Mark Summers v Snack Brands Australia Pty Ltd - [2011] FWA 960

[2011] FWA 960

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Summers
v
Snack Brands Australia Pty Ltd
(U2010/1517)

COMMISSIONER ROBERTS

SYDNEY, 15 APRIL 2011

Application for Unfair Dismissal remedy.

[1] This decision concerns an application lodged on 21 September 2010 by Mr Summers pursuant to s.394 of the Fair Work Act 2009 (“the Act”) in relation to the alleged unfair termination of his employment by Snack Brands Australia Pty Ltd (“Snack Brands” or “the Company”). The application was dealt with by a Fair Work Australia Conciliator on 12 October 2010 but the conciliation was unsuccessful.

[2] The Arbitration came before me for hearing in Sydney on 18 and 19 January 2011. Mr Summers was represented by Mr S Crawford of the Australian Workers’ Union (“AWU”) and Snack Brands was represented by Ms P Salewicz of Ai Group Legal.

[3] Mr Summers gave sworn evidence on his own behalf. Mr I Morley, AWU Delegate and Mr P Farrow, AWU Organiser, also gave evidence for the Applicant. The following witnesses (all employed at the Company’s Smithfield site) gave sworn evidence for the Respondent:

Mr T Flynn, Site Operations Manager.

Mr S Seeley, Team Leader- Corn and Cereal Teams.

Mr P Romanski, Manufacturing Manager.

Mr C Gazacimeon, National Safety Manager.

Ms V Theuon, Packing Co-ordinator.

Ms G Bartlet, Processing Technician.

Background

[4] Mr Summers was employed by Snack Brands at its Smithfield site from 12 October 1993 until 14 September 2010. On the latter date his employment was terminated by the Company on the grounds of serious and wilful misconduct relating to incidents involving him and Ms Bartlet on 30 August 2010. The last position held by Mr Summers prior to the termination of his employment was Level 4 Corn Processing Technician.

[5] Snack Brands alleges that on 30 August 2010, Mr Summers waved a box-cutter type knife in the vicinity of Ms Bartlet’s face during a verbal altercation. An example of the type of knife concerned was handed to me during proceedings and a photograph of same was entered into evidence 1. The Company also alleges that Mr Summers threatened harm to Ms Bartlet during an earlier altercation on the same day and was untruthful during a subsequent investigation. Mr Summers does not dispute that arguments occurred between him and Ms Bartlet but strenuously denies holding a knife during the second argument or threatening harm to Ms Bartlet.

Evidence

Mr Summers

[6] Mr Summers gave sworn evidence and submitted a witness statement 2. In his witness statement he said that until 2000, he had enjoyed a friendly work and social relationship with Ms Bartlet which had then deteriorated, primarily over work issues. A number of confrontations had occurred between them after 2000. He had “approached Snack Brands managers on at least five or six times about my difficulties working with [Ms Bartlet] since 2000.”

[7] On 30 August 2010 he became involved in an argument with Ms Bartlet in the testing laboratory over a work issue and had been offended by a statement she made to the effect that a fellow employee, Mr H Ly, was scared of him. He demanded that she withdraw her statement but she refused. He then said words to the effect: ‘that’s it. I’m going to tell [Mr Romanski] you’re finished.’ He reported the incident to Mr Romanski, asking that he “be transferred out of the corn processing section so I don’t have to work with [Ms Bartlet].”

[8] He returned to work and overheard Ms Bartlet saying to Mr Ly words to the effect: ‘don’t worry about [Mr Summers] he is carrying on like a baby.’ Another argument ensued.

[9] When the second argument started, he was holding a spatula 3 and a blender piece which he put on a table at the beginning of the argument. Mr Ly “was present throughout and was standing between [Ms Bartlet] and myself trying to calm the situation.” He then went to see Mr Romanski again and said words to the effect: ‘I can’t do it anymore, I need to transfer out of corn processing’. Mr Romanski said that he would speak with Ms Bartlet and Mr Summers then returned to his working area and started work again. He saw Ms Bartlet a couple of further times that afternoon and they worked together without any further incident. “After my shift ended I attended a medical appointment and was certified unfit for suitable duties for two weeks due to an abdominal injury.”

[10] Mr Summers went on to say, in summary:

On 31 August 2010, he attended Mr Romanski’s office with Mr Morley and asked to be transferred out of the corn processing section to avoid working with Ms Bartlet. He was asked by Mr Romanski what other roles he could perform and the conversation concluded with Mr Romanski saying words to the effect: ‘I will investigate transfer options and let you know by Friday this week’.

On the Friday, he was advised by Mr Romanski that the matter was not resolved but he hoped for a positive outcome. He then told Mr Summers that he was commencing annual leave that day and Mr H Llewellyn, Human Resources Manager, would take carriage of the matter.

“I met with [Mr Llewellyn] and [Mr Morley] on around 6 September 2010. [Mr Llewellyn] said words to the following effect: ‘I’m directing you to not tell [Ms Bartlet] what to do. That’s not your job. You need to go through the right channels and report to your Team Leader. [Mr Morley] and I then decided to leave the meeting because [Mr Llewellyn] was not listening to what we were saying and it was clear that nothing would be resolved. [Mr Llewellyn] did not mention anything about me threatening [Ms Bartlet] with a knife during this meeting.”

On 10 September 2010, following a meeting with Mr Flynn, Mr Llewellyn, Mr Seeley, Mr Farrow, Mr Morley and Ms M Nash (another AWU Delegate), he was advised of the allegation that he had waved a knife in Ms Bartlet’s face on 30 August and threatened her. He denied the allegation and stated that he “may have had a spatula and blender piece in my hand when I was arguing but I definitely did not threaten [Ms Bartlet] with these utensils.”

At the end of the 10 September meeting he was advised that he was being suspended from duty indefinitely.

On 14 September 2010, he attended a further meeting with the same persons who attended the 10 September meeting except for Ms Nash. “I was informed that a decision had been made to terminate my employment but I was being given one final opportunity to show cause as to why this should not occur. I reiterated that I had not threatened [Ms Bartlet] with a knife at any stage.” “I was handed a termination letter at the end of this meeting.”

[11] In his supporting oral evidence, Mr Summers was asked: “can you describe whether Snack Brands management were aware of the issues between yourself and Ms Bartlet?” and answered: “They've been aware from very early on. I've gone upstairs and had numerous meetings with them and the union. Nothing has ever been done. I've taken two lots of leave for it due to stress because nothing has ever get resolved. I get moved out of there and moved back in with nothing resolved, but they're fully aware of it but just choose to ignore it.” 4

[12] Mr Summers went on to say that, contrary to his witness statement, he had not worked with Ms Bartlet during the afternoon following the second argument. 5 In relation to the knife allegation, Mr Summers said: “I was doing a flavour check so I never had a knife. I never threatened her. I never waved anything in front of her face and the argument was like many other arguments we'd had before.”6

[13] Mr Summers then said: “I regret in the way that I behaved. I should have just walked away after she baited me but I didn't and I regret that, yes.” 7 He denied the evidence of Mr Seeley as to his behaviour during the meeting on 9 September and said that it was Mr Seeley who was behaving aggressively.8

[14] In cross-examination, Mr Summers:

Agreed that he had never been assessed in any area of the Smithfield site except for corn processing. 9

