, employed by the respondent as General Manager, Commercial and Supply Chain at the time Mr Zamojski was dismissed; 5
• the minutes of a meeting of Chullora BRC management held on 5 April 2013; 6
• a witness statement of Sidney Charles Orr, employed by the respondent as Site Supervisor at the Chullora BRC; 7 and
• a witness statement of Azzam Bayad, employed by the respondent as Manager of the Chullora BRC. 8 Mr Bayad was Mr Zamojski’s immediate manager at the time he was dismissed.

[5] Mr Zamojski, Ms Bruchhauser, Mr Orr and Mr Bayad were all cross-examined.

Background

[6] My determination of this application largely turns on whose evidence I prefer. I should state at the outset that I did not find Mr Zamojski to be a particularly impressive witness. In particular, I note that the two witness statements Mr Zamojski filed were inconsistent in a key regard – being whether he called Mr Bayad a ‘lowlife’ and/or ‘useless manager’. Mr Zamojski expressly denied this during the investigation the respondent conducted prior to dismissing him, 9 and stated in his evidence in chief that he had ‘at no time [referred] to Mr Bayad in a disrespectful manner during this conversation’.10 However, in his reply evidence, Mr Zamojski admitted to calling Mr Bayad a ‘lowlife’.11 This apparent contradiction was the focus of the respondent’s s.587 application referred to at [2] above.

[7] In addressing this issue, Mr Zamojski variously suggested throughout the proceedings (both in relation to the s.587 application and the merits of his own application) that there had been a typographical error in his original witness statement, that the Australian Rail, Tram and Bus Industry Union (RTBU) (formerly his representative) had either misunderstood or deliberately altered his evidence-in-chief and that the statements were not contradictory because he did not consider the term ‘lowlife’ to be disrespectful. I do not find any of the explanations proffered to be convincing.

[8] I think the more plausible explanation is that Mr Zamojski decided to admit that he had referred to Mr Bayad in this way after the respondent had filed a witness statement (that of Mr Orr) 12 corroborating Mr Bayad’s version of events. While I did not think that the contradiction was of itself sufficient grounds to dismiss Mr Zamojski’s unfair dismissal application altogether, it is certainly sufficient to adversely affect my assessment of Mr Zamojski’s credibility. Conversely, I found the respondent’s witnesses gave evidence that was candid, straightforward and consistent. Accordingly, where Mr Zamojski’s evidence and that of the respondent’s witnesses conflict, I prefer the latter. The following summary includes necessary findings of fact.

[9] The conduct that the respondent relied upon to terminate Mr Zamojski’s employment occurred in June 2015. However, I think it is relevant to note that Mr Zamojski was also found to have conducted himself inappropriately in February 2015. The respondent conducted an investigation and determined that Mr Zamojski had called Mr Bayad a ‘cunt’ and a ‘fuckwit’ as well as referring to a female colleague as ‘that bitch’. It further found that Mr Zamojski had attempted to physically intimidate Mr Bayad. 13 The respondent indicated in a letter dated 15 June 2015 that it proposed to dismiss Mr Zamojski because of this misconduct, but reviewed this decision following the RTBU’s response to that letter14 on his behalf. It decided instead to suspend his employment for four weeks without pay and issue him with a final warning.15

[10] The respondent notified Mr Zamojski via letter dated 23 July 2015 16 that it would be investigating misconduct he allegedly engaged in on 10 and 11 June 2015. The RTBU responded in writing on Mr Zamojski’s behalf on 7 August 2015 denying the misconduct.17

[11] On 29 September 2015, the respondent notified Mr Zamojski that it considered the misconduct allegations had been proven and that it had made a preliminary decision to terminate his employment. 18 That letter invited Mr Zamojski to provide a response within 14 days, which he did (via the RTBU) on 15 October 2015.19

[12] The respondent wrote to Mr Zamojski again on 11 November 2015, affirming its decision to dismiss him. That letter relevantly provided:

‘Your response to the findings of the Disciplinary Investigation into the allegations that you committed a breach of the Sydney Trains Code of Conduct and to the proposed preliminary disciplinary outcome has now been considered.

