Michele Tiscia v Toll Transport Pty Ltd T/A Toll Customised Solutions

[2014] FWC 6279

[2014] FWC 6279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Michele Tiscia
v
Toll Transport Pty Ltd T/A Toll Customised Solutions
(U2014/5594)

SENIOR DEPUTY PRESIDENT ACTON MELBOURNE, 16 SEPTEMBER 2014

Application for relief from unfair dismissal - conduct valid reason.

Introduction

[1] Mr Michele Tiscia was employed by Toll Transport Pty Ltd T/A Toll Customised Solutions (Toll) in June 2011 and dismissed from his employment on 6 March 2014. Mr Tiscia made an unfair dismissal remedy application (UDR application) to the Fair Work Commission (FWC) on 14 March 2014. Toll opposes the application. The determination of that UDR application is the subject of this decision.

Relevant statutory provisions

[2] Section 394 of the Fair Work Act 2009 (Cth) (FW Act) provides that a person who has been dismissed may apply to the FWC for an order granting a remedy.

[3] Section 390(1) of the FW Act provides that the FWC may order a person’s reinstatement or the payment of compensation to the person if satisfied the person was protected from unfair dismissal at the time of being dismissed and the person has been unfairly dismissed.

[4] Section 382 of the FW Act provides for when a person is protected from unfair dismissal. I am satisfied that at the relevant time, Mr Tiscia was protected from unfair dismissal.

[5] Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:

“(a) the person has been dismissed; and

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

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

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

[6] I am satisfied Mr Tiscia was dismissed by Toll.

[7] Section 387 of the FW Act sets out criteria the FWC must take into account in considering whether it is satisfied a dismissal was harsh, unjust or unreasonable. Section 387 of the FW Act is as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

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

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[8] The following people gave evidence before me relevant to the matters in s.387:

● Mr Michele Tiscia;
● Mr Bilah Naja;
● Mr Matthew Wood;
● Ms Emma Millin;
● Ms Michelle Weise;
● Mr Jason Alsop;
● Mr Francesco Mamone
● Mr Joseph DeBattista;
● Ms Jennifer Vega;
● Mr Kamil Hayar;
● Ms Suzanne Cuell;
● Mr John Havran;
● Mr Matthew Smith;
● Ms Margaret O’Grady;
● Ms Maria Crabb; and
● Ms M. (name suppressed)

[9] I have considered all the evidence before me. I highlight below that which was most relevant in reaching my findings.

[10] I turn then to consider the matters in s.387 of the FW Act.

Section 387(a) - Valid reason

[11] I am satisfied there was a valid reason for Mr Tiscia’s dismissal by Toll related to his conduct. That conduct being his inappropriate behaviour over a period of time. The inappropriate behaviour is set out below.

[12] Firstly, Mr Tiscia behaved inappropriately during a drug and alcohol test at Toll in February 2013.

[13] Mr Tiscia denied he behaved inappropriately during the drug and alcohol test. However, his evidence indicated he has a narrow view of what is inappropriate behaviour.

[14] Ms Emma Millin, an accredited drug and alcohol tester, gave evidence before me that on 25 February 2013 at the request of Toll she conducted random drug and alcohol testing of employees of Toll. That day one of the employees she tested was Mr Tiscia. After completing the testing she spoke with Ms Michelle Weise, an Administration and OH&S Coordinator at Toll, about the way Mr Tiscia had behaved during her testing of him. She subsequently sent an email to Ms Weise about the incident. The email, sent at 9.55 am on 25 February 2013, was as follows:

“Hi Michelle

as discussed here is a summary of what occurred during the testing this morning of Michele Tiscia

Tested 25.02.13 at 7.09am

Michele Tiscia entered the room where the testing was taking place and expressed to the technician (Emma Millin) that he did not believe in the testing procedure and he would prefer to be tested by a G.P

Technician explained TOLL’s employment policy on about being subject to random testing while employed and while onsite.

Michele then answered the testing record question but then refused to sign the consent again stating he would prefer to be tested by a G.P.

Tech explained to Michele that she could not conduct the test if he does not sign the consent form.

Michele then questioned the technicians qualifications and the accuracy of the Dragar testing equipment used, stating ‘even the Police don’t use this because of how faulty it is.’

Tech explained to Michele Integrity Sampling policy on their maintenance of the equipment and what happens if a false negative test comes up.

Tech also explained to Michele the procedure of taking a secondary test if a presumptive positive test came up and what Lab the company used to test the sample.

Michele still refused to sign the consent on the testing record so the tech informed Michele that she would have to contact Michelle to inform her he was refusing the test.

Michele then agreed to sign the consent but continued to express his opinion about the procedure, the technician and the equipment.

Tech informed Michele that if is he was unhappy with this that he should talk to Michelle or the Union.

