Mark Sayers v Cub Pty Ltd

[2016] FWC 3428

[2016] FWC 3428 [Note: An appeal pursuant to s.604 (C2016/4150) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Sayers
v
CUB Pty Ltd
(U2015/15099)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 MAY 2016

Application for relief from unfair dismissal – offensive language – verbal abuse – racial abuse – threats of violence.

[1] Mr Mark Sayers has applied under s.394 of the Fair Work Act 2009 (Cth)(FW Act) for reinstatement in relation to his dismissal on 13 November 2015 from his employment as a Warehouse Employee with CUB Pty Ltd.

[2] CUB terminated the employment of Mr Sayers on the ground of serious misconduct, alleging that he behaved in a manner that was in breach of the CUB Code of Conduct and Anti-Harassment, Bullying and Discrimination Policy (CUB Policy) by verbally and racially abusing and making threats of violence against other CUB employees, during an altercation in the Stores area of CUB’s Abbotsford Brewery on 13 October 2015.

[3] The misconduct relied upon included:

• Using offensive language towards another CUB employee, Mr Darren Barmby by saying words to the effect “where are the fucking tickets? Why didn’t you bring the fucking tickets over?”;



• Verbally abusing a second CUB employee, Mr German Mansilla, by saying words to the effect “Where are the fucking tickets? Why didn’t you bring the fucking tickets over? Fuck you mate. Fucking cunt. You are nothing but a lazy cunt. Nobody likes you anyway you lazy cunt. Nobody liked you in the warehouse.”;



• Racially abusing Mr Mansilla by saying words to the effect “You are nothing but a dirty gringo cunt.”;



• Making threats of violence to Mr Mansilla by saying words to the effect “Any place, any time, you name it you are going down. Wait until tomorrow and I’ll fix your red wagon.”; and



• Intimidating and threatening Mr Mansilla as they left work after the incident by saying words to the effect “I do whatever I fucking want in this company.”

Protection from unfair dismissal

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

[5] Section 382 of the FW Act sets out the circumstances that must exist for Mr Sayers 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.”

[6] There is no dispute, and I am satisfied, Mr Sayers has completed the minimum employment period and was covered by the CUB Pty Ltd Abbotsford Brewery Enterprise Agreement 2015-2018. Consequently, I am satisfied Mr Sayers was protected from unfair dismissal.

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

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

[8] Mr Sayers’ employment was terminated on 13 November 2015 and his unfair dismissal application was received by the Commission on 16 November 2015. As such, I am satisfied that Mr Sayers made his application within the required 21 day period in s.394(2) of the FW Act.

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

[9] As outlined in paragraph [6] above, I am satisfied Mr Sayers was protected from unfair dismissal. This is not in dispute.

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

[10] CUB is not a small business employer within the meaning of s.23 of the FW Act. It is not disputed and I find that the Small Business Fair Dismissal Code does not apply.

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

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

[12] I must now consider if the dismissal of Mr Sayers by CUB was unfair within the meaning of the FW Act.

Was the dismissal unfair?

[13] 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 FW 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.”

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 3

Was the Applicant dismissed?

[14] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for the purposes of Part 3–2 of the FW Act. Section 386 of the FW 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.”

[15] As outlined above, on 13 November 2015, CUB terminated Mr Sayers’ employment (s.385(a) of the FW Act).

[16] No issue was raised in relation to ss.385(c) and (d) of the FW Act and I reiterate my findings at paragraphs [10]-[11] above.

Harsh, unjust or unreasonable

[17] I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable within the meaning of s.385(b) of the FW Act.

[18] The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the FW Act:

“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.”

Commission proceedings

[19] Mr Sayers gave evidence and Mr Fabio Pamich, CUB Forklift Driver, also gave evidence on his behalf. Both made a statement of evidence and Mr Sayers also made a statement in reply. Both were cross-examined on their statements.

[20] The following witnesses gave evidence on behalf of CUB:

• Mr German Mansilla – CUB Forklift Driver;



• Mr Darren Barmby – CUB Storeman;



• Mr Brenton Duthie – CUB Storeman;



• Mr Edwin Lee – CUB Logistics Manager at the relevant time;



• Mr Gary Woodburn – CUB General Manager – Southern Operations;



• Ms Catherine Vickers – CUB HR Business Partner; and



• Ms Angela Gault – CUB Raw Materials Scheduler.

[21] Each of the CUB witnesses made a statement of evidence and, with the exception of Ms Gault, were cross-examined on their statements.

[22] Both parties relied on written submissions filed prior to the hearing and written submissions were filed following the conclusion of it.

Employment Background of Mr Sayers

[23] Mr Sayers commenced employment as a forklift driver with CUB in 2000. He was initially based at the CUB Distribution Centre in Altona and in 2003 transferred to the Abbotsford brewery site as a Warehouse Employee. In 2008, he was transferred to the Carton store.

[24] While CUB initially produced correspondence from 2001 1 to dispute Mr Sayers’ claim that he had an unblemished work record, this was not pressed at the hearing.2

[25] During 2005, Mr Sayers became a delegate for the Construction, Forestry, Mining and Energy Union (CFMEU). He was then the CFMEU senior site delegate from 2006 until mid-2015. He enjoyed a positive and productive working relationship with site management.

CUB Policies

[26] CUB policies that apply to workers at the Abbotsford site include an Occupational Health & Safety Policy, an Anti-Harassment, Bullying & Discrimination Policy and a Code of Business Conduct & Ethics. 3 Mr Sayers agreed with the proposition outlined in the Anti-Harassment, Bullying & Discrimination Policy that CUB employees have “the right to work in a professional atmosphere that promotes equal employment opportunities, prohibits discriminatory practices and is free from harassment and bullying.”

[27] The policy also stated that if an employees’ actions were in breach of it, they would face disciplinary action, which might include instant dismissal from their jobs.

[28] Additionally, when Mr Woodburn commenced at CUB as General Manager – Southern Operations in 2011, he delivered a presentation 4 to employees outlining the expectations he and CUB had regarding workplace safety and behaviour. It was not in dispute that Mr Woodburn had outlined his standards and expectations, that were clear and reasonable, and that he had attempted to ensure they were maintained across the site.

[29] Mr Woodburn met separately with Mr Sayers to discuss the presentation. He specifically raised the topic of swearing at other employees and outlined his position that it was intolerable and contrary to the expectations he and CUB held. Mr Sayers expressed his support for that position.

[30] Following Mr Woodburn’s presentation, Ms Vickers confirmed that CUB acted in reliance of those expectations and the Anti-Harassment, Bullying & Discrimination Policy in terminating the employment of three other employees who had engaged in verbal abuse and/or the threat of violence. 5 Mr Sayers was vague regarding these but Mr Pamich had knowledge of two of the three terminations.