The allegations, of which full particulars have previously been provided to you, are as follows:

ALLEGATION 1

On 10 June 2015, at the Ballast Recycling Centre at Chullora NSW, you:

(a) Failed to follow a reasonable and lawful direction by Mr Azzam Bayad when directed to stop driving a Komatsu Front End Loader within a reasonable time

(b) Failed to treat Mr Bayad with respect by making inappropriate comments including calling Mr Bayad “lowlife” and a “useless manager”

(c) Failed to act in a professional and reasonable manner by driving off in the Komatsu Front End Loader in an unsafe manner, causing dust and debris to be thrown into the air and strike Mr Bayad.

ALLEGATION 2

On 11 June 2015, at the Ballast Recycling Centre at Chullora NSW, you:

(d) Refused to take part in a counselling session over your failure to follow the reasonable and lawful direction given to you by Mr Bayad on 10 June 2015;

(e) Failed to treat Mr Bayad with respect when you made inappropriate comments including calling Mr Bayad a “lowlife” and a “useless manager”.

Due to the seriousness of the matter, the final view of the appropriate disciplinary outcome for you is as follows:

Dismissal

Request for Review

Under the Interim Discipline Penalty Review Process Guidelines put in place by Transport for NSW, permanent Sydney Trains employees may access a review process on grounds that a disciplinary decision ought not to have been made because it was unfair, harsh or unreasonable. …’ 20

[13] On 12 January 2016, Mr Zamojski sent two emails addressed to the respondent’s chief executive officer and director of human resources, criticising the decision to terminate his employment. The first email stated that the decision was the result of the recipients’ ‘neglect’ and called on them to ‘look in a mirror and hang [your] heads in shame’. The second simply read ‘YOUR HEADS’. 21

[14] On 13 January 2016, Mr Zamojski requested that the Transport for NSW Disciplinary Panel review the respondent’s decision to dismiss him. 22 The Panel affirmed and finalised the respondent’s decision to dismiss Mr Zamojski on 3 March 2016.23

[15] At the hearing, Mr Zamojski cavilled (in my view, unnecessarily) with Mr Bayad’s oral evidence in relation to the allegation in paragraph (a) of the letter of 11 November 2015, suggesting that Mr Bayad had contradicted himself by saying that Mr Zamojski had not stopped the front-end loader, but that the two had had a conversation while Mr Zamojski was still on the front-end loader on 10 June 2015. 24 I do not accept that this was the effect of Mr Bayad’s evidence when taken altogether. Nor do I think the respondent ever alleged that Mr Zamojski never stopped. Indeed, even Mr Bayad’s own evidence acknowledges that Mr Zamojski ‘eventually stopped’.25 I accept Mr Bayad’s evidence about the interaction that occurred when he approached Mr Zamojski while Mr Zamojski was on the front-end loader on 10 June 2015, and find that Mr Zamojski initially refused to stop when Mr Bayad reasonably requested it.

[16] In relation to the allegations in paragraphs (b) and (e), Mr Zamojski admitted to calling Mr Bayad a ‘lowlife’ on 10 June 2015 26 but denied calling him a ‘useless manager’ on either day.27 I prefer Mr Bayad’s evidence28 and find it is more likely than not that Mr Zamojski did use both these terms to refer to Mr Bayad.

[17] In relation to the allegation in paragraph (c), Mr Bayad’s evidence at the hearing was that when he initially tried to attract Mr Zamojski’s attention, he was quite far from the front-end loader, perhaps 50 or 60 metres away. This is consistent with Mr Zamojski’s second witness statement. 29 Mr Bayad moved closer to the front-end loader once Mr Zamojski had stopped it, such that he ‘was standing approximately half a metre from the back wheels when Mr Zamojski drove off’.30 Mr Zamojski said that Mr Bayad was ‘a safe distance’31 away by the time he drove off. I accept Mr Bayad’s evidence. However, I do note that in response to my direct question during the hearing, Mr Bayad stated that he was not in danger.32 On balance, I find that Mr Zamojski could have acted more cautiously in this regard and that his behaviour carried a real risk of injury to Mr Bayad, though thankfully this did not materialise.

[18] A recording of the conversation between Mr Zamojski and Mr Bayad on 11 June 2015 in which Mr Zamojski refused to participate in the proposed meeting was in evidence. 33 In the recording, Mr Zamojski repeatedly asks Mr Bayad what the meeting is going to be about, but interjects when Mr Bayad begins to answer and states that he believes the meeting is about ‘the [Sydney Trains] Code of Conduct’. He persists in this belief even after Mr Bayad says it is not. The recording concludes with Mr Zamojski saying ‘you’re told to get the union and HR in here or I don’t want to talk to you’ and Mr Bayad saying ‘OK, good’. It is quite clear that the allegation in paragraph (d) is substantiated.

