Michael Chahine v Toll Express

[2011] FWA 1638

[2011] FWA 1638

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Chahine
v
Toll Express
(U2010/7664)

VICE PRESIDENT LAWLER MELBOURNE, 16 MARCH 2011

Termination of employment - arbitration.

[1] This is an application for an unfair dismissal remedy by Mr Michael Chahine (applicant) who was dismissed by his employer, Toll Holdings Pty Ltd (Toll) on 22 March 2010 for repeated failure to follow directions.

[2] Mr Chahine had been employed for 10 years as forklift driver at Toll’s Eastern Creek Distribution Centre.

[3] On 17 March 2010 Mr Cleary, a Manager, called a meeting of employees to be held in a part of the warehouse called as the “Melbourne Port”. Mr Cleary made two or three announcements over the PA system directing employees to attend in the Melbourne Port for the meeting. All of the employees assembled save for Mr Chahine who remained sitting on his forklift in the Perth Port area where he had been working. A fellow employee, Mr Begg, gave evidence, which I accept, that as he was making his way to the meeting he passed Mr Chahine (at a distance I assess to be about five or six metres) and said to Mr Chahine “Hey Guido, there is a meeting”. Mr Chahine acknowledged Mr Begg, saying “Oi” and gave him a thumbs up sign.

[4] When Mr Cleary realised that Mr Chahine had not attended the meeting he approached Mr Chahine and questioned him as to why he was not attending, including saying words to the effect “Who the fuck do you think you are? Do you mean to tell me that you didn’t hear the announcement?” Mr Chahine insisted that he did not hear the announcement and objected to Mr Cleary’s raised voice saying words to the effect “Yes. I didn’t. Please don’t raise your voice and don’t abuse me. If you don’t stop abusing me I’m well within my rights to leave the premises.”

[5] The following day Mr Cleary called Mr Chahine to a meeting and the union delegate, Mr Philpott, also attended. Mr Chahine was informed that he was to suffer a grade reduction from Grade 8 to Grade 3 for a three month period as a penalty for failing to follow a direction to attend the meeting the following day. Mr Cleary gave evidence that Mr Chahine refused to accept that sanction and became very abusive. I accept that evidence.

[6] A warning letter was prepared and given to Mr Chahine by Mr Cleary later that day. Mr Cleary gave evidence that Mr Chahine refused to accept the letter and again became abusive towards him including saying words to the effect “You are not a man”. Mr Watson, the Branch Manager of the facility, overheard the shouting and came out of his office to investigate. His evidence is corroborative of the evidence of Mr Cleary.

[7] Later that afternoon Mr Cleary saw Mr Chahine working in the breezeway rather than in the Perth Port where he was supposed to be working. Mr Cleary instructed another employee, Mr Zechner, to instruct Mr Chahine to work unloading in the Perth Port. Mr Chahine twice refused Mr Zechner’s instruction. Mr Zechner reported the refusal to Mr Cleary noting that Mr Chahine was “pissed off” and had said words to the effect “if he has to load [in the Perth Port], he is going to kill someone”. Later again that day there was a further meeting between Mr Watson, Mr Cleary, Mr Chahine and Mr Philpott to discuss Mr Chahine’s refusal to load in the Perth Port. Mr Watson’s evidence was that Mr Chahine said words to the effect “I’m not loading on a Grade 3. If you make me load, I will kill someone with the fork.” Mr Watson alleged that Mr Chahine was abusive throughout the conversation saying things to the effect “who the fuck are you to tell me what to do; I’ll do what I want” and “fuck off”. He described Mr Chahine as ranting and yelling. He directed Mr Chahine to leave the premises and go home. Mr Chahine refused to leave and went back to his work. The police were called and eventually escorted Mr Chahine from the property.

[8] At this point I should note that in that meeting Mr Chahine sought to explain his refusal to work in the Perth Port on the basis that it was unsafe to do so because freight had spilled out of the relevant area. I am not satisfied that that explanation was genuine. I accept the evidence of Mr Cleary that were was a well established procedure for dealing with safety issues of that type and that if Mr Chahine had in fact been willing to work in the Perth Port and was only prevented from doing so because of the state of the freight then he should have activated the procedure in question. He did not do so. I am satisfied that Mr Chahine’s refusal to work in the Perth Port was driven by a refusal to accept the disciplinary sanction imposed by Toll.

[9] On 22 March 2010 Mr Watson had a telephone conversation with Mr Chahine in which he said words suggesting (incorrectly) that he was prepared to have Mr Chahine return to work on a Grade 3 basis. Mr Chahine refused to come back on that basis. Mr Watson reiterated that this was unsatisfactory and offered Mr Chahine the option of either resigning or being sacked. Mr Chahine refused to resign and his employment was then terminated.