[31] In his final written submissions, Mr Sayers said he was aware of the tone and tenor of the relevant CUB workplace policies and that his conduct giving rise to his dismissal was in breach of them. 6

Workplace changes

[32] One issue that had to be worked through during Mr Sayers’ tenure as a CFMEU delegate was a restructure of the Logistics area which saw the introduction of the SAP recording system. It required a reduction in the number of employees. Mr Sayers was involved in meetings regarding this proposal. At one point, the CFMEU lodged a dispute with the Commission about the changes. The sticking point on that occasion concerned whether the reduction should be implemented via one employee being redeployed or made redundant and the result was a redundancy. 7

[33] It is agreed that there were changes introduced by CUB that stretched into 2014 that resulted in the reduction in the number of employees in the logistics area, firstly from ten down to nine and then nine down to seven. This downsizing came as a result of the introduction of the SAP recording system.

[34] There was some debate about the impact of these workplace changes. Mr Sayers said he made regular complaints to his immediate manager, Mr Neville Brown and to Mr Lee because the changes resulted in understaffing. Mr Lee’s evidence was that the restructure was discussed throughout a lengthy consultation process and the result as far as the Carton store was concerned, were manning levels well matched against workload. 8 Mr Lee also denied receiving complaints about the workload in the Carton store.9

Mr Sayers and Mr Mansilla

[35] It is not in dispute that Mr Sayers and Mr Mansilla did not get along. Both men gave evidence of a poor working relationship.

[36] In his witness statement, Mr Sayers asserted that Mr Mansilla was not a team player. Mr Mansilla responded in his witness statement, outlining treatment he had received from Mr Sayers, including Mr Sayers ‘snapping’ and swearing at him and suggesting to management that he was not doing his duties. 10

[37] Mr Mansilla also alleged that in 2011, Mr Sayers threatened him by saying, “I know where you live, I can get you any time, I can do damage to you or your family.” 11 Mr Sayers denied this incident occurred.12

[38] Mr Mansilla says the only person he reported this to was his then team leader, Mr Joyce, so he became concerned when Mr Sayers subsequently approached him to ask whether he was going to take the matter further. As a result of this and despite his concern about Mr Sayers, Mr Mansilla decided to let the matter go because he did not think any action would be taken against Mr Sayers. Mr Joyce was not called to give evidence.

[39] It is clear that Mr Mansilla was aggrieved at being selected for transfer from the Supply store to the main warehouse in 2013 on the basis that he had been the last to join the Supply store crew. This had been the preferred criteria of Mr Sayers but Mr Mansilla disagreed with it and as a result, he sought to limit his contact with Mr Sayers upon his return to the Supply store in mid-2014.

[40] Mr Sayers said that he was always friendly to Mr Mansilla upon his return and would always give him a hand to try and repair the relationship. This was denied by Mr Mansilla, albeit he did concede that Mr Sayers said ‘hello’ sometimes, delivered some delivery dockets to him on one occasion and helped unload a truck on another. Mr Barmby gave evidence that Mr Sayers and Mr Mansilla did not talk to each other unless it was work related.

[41] There were approximately 15 months between Mr Mansilla’s return to the Supply store and the incident on 13 October 2015. It was common ground that Mr Sayers and Mr Mansilla were not always rostered onto the same shift pattern during this period. They did not work together on a weekly basis but Mr Sayers maintained that when Mr Mansilla was on his shift, he found it very hard to get his duties done.

[42] The primary complaint Mr Sayers had about Mr Mansilla was that he did not deliver the delivery dockets to him in the Carton store when they were on shift together. There was perhaps one exception but the evidence otherwise establishes Mr Mansilla did not take the delivery dockets to Mr Sayers during the period between his return to the Supply store until 13 October 2015.

Build–up to the 13 October 2015 Incidents

[43] Mr Mansilla collected the delivery dockets on 13 October 2015. His evidence was that there was only one for the Carton store and he placed it in the tray in the Supply store office. It is agreed that this would have occurred by approximately 10.15am. There was no evidence of Mr Mansilla doing anything further with the Carton store delivery docket after that.

[44] Mr Barmby gave evidence that he subsequently made an attempt to deliver a delivery docket or dockets (he could not recall if it was one or more than one) to the Carton store at lunchtime but could not do so because the door to the Carton store was shut. He said he then took the delivery docket or dockets back to the Supply store and placed them in the tray or on the desk. 13

[45] The timeline of events from the point at which the delivery docket in question was collected at approximately 10.15am to when Mr Sayers found it on the table in the Supply store after 1.00pm is not clear. While Mr Sayers gave evidence in cross examination and re-examination that he had some delivery dockets delivered to him at approximately 10.00am, which he entered into the system, 14 Mr Mansilla’s subsequent evidence, referred to above, was that there was only one delivery docket for the Carton store on 13 October 2015.

[46] Mr Sayers said he received a telephone call at approximately 10.30am-10.45am from Mr Rod Tollick, CUB Raw Materials Planner, advising him that there was one delivery docket missing. Mr Sayers said that he then went and walked through the Supply store and asked colleagues there whether there were any delivery dockets before having a look in the Supply store office and finding there were none in the tray or on the desk. He said that Mr Mansilla and Mr Barmby gave no answer to his enquiry about the delivery dockets 15 but also said that when in the Supply store office, the answer to his inquiry as to whether there were any delivery dockets was in the negative.16

[47] Mr Sayers said he then went to B1 to make enquiries before attending to various other tasks and taking another phone call with Mr Tollick about the delivery docket. As the time approached 1.00pm, he saw Mr Mansilla and Mr Barmby locking the front entrance to the Supply store in order to attend a colleague’s farewell and while they were doing so, Mr Sayers unloaded supplies which arrived for the Supply store, delivered a parcel and entered the Supply store via the back entrance. He had another look for the missing delivery docket, and found it rolled up on the table where Mr Mansilla sat.

Was the dismissal harsh, unjust or unreasonable?

[48] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 17 by McHugh and Gummow JJ 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.”

[49] As outlined above, the criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out in s.387 of the FW Act. I am under a duty to consider each of these criteria in reaching my conclusion. 18

[50] I will now consider each of the criteria at s.387 of the FW Act separately.

Valid reason - s.387(a)

[51] CUB must have a valid reason for the dismissal of Mr Sayers, although it need not be the reason given to him at the time of the dismissal. 19 The reasons should be “sound, defensible and well founded”20 and should not be “capricious, fanciful, spiteful or prejudiced.”21

[52] Principles governing circumstances where the reason or reasons relied upon include misconduct were recently considered in Farmer v KDR Victoria Pty Ltd T/A Yarra Trams: 22

“However in matters such as this, in which the conduct of the person is said to have involved misconduct, there is a need to subject the allegations to careful scrutiny, avoiding “inexact proofs, indefinite testimony, or indirect inferences”. 23 In considering the evidence, a “proper degree of satisfaction is required having regard to the seriousness of the allegations”24, noting that “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove”.25 In a case such as this involving misconduct the Commission must determine whether the conduct occurred.”26

[53] CUB dismissed Mr Sayers for serious misconduct it alleges was in breach of CUB Policy.