Agreed that he had approached Ms Bartlet on a number of occasions about her not being present to perform her duties. 10
Agreed that his usual course of action when he had a problem with Ms Bartlet was to speak with her directly instead of approaching a team leader. 11
Agreed that some of his confrontations with Ms Bartlet: “… have been caused by you approaching her when she has not been doing what you think is right at work.” 12
Went on to agree that some of those confrontations were his fault. 13
Agreed that he used the words ‘you’re finished’ to Ms Bartlet but denied speaking loudly to her or pointing at her. 14
Stated that he was annoyed rather than angry in his first altercation with Ms Bartlet. 15
Agreed that he probably did not ask to be transferred from the corn section during his meeting with Mr Romanski immediately following the first argument with Ms Bartlet. 16
Denied ‘waving an implement at her’. 17
Went on to deny holding a safety knife during his second argument with Ms Bartlet. 18
Said that Ms Bartlet’s version of the confrontations between them was a fabrication. 19
Agreed that Mr Ly acted as a peacemaker between himself and Ms Bartlet but said that Mr Ly did not touch him at all. 20
Said: “I've never threatened anyone. I'm passionate about my job. I do it to the nth degree. I put that extra effort in every day.” 21
Agreed that he was issued with a written warning in November 2003 for throwing a platform of steps across the corn processing floor. 22

Agreed that there had been a number of other occasions when he was warned about his ability to handle conflicts. 23

[15] In re-examination, Mr Summers said that the first occasion on which Snack Brands management spoke to him about Ms Bartlet’s allegation concerning the knife incident was over a week after the event. 24

[16] Since the termination of his employment, he has worked two shifts through a labour hire company and is currently a carer of his two young children. He went on to say that a petition supporting him has been signed by many employees of Snack Brands and that: “I have received substantial monetary support from many employees at Snack Brands since my employment was terminated which has certainly helped me and my family.”

[17] If reinstated, Mr Summers is prepared to transfer to another section of the Smithfield site.

Mr Morley

[18] Mr Morley gave sworn evidence and submitted a witness statement. 25 In his witness statement, Mr Morley said that he has worked at Snack Brands since 2002 and has been an AWU Delegate since October 2003. Mr Morley went on to say that he first became aware of arguments between Mr Summers and Ms Bartlet shortly after becoming a Delegate. He was further aware of an escalation of the issues between the Applicant and Ms Bartlet over the following years. He recalled at least six to eight occasions when he was asked to attend a meeting with either Mr Summers or Ms Bartlet and Snack Brands management to assist in resolving their ongoing issues.

[19] Mr Morley’s statement supported Mr Summers’ version of the meeting with Mr Romanski on 31 August.

[20] Mr Morley went on to say:

“I attended interviews with [Mr Summers], [Ms Bartlet] and [Mr Ly] after allegations that [Mr Summers] threatened [Ms Bartlet] with a knife were raised.”
“These interviews took place on around the 9th of September 2010.”

“I observed that the interviewer was a lot more understanding with [Ms Bartlet] and [Mr Ly] and was often leading them in what they should say. This was particularly the case when [Mr Ly] was being asked about whether [Mr Summers] had a knife in his hand.”

“Whereas when the interviewer was speaking to [Mr Summers] he was not very understanding and even slightly intimidating towards [Mr Summers].”

“It also seemed unfair to me that the allegation did not come out for around 10 days but then the investigation and interviews only lasted for one day.”

“I have worked with [Mr Summers] for the past 8 years and have never had any problems with him.”

“[Mr Summers] has always been a helpful employee and he has never become agitated or confrontational with me.”

“[Mr Summers] has a great deal of support amongst Snack Brands employees and employees have donated substantial sums of money to [Mr Summers] and his family since he was sacked.”

“I am aware that a petition was recently circulated amongst Snack Brands employees in support of [Mr Summers] and his case.”

“I signed this petition along with around 70 other employees.”

[21] In cross-examination, Mr Morley said that he believed that the evidence of Mr Seeley as to the behaviour of Mr Summers was fabricated. 26

[22] He went on to agree that Mr Ly had alleged that Mr Summers had held a knife during the argument with Ms Bartlet on 30 August 2010. 27 He further agreed that Mr Ly had said that “he got between the two of them during that argument and pushed them apart”.28 He then said that he has never had any confrontation with Mr Summers.29

Mr Farrow

[23] Mr Farrow gave sworn evidence and submitted a witness statement. 30 In his witness statement, Mr Farrow said that he had been responsible for servicing AWU members at Snack Brands for around four years.

[24] Mr Farrow’s statement supported the evidence of Mr Summers as to the meeting of 10 September 2010. His statement went on to say, in summary:

He spoke to Mr Ly prior to the meeting on 14 September 2010 as he was concerned whether Mr Ly fully understood the investigation process, given that English is his second language.

“I showed [Mr Ly] a spatula which is used in the testing laboratory at Snack Brands and a red handled hobby knife also used on site. I then asked [Mr Ly]: ‘what was [Mr Summers] holding when he was arguing with [Ms Bartlet]?’ [Mr Ly] pointed to the spatula and stated words to the effect of: ‘I think it was that.’”

Mr Ly stated that he did not have to hold Ms Bartlet and Mr Summers apart during their argument on 30 August 2010.

“I informed the company’s representatives that I had spoken with [Mr Ly] and I think he may have been confused when he spoke to the interviewer. I then requested that the company re-interview [Mr Ly] to make sure about what he witnessed”.

“The company’s representatives indicated that they did not wish to interview [Mr Ly] again and the meeting continued. [Mr Summers’] employment was terminated at the end of the meeting.”

“[Mr Summers] has a lot of support amongst Snack Brands employees and our members were very disappointed when his employment was terminated.”

“I am aware that [Mr Summers] has received a substantial amount of money from Snack Brands employees since he was dismissed and that a petition supporting [Mr Summers’] case was also circulated and signed by many employees.”

[25] In his supporting oral evidence, Mr Farrow said that he met with Mr Ly and “presented him with the knife that has been passed up to the commission as evidence and I also presented him with a spatula and asked him, ‘This seems to be the area of contention.’ He told me that, like, his statement at the time was, ‘I think it was a spatula.’ I said - that was it. That's where we left it.” 31

[26] Mr Farrow was asked: “Based on your ... role with Snack Brands over the last four to five years, how would you describe Mr Summers' relationship with other employees?” and answered: “I would say - look, I've seen a number of dismissals on the site and I have yet to see a dismissal that has impacted on employees as greatly as this one where people have, you know, signed petitions, taken up collections. It has effected people and I'd say that - I mean, the petition itself would represent, you know, almost a vast majority of people on his shift. So the support there for [Mr Summers] is quite large.” 32

[27] Mr Farrow went on to say that Mr Summers was at a high skill level at Snack Brands and there were many roles he would be able to perform, if reinstated by the Tribunal. Additionally, the Company employed agency staff and this meant work was available for Mr Summers. 33

[28] In cross-examination, Mr Farrow said that when he spoke with Mr Ly about the knife, he showed a knife and spatula to him to assist with any language barrier. 34

Mr Flynn

[29] Mr Flynn gave sworn evidence and submitted a witness statement. 35 In his statement, Mr Flynn said that he has held his current position since October 2008. He has “ultimate responsibility for all Smithfield site activities and all aspects [of] the Smithfield manufacturing site”.

[30] His statement set out in some detail the investigation conducted into the alleged knife incident on 30 August. That investigation included meetings with all the relevant persons and established that:

“On balance, we were satisfied that [Mr Summers] had waved a knife at [Ms Bartlet]; however, the knife was not the only factor that we were concerned with.

We were also very concerned that:

a. [Mr Summers] had verbally threatened another employee;

b. [Mr Summers] had behaved in a physically threatening manner to another employee;

c. A third employee had become involved in the incident, and needed to step in to physically separate the two employees;

d. Other employees were being impacted on or may have been frightened by [Mr Summers], but were too scared to say anything to us;

e. This wasn’t the first occasion that [Mr Summers] had appeared to lose control in his time with Snack Brands;

f. [Mr Summers] had been spoken to by his team leader, [Mr Seeley], in August 2010 during his performance review about the concerns Snack Brands had with his pattern of inappropriate responses, and how best to respond in situations of conflict.