[19] I find that Mr Zamojski did engage in the substance of the misconduct described in paragraphs (a) to (e) extracted above.

Consideration

[20] It is not in dispute that Mr Zamojski is a person protected from unfair dismissal. 34 I am satisfied that he is so protected.

[21] Section 385 of the Act provides:

‘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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.’

[22] Section 385(a) of the Act is satisfied. It is not in dispute that Mr Zamojski has been dismissed.

[23] Section 385(c) of the Act does not apply in this case, as the respondent is not a small business.

[24] Section 385(d) of the Act is satisfied. Neither party contended that Mr Zamojski had been made redundant.

[25] I must therefore consider whether Mr Zamojski’s dismissal was harsh, unjust or unreasonable. Section 387 of the Act provides:

‘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.’

Valid reason: s.387(a)

[26] I find that Mr Zamojski’s conduct was a valid reason for the respondent to dismiss him. The incidents of 10 and 11 June 2015 collectively reflected the disregard and contempt Mr Zamojski harboured towards Mr Bayad.

[27] In relation to Mr Zamojski’s refusal to participate in the meeting with Mr Bayad on 11 June 2015, I think it is important to point out that his insistence that a union representative and/or a human resources staff member be present was not the objectionable part of the refusal. Rather, it was his aggressive tone and the way in which he interrupted and spoke over the top of Mr Bayad. Unfortunately, this behaviour was reproduced (albeit to a lesser extent) during Mr Zamojski’s cross-examination of Ms Bruchhauser and Mr Bayad. 35

Notification of that reason and opportunity to respond: ss.387(b) and (c)

[28] Mr Zamojski conceded at the hearing that he was notified of the alleged misconduct for which the respondent was considering dismissing him, and that he was given an opportunity to respond to those allegations, 36 which he took. These factors weigh in favour of a finding that the dismissal was not harsh, unjust or unreasonable.

Unreasonable refusal of support person: s.387(d)

[29] This factor is not applicable to Mr Zamojski’s application. There were no meetings held in relation to the warnings given to Mr Zamojski and ultimately the termination of his employment. This was because Mr Zamojski declined to participate in an interview with the respondent. 37. The proposed meeting of 11 June 2015 that did not end up taking place was intended to be a discussion about Mr Zamojski’s conduct the day before, not a discussion about dismissal.

Warnings about unsatisfactory performance: s.387(e)

[30] This factor is not applicable to Mr Zamojski’s application. Mr Zamojski was dismissed for misconduct, not poor performance.

Size of employer’s enterprise and absence of human resource management expertise: ss.387(f) and (g)

[31] The respondent is a sizeable State-owned corporation with dedicated human resource staff, a senior member (Ms Bruchhauser) of which gave evidence in these proceedings. I am satisfied that the process that led to Mr Zamojski’s dismissal, while perhaps unnecessarily protracted, was thorough and reflected the level of human resource management expertise the respondent had at its disposal.

Other relevant matters: s.387(h)

[32] As mentioned above, prior to his dismissal, Mr Zamojski had been suspended for four weeks and received a final warning as a result of using inappropriate language to refer to, and making violent threats towards, Mr Bayad and another colleague in February 2015. While the respondent did not expressly rely upon the February 2015 incidents as a reason for dismissal, I find the fact that Mr Zamojski’s employment history was hardly unblemished weighs in favour of a finding that the dismissal was not harsh, unjust or unreasonable.

[33] Mr Zamojski submitted that his behaviour towards Mr Bayad should be weighed against the fact that Mr Bayad provoked and bullied him. The main issues he raised were that Mr Bayad had:

● failed to properly remedy the situation when a contractor was rude to him;

● breached workplace health and safety obligations by failing to maintain the cleanliness of the front-end loader’s air filters and promptly provide personal protective equipment (PPE); 38 and

● unnecessarily harassed him to sign his timesheet.

He submitted that these circumstances should mitigate the perceived severity of his actions.