[54] In his final written submissions, Mr Sayers admits to substantial parts, but not all of the conduct alleged against him.

[55] Mr Sayers admits that he raised his voice. He admits he yelled at Mr Mansilla and that he used abusive language. He admits that he was aware of the tone and the tenor of the relevant workplace policies and that his conduct was in breach of those policies. However notwithstanding these admissions, Mr Sayers contends the reasons of CUB were not valid reasons for dismissal because:

• He did not engage in all of the conduct alleged against him, specifically:

(i) He did not make a racial slur against Mr Mansilla; and
(ii) He did not make a threat of violence by using the words “I’ll fix your little red wagon”;

• The dismissal was disproportionate to the conduct in fact engaged in;



• Seen in its proper context, the events leading to Mr Sayers’ dismissal were the result of an ongoing failure by CUB to manage inappropriate behaviour in the workplace by Mr Mansilla; and



• The dismissal was harsh in the context of Mr Sayers’ unblemished work history and commitment and dedication to CUB across fifteen years of employment.

Did Mr Sayers make a racial slur against Mr Mansilla?

[56] Having completed its investigation, CUB found, on the balance of probabilities and on consistent evidence from witness statements, that it was substantiated that Mr Sayers called Mr Mansilla a ‘dirty gringo cunt’ and advised Mr Sayers of this finding. 27 Mr Sayers did not admit this allegation at the time, stating he could not remember all of what was said.28

[57] It was nonetheless submitted on his behalf at that time that there was no proper basis for the allegation that Mr Sayers had racially abused Mr Mansilla because the term ‘gringo’ has no racial connotation and no derogatory connotation, simply being a non-derogatory term used by Spanish speaking people to refer to white people who are not Hispanic or Latino. 29

[58] Mr Sayers did not admit the allegation in his witness statement either, stating that he did not recall using the words 30 and nor did he respond to the allegations made in the statements of Mr Mansilla,31 Mr Barmby32 or Mr Duthie,33 which remained unchallenged notwithstanding cross-examination.

[59] In his oral testimony, Mr Sayers repeated that he did not remember saying to Mr Mansilla that he was a ‘dirty gringo cunt’ 34 but offered the following as his understanding of the word ‘gringo’: “Gringo to me is - I own horses, and, yeah, we use that word all the time, Gringo, you know, about a white - a white horse, or - I've come back from America and I was using it over there.  I met a lot of people and they just said just call me Gringo, you know.  I mean to me it's just a slang word.”35 This was the first occasion on which he offered an explanation of what he meant when he used the word.

[60] In his final written submissions, Mr Sayers accepted that the weight of evidence is that he did say those words, that they were improper and that he should not have said them. 36

[61] Mr Sayers submitted that the words ‘dirty gringo cunt’ were not intended as a racial slur and nor do they make sense as a racial slur because its etymology establishes that ‘gringo’ is a disparaging term for a person who is not a native Spanish speaker or who is unable to develop a Spanish pronunciation and is commonly used by South Americans to disparage North Americans. It was submitted that whether this meaning or Mr Sayers’ meaning was employed, it made no sense as applied to Mr Mansilla because he is Peruvian and his first language is Spanish.

[62] Mr Sayers contended that CUB assumed and treated the term as a racial slur and three things emerged from the evidence:

• The CUB Employees who conducted the investigation did not know what the word ‘gringo’ meant;



• CUB did not understand the importance of understanding what Mr Sayers understood the term to mean; and



• CUB agreed that an employee has to be given a proper chance to explain their conduct.

[63] Ultimately, Mr Sayers submitted that the words ‘dirty gringo cunt’ were not a racial slur and while they formed part of the incident, they did not stand out from it. 37

[64] Mr Mansilla’s evidence was that he felt ‘gringo’ was meant as a racial slur 38 and in reply, CUB submitted:39

• It was correctly pointed out by Mr Sayers that ‘gringo’ is commonly used by South Americans as a disparaging term for North Americans;



• CUB’s investigating officer did not have a precise understanding of the term , other than regarding it as a “racial sledge” and “used to put someone down of another race” 40;

It must be accepted that the use of the term ‘dirty gringo cunt’ by Mr Sayers towards Mr Mansilla was one of abuse and disparagement irrespective of it being a racial slur;

Even if it was perhaps strictly used incorrectly, there is no apparent reason why the word ‘gringo’ would have been introduced into the abusive phrase ‘dirty gringo cunt’ other than Mr Sayers’ knowledge of the South American racial background of Mr Mansilla; and

Regardless, the conduct of Mr Sayers was racially abusive.

[65] I have not found Mr Sayers’ explanation or submissions persuasive. In circumstances where he knew Mr Mansilla was Peruvian and he was reacting angrily and aggressively to circumstances the responsibility for which he lay at the feet of Mr Mansilla, I am not persuaded that he decided to refer to him as a white horse or was reflecting on his recent trip to America. I am even less convinced that considerations of etymology, such as those outlined in his written submissions, would have entered his mind. Mr Sayers chose to use a term with racial connotations and he used it in conjunction with the words ‘dirty’ and ‘cunt.’ He was furious with Mr Mansilla and he let fly in what he describes as a “minute of madness.” 41 Mr Sayers’ choice of words persuades me that his intention was to insult, intimidate and express his contempt for Mr Mansilla by using a term associated with racial and/or ethnic origins and adding further derogatory words to it. The complete phrase he used cannot be justified on any level. I find that it was offensive, degrading and a racial slur.

[66] I do not regard the submission that the intention of Mr Sayers is essential to determining the degree to which he is culpable as reflective of contemporary attitudes to what constitutes acceptable behaviour. Community condemnation regarding abusive terms associated with race, colour, nationality or ethnicity is stronger now than it has been in the past and rightly so. It is no longer acceptable to defend a slur that is racially based with the explanation “but I meant no offence” or “my comment was misinterpreted”.

[67] I agree with this proposition Senior Deputy President Lacy outlined in Rothfield v Australian Bureau of Statistics:

“Employees reasonably can be expected to work harmoniously with one another and have regard to the sensitivities of other people within the workplace. This, it seems to me, is a corollary of an employer’s duty to provide a safe and healthy work environment free of hostility and harassment.” 42

[68] I also note that in Ashworth v Shire of Wiluna, 43 the Commission upheld the validity of the dismissal of an employee who had referred to a colleague as a “nigger fucking piece of shit” and it was unmoved by the employee’s evidence that he did not think he had made a racial slur by explaining “I mean, like as far as a racial slur goes, he’s white.”44

Did Mr Sayers make a threat of violence by using the words “I’ll fix your little red wagon”?