As we went through the information provided by each employee and the several sets of information given to us by [Mr Summers], we also started to become concerned about some of the details that [Mr Summers] had been providing during the investigation. In particular:

a. [Mr Summers] said to us on several occasions that he went back to work normally with [Ms Bartlet] for the rest of his shift after the incident. We knew that this could not be correct, as [Mr Summers] visited the first aid room following a workplace accident and didn’t return to work in corn processing for the rest of the day.

b. [Mr Summers] had provided inconsistent accounts of what occurred. The most worrying issue was that he had firstly denied telling [Ms Bartlet] ‘you’re finished’, but then had agreed that he did say that to her.

c. He refused to explain why he had used the words ‘you’re finished’ and what he meant by using those words.”

[31] In relation to Mr Farrow’s evidence concerning his request for a further interview to be conducted with Mr Ly: “We decided that it was not necessary to do so, as we had spoken with him once already, and we had all the information we felt was needed on what occurred, taking into account [Mr Ly] was being put in a difficult position, and did not need the further stress of an additional meeting.”

[32] In relation to Ms Bartlet, Mr Flynn’s statement went on to say that a disciplinary process was initiated against her for her involvement in the 30 August incidents. He said: “I originally wished to issue [Ms Bartlet] with a final written warning; however, there were then a series of discussions between [Mr Farrow], [Mr Llewellyn], [Mr Seeley] and myself regarding the appropriate disciplinary response following which we were asked to consider a written warning on the basis that [Mr Summers] was the aggressor in the argument and it was [Mr Summers] that was holding the implement. We decided that this course of action would be more appropriate, and issued [Ms Bartlet] with a written warning. As much as [Ms Bartlet] may have antagonised [Mr Summers], [Mr Summers] was the aggressor in the incident.”

[33] Regarding the possibility of reinstatement of Mr Summers, Mr Flynn stated:

“In my opinion, it would be impossible for Snack Brands to reinstate [Mr Summers] to a position in the factory, either in the corn processing area or another area.”

“The relationship between Snack Brands and [Mr Summers] has broken down to the point where Snack Brands cannot trust that [Mr Summers] is able to work safely and appropriately with other employees, or will be honest in his dealings with it.”

“[Mr Summers] has demonstrated that he is unable to control his temper or reaction in situations of conflict. His past behaviour is evidence that this may culminate in verbal and physical threats being made against another employee.”

“Snack Brands does not, and cannot, tolerate such behaviour from an employee towards any other person, particularly another person with whom that employee is in close contact daily.”

“Snack Brands has a duty of care to provide a safe working environment to all employees, and having an employee who cannot control their response towards others is a risk that will jeopardise this duty of care.”

[34] In his supporting oral evidence, Mr Flynn said that the position formerly held by Mr Summers in the corn processing section has not been filled and “the team within the corn processing section have been working to produce the required amount of corn products and multi-purpose by-products.” 36 In relation to the factory generally, he said: “We have a workforce of around 160 factory employees and draw on a significant number of casuals when required and when not required.”37

[35] He went on to say regarding morale in the corn processing area: “It's become apparent since the investigation and since [Mr Summers] left the business that there was some influence coming from [Mr Summers] within that team creating tensions.” 38

[36] In cross-examination, Mr Flynn:

Agreed that Mr Summers could perform some of the work currently being carried out by labour hire employees. 39

Agreed that he only became aware of the knife allegation on 9 September 2010. 40
Agreed that Mr Summers had only been issued with one written warning during his 17 years of employment. 41
Agreed that Mr Ly’s written statement to the Tribunal was in conflict with earlier statements by him as to Mr Summers holding a knife on 30 August 2010. 42
Was asked: “do you find it strange that an employee that had been allegedly threatened with a knife would not actually complain about that event until a few days later?” and answered: “It's certainly concerning to me that none of the three employees that were apparently involved raised it with their team leader, or with Snack Brands management, yes.” 43
Was asked: “Prior to the allegation, or prior to the incident, on 30 August 2010, did the company accept that Mr Summers was a safe employee?” and answered “Yes, although in the performance review discussion with [Mr Summers] a couple of months prior his behaviour in the past had been discussed with him ...” 44

Mr Seeley

[37] Mr Seeley gave sworn evidence and submitted a witness statement. 45 In his witness statement he said that he has been working for Snack Brands for about three years and took up his current position in July 2010. He has known Mr Summers since starting with the Company and was his direct supervisor.

[38] “Whilst [Mr Summers] was technically capable of performing his job, I found him difficult to manage on occasions. Although we had no direct conflict, he had an aggressive manner at work which was sometimes difficult for other employees. [Mr Summers] also ‘sometimes’ challenged my decisions as Team Leader, especially when he did not like a decision I had made.”

[39] In August 2010, he conducted a former Performance Management Review with Mr Summers and told him that he had some concerns about his ability to handle conflicts.

[40] Mr Seeley’s witness statement went on to say, in summary:

He was absent on annual leave from 25 August to 6 September 2010.

On 3 September, he had a telephone conversation with Mr Romanski who “said something to me about there being an incident where a knife was waved, and told me that [Mr Summers] had asked to transfer out of corn processing.” Mr Romanski asked him and Mr Llewellyn to look into this matter while Mr Romanski was on leave.

On 6 September, he approached Ms Bartlet and was told about the 30 August incident.

“At that time, I knew that there was no possibility of any further conflict occurring in the short term as [Mr Summers] and [Ms Bartlet] were not in contact with each other. [Mr Summers] was in the office on restricted duties (I could see him from my office), and [Ms Bartlet] was still in corn processing.”

Other work commitments did not allow him to meet with Mr Llewellyn until 9 September.

“On 9 September, I had a discussion with [Mr Llewellyn] about [Ms Bartlet] and her allegation that [Mr Summers] had waved a knife in her face. As we didn’t have all the facts, we decided that we needed to have a meeting with [Mr Summers] to discuss why he wanted to transfer out of corn processing and his concerns.”

He then met with Mr Summers and Mr Morley in Mr Llewellyn’s office where Mr Summers request to the transfer out of corn processing and the conflict with Ms Bartlet were discussed.

“[Mr Summers] did not tell us that he had had a fight with [Ms Bartlet].”

Mr Summers became very irate during the meeting, “started to rise from his seat and was leaning across the desk facing us. [Mr Morley] immediately called off the meeting and took [Mr Summers] out of the room.”

Mr Summers and Mr Morley were outside for around ten minutes and on returning, Mr Morley apologised for the incident.

Shortly after the meeting with Mr Summers, a meeting of the same persons (with the exception of Mr Summers) was held with Ms Bartlet.

“After we had raised [Mr Summers’] concerns with [Ms Bartlet], [Ms Bartlet] told us that there had been an incident between her and [Mr Summers] last week, and [Mr Summers] had waved a knife in her face. She showed us what his actions were. She seemed upset.”

“We then met with [Mr Ly] and [Mr Morley] in [Mr Llewellyn’s] office to ask him about what he had seen. We firstly asked [Mr Ly] if he would like assistance with his understanding of English to answer questions. [Mr Ly] said he would be okay. [Mr Llewellyn] and I explained to [Mr Ly] what happened and asked him to tell us the truth of his account of the events. [Mr Ly] confirmed that [Mr Summers] had a knife and held it in front of [Ms Bartlet’s] face. [Mr Ly] explained that he got between them to break it up. [Mr Ly] said he did not want anyone to get hurt ([Mr Ly] also did a visual demonstration of this).”

[41] Mr Seeley’s statement went on to corroborate the statement of Mr Flynn concerning the meeting of 10 September 2010.