[34] I do not accept this submission, because I do not believe that Mr Bayad behaved unacceptably towards Mr Zamojski. On the contrary, the evidence suggests that Mr Bayad bent over backwards to resolve the issues Mr Zamojski raised. I accept that Mr Bayad:

● organised for the contractor to apologise to him the next day;

● showed Mr Zamojski the maintenance records for the front-end loader to demonstrate that they were up to date and then organised to have it cleaned 39 and the filters replaced at cost to the respondent, even though this was not scheduled maintenance; and 

● was asking Mr Zamojski to sign the timesheet to ensure that his overtime payment was processed as soon as possible, rather than having to wait until the next pay cycle. I do not think his actions went beyond what was reasonable. They certainly did not amount to harassment; indeed, Mr Bayad was trying to help Mr Zamojski, but the latter was too rude and impatient to give him the opportunity to explain this.

[35] I should note that Mr Zamojski’s reaction to the late provision of the PPE was the misconduct that led to his four-week suspension. If there was any bullying or untoward interaction going on between Mr Zamojski and Mr Bayad, I do not think Mr Bayad was the perpetrator.

[36] Mr Zamojski also submitted that the respondent had failed to comply with its own policies and procedures. His specific examples related to clause 6.6 of the respondent’s grievance resolution procedure, titled ‘Impartiality’. Mr Zamojski relied upon an email from Mr Anetts to a human resources staff member in relation to the February 2015 incidents which stated that ‘I want this guy [referring to Mr Zamojski] suspended now’. 40 He also said that Mr Bayad’s participation in the respondent’s response to both the February 2015 and June 2015 incidents breached this clause, since he was involved in the incidents.

[37] I cannot agree with this submission. In relation to Mr Anetts’ email, I agree with Ms Bruchhauser’s view 41 that it was the initiation of an investigation and not the conclusion. In any case, Mr Anetts was not the one who conducted the investigation into the February 2015 incidents or made the decision to suspend Mr Zamojski. I also do not think that Mr Bayad’s attempt on 11 June 2015 to counsel Mr Zamojski in relation to the incident on 10 June 2015 (which Mr Zamojski rebuffed) could properly be characterised as part of the formal investigation into that incident; this was conducted separately and subsequently by human resources staff.

Was the dismissal harsh, unjust or unreasonable?

[38] Mr Zamojski’s actions were deliberate and unacceptable. I am satisfied that these actions gave the respondent a valid reason to terminate his employment. I am further satisfied that Mr Zamojski was afforded procedural fairness during the investigation process and in the lead-up to his dismissal. On balance, Mr Zamojski’s dismissal was neither harsh, unjust nor unreasonable.

Conclusion

[39] Mr Zamojski was not unfairly dismissed. The application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

L Zamojski, the applicant, in person.

O Fagir of counsel with T Reaburn, solicitor, for Sydney Trains.

Hearing details:

Sydney.

2016.

November 14.

 1   Exhibits Z1 and Z2.

 2   Exhibit Z3.

 3   Exhibit Z4.

 4   Exhibit S1.

 5   Exhibit S2.

 6   Exhibit S3.

 7   Exhibit S4.

 8   Exhibit S5.

 9   Exhibit S1 annexure AB-17.

 10 Exhibit Z1 [24].

 11 Exhibit Z2 [111].

 12   Exhibit S4.

 13   Exhibit S1 annexure AB-10.

 14   Ibid annexure AB-12.

 15   Ibid annexure AB-13.

 16   Exhibit Z1 attachment D; exhibit S1 annexure AB-16.

 17   Exhibit S1 annexure AB-17.

 18   Ibid annexure AB-20.

 19   Exhibit Z1 attachment E.

 20   Exhibit S1 annexure AB-21.

 21   Ibid annexure AB-26.

 22   Ibid annexure AB-22.

 23   Ibid annexure AB-23.

 24   PN1362-PN1370, PN1423-PN1462, PN1506-PN1524.

 25 Exhibit S5 annexure AB-7 [14].

 26 Exhibit Z2 [111].

 27   PN463-PN464.

 28   Exhibit S5 annexure AB-7 [19], [33].

 29 Exhibit Z2 [109].

 30 Exhibit S5 [175].

 31 Exhibit Z2 [112].

 32   PN1441.

 33   Ibid annexure AB-9.

 34   Fair Work Act 2009 (Cth) s.382.

 35   See, e.g. PN1073-PN1082, PN1240-PN1245, PN1409-PN1413.

 36   PN1898-PN1907.

 37   PN1908-PN1917; exhibit S1 annexures AB-18 and AB-19.

 38   Mr Zamojski tendered the documents produced by Safe Work NSW (exhibit Z3) in support of the fact that he had complained to that body about this issue. This was not in contest.

 39   Exhibit S3.

 40   Exhibit Z4.

 41   PN988-PN1007.

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