[69] CUB also found, having completed its investigation, it was substantiated on the balance of probabilities and the consistent evidence from witness statements that Mr Sayers made threats of violence to Mr Mansilla saying ‘[a]ny place, any time, you name it you are going down. Wait until tomorrow and I’ll fix your red wagon’ and advised Mr Sayers of this finding. 45

[70] Mr Sayers denied using the term ‘red wagon’ when asked to respond to the allegation when the initial investigation was completed and stated that in any event, this statement, viewed in its proper context, was not serious misconduct. 46

[71] In his witness statement, Mr Sayers said he did not recall saying these words but that he understood the phrase to refer to a child hauling a red wagon of other children’s things and that it meant that the maker of the statement was going to put a stop to the child taking other people’s things and using them, or taking credit for them. He also stated that this was the only context in which he would have used that phrase and he had never heard it used as a threat of violence. 47 He did not respond to the allegations made in the statements of Mr Mansilla,48 Mr Barmby49 or Mr Duthie,50 which remained unchallenged by cross-examination.

[72] In his oral testimony, Mr Sayers stated that he could not recall saying “I’ll fix your red wagon” but offered another explanation of its meaning as follows:

“PN596

You also say you can't recall that?---No.  The terms "a red wagon" I don't know how old you are, but as growing up it was always - "red wagon" to me always meant that you're in a soft spot, you've got it pretty easy.  It was just a school term of, "I'll fix your little red wagon".  That would mean I'd fix your good times because you've got it pretty easy and you're neglecting it.

PN 597

You don't recall it, but Mr Barmby and Mr Duthie you will see both say you said something like that.  So everybody that was there bar you say you did say something like, "I'll fix your red wagon"?---As - as I said I don't recall saying it, because it was a moment of madness, you know.” 51

[73] Mr Mansilla’s evidence was that Mr Sayers yelled the words “I’ll fix your red wagon.” He said that he perceived this as a threat to hurt him and that he felt threatened by Mr Sayers. 52 This evidence was not challenged in cross-examination. Mr Duthie said that Mr Sayers told Mr Mansilla “wait until tomorrow, I’ll fix your red wagon” and Mr Barmby gave evidence that Mr Sayers said “I’ll fix your little red wagon mate.”

[74] In the broader context, Mr Mansilla’s evidence was that Mr Sayers was out of control and he thought Mr Sayers was going to hit him. 53 Mr Barmby’s evidence was that he had not previously witnessed as serious a work incident.54 He acknowledged he could not have known what Mr Sayers intended but his observation was that Mr Sayers’ behaviour was of a threatening nature.55

[75] In his final written submissions, Mr Sayers maintained:

• He did not make a threat of violence by using the words “I’ll fix your little red wagon”; 56 and

He did not, by saying these words, threaten Mr Mansilla with violence. 57

[76] CUB submitted that the three word phrase ‘little red wagon’ should not be extracted and looked at in isolation of the words used around it and the circumstances in which they were said. It was submitted by CUB that put in the context of the events on 13 October 2015 and the full text of what was said, the phrase can and must only be viewed as a threat. In this regard, CUB submitted the immediate operative context was Mr Sayers saying “I’ll fix your red wagon” within the broader context of Mr Barmby’s evidence that Mr Sayers said “Nobody likes you, nobody liked you at the warehouse, you dirty gringo cunt, I’ll fix your little red wagon mate.” 58

[77] Having initially denied using the phrase "I’ll fix your little red wagon,” Mr Sayers then offered two versions of what he understood it meant in his later evidence but they were not particularly similar. Of the other witnesses, no one offered a firm view as to what it meant. Given the context and nature of the exchange between Mr Sayers and Mr Mansilla and the words that passed between them, I am not persuaded that in using these words Mr Sayers was not threatening Mr Mansilla with violence.

[78] Under cross examination, Mr Sayers accepted the phrases “You’re a dirty gringo cunt” and “I’ll fix your red wagon” put together constituted threatening language and that having someone in the workplace speaking to him in that way would have been a concern for Mr Mansilla. 59

[79] I note that in Hennigan v Xmplar Building Solutions Pty Ltd T/A Xmplar Building Solutions, the Commission formed the view that from an objective assessment, most people would associate the term “I’ll fix you up” as either someone indicating they were going to repay money or alternatively that they meant it as a threat and this supported a finding in the context of that case that it was reasonable for the employer to term it as a threat warranting summary dismissal. 60

[80] In the context of this case, I find on the balance of probabilities Mr Sayers did say words to the effect of "I’ll fix your little red wagon” and that it is reasonable to characterise those words as a threat.

Offensive language and Verbal Abuse

[81] It is not disputed that having found the missing delivery docket, Mr Sayers approached Mr Barmby and then Mr Mansilla. The particulars of the ensuing offensive language and verbal abuse alleged against Mr Sayers were as follows:

• He used offensive language towards Mr Barmby by saying “where are the fucking tickets? Why didn’t you bring the fucking tickets over?”; and



• He verbally abused Mr Mansilla, by saying “Where are the fucking tickets? Why didn’t bring the fucking tickets over? Fuck you mate. Fucking cunt. You are nothing but a lazy cunt. Nobody likes you anyway you lazy cunt. Nobody liked you in the warehouse.”

[82] As far as his behaviour towards Mr Barmby is concerned, Mr Sayers has admitted his conduct was inappropriate and did not dispute the particulars of the language used.

[83] When Mr Sayers approached him, Mr Barmby told Mr Sayers that he was on the phone to Ms Gault and that she could hear him. When Mr Barmby was asked how loud Mr Sayers’ voice was, he answered ‘not really loud’ and described it as a little bit raised. 61 Ms Gault, who was not required for cross examination, gave evidence that she could hear Mr Sayers yelling the words ‘fucking’, ‘fuck’ and ‘delivery dockets.’

[84] Ms Gault also stated the yelling continued and the volume did not change after Mr Barmby said to Mr Sayers, “[s]hut up. I’m on the phone to Ange.’ Both Mr Barmby and Ms Gault gave evidence that the yelling continued after that, with the words ‘fucking’ and ‘fuck’ being used frequently and that Ms Gault ultimately told Mr Barmby to hang up and see what he could do about it. 62

[85] It is agreed that Mr Sayers left Mr Barmby and immediately sought out Mr Mansilla. It does not appear that the range of expletives and statements Mr Sayers is alleged to have then directed at Mr Mansilla is disputed either. Mr Sayers admits he lost his temper, used aggressive language and was yelling. 63

[86] There are differing versions as to how Mr Sayers and Mr Mansilla were positioned at the time, but what is clear is that it was Mr Sayers who initiated their exchange. In his witness statement, Mr Sayers said that he walked across to Mr Mansilla and stopped about a metre away. 64 The distance was revised to become one metre and a half during cross examination.65 Mr Barmby also gave evidence saying that when he observed Mr Sayers and Mr Mansilla, they were roughly one and a half metres apart.66 Mr Mansilla’s evidence was that Mr Sayers was right in his face, while Mr Duthie’s evidence was that Mr Sayers’ face was very close to Mr Mansilla’s face.67 Mr Mansilla could not be shifted on this during cross examination68 and Mr Duthie was not cross examined on this part of his evidence.