[10] The work performed by the forklift drivers at the Toll warehouse is work that falls within the Grade 3 classification of the relevant State award. It has been the practice of Toll for many years to advance the forklift drivers through the grades above Grade 3 with Grade 8 being the rate of pay for the experienced drivers who were good workers. The work of loading in a port like the Perth Port was recognised as the work of a Grade 8 employee while work in the breezeway was recognised as work of a lesser standard and was where Grade 3 employees generally worked. In other words, the disciplinary sanction imposed by Toll involved Toll in requiring Mr Chahine to perform work usually undertaken by a Grade 8 employee for the pay of a Grade 3 employee (albeit that Toll contends that its legal obligation in relation to a person performing work in the Perth Port was to pay at the Grade 3 level).

[11] Mr Chahine emphatically asserted that he did not hear the PA announcement made by Mr Cleary calling the meeting on 17 March 2010. He agreed that he heard Mr Begg call out to him but claimed that all he heard Mr Begg say was “Hey” and he thought Mr Begg was simply calling out a hello and he responded by acknowledging Mr Begg with a thumbs up sign.

[12] In the circumstances I considered it appropriate to conduct an inspection and attended the Toll Distribution Centre at Eastern Creek for that purpose. The inspection revealed that the PA system was certainly loud enough to be heard by an employee in the position of Mr Chahine. However, for whatever reason (and probably a reason to do with the peculiar audio characteristics of the space), I was unable to discern clearly the words of the test announcement made at the time of the inspection. I am satisfied that Mr Chahine was giving truthful evidence when he indicated that he did not appreciate from the announcement that a meeting had been called. Moreover, I accept Mr Chahine’s evidence that he did not hear Mr Begg indicate that a meeting had been called. Mr Chahine was sitting on a forklift that was running and attending to his paperwork at the time Mr Begg called out to him. It is entirely plausible that Mr Chahine did not catch what had been said to him from a distance of five or six metres by Mr Begg.

[13] Toll also relied upon a history of disciplinary warnings.

[14] On 16 September 2002 Mr Chahine was given a verbal warning for failing to enter the workplace via the required door. This is a relatively trivial matter and I do not give it significant weight.

[15] On 24 April 2007 Mr Chahine was issued with a warning letter for abusing a manager, Mr Bell. Mr Chahine acknowledges saying at the top of his voice “stop harassing me, leave me alone”. It appears that Mr Bell had held his wrist up to Mr Chahine’s face to point out the time. Mr Chahine claimed to have signed the warning letter under duress which, it turned out, was constituted by union advice that his behaviour was unacceptable and not made right by the manager’s behaviour such that he ought to sign the letter. I am satisfied that that warning letter was properly issued.

[16] On 5 November 2008 Mr Chahine was issued with a third and final warning letter for abusing a work colleague, Mr Russo. Mr Russo had damaged a pallet in the WA area. Mr Chahine saw this as giving rise to an OH&S issue and raised the matter with a Mr Pugg who he claimed refused to listen. Mr Chahine denied any abuse of Mr Russo and instead believed that the incident related to a contention that he had abused the manager, Mr Pugg. The warning letter was signed by Mr Chahine. I am satisfied that reliance can and should be placed on it.

[17] On 20 November 2009 Mr Chahine was issued warning letter for failing to work as directed. In this case a supervisor had asked Mr Chahine to look at photographs of damaged plate. There was no suggestion that Mr Chahine was responsible for the damage but a more senior manager had instructed that all employees be shown the photographs in order to bring home the need to avoid damage. Mr Chahine refused to look at the photographs, including after Mr Cleary came down to take up the issue. I accept that Mr Chahine ignored Mr Cleary initially and then shouted “stop harassing me” and “leave me alone.” Mr Chahine in fact resigned at that point and started to walk out and was persuaded by Mr Cleary not to carry through with his resignation. This incident is properly regarded as an instance of Mr Chahine refusing to comply with a reasonable direction.

[18] Mr Watson gave evidence that I accept that the incidence of Mr Chahine refusing to follow directions was, historically, materially more significant than the formal warnings indicate. He gave evidence, which I accept, that Mr Chahine had failed or refused to follow directions on many other occasions but that no action had been taken on those occasions.

[19] I was particularly impressed with the evidence of Mr Cleary. He struck me as a very decent, honest and honourable manager. I am more than satisfied that he genuinely believed that Mr Chahine had heard and understood the announcement to attend the meeting on 17 March 2010 and that Mr Chahine had simply had defied him.

[20] However, for the reasons given, I am satisfied that Mr Clearly was mistaken in this regard and that Mr Chahine had a well founded sense of grievance when the disciplinary sanction was imposed upon him and that the events spiralled out of control in the manner I have described as a consequence.