[42] In cross-examination, Mr Seeley said that the 2010 Performance Review 46 had noted that Mr Summers was to be provided with information on how to deal with conflict in a constructive manner. He went on to say that such information was not provided to Mr Summers.47 Mr Seeley went on to agree that the Performance Review notes his view that he would be happy to work with Mr Summers over the ensuing year.48

[43] In further cross-examination, Mr Seeley:

Was asked: “During the time that you were his team leader did you take any disciplinary action against [Mr Summers] because he was aggressive or difficult to manage?” and answered: “No.” 49

Was asked: “Was that because nothing he did while you were his team leader was serious enough to warrant disciplinary action?” and answered “Not in the time I was his direct team leader, no.” 50

Said that when he returned from leave, he spoke with Ms Bartlet but did not mention the knife allegation. 51

Said that he was not aware at that time of the allegation that Mr Summers had threatened Ms Bartlet with a knife. 52 Mr Romanski had mentioned an incident with a knife but had not gone into any detail.53

Disagreed that “the matter wasn't treated urgently because you didn't seriously suspect that [Mr Summers] had threatened [Ms Bartlet] with a knife”. 54

Said that the knife allegation was not raised with Mr Summers “because I wanted to deal with [Mr Summers’] concerns first with this transfer request and why he wanted a transfer out of the corn processing area.” 55

Said that he was at the meeting where Mr Ly stated that Mr Summers had held a knife in front of Ms Bartlet’s face. 56

Agreed that Mr Ly’s statement to the Tribunal was at variance with his earlier statements concerning the knife. 57

Mr Romanski

[44] Mr Romanski gave sworn evidence and submitted a witness statement. 58 In his witness statement, Mr Romanski said that he joined Snack Brands in June 2009 and has known both Mr Summers and Ms Bartlet since that time. The Team Leader for both, Mr Seeley, reports to him. He went on to say that Mr Summers “has never asked me to be moved out of that section [corn processing].”

[45] Mr Romanski went on to say, in summary:

“I have spoken with [Mr Summers] and [Ms Bartlet] before about incidents between them. I have also spoken with [Mr Summers] about his aggressive behaviour in general.” Mr Summers was issued with a written warning for aggressive behaviour.

After Mr Summers approached him on 30 August 2010, he spoke with Ms Bartlet in a conversation to the following effect:

“Me: Have you been saying to [Mr Summers] that [Mr Ly] didn’t want to train with him because he’s scared of him?

[Ms Bartlet]: Yes.

Me: Did you hear him say this?

[Ms Bartlet]: No. I assumed that he did.

Me: [Ms Bartlet], you can’t make an allegation against someone unless you hear it.

[Ms Bartlet]: Sorry. I’ll speak with [Mr Summers].

Me: Okay, that’s fine.”

He viewed Mr Summers’ complaint as being at a low level.

Later on 30 August, Mr Summers approached him to seek a meeting the next day with him and Mr Morley. Mr Romanski agreed.

“[Mr Summers] then closed the door and turned to face the corner behind the door, then started crying into the corner. He was bellowing uncontrollably and kept repeating words to the effect of ‘I can’t do this anymore. I want to leave the area.”

“I went over to [Mr Summers] and patted him on the shoulder to console him. I asked him several times to get up and if he was okay.”

“When [Mr Summers] left, I still didn’t know what was wrong, but I thought it best to discuss it with him the next day with [Mr Morley] there as he was obviously upset about the issue.”

[46] On 31 August 2010, he met with Mr Summers and Mr Morley and a conversation to the following effect occurred:

“Me: So , why are you here? What do you want to see me about?

[Mr Summers]: I’m upset working in the corn area. I want to move out.

Me: Look I’ll have a look at it. See what I can do. Where else do you want to go?

[Mr Summers]: Potato processing or flavour.

Me: What else do you know?

[Mr Summers]: Nothing. I can do some forklift roles in the warehouse.

Me: I can’t promise anything. I’ll see you by close of business on Friday and explore some options.”

[47] He then “modelled several different options for [Mr Summers] to see whether I could move him to one of the other areas in the factory.” On 2 September 2010 he had the following conversation with Ms Bartlet:

“Me: Are you okay? You seem to be very quiet.

Ms Bartlet: No [Mr Romanski]. I just want to let you know that an incident happened on Monday. [Mr Summers] swung a knife at me.

Me: Well thanks for that information. I’ll need to chat to [Mr Flynn] and [Mr Llewellyn] about it.”

[48] Mr Romanski then informed Mr Flynn about the knife allegation. On 3 September, he informed Mr Llewellyn and it was decided to commence a formal investigation when Mr Seeley returned from leave.

[49] “We did not consider that there was any risk in delaying the investigation until [Mr Seeley] returned from leave, as [Mr Summers] was not working with [Ms Bartlet] in corn processing.” He then met with Mr Summers and told him that he had not arrived at a resolution about moving him from the corn processing section. “I did not discuss the investigation with him, as it had not yet formally commenced.” He then went on annual leave and did not return to work until 20 September 2010. However, he had a teleconference on 13 September with Mr Flynn, Mr Seeley, Mr Llewellyn and Mr N Tapp (Director for Supply Chain) during which he related his involvement in the events on 30 August.

[50] Mr Romanski further stated that he believed it to be impossible to reinstate Mr Summers to Snack Brands as:

“Reinstating him to corn processing would put him directly back into a situation of conflict with another employee. I would definitely foresee that [Mr Summer’s] ongoing issues with [Ms Bartlet] will affect both of their work performance.”

“I do not have any confidence that [Mr Summers] is able to control his temper or react in an appropriate and non-aggressive manner where he is challenged or put in a situation of conflict with another employee.”

“I would not be able to reinstate [Mr Summers] to another area of the Snack Brands factory as he is not trained in any other area.”

“Even if he were trained to work in another area, I do not currently have any free positions in the factory that he could move to. If [Mr Summers] were reinstated to another area, I would be forced to move an existing employee from their permanent position and retrain that employee in another area to make room for [Mr Summers].”

[51] In his supporting oral evidence, Mr Romanski said that “Mr Summers is only trained in the corn processing area, so if I was to train Mr Summers in any other part of the facility he would have to go through a full training and assessment protocol before he'd be able to work in that particular area.” 59 He went on to say that “since Mr Summers left the actual team dynamics in that particular area has improved. We've got a quite united and close, cohesive team that's working very well together.”60

[52] In cross-examination, Mr Romanski:

Agreed that Ms Bartlet had told him that she could not work with Mr Summers but did not act on her concern. 61
Said that formal counselling was never considered to be required for Mr Summers. 62
Said that a warning issued to an employee expires after twelve months. 63 He further agreed that Mr Summers had not been issued with any warnings since 2003.64
Agreed that if Ms Bartlet had felt seriously threatened by Mr Summers saying to her ‘you’re finished’, she would have reported it to him. 65
Agreed that other employees had complained about working with Ms Bartlet. 66
Said that his discussion with Ms Bartlet during which she told him about the knife incident had been convened only to discuss her absenteeism. He agreed that the allegation by Ms Bartlet against Mr Summers occurred at the end of a meeting where her performance was being reviewed. 67
Said that he did not advise Ms Bartlet to contact the police and did not consider contacting the police himself. 68
Agreed that he was comfortable with Mr Summers continuing to work at the Smithfield site after being informed of the knife incident. 69
Said that the factory was composed of four distinct sections and that a completely unskilled worker could be trained to work in a particular area in between one to three weeks. 70
Said that he was not aware of Mr Summers being dishonest with the Company during the previous 17 years of his employment. 71
Agreed that he was aware of conflict between Mr Summers and Ms Bartlet prior to the 30 August incidents. 72

[53] In answer to a question from me, Mr Romanski said that he had not asked Ms Bartlet what type of knife was allegedly used by Mr Summers on 30 August 2010. 73

Mr Gazecimeon

[54] Mr Gazecimeon gave sworn evidence and submitted a witness statement. 74 Mr Gazecimeon’s statement concerns a workplace injury suffered by Mr Summers on 30 August 2010. This injury led to Mr Summers being conveyed from the workplace by ambulance. He then returned to work around lunch time and a return to work plan was developed. Mr Summers started working on office duties from the afternoon of 30 August. On 27 September 2010, Mr Summers was assessed as being fit for pre-injury duties.