[87] Each of Mr Mansilla, Mr Duthie and Mr Barmby gave evidence indicating that Mr Mansilla told Mr Sayers to “fuck off” in response to abuse from Mr Sayers, including the threat that he would take Mr Mansilla on anywhere or any place. 69 For his part, Mr Barmby described Mr Mansilla as having acted ‘defensively.’70 Mr Sayers gave evidence, confirmed by Mr Mansilla in cross examination, that Mr Mansilla said to him that he was ‘not fucking scared’ of him.

[88] Mr Sayers submitted that his use of the words “any time, any place” should be regarded as ‘bravado’ because they were said in response to Mr Mansilla saying “I’m not fucking scared of you”. In response, CUB submitted that none of the abusive behaviour of Mr Sayers should be accepted or dismissed as simply ‘bravado.’ It was language aggressively and personally directed at Mr Mansilla which could not be justified or explained away.

[89] I regard this behaviour directed towards Mr Barmby and Mr Mansilla by Mr Sayers as highly inappropriate and hold the view such sustained foul-mouthed tirades have no place in the workplace. Mr Sayers lost control at work and instead of pursuing other avenues or taking a number of opportunities to arrest his behaviour, he amplified it negatively and recklessly. He could have waited until Mr Barmby was off the phone or he could have taken up the matter with Mr Lee or his site delegate. He simply decided Mr Mansilla was responsible and initiated contact aggressively. He continued his behaviour despite Mr Barmby’s suggestions and attempts to calm things down.

[90] Mr Sayers submitted that there is no evidence on which the Tribunal could safely conclude that he approached Mr Mansilla and stood in close proximity to him. 71 I do not agree.

[91] Firstly, Mr Mansilla was neither the initiator nor the aggressor and the evidence is clear that Mr Sayers approached him. Secondly, I regard a distance of between only one and one and a half metres as close proximity and that it is amplified when accompanied by aggression and yelling. To suggest there is no evidence on which the Tribunal could safely conclude that Mr Sayers approached Mr Mansilla and stood in close proximity to him is in direct conflict with the evidence of Mr Sayers himself. 72

Post-Incident event on 13 October 2015

[92] The final allegation of misconduct CUB relied on, Mr Mansilla’s allegation that Mr Sayers threatened and intimidated him as they were leaving work on the day of the incident by coming very close to him and saying “I do whatever I fucking want in this company,” was contested. Mr Sayers denies talking to Mr Mansilla on the way out and said he had no contact with Mr Mansilla after their earlier exchange. Mr Barmby’s evidence was that Mr Sayers was walking out of work in front of him and Mr Mansilla but he did not give evidence of a conversation taking place.

[93] On 14 October 2015, Mr Mansilla made hand written notes of what had occurred on 13 October 2015 between himself and Mr Sayers. The notes were in four parts. They do not include a description of Mr Sayers approaching Mr Mansilla on the way out of work on 13 October 2015, but there is a record made on 14 October 2015 of Mr Sayers saying to Mr Mansilla “I do here whatever I fucking want” amongst the range of statements Mr Mansilla recorded Mr Sayers as having made to him. 73

[94] While I am persuaded by Mr Mansilla’s contemporaneous note that Mr Sayers made the comment “I do whatever I fucking want in this company” at some stage on 13 October 2015, I am not persuaded the evidence establishes on the balance of probabilities that the comment was made when Mr Sayers and Mr Mansilla were leaving work that day.

14 October 2015 and beyond

[95] Both Mr Sayers and Mr Mansilla attended work on the following day, 14 October 2015. Mr Mansilla was uncomfortable in the presence of Mr Sayers and wanted to avoid contact with him. He said that Mr Sayers approached him, called out “[c]ome over here. I want to talk to you” and gestured with his finger for Mr Mansilla to come towards him. Mr Sayers confirmed he called out to Mr Mansilla, asked him to come back and said he wanted to have a talk to him. 74 Ultimately, it was not a useful exchange.

[96] Mr Mansilla says that he began to feel worried and unwell and went to the site’s Health Centre. The nurse on duty subsequently contacted Mr Lee and he came to see Mr Mansilla. Mr Lee described Mr Mansilla as being upset and emotional. Following a discussion, Mr Mansilla made his notes of what had occurred between himself and Mr Sayers and then left work for the day. He did not attend work on 15 October 2015.

[97] Nothing of significance occurred between Mr Mansilla and Mr Sayers during the next two working days that followed. It appeared they had minimal, if any contact. On Tuesday 20 October 2015, Mr Sayers was interviewed as part of the CUB investigation into the events and left site immediately following it.

Context for the behaviour of Mr Sayers

[98] The initial response of Mr Sayers following CUB’s investigation was to admit some but not all of the conduct alleged against him. 75

[99] Mr Sayers expressed remorse for the conduct admitted, agreed that he should not have acted in the way he did and accepted some measure of discipline was appropriate. The points Mr Sayers made in response were firstly, that he showed honesty, integrity and a willingness to accept responsibility for his conduct by making appropriate admissions. Secondly, he submitted that CUB had not considered the incident on 13 October 2015 in its proper context and thirdly, he submitted that he had been provoked and that both he and Mr Mansilla contributed to the incident. 76 In this latter respect, he suggested that Mr Mansilla was the provocateur.

[100] As early as his written response to the allegations CUB made during the investigation that followed the events on 13 October 2015, Mr Sayers blamed Mr Mansilla for the confrontation by:

• placing Mr Mansilla’s work performance in issue;



• alleging that it was Mr Mansilla who was the provocateur and the initiator of the argument in response to a proper and reasonable request by him; and



• claiming that he had responded to verbal abuse and offensive language used by Mr Mansilla. 77

[101] In summary, Mr Sayers’ position was that seen in its proper context, the events leading to Mr Sayers’ dismissal were the result of an ongoing failure by CUB to manage inappropriate behaviour in the workplace by Mr Mansilla.

[102] The crux of the problem as far as Mr Sayers was concerned was that Mr Mansilla did not bring delivery dockets to him. While there was evidence that Mr Mansilla would bring the delivery dockets to another worker, Mr Pamich, Mr Mansilla did not go out of his way to bring the delivery dockets to Mr Sayers, only doing so on one occasion.

[103] Mr Sayers submitted that the collection of all delivery dockets from the B1 area of the warehouse area of the Abbotsford brewery site for entry onto the SAP system was a critical area of cooperation between the Supply and Carton stores and that all Supply store employees except Mr Mansilla performed the task of dropping the Carton store dockets to the Carton store employees without difficulty or complaint.

[104] CUB submitted that Mr Sayers overstated this issue and described the position as follows:

• It is not a prescribed task of Supply store employees to collect delivery dockets for the Carton store but rather a practice that has developed and which happens most, but not all of the time;



• The practice includes that once obtained from the B1 area, the delivery dockets are either taken directly to employees at the Carton store or placed in a tray at the Supply store office;



• It is not always the case that employees other than Mr Mansilla will always personally deliver the dockets to the Carton store and nor is it a prescribed requirement of an employee’s role;



• There is no prescription or roster of which Supply store employees will collect the dockets on any given day and this is worked out on any given day, depending on work requirements.