Throughout the procedure Michele was verbally aggressive and intimidating towards the technician with the technician concerned for her safety if a presumptive positive result was to come back.

Technician informed Michelle about Michele and his aggressive attitude towards the technician during the testing.

If you need any further information please let me know

Kind regards,

Emma Millin

Technician

Integrity Sampling (Aust) Pty Ltd”

[15] Ms Millin’s evidence before me was consistent with the content of the above email.

[16] Toll investigated the matter. Mr Smith’s witness statement to the FWC attached his notes of his meeting on 25 February 2014 with Mr Tiscia on the matter. Subsequently, Toll gave the following letter to Mr Tiscia:

“28 February 2013

Michele Tiscia

C/- Toll Customised Solutions

BY HAND

Dear Michele,

RE: Written warning for inappropriate behaviour.

Further to our meeting on 25 February 2013 which was attended by myself, you, Kamil Hayar (Operations Manager) and Bilah Najah (Union delegate and support person) please be advised of the following outcomes from the investigation into your behaviour. I also confirm that the meeting originally scheduled for 27 February 2013 was delayed to allow you your choice of support person.

1. It has been found on the balance of probability that you did behave in an aggressive and intimidating manner towards Ms Emma Millin of Integrity Sampling during the drug and alcohol screening around 7am on 25 February. It is also noted that, whilst your behaviour would be regarded as inappropriate in any circumstance, Ms Millin is not unaccustomed to working in hostile environments however felt clearly intimidated to the point of making a formal complaint.

2. You maintain that you were not aggressive in any way however in doing so you maintained this as you ‘did not yell’ at Ms Millin. The investigation has confirmed that you did not ‘yell’ at Ms Millin as you maintain however this does not remove the allegations of aggressive and intimidating behaviour. It is also noted that during a previous meeting to discuss your aggressive behaviour you maintained that you were not aggressive as you did not ‘wave your arms or anything.’ As was discussed with you by Ms Karen Luu during the one on one training into our Appropriate Behaviour guidelines, aggression does not simply constitute one aspect of behaviour; it can take many forms.

Further to this outcome, I am extremely concerned at the lack of respect you display towards management, including myself. As an example, your statement to me during the meeting on 25 February that ‘I hope this investigation isn't biased like all your other ones’ is a very serious allegation against my integrity and honesty as a Senior Manager with Toll Customised Solutions. It was noted that when questioned on your statement you were unable to provide details to substantiate your allegation however if you wish to have your concerns investigated separately I encourage you to do so via the dispute resolution process provided for in the site Enterprise Agreement and confirm my full cooperation with any process that follows.

It is noted that during the meeting on 28 February you asked for an opportunity to retract the comment outlined above however it was explained to you that as the behaviour occurred in the manner it did it cannot be treated as if it didn't happen although we note that you communicated your regret and apology in making the statement in the manner that you did.

You have displayed a similar level of disrespect towards management in the past and have been counselled accordingly. Specifically, during an investigation into alleged inappropriate behaviour by you in November 2012, you stated that Senior Managers are ‘liars’ however you were again unable to provide any details to your allegations and later sought to retract the comment. As discussed with you during the meeting on 25 February and 28 February, it is apparent that your inappropriate behaviour and disrespect for Management arises when you are faced with a situation that is perhaps not to your liking and that you use aggression and intimidation to improve your position in these circumstances. We must advise you that this behaviour is completely unacceptable and not in keeping with the behaviour expected of our employment relationship and that it must cease.

Any further instances of you being found to act in an inappropriately aggressive or intimidating manner, or using intimidation to gain advantage will be taken very seriously and will result in further disciplinary action against you which may include termination of your employment.

Yours sincerely,

[Signed]

Matthew Smith

Employee Relations Manager - Victoria

Toll Customised Solutions”

[17] In cross-examination, Mr Smith explained that Toll’s view that Mr Tiscia had behaved inappropriately during the drug and alcohol test was in part informed by Ms Millin having no motive to make her complaint and Mr Tiscia’s behaviour during Toll’s questioning of him about the incident.

[18] I prefer Ms Millin’s and Mr Smith’s evidence about the drug and alcohol testing incident. Mr Tiscia has a narrow view of what is inappropriate behaviour, there is no apparent motive for Ms Millin’s complaint and Mr Smith’s investigation of the incident was not shown to be deficient.

[19] Having regard to the evidence before me, I am satisfied Mr Tiscia did behave inappropriately during the drug and alcohol test conducted by Ms Millin on 25 February 2013, as indicated in the letter to him of 28 February 2013.

[20] Secondly, Mr Tiscia made a false safety incident report to Toll in September 2013 about another employee getting trapped underneath a carton and Toll management covering up the incident.

[21] Mr Tiscia’s version in the safety incident report and of a management cover-up were not supported by others.