[55] In cross-examination, Mr Gazecimeon was questioned as to events concerning the paperwork raised about Mr Summers’ compensable injury. He went on to say that it was not part of his role for employees to discuss with him behaviour or disciplinary issues. 75

Ms Theuon

[56] Ms Theuon gave sworn evidence and submitted a witness statement. 76 In her witness statement, Ms Theuon said that she has been working at Snack Brands since 1989 and has known both Mr Summers and Ms Bartlet for about 17 years, working closely with both in the corn processing section. She went on to say that on 30 August 2010 she witnessed an argument between Mr Summers and Ms Bartlet which ended with Mr Summers pushing a door open and walking out, “yelling to [Ms Bartlet] ‘You’re finished!’”. She later had a conversation with Ms Bartlet concerning a second incident to the following effect:

“Me: What’s wrong?

[Ms Bartlet]: [Mr Summers] held a knife at me. [Mr Ly] was there. I’m so scared.

Me: If you’re scared, go see someone. Don’t just sit there and think about it.”

[57] “[Ms Bartlet] seemed very upset. I have never seen her like that. She is very tough, and doesn’t get scared easily.”

[58] Ms Theuon went on to state that: “I then went and saw [Mr Ly] and we had a conversation to the following effect:

‘Me: Is everything true what you saw?

[Mr Ly]: Yeah, yeah. I had to stop it. He had a knife. [Mr Summer]’s a big man and I was scared.

Me: If they call you upstairs, you say the truth.

[Mr Ly]: Yeah, yeah.”

[59] In her supporting oral evidence, Ms Theuon said that during the altercation she witnessed between Mr Summers and Ms Bartlet, Mr Summers was wearing earmuffs and this caused him to speak loudly. She heard Mr Summers use the words ‘that’s it. you’re finished’. 77

[60] When asked “What's your relationship like with [Mr Summers]?” she said “Just normal, just, like, working together and normal. We argue. We just walk away. That's it. There's no point.” 78 Ms Theuon went on to say: “[Mr Summers] does have a temper, but I just walk away. I don't fight back.”79

[61] In answer to a question from me, Ms Theuon said that she had a problem with arguing with Mr Summers some years ago but not currently. 80 She went on to agree that Mr Summers could be described as ‘a difficult man’.

[62] In cross-examination, Ms Theuon agreed that she signed a petition in support of Mr Summers following the termination of his employment and that she had donated money towards his family’s welfare after the termination. 81 Ms Theuon was then asked: “…you've referred to some previous arguments with Mark. Did Mark ever physically threaten you during those arguments?” and answered: “No, just screaming, that's all. That's not, like, threaten to kill me or anything like that.”82 She then agreed that Mr Summers had never been violent towards her.83

Ms Bartlet

[63] Ms Bartlet gave sworn evidence and submitted a witness statement. 84 In her statement, Ms Bartlet said that she has worked at Snack Brands for over 21 years and has known Mr Summers since they started working together in the corn processing area. They had previously been friendly but this had deteriorated since Mr Summers’ marriage some five years ago. She said: “I work with [Mr Summers] as best as we can. If I have a frustrating day, I could snap at him. He sometimes snaps at me. It has been very bad over the past two years. Most people I work with know that we had problems. I have mentioned my issues with [Mr Summers] on occasions to my supervisor and asked if he could have a chat with him about it.” Despite this, she has never asked to be moved out of the corn processing area but told her team leaders and managers of her problems working with him. “I have always just thought that I needed to deal with our personal problems and work with him as best as I could.”

[64] Ms Bartlet’s statement went on to deal with the incidents on 30 August 2010. She stated, in summary:

Before the first incident, she told Mr Summers that Mr Ly was scared of him. Mr Summers responded by loudly demanding that she retract her statement.

“When [Mr Summers] got really close to me, he turned and pulled the door open and yelled ‘You’re finished!’”

Mr Romanski later spoke to her about her comment regarding Mr Ly.

She conceded that she later said to Mr Ly: ‘[Mr Summers]’s just being a little baby.’

“[Mr Summers] then started walking towards me.”

“As he walked towards me, [Mr Summers] was holding a knife in his hand, which he was waving towards my face. The knife came to about 30 centimetres from my face, and I could see that it was one of the cable knives that we use in the factory to cut bags of flavour and meal bags.”

“The reason I know that it was this knife is that I saw that it had a red handle. The cable knives we use have a long red handle and a short metal blade. None of the other utensils that we use in the factory have a red handle like these knives.”

“I started yelling at him words to the effect of ‘How dare you threaten me! You’re nothing but lazy!’”

“[Mr Summers] kept walking towards me, waving the knife in my face and yelling things like ‘You’re selfish!’”

“[Mr Ly] was standing between us whilst we were yelling at each other. At one point, he pushed [Mr Summers] away, and then pushed me towards the door. When he did this, I just walked out of the lab.”

“Later that afternoon, I spoke to [Mr Ly] about the knife incident. I recall that he said to me words to the effect of ‘That’s why I pushed. He had a knife in his hand. That’s why I push you away. I was scared. I don’t want trouble.’”

“[Mr Summers] asked me a few times what was wrong with me, saying words like ‘All week you’ve been like this. You haven’t said hello.’ I just said to him words to the effect of ‘I want to be by myself now and keep to myself. I want to come to work and work only.’”

“I did not report the incident to anyone because I thought that it would be best to just deal with the problem myself, as I had done in the past when I had a problem with [Mr Summers].”

[65] Concerning the possibility of Mr Summers being reinstated at Snack Brands, Ms Bartlet said: “If [Mr Summers] came back to work now, I would not be able to work with him as I do not feel safe around him and would find it very difficult to interact with him on a daily basis. I was very upset and shaken by what happened on 30 August 2010, and I do not want to have to deal with anymore conflict like that at work. I wouldn’t feel too good about him coming back at all to the factory, even in a different area, as he makes me feel very fearful and I try to avoid him now as much as possible. For example, I used to run a jogging path which went close to his house. Since the incident with the knife, I changed my jogging path so that I did not go anywhere near his house.”

[66] During her supporting oral evidence, Ms Bartlet provided a demonstration of Mr Summers’ alleged actions during their second altercation on 30 August 2010. She went on to say that Mr Ly “had his hand on my chest, pushing me back”. 85 Mr Ly was also restraining Mr Summers.86

[67] In cross-examination, Ms Bartlet:

Said that she told Snack Brands managers on several occasions that she could not work with Mr Summers. 87
Agreed that a number of arguments had occurred between her and Mr Summers over the years they worked together and that she reported such arguments to management several times. 88
Said that she did not report the knife incident on 30 August 2010 because “I just got sick of us arguing all the time. I just took it as the normal arguments we usually have.” 89
Conceded that Mr Ly had not told her that he was scared of Mr Summers. 90
Said that she did not attempt to provoke Mr Summers. 91
Said: “I just voiced my opinion a lot.” 92
Was asked: “Do you accept that calling a grown man ‘a little baby’ might offend a reasonable person?” and answered: “Yes.” 93
Said that she had arguments with other employees “when we have a frustrating day or not having a good day.” 94
Said that she accepted that Mr Ly would have seen if Mr Summers was holding a knife. 95
Said that she was not frightened when Mr Summers waved a knife at her. 96
Only noticed the knife “a couple of seconds before the end of the argument.” 97
Said that she continued working with Mr Summers when Mr Summers returned to work on 30 August 2010 and that no further issues occurred between them. 98
Said that Mr Summers and her “just ignored each other.” 99
Said that she did not intend to complain about the knife incident until asked by Mr Romanski as to why she was “feeling down”. 100

Was asked: “Do you think if they [Management] had taken some active steps to maybe provide some training, or counselling, that it might have helped you work with Mark [Summers]?” and answered: “Yes.” 101

Mr Ly

[68] Mr Ly did not give sworn evidence but a proposed witness statement from him was entered into evidence as Exhibit Snack 13. Mr Ly did not present himself to give evidence and all attempts to contact him were unsuccessful. In more usual circumstances, I would disregard his statement but to do so in these current circumstances would be unwise and unfair to Mr Summers.