• Personal delivery may not occur on a given day for a number of reasons which may include when Supply store employees are busy or where the Carton store is locked.

[105] Mr Duthie’s evidence was that Mr Mansilla was not the only worker who did not bring the delivery dockets over. He said they would bring the delivery dockets over if they had time and this was sometimes, but not all the time. As to his own practice, Mr Duthie said that whether he would bring the delivery dockets back to the Supply store only or drop them into the Carton store depended on how busy he was at the time. If he was busy, he would leave them in the tray in the Supply store but if he had time, he would take them over. He estimated he would drop the delivery dockets over to the Carton store between 50% and 75% of the time.

[106] Mr Barmby’s evidence confirmed that the Supply store workers did not have access to the Carton store area if it was locked. He said he would take the delivery dockets over to the Carton store if the Carton store workers were there and if not, he would place them in the tray in the Supply store, perhaps taking them over later when he knew they are back.

[107] Mr Sayers submits that Mr Mansilla could have delivered the delivery docket. CUB submits that by placing it in the tray, Mr Mansilla fulfilled the required task.

[108] CUB submits that notwithstanding the importance Mr Sayers claimed to have placed on finding the delivery docket on 13 October 2015, he did not conduct a thorough search for the delivery docket and went about both his normal duties plus other tasks of assistance to the Supply store. CUB further submits that Mr Sayers did not stop and directly discuss it with Mr Barmby or Mr Mansilla and nor did he seek their assistance in locating it, even when he observed them locking up the Supply store in order to go to the function.

[109] While Mr Sayers’ evidence was that he was ‘stressed out’ about the missing delivery docket and was under pressure from Mr Tollick, CUB submits that he overstated the significance of the missing delivery docket, citing the evidence given by Mr Lee that a lost delivery docket would not physically stop production, although it might create an error in the inventory system that would have to be resolved, ideally during the same shift. 78

[110] Based on the evidence regarding how Mr Sayers approached things between 10.00am and 1.00pm on 13 October 2015 prior to locating it and Mr Lee’s evidence as to the consequences of it going missing, I am not persuaded the missing delivery docket was an issue of such importance to justify Mr Sayers’ subsequent reaction and behaviour.

[111] There was no evidence capable of supporting a finding that Mr Mansilla rolled the missing delivery docket up and left it on his desk, thereby provoking Mr Sayers and I reject this can be inferred and the submission to this effect. It is established that Mr Mansilla did not deliver dockets to Mr Sayers and his practice was to leave them in the tray. There was no evidence of him ever tampering with or withholding delivery and nor was there evidence suggesting he was responsible for previous instances of delivery dockets going missing at the Abbotsford site.

[112] In submitting that the events of 13 October 2015 that led to his dismissal were the result of an ongoing failure by CUB to manage inappropriate behaviour in the workplace by Mr Mansilla, Mr Sayers said that he raised the difficulties he was experiencing with Mr Mansilla with both Mr Brown and Mr Lee.

[113] Mr Brown was a CUB Team Leader and the manager of Mr Sayers, although he was frequently absent from work due to illness during the twelve months preceding 13 October 2015. Mr Brown resigned his employment with CUB on grounds of ill health and neither party took issue with there being no evidence from him during the proceeding.

[114] There was however evidence of Mr Sayers having raised issues concerning another CUB employee, Mr Neskovski, with Mr Brown. Mr Sayers and Mr Lee confirmed that after Mr Sayers had raised performance issues of Mr Neskovki with Mr Brown, they were escalated to Mr Lee who then placed Mr Neskovski on a performance improvement plan. 79

[115] If Mr Sayers had raised with Mr Brown the issues he was having with Mr Mansilla, they were not escalated by Mr Brown to Mr Lee. 80 Mr Lee’s evidence in this regard was not challenged and he also said that Mr Brown’s practice had been to escalate issues immediately.81

[116] Ms Vickers said that Mr Brown did not pass on any complaints Mr Sayers had about Mr Mansilla to her. Her evidence was that Mr Sayers mentioned to her once that Mr Mansilla was causing him frustration because he was not helping out in the same way as others in the Supply store did. However, Mr Sayers did not lay a complaint and nor did he ask Ms Vickers to do anything about it. This evidence of Ms Vickers was not addressed in statements in reply or cross-examination.

[117] Mr Sayers was a CFMEU delegate and then senior site delegate for nearly a decade. He enjoyed a very good working relationship with site management, including Mr Woodburn, confirming that they had a very positive and productive working relationship. Mr Woodburn also gave evidence that Mr Sayers was very capable and when he did not feel as though he was being heard, he would escalate matters, such that Mr Woodburn would have been surprised that Mr Sayers had not done this if it had been the case that his complaints to Mr Brown were going unanswered.

[118] The evidence of Mr Sayers confirmed that he had adopted a practice whereby if he was unsure about how to deal with an issue at work, he would ring a CFMEU official for advice, particularly if it was a major issue. 82 He also gave the following evidence:

“PN235

Look, we'll come back to that in a moment, but as a delegate you did know the processes that were required to be followed at the site, either through enterprise agreements or other procedures, that if you had an issue you knew how to raise them and if needs be elevate them further along the chain to get a result, correct?---Yes.

PN236

And in your time as a delegate over that almost decade of that, you had pursued a good number of issues on behalf of your members through those various steps, where necessary elevating it to the next step to ensure a final result was reached, correct?---That's right, a fair result, yes.

PN237

And sometimes that might be a good result and sometimes not, but you would progress it through those steps to an outcome?---I think nine times out of ten it'd come out to a fair result.

PN238

And indeed some of those issues may have even progressed as far as this Commission, correct?---Yes, I have been into the Commission, yes.

PN239

So if there was a matter in your workplace, you knew how to deal with it; you wouldn't have just let it sit there and fester away, you would pursue it through the various steps until an outcome could be reached, correct?---That's correct.

PN240

As a result of your long-serving period as a delegate, you knew the various company staff people of different levels that things got elevated to in order to keep things moving to get those results?---Yes.

PN241

And sometimes the issues that you would have to raise might even relate to some of your own members and that they weren't behaving or performing as they should, correct?---Yes, I mentioned that.

PN242

So for example, in the second - well let's say somewhere around about April or May of last year, you raised with your then supervisor, Mr Brown, that a Mr Neskovski was not performing his work as he should be, correct?---Yes, that's correct.

PN243

And Mr Neskovski was a CFMEU member?---That's correct.

PN244

And Mr Brown, as I've said, at that time was your supervisor?---Yes.

PN245

You'd be aware that Mr Brown took that issue up with Mr Lee, who was then the logistics manager?---Yes, that's correct.