[21] Mr Chahine has, it is clear to me, an excitable personality, a commitment to occupational health and safety, and a tendency to act on the basis that his own perceptions are correct and that he is entitled to disregard the views and instructions of managers when he regards them as incorrect or unwarranted.

[22] I note that Toll treated as a serious threat Mr Chahine’s statement “I will kill someone”. However, in the context of the events as they occurred I am satisfied, as Mr Chahine asserts, that this statement was intended to convey a concern on Mr Chahine’s part that he was so distressed by what had occurred that he was at a much higher risk of having an accident which necessarily involved a risk to other employees. I am satisfied that Mr Chahine did not make a threat that he would deliberately kill someone. On the other hand, Mr Chahine’s agitated state together with the statement “I will kill someone” made it more than reasonable for the Toll managers to conclude that the situation should be defused by requiring Mr Chahine to leave the premises. He refused to leave the premises notwithstanding repeated directions that he do so.

[23] While I am not satisfied that Mr Chahine failed or refused to follow a direction, of which he was aware, to attend the meeting on 17 March 2010, I am satisfied that he refused to follow the lawful directions conveyed by Mr Zechner that he perform work loading in the Perth Port and he repeatedly refused to leave the premises when instructed to do so. I am also satisfied that Mr Chahine was extremely abusive towards both Mr Cleary and Mr Watson. I am satisfied that this behaviour constituted a valid reason for Mr Chahine’s termination.

[24] I have considered the matter specified in s.387(a), namely “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)”. I turn to consider the other matters specified in s.387.

(b) whether the person was notified of that reason; and

[25] Mr Chahine was notified of the reason relied upon by Toll, namely repeated failure to follow directions.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

[26] Mr Chahine was given an opportunity to respond to the reason relied upon by Toll.

(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

[27] Toll did not unreasonably refuse to allow Mr Chahine to have a support person present to assist in any discussions relating to the dismissal. On the contrary, the union delegate was invited to assist Mr Chahine in all such discussions.

(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

[28] The dismissal related to misconduct rather than unsatisfactory performance.

(f) and (g) 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 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

[29] Toll is a large company and part of a very large group of companies. It has dedicated human resource management specialists. I am satisfied that it followed a fair procedures in dealing with Mr Chahine’s misconduct.

(h) any other matters that FWA considers relevant.

[30] Mr Chahine has been employed at Toll for just over ten years. It was not disputed that he is a good worker. Mr Chahine lives with his parents but uses much of his income to support his widowed sister and her children. It is clear that Mr Chahine loves his work.

Harsh, Unjust or Unreasonable?

[31] My finding that Mr Chahine did not in fact appreciate that he was required to attend the meeting called over the PA system on 17 March 2010 means that he did not deliberately defy the instruction to attend that meeting (notwithstanding that I accept it was more than reasonable for Mr Cleary and the others manager to proceed on the basis that such defiance had in fact occurred). It follows that Mr Chahine had a justifiable sense of grievance in relation to the disciplinary sanction imposed on him which in turn would lead to the unfolding of events I have described above. It caused me to canvass with counsel for Toll whether the proper outcome was a finding that the dismissal was harsh or unjust and that Mr Chahine be reinstated albeit with a substantial reduction in the backpay that might otherwise be ordered. However, after earnest consideration of all the submissions I have come to the view that Mr Chahine’s dismissal was not harsh, unjust or unreasonable. Section 381(2) provides that the unfair dismissal remedies “and the manner of deciding on and working out such remedies, are intended to ensure that a ‘fair go all round’ is accorded to both the employer and employee concerned”. This means a fair go for the employer as well as the employee. What I have referred to as Mr Chahine’s justifiable sense of grievance in relation to the disciplinary sanction imposed on him for failing to attend the meeting called by Mr Clearly does not excuse Mr Chahine’s extremely abusive behaviour towards Mr Cleary and Mr Watson in the subsequent meetings, his belligerent and considered refusal to work in the Perth Port and his repeated refusal to leave the premises when directed to do so. He could have pursued his grievance through a dispute resolution process. Instead he behaved in a manner that was wholly unacceptable and left Toll’s managers with no real option but to dismiss him. I am satisfied that Mr Cleary and Mr Watson acted in good faith. They were faced with an intolerable situation where Mr Chahine had abused each of them and then repeatedly defied explicit directions in relation to performing work and an eminently reasonable direction that he leave the premises to the point where it was necessary to call the police. In all the circumstances I have concluded that the dismissal was not harsh, unjust or unreasonable. It follows that the application for relief must be dismissed and I do so.

VICE PRESIDENT

Appearances:

S. Bull, of the Transport Workers Union, for Michael Chahine.

J. Darams, of Counsel, with C. Lenard, solicitor, for Toll Express.

Hearing details:

2010.

Sydney:

July 7, 8.

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