[69] Mr Ly’s filed statement says:

“1. I recall that day [Ms Bartlet] and [Mr Summers] were fighting, about something about work, but I don’t know what exactly.

2. They were really angry, very angry, and were face to face. They were yelling at each other.

3. I got in between the two of them. I said ‘okay, hold on, stop no more fighting’ and pulled them apart. Then they separated.

4. [Ms Bartlet] and [Mr Summers] were really, really angry. His face was very red. He easily gets angry.

5. Then I said to [Mr Summers] ‘calm down, Mark’.

6. After that, he walked away.

7. I really don’t know if [Mr Summers] was holding something. I don’t know as I didn’t see it, but [Mr Summers] was doing flavour before the fight, and had a spatula to get the flavour out of the blenders. He uses that one all the time.

8. Afterwards, I went and spoke with [Mr Summers] to calm him down, man to man. I said to him ‘No, calm down, go easy. We’ve been working here a long time. You have to relax.’

9. It was a big fight. They have fought many times, about work I think, but that time was a big one.

10. I haven’t had any fights with [Mr Summers] and [Ms Bartlet]. I just want to work together with all of them. I don’t want any trouble. They are happy with me.”

[70] My reasons for including the statement of Mr Ly will become apparent later in this decision.

Submissions

[71] Both Mr Summers and the Company, through their representatives, made written and oral submissions. I have paid regard to those submissions and to the case law cited by the parties but ultimately I must base my decision on the evidence and materials brought forward during proceedings.

Conclusions and Findings

[72] Snack Brands terminated the employment of Mr Summers on 14 September 2010 on the grounds of serious and wilful misconduct after conducting an internal investigation which established, to the Company’s satisfaction, that Mr Summers had waved a knife at Ms Bartlet during his second altercation with her on 30 August 2010. Other factors relied upon by the Company were set out in the evidence of Mr Flynn (see paragraphs 29 to 36 supra). In summary, those additional factors were:

He verbally threatened Ms Bartlet during the first altercation on 30 August 2010.

He behaved in a physically threatening manner to another employee.

Mr Ly had needed to step in to physically separate Mr Summers and Ms Bartlet during their second argument.

The impact on other employees who may have been frightened by Mr Summers but were afraid to speak to management.

The 30 August incidents were not the first occasion on which Mr Summers had appeared to lose control of himself at work.

Mr Summers had been spoken to by Mr Seeley in August 2010 during a performance review about company concerns about an alleged pattern of inappropriate responses to conflict and how best to respond to conflict situations.

[73] The Company was also concerned about Mr Summers’ conduct during the investigation. It was particularly concerned by allegedly inconsistent accounts from Mr Summers of what occurred and his initial denial of telling Ms Bartlet ‘you’re finished’ and refusal to say what he meant by those words. Further, the Company appears to have relied to a significant extent on statements by Mr Ly that he was forced to physically separate Mr Summers and Ms Bartlet during the second incident and that Mr Summers had wielded a knife during that incident. It is apparent that Mr Ly’s version of events about the second argument on 30 August 2010 impressed the Company as corroborating the evidence of Ms Bartlet.

[74] As the Applicant’s conduct is the reason given by Snack Brands for the termination of employment, I must determine for myself whether the impugned conduct occurred and, if so, whether it amounted to a valid reason for termination of employment. In this regard I respectfully agree with the following observations of the Full Bench in King v Freshmore (Vic) Pty Ltd 102:

“When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

[75] In Container Terminals Australia Limited v Toby 103, a Full Bench of the Australian Industrial Relations Commission said: “In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable…”104

[76] Northrop J in Selvachandran v Peteron Plastics Pty Ltd 105 said:

“In its context in s 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, ….”

[77] In Qantas Airways Ltd v Cornwall 106, the Full Court of the Federal Court said:

“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”

[78] In Edwards v Justice Giudice 107, Moore J said:

“The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.”

[79] I will deal sequentially with the two incidents which occurred on 30 August 2010.

The First Incident

[80] There is little dispute between the parties as to what occurred during the first incident. It is common ground that at the conclusion of the incident, Mr Summers uttered the words ‘you’re finished’. The real contest between the parties is whether those words constituted a threat to Ms Bartlet or not. On what is before me, there is nothing to indicate that Mr Summers used those words in a threatening manner other than as part of his intention to report the incident to Mr Romanski. In that context, combined with the fact that they were uttered as Mr Summers was departing from the corn processing area, I am convinced that the words were intended to indicate a hoped-for decision by Mr Romanski to transfer him or Ms Bartlet from the corn processing section.

[81] The words used were, in my view, not confrontational but rather, commonly used Australian parlance in such situations. The Company’s reliance on the use of those words to form part of the justification for terminating Mr Summers’ employment was not well-founded.

[82] The words ‘you’re finished’ certainly did not indicate a physical threat. They seem to me to be consistent with the almost playground-like verbal exchanges between Mr Summers and Ms Bartlet. It is unfortunate that Mr Summers chose not to explain what he meant by those words and his failure to do so certainly did him no good service. However, the Company’s reliance on that factor was too great. I accept that Mr Summers was shouting when he spoke to Ms Bartlet, but this is at least partly explained by the noise level in the corn processing area which is indicated by Ms Theuon’s evidence that Mr Summers was wearing earmuffs at the time of the incident.

[83] All in all, I view the first incident on 30 August 2010 as showing that Mr Summers suffered a lack of self-control when faced with a hurtful remark from Ms Bartlet that she later admitted to Mr Romanski was untruthful. His action in immediately reporting the incident to Mr Romanski was both correct and prudent. Mr Romanski chose to not take any effective action. For the purposes of this decision, I have disregarded the first incident and find that it did not constitute any part of a valid reason for the termination of Mr Summers’ employment. I am further satisfied that the untruthful remark about Mr Ly being scared of Mr Summers was malicious in intent and, knowing him as she did, was designed to provoke him. It certainly achieved that result. In cross-examination, Mr Summers accepted responsibility for both confrontations with Ms Bartlet but I believe Ms Bartlet must accept a fair measure of blame also. Mr Romanski’s evidence as to his remarks to Ms Bartlet about her untruthful allegation concerning Mr Ly supports my view. The incident itself only started to loom large when the Company examined it as part of its investigation into the second incident. Likewise, the Company’s concern over the words ‘you’re finished’ and its conclusion that those words constituted a threat to Ms Bartlet, only arose in the light of the second incident and the allegation that Mr Summers wielded a knife at Ms Bartlet.

The Second Incident

[84] The second incident is of a much more serious character and involves serious allegations against Mr Summers.