PN246

And Mr Neskovski, as a result, was placed on a performance improvement plan?---That's correct.”

[119] Given the course of action adopted in relation to Mr Neskovski, it seems to me to be inconceivable that Mr Sayers would not have been encouraged to raise or escalate his issues with Mr Mansilla, knowing the course of action that might be adopted by CUB in response. Even if I was to accept that Mr Brown, for his own reasons, did not consider the complaints of Mr Sayers worthy of escalation, Mr Sayers had extensive experience in how to escalate his issues with the assistance of the CFMEU and had an established line of communication with Mr Woodburn. There was no evidence of Mr Sayers having raised his issues regarding Mr Mansilla with Mr Lee and Mr Sayers sought to explain why he did not escalate matters above Mr Brown by saying that he did not want to get Mr Brown in trouble. I do not find this explanation convincing. Having heard and considered the evidence, I am not persuaded there was an ongoing failure by CUB to manage inappropriate behaviour in the workplace by Mr Mansilla that would justify Mr Sayers’ behaviour on 13 October 2015.

Was the dismissal of Mr Sayers disproportionate to the conduct engaged in?

[120] Mr Sayers submitted it is appropriate for me to adopt the approach of the Full Bench of the Australian Industrial Relations Commission in Tenix Defence Systems Pty Ltd v Fearnley 83 even though the case before me does not involve fighting or brawling. In that case, the Full Bench, having reviewed a range of authorities, concluded:

“[25] We think these authorities support the view that in determining whether there is a valid a reason for a termination of employment arising from a fight in the workplace the Commission should have regard to all of the circumstances in which the fight occurred including, but not limited to:

- whether the terminated employee was provoked and whether he or she was acting in self-defence;

- the employer's need to establish and retain discipline amongst its employees; and

- the service and work record of the employee concerned.”

[121] I accept these well settled principles and accept they provide guidance. I agree that I should have regard to all of the circumstances in which the incident on 13 October 2015 occurred and there is a need for employers to establish and retain discipline amongst its employees. I should also and will have regard to the service and work record of Mr Sayers.

[122] However, I am not satisfied the evidence establishes that the scenario before me involved a fight between Mr Sayers and Mr Mansilla and nor does it establish that Mr Sayers was acting in self-defence.

[123] Mr Sayers aggressively sought out Mr Mansilla and he initiated the confrontation. I am satisfied the evidence establishes Mr Sayers made a racial slur and a threat of violence against Mr Mansilla, having earlier unleashed a tirade of verbal abuse and offensive language as well. Mr Mansilla felt threatened and this motivated the action he took in response. It involved swearing and offensive language and was the subject of sanction.

[124] Having regard to all of the circumstances in which the exchange between Mr Sayers and Mr Mansilla took place requires looking at all things that were said and done, not just phrases and words viewed in isolation.

[125] As outlined above, I am not persuaded that the actions of Mr Sayers can be justified on grounds that he was provoked by Mr Mansilla nor can it be justified on grounds that CUB had failed to manage inappropriate behaviour of Mr Mansilla.

[126] CUB was entitled to set standards and having outlined them to its employees, insist upon adherence. As refered to in paragraph [30] above, it had terminated the employment of other employees for verbal abuse and/or the threat of violence. I find that the offensive language and verbal abuse Mr Sayers meted out to Mr Barmby and Mr Mansilla was highly inappropriate, his calling Mr Mansilla a “dirty gringo cunt” an offensive, degrading and racial slur and his saying to Mr Mansilla, “I’ll fix your red wagon” was, in the context of the exchange and all the language and body language used, a threat of violence. This behaviour of Mr Sayers on 13 October 2015 constituted a breach of CUB Policy of such seriousness as to constitute a valid reason for the termination of his employment.

2011 Incident

[127] Although it occurred in 2011, CUB submitted the incident I have referred to in paragraphs [37] and [38] above can be relied upon to justify the dismissal of Mr Sayers on the basis that it is serious misconduct of which it was previously unaware. I do not consider it necessary to make a finding on this matter as I am satisfied the behaviour of Mr Sayers on 13 October 2015 of itself constitutes a valid reason for his termination.

Notification of the valid reason - s.387(b)

[128] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 84 in explicit terms85 and in plain and clear terms.86 In Crozier v Palazzo Corporation Pty Ltd87 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[129] Mr Sayers was notified of the reasons CUB relied on for his dismissal in two letters and at a meeting. Mr Sayers received a letter dated 19 October 2015. 88 It outlined the allegations and advised that an investigation into allegations of misconduct was going to be undertaken and a meeting had been arranged for 20 October 2015 for him to respond to the allegations. On 20 October 2015, CUB interviewed Mr Sayers about the events of 13 October 2015. A further letter from CUB dated 27 October 201589 outlined a number of findings and Mr Sayers was invited to provide a response prior to a final decision being made regarding his employment.

[130] I find Mr Sayers was notified of the reason for the dismissal prior to the decision to terminate his employment.

Opportunity to respond - s.387(c)

[131] Ordinarily, an employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 90

[132] As discussed in paragraph [128], Mr Sayers was invited to a meeting on 20 October 2015 to discuss the events of 13 October 2015. By letter dated 27 October 2015, Mr Sayers was given an opportunity to provide any additional information he wished CUB to consider. In response, a letter dated 4 November 2015 was sent by the CFMEU to CUB on Mr Sayers’ behalf, 91 which made further submissions on CUB’s findings and provided general comments.

[133] I am satisfied Mr Sayers was given several opportunities to respond to the reason for the dismissal.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[134] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[135] On 20 October 2015, Mr Sayers attended a meeting with Ms Catherine Vickers and Mr Ed Lee of CUB, along with Mr Joe Myles (an organiser with the CFMEU). 92 I find that the issue of an unreasonable refusal does not arise and is not a relevant consideration.

Warnings regarding unsatisfactory performance - s.387(e)

[136] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 93

[137] In this case, Mr Sayers’ dismissal was on the basis of misconduct, not unsatisfactory performance, so the issue of prior warnings does not arise.

Impact of the size of the Respondent on procedures followed - s.387(f)

[138] CUB is a large company with approximately 280 employees and a dedicated human resources function.

[139] I find that the size of CUB’s enterprise did not impact on the procedures followed in effecting the dismissal.

[140] This is a neutral consideration in determining whether the termination of Mr Sayers’ employment was harsh, unjust or unreasonable.

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[141] CUB has dedicated human resources personnel.

[142] This is a neutral consideration in determining whether the termination of Mr Sayers’ employment was harsh, unjust or unreasonable.

Other relevant matters - s.387(h)

[143] Section 387(h) of the FW Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[144] Mr Sayers is 57 years old and at the time of his termination had approximately 15 years’ service. He was well regarded by site management, recognised as a good worker and had an unblemished employment record. Mr Sayers still largely blames Mr Mansilla for his actions but has also expressed remorse for his behaviour. I have had regard to these factors.