[85] Firstly, it is important to place the second incident in context. Mr Summers had just returned to the corn processing area after reporting the first incident to Mr Romanski and was, in all probability, still in an emotional state. He asked Mr Romanski to be transferred from the corn processing area, a type of work he both liked and was very competent at. Almost immediately upon his return, Ms Bartlet sought to verbally provoke him again. The fact that she addressed her provocative remark to Mr Ly is significant in that it was her earlier untruthful statement about Mr Ly’s alleged fear of Mr Summers which provoked Mr Summers during the first incident. It is therefore safe to assume that she did this either with the intention or the knowledge that her further remark would create another confrontation. As noted above, the corn processing area is noisy and I have no doubt that Ms Bartlet, while ostensibly addressing her remark to Mr Ly, did so with the primary intention of Mr Summers hearing it. In that sense, it was Ms Bartlet who acted as the verbal aggressor. She then apparently received a much more vigorous response than she anticipated.

[86] Only Mr Summers, Ms Bartlet and Mr Ly have any direct knowledge of what actually occurred during the second incident. Mr Ly initially told the Company that Mr Summers wielded a knife during the incident and that he was forced to physically separate Mr Summers and Ms Bartlet as the incident escalated. However, his statement filed with the Tribunal prior to these proceedings states that he does not know if Mr Summers was holding any item but he notes that Mr Summers was using a spatula immediately prior to his argument with Ms Bartlet. His statement continues to maintain his earlier evidence to the Company that he was forced to physically hold Mr Summers and Ms Bartlet apart. Mr Farrow’s evidence is also relevant when he recounted a conversation between him and Mr Ly before the termination of Mr Summers’ employment. In that conversation, Mr Ly said that he thought Mr Summers was holding a spatula and also said that he did not hold Mr Summers and Ms Bartlet physically apart.

[87] Mr Summers has consistently denied holding any object during the second incident and maintains that he placed a spatula and a blender piece, which he had been holding, on a table before approaching Ms Bartlet. Ms Bartlet maintained in her evidence in chief that Mr Summers was holding a knife in his hand as he walked towards her and that he waved the knife to within 30 centimetres of her face. Ms Bartlet identified the type of knife as being the same as the knife which was entered into evidence. However, in cross-examination Ms Bartlet said that she only noticed the knife a couple of seconds before the end of the argument. She also conceded that the remark she made about Mr Summers would offend a reasonable person.

[88] I have concluded that it is not possible, on the balance of probabilities, to determine exactly what happened during the second incident beyond the fact that a serious confrontation occurred between Mr Summers and Ms Bartlet. I am certainly not in a position to conclude safely that Mr Summers either held or wielded a knife. The evidence of Ms Theuon as to her contemporaneous discussions with Mr Ly and Ms Bartlet is not sufficient to ground any finding concerning the holding of a knife by Mr Summers. Mr Ly’s wildly varying accounts of events on 30 August 2010 and his failure to attend to give evidence in proceedings make it unsafe to give any weight to his statements. In any event, the evidence of Mr Farrow which I accept as truthful, would seem to negate Mr Ly’s evidence to the Company during its investigation. For her part, Ms Bartlet has a long and unhappy relationship with Mr Summers such as to make me suspicious of her motives and her evidence. According to her, Mr Summers was waving a knife in front of her face at the same time as Mr Ly was standing between the two of them. This does not appear to me to be credible. In short, I do not believe that I can rely on the accuracy of the evidence of Ms Bartlet. Where the evidence of Mr Summers and Ms Bartlet conflict, I prefer the evidence of Mr Summers.

[89] In her evidence to the Tribunal, Ms Bartlet said that she was not afraid during the second incident and did not report it as she ‘just took it as the normal arguments we usually have’. She conceded that she had arguments with fellow employees ‘when we have a frustrating day or not having a good day’. In fact, Mr Romanski only became aware of it on 2 September 2010 at the end of an interview which was held to discuss her absenteeism. The timing and context of Ms Bartlet’s report of being threatened with a knife gives me further reason to doubt her account of events. Here I note that Mr Summers continued to work at the Smithfield site in some proximity to Ms Bartlet from the day of the second incident until he was suspended from duty on 10 September 2010. In fact, Mr Summers continued working with Ms Bartlet for the rest of the morning of 30 August following the second incident on that day. There is nothing before me to indicate that there were any further problems between Mr Summers and Ms Bartlet on 30 August or indeed during the period 30 August to 10 September 2010.

[90] All in all, I find that both incidents on 30 August 2010 were most likely only verbal confrontations between two people who do not like each other and arose primarily from provocative remarks by Ms Bartlet. This does not excuse Mr Summers from some responsibility for failing to control himself emotionally. In my view, neither incident or the combined incidents constitute a valid reason for the termination of Mr Summers’ employment after some 17 years. I accept Mr Summers’ evidence as being truthful and do not consider his behaviour during the Company’s investigation to have provided any supporting grounds for the termination of his employment. Mr Summers is an emotional man, as I observed during his evidence, and this satisfactorily explains his behaviour during the investigation interviews. His initial error about where he worked on the afternoon of 30 August 2010 is not significant and I don’t believe he was being knowingly untruthful.

The Company’s actions

[91] I believe the evidence of Mr Morley, Mr Farrow and Mr Summers about frequent requests over several years by Mr Summers to be moved from the corn processing section due to his difficulties in working with Ms Bartlet. The Company was singularly unhelpful and/or unconcerned about continuing conflict between Mr Summers and Ms Bartlet and did nothing to separate the two. It apparently just hoped that somehow the two persons would work out their problems. They did not.

[92] The behaviour of Snack Brands management towards the knife allegation on and from 2 September until 10 September 2010 is, at best, curious. When Mr Romanski was told of the allegation by Ms Bartlet he did not even inquire as to what type of knife was allegedly brandished at her. He was therefore unable to provide any details to Mr Seeley, Mr Llewellyn or Mr Flynn. He then proceeded on leave after speaking to those three persons and it was decided to take no investigation action until Mr Seeley returned from his leave on 6 September. When Mr Seeley returned from leave, it was his evidence that he was too busy to deal with the knife allegation until 9 September 2010. In his evidence, Mr Flynn maintained that he did not know of the knife allegation until 9 September although it was Mr Romanski’s evidence that he told Mr Flynn on 3 September. Mr Summers was not informed of the allegation against him until 10 September and in the meantime the Company continued to consider the possibility and practical details of moving Mr Summers from the corn processing area. It is difficult for me to marry the Company’s actions between 2 and 10 September with any sense that the allegation by Ms Bartlet was being taken seriously, at least at that stage. It should not be forgotten that the allegation by Ms Bartlet was of a very serious and probably criminal type. No consideration was given by the Company to reporting the allegation to police. No one thought to mention it to Mr Summers until 10 September.

[93] It is clear that the final decision to terminate Mr Summers’ employment was largely based on the evidence of Ms Bartlet and Mr Ly. The Company’s refusal to re-interview Mr Ly in the light of Mr Farrow’s conversation with him, which was reported to Mr Flynn, in my view created a fatal flaw in the investigation. Mr Ly was the only objective witness to the second incident on 30 August 2010 and the failure to re-interview him seriously undermined the integrity of the Company’s process. Also, due consideration was not given to the role of Ms Bartlet.

[94] All in all, having decided not to give any weight to the various statements by Mr Ly and my preference for the evidence of Mr Summers over that of Ms Bartlet, together with flaws in the Company’s investigation, I find that there was not a valid reason for the termination of Mr Summers’s employment.

Legislative Framework

[95] Section 385 of the Act relevantly provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; ...”

[96] I now turn to the question of whether the dismissal of Mr Summers was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria for considering harshness etc. It provides:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”

[97] In Byrne v Australian Airlines 108, McHugh and Gummow JJ of the High Court said:

“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.”

[98] The question of valid reason is dealt with above.

[99] It is apparent from the materials and evidence that Mr Summers was notified of the reason for the termination of his employment and I so find.

It is further clear on the materials and evidence that Mr Summers was given an opportunity to respond and I so find. He was allowed to have a support person present during the process leading up to the termination of his employment and I so find. The issue of unsatisfactory performance does not arise. Mr Summers was a diligent and loyal employee.