[145] However, the behaviour of Mr Sayers on 13 October 2015 was a very serious breach of CUB Policy and highly destructive to the working environment in the Carton and Supply stores. There is no place for behaviour in the workplace that combines threats of violence, racial slurs of such an offensive and degrading nature and such inappropriate verbal abuse and offensive language.

[146] I am fortified in my conclusion having also had regard to the strong stance the Commission has previously taken in cases involving racial abuse.

[147] In MacQuarrie v Alcoa of Australia Limited T/A Alcoa World Alumina Australia, 94 the Applicant’s assertion of the context of the remarks he made and his lack of malicious intent or intent to offend, together with his contrition, thirty years’ service and the significant impact of his termination did not render his termination for deliberate, overt and highly offensive racist comments harsh, unjust or unreasonable.

[148] Similarly, the Applicant’s fifteen years of service, unblemished record, remorse and financial and personal circumstances did not render his termination for calling a colleague a “fucking nigger” harsh, unjust or unreasonable in Seaman v BAE Systems Australia Logistics Pty Limited. 95 The Applicant’s use of that term was considered to be innately offensive to any person on the receiving end and the fact that it was directed to a colleague of Italian/Maltese extraction was regarded as irrelevant.96

Conclusion

[149] Having considered each of the matters specified in s.387 of the FW Act, I am satisfied the dismissal of Mr Sayers was not harsh, unjust or unreasonable. Accordingly, I find that Mr Sayers’ dismissal was not unfair. The Application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Ms S Kelly of Counsel for the Applicant.

Mr K Brotherson for the Respondent.

Hearing details:

2016.

Melbourne:

March 1-2.

Final written submissions:

Applicant: 18 March 2016

Respondent: 31 March 2016

 1   Exhibit R8 – Attachment CLV8.

 2   Transcript PN 2348-2352.

 3   Exhibit R10 – Attachments GW2, GW3 and GW4.

 4   Exhibit R10 – Attachment GW5.

 5 Exhibit R8 – paragraph [26].

 6 Applicant’s Final Written Submissions – Paragraph [5].

 7 Exhibit R9 - paragraph [73].

 8   Transcript PN 2576.

 9   Transcript PN 2575.

 10 Transcript PN 1739 and Exhibit R6 – paragraph [12].

 11 Exhibit R6 – paragraph [15].

 12   Transcript PN 354.

 13   Transcript PN1326-1336.

 14   Transcript PN 400-401 and 973-975.

 15   Transcript PN 426.

 16   Transcript PN 488 and 531.

 17 [1995] HCA 24; (1995) 185 CLR 410 at 465.

 18   Sayer v Melsteel[2011] FWAFB 7498.

 19   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

 20   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

 21   Ibid.

 22   [2014] FWC 6539 at [37].

 23   Briginshaw v Briginshaw (1938) 60 CLR 336, per Dixon J.

 24   Budd v Dampier Salt Ltd 166 IR 407; [2007] AIRCFB 797 at [14].

 25   Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, per Mason CJ, Brennan, Deane and Gaudron JJ, at [2].

 26   Edwards v Giudice and Others [1999] FCA 1836, [6]-[7], per Moore J.

 27   Exhibit A1 – Attachment MS1.

 28   Exhibit A1 – Attachment MS2.

 29   Ibid.

 30 Exhibit A1 – paragraph [113].

 31 Exhibit R6 – paragraph [41].

 32 Exhibit R4 – paragraph [29].

 33 Exhibit R7 – paragraph [19].

 34   Transcript PN 586.

 35   Transcript PN 584.

 36   Applicant’s Final Written Submissions at Paragraphs [81], [82] and [86].

 37 Applicant’s Final Written Submissions at Paragraphs [88].

 38   Exhibit R6 – paragraphs [43] and [94].

 39   Respondent’s Final Written Submissions at Paragraphs [22] - [25].

 40   Transcript PN 2381.

 41 Exhibit A1 – paragraph [87].

 42   PR927240 at [87].

 43   PR951247.

 44 Ibid at [33].

 45   Exhibit A1 – Attachment MS1.

 46   Exhibit A1 – Attachment MS2.

 47 Exhibit A1 – paragraph [114].

 48 Exhibit R6 – paragraph [41].

 49 Exhibit R4 – paragraph [29].

 50 Exhibit R7 – paragraph [19].

 51   Transcript PN 596-597.

 52   Exhibit R6 – paragraphs [44] and [95].

 53 Exhibit R6 – paragraph [40].

 54 Exhibit R4 – paragraph [38].

 55   Transcript PN 1463.

 56   Applicant’s Final Written Submissions – paragraph [6(a)(ii)].

 57 Applicant’s Final Written Submissions – paragraph [90].

 58 Exhibit R4 – paragraph [29].

 59   Transcript PN 598-599.

 60   Hennigan v Xmplar Building Solutions Pty Ltd T/A Xmplar Building Solutions [2016] FWC 2938 at [32].

 61   Transcript PN 1363 and 1369.

 62   Exhibit R5 – paragraphs [12]-[18], Transcript PN 1384-1389 and Exhibit R4 – paragraphs [18]-[19].

 63   Transcript PN 568, 570 and 571.

 64   Exhibit A1- paragraph 81.

 65   Transcript PN 614.

 66   Transcript PN 1402.

 67 Exhibit R7 – paragraph [18].

 68   Transcript PN 1963-1974.

 69   Exhibit R6 – paragraphs [38]-[40], Exhibit R7 – paragraph [20] and Exhibit R4 – paragraphs [21]-[25] and Transcript PN 1392-1397.

 70   Transcript PN 1410.

 71 Applicant’s Final Written Submissions – Paragraph [61].

 72   Exhibit A1 – paragraph 81.

 73   Exhibit R6 – Attachment GRM1.

 74 Exhibit A2 – paragraph [13].

 75   Exhibit A1 – Attachment MS2.

 76   Exhibit A1 – Attachment MS2.

 77   Exhibit A1 – Attachment MS2.

 78   Transcript PN 2550-2557.

 79   Transcript PN 242-247 and PN 2702.

 80   Exhibit R9 – paragraphs [18] and [19].

 81   Transcript PN 2598.

 82   Transcript PN 900.

 83   Tenix Defence Systems v Fearnley Print s6238

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

 85   Previsic v Australian Quarantine Inspection Services Print Q3730.

 86   Ibid.

 87 (2000) 98 IR 137 at 151.

 88   Exhibit R9 – Attachment EL5.

 89   Exhibit A1 – Attachment MS1.

 90 RMIT v Asher (2010) 194 IR 1, 14-15.

 91   Exhibit A1 – Attachment MS2.

 92 Exhibit A1 – paragraph [101], Exhibit R8 – paragraph [36].

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

 94   [2013] FWC 6813.

 95   [2011] FWA 7005.

 96 Ibid at [97].

Printed by authority of the Commonwealth Government Printer

<Price code G, PR580878>