[100] The size of the employer enterprise is a factor which is likely to have impacted on the procedure followed in effecting Mr Summers’ dismissal. It is conceded by the Company that it has a dedicated human resources department.

[101] I have come to the conclusion that the termination of Mr Summers’ employment was harsh, unjust and unreasonable.

[102] Mr Summers was a long standing employee who devoted some 17 years of his life to working for Snack Brands. His devotion to his work was a major factor in his arguments with Ms Bartlet over a period of years. Ms Bartlet’s absenteeism was a major cause of problems between her and Mr Summers. This was exacerbated by the fact that the two of them had fallen out around 2000 after a previously close friendship.

[103] My findings as to what most likely occurred during the arguments on 30 August 2010 together with the uneasiness I have about the Company’s handling of this matter combine to convince me that the termination of Mr Summers was unfair.

[104] Section 390 of the Act provides:

“390 When FWA may order remedy for unfair dismissal

(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) FWA may make the order only if the person has made an application under section 394.

(3) FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[105] Section 391 of the Act provides:

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:

(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

[106] In all of the circumstances of this case, reinstatement would in my view be practicable. Mr Summers seeks reinstatement and I believe the employment relationship between him and Snack Brands can be re-established.

[107] Snack Brands would have me believe, on the evidence of Mr Romanski and Mr Flynn, that the ‘team dynamics’, in the corn processing area have improved since Mr Summers departed. It would further have me believe that it is impossible for the Company to take Mr Summers back in another role at the Smithfield site. Both propositions are in my view dubious.

[108] Mr Summers has been issued with only one written warning during his 17 years employment and that occurred in 2003. It was issued for throwing a set of steps across a floor and did not involve any altercation with another person. He does obviously suffer from some level of anger management problems and this was identified by Mr Seeley during the 2010 performance review shortly before the termination of employment. That review noted that Mr Summers was to be provided with information on how to deal with conflict in a constructive manner. Such information was never given to Mr Summers. It is not good enough for the Company to rely on the identification of an anger management problem with Mr Summers but to ignore its own failure to follow up on it as promised. I do not believe that Mr Summers in his interaction with other employees is any danger to them or is the source of a lowering of staff morale. Here I note the evidence of Ms Theuon. Ms Theuon was the Company’s witness and nothing in her evidence caused me to view Mr Summers as an inherently malignant influence in the workplace. In fact, Ms Theuon was a signatory to a petition 109 signed by 73 Snack Brands employees supporting the reinstatement of Mr Summers and criticising the Company’s handling of his termination of employment. In addition, Ms Theuon and many other employees have provided financial support to Mr Summers and his family following his dismissal. None of this adds up to supporting the Company’s portrayal of the applicant.

[109] I pay no regard to the Company’s claim that it would be unable to employ Mr Summers in any other section of the Smithfield site and, in any event, it will not need to do so. In cross-examination, Mr Summers described himself as ‘passionate about my job’ and spoke of his ‘love for making chips’ 110. As life ambitions go, this may seem to be a modest one but it is of vital importance to Mr Summers and should be given appropriate weight. I therefore intend to order that Mr Summers be reinstated to the position he formerly held in the corn processing area. The Company also has the available option of transferring Ms Bartlet.

[110] Mr Summers’ conduct on 30 August 2010 does him no credit but it is not enough to militate against reinstatement. The Company would be justified in issuing a single written warning covering both incidents on 30 August 2010 and in referring Mr Summers for appropriate counselling/training for his anger management problem. Should the Company wish Mr Summers to undertake such counselling/training, the form of it should be the subject of agreement between the Company and the AWU.

[111] In recognition of the level at which Mr Summers misconducted himself on 30 August 2010, my order in this matter will provide for a period of four weeks’ pay to be deducted from the compensation ordered. I do this in light of subsection 392(3) of the Act which states:

“(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.”

[112] An order reflecting this decision is in PR506734.

COMMISSIONER

Appearances:

S Crawford for the Applicant.

P Salewicz for the Respondent.

Hearing details:

2011.

Sydney:

January 18, 19.

Final written submissions:

27 January 2011.

1 See Exhibit Snack 2

2 Exhibit AWU 2

3 Exhibit Snack 12.

4 Transcript PN75.

5 Transcript PN82.

6 Transcript PN84

7 Transcript PN85.

8 Transcript PNs85 and 90.

9 Transcript PNs167-168.

10 Transcript PNs170-173.

11 Transcript PN178.

12 Transcript PN196.

13 Transcript PN197.

14 Transcript PN233.

15 Transcript PN238.

16 Transcript PNs247-248.

17 Transcript PN276.

18 Transcript PN322.

19 Transcript PN328.

20 Transcript PNs333 and 336.

21 Transcript PN549.

22 Transcript PN566.

23 Transcript PNs571 and 577.

24 Transcript PNs609-610.

25 Exhibit AWU 6.

26 Transcript PN673.

27 Transcript PN687.

28 Transcript PN688.

29 Transcript PN690.

30 Exhibit AWU 7.

31 Transcript PN715.

32 Transcript PN717.

33 Transcript PN725.

34 Transcript PN737.

35 Exhibit Snack 5.

36 Transcript PN760.

37 Transcript PN761.

38 Transcript PN762.

39 Transcript PN783.

40 Transcript PNs797 and 809.

41 Transcript PNs824-825 and 827.

42 Transcript PN832 and following.

43 Transcript PN886.

44 Transcript PN913.

45 Exhibit Snack 6.

46 Attachment SS1 to Exhibit Snack 6.

47 Transcript PNs983-986.

48 Transcript PN989.

49 Transcript PN994.

50 Transcript PN995.

51 Transcript PNs1004-1005.

52 Transcript PN1009.

53 Transcript PN1013.

54 Transcript PN1024.

55 Transcript PN1026.

56 Transcript PNs1044-1045.

57 Transcript PNs1063-1065.

58 Exhibit Snack 7.

59 Transcript PN1096.

60 Transcript PN1102.

61 Transcript PNs1163-1164.

62 Transcript PN1180.

63 Transcript PN1211.

64 Transcript PN1212.

65 Transcript PN1229.

66 Transcript PNs1234-1236.

67 Transcript PN1243.

68 Transcript PNs1261-1262.

69 Transcript PN1267 and following.

70 Transcript PNs1276-1279.

71 Transcript PN1280.

72 Transcript PNs1286-1287.

73 Transcript PN1297.

74 Exhibit Snack 9.

75 Transcript PN1398.

76 Exhibit Snack 10.

77 Transcript PN1450.

78 Transcript PN1463.

79 Transcript PN1467.

80 Transcript PNs1470 and 1472.

81 Transcript PNs1497-1499.

82 Transcript PN1500.

83 Transcript PN1501.

84 Exhibit Snack 11.

85 Transcript PN1552.

86 Transcript PN1554.

87 Transcript PNs1561-1564.

88 Transcript PNs1588 and 1590.

89 Transcript PN1596.

90 Transcript PNs1605-1606.

91 Transcript PN1608.

92 Transcript PN1609.

93 Transcript PN1636.

94 Transcript PN1641.

95 Transcript PN1714.

96 Transcript PN1724.

97 Transcript PN1740.

98 Transcript PNs1753-1755.

99 Transcript PN1758.

100 Transcript PN1764.

101 Transcript PN1784.

102 Print S4213, 17 March 2000.

103 Print S8434, 24 July 2000.

104 Ibid at para 15.

105 (1995) 62 IR 371 at 373.

106 [1998] FCA 865.

107 [1999] FCA 1836.

108 (1995) 185 CLR 410.

109 Attachment MS9 to Exhibit AWU 2.

110 Transcript PN549.

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