[22] Mr Jason Alsop, a Senior Business Manager at Toll, gave evidence about Mr Tiscia reporting the incident to him, his investigation of it, the improbability of the incident occurring as reported by Mr Tiscia, and Mr Tiscia’s subsequent admission to him that he had not done the right thing and the incident didn’t quite happen as he had reported.

[23] Mr Tiscia’s cross-examination of Mr Alsop on the safety incident report confirmed Mr Alsop’s evidence-in-chief on the matter.

[24] I prefer Mr Alsop’s evidence. His evidence about the equipment and items involved in the alleged safety incident were not undermined by Mr Tiscia’s cross-examination of him and the equipment and items involved make Mr Tiscia’s version in his safety incident report improbable.

[25] In the circumstances, I accept Mr Tiscia made a false safety incident report to Toll in September 2013.

[26] Thirdly, Mr Tiscia made an unfounded written complaint to Toll on 5 December 2013 about inappropriate behaviour by Mr Matthew Smith at a meeting on 22 November 2013. Mr Smith is an Employee Relations Manager at Toll. The 22 November 2013 involved Mr Smith, Ms M another Employee Relations Manager at Toll, Mr Alan Cartwright who is a union delegate, and Mr Tiscia.

[27] Mr Tiscia’s version of the alleged inappropriate behaviour by Mr Smith was not supported by others at the meeting.

[28] Mr Smith denied the alleged inappropriate behaviour.

[29] Mr Tiscia’s written complaint was investigated by Ms Margaret O’Grady, a person employed by Toll in a separate area, and she concluded the complaint was unfounded. In doing so, she found that Mr Cartwright and Ms M did not support Mr Tiscia’s version of the events on 22 November 2013.

[30] Ms O’Grady gave evidence before me about her investigation but was not asked by Mr Tiscia about her findings in respect of his written complaint of 5 December 2013.

[31] Ms M was called as a witness before me by Mr Tiscia but was not asked about the meeting on 22 November 2013 or Ms O’Grady’s finding that Ms M did not support Mr Tiscia’s version of the meeting on 22 November 2013.

[32] Mr Cartwright was not called as a witness before me.

[33] Ms O’Grady’s evidence was persuasive and she was not questioned by Mr Tiscia about the findings from her investigation. Nor was Ms M, who attended the 22 November 2013 meeting and who was called as a witness by Mr Tiscia, questioned by Mr Tiscia about the meeting or Ms O’Grady’s findings.

[34] In the circumstances, I accept Mr Tiscia’s written complaint to Toll on 5 December 2013 about Mr Smith’s behaviour was unfounded.

Section 387(b) and (c) - Notification and opportunity to respond

[35] Following his 5 December 2013 complaint, Mr Tiscia went on periods of leave from Toll from 10 December 2013.

[36] On 6 January 2014, Toll wrote to Mr Tiscia about the outcome of its investigation of, amongst other things, his 5 December 2013 complaint. Toll also wrote to Mr Tiscia on 6 January 2014 seeking his response to questions set out in the letter concerning why he had made an unfounded written complaint about inappropriate behaviour by Mr Smith and also referring to other incidents of inappropriate behaviour by Mr Tiscia for which he had been disciplined. In this latter letter, Toll advised Mr Tiscia to take the letter seriously due to Toll’s concern that due to his continued behaviour the employment relationship may have broken down and such behaviour may continue if he returned to the workplace. Toll sought his response by 9 January 2014. The letter concluded that he was to be aware that “in the event the business is not satisfied that your responses are providing the confidence that the employment relationship has not broken down or that you will continue to behave in an inappropriate manner, then this may result in termination of your employment.”

[37] Subsequently, Mr Tiscia was given until a meeting between Toll, Mr Tiscia and others on 20 January 2014 to respond to the 6 January 2014 letter.

[38] On 16 January 2014, Mr Tiscia made an application to the FWC for an order to stop bullying by several employees of Toll.

[39] On 20 January 2014, Mr Tiscia made a worker’s compensation claim and advised Toll that he was medically unfit to attend any meetings until 30 January 2014. Toll subsequently advised Mr Tiscia that the meeting was therefore rescheduled to 31 January 2014. On 30 January 2014, Mr Tiscia provided Toll with a medical certificate dated 27 January 2014 which stated that Mr Tiscia was unfit until 14 February 2014.

[40] Mr Tiscia’s application for an order to stop bullying was the subject of a conference at the FWC on 20 February 2014. That conference also provided an opportunity for Mr Tiscia to respond to the questions in the 6 January 2014 letter of Toll.

[41] Subsequently, on 26 February 2014, Toll wrote to Mr Tiscia requiring him to attend a meeting at Toll on 3 March 2014 at which he would be required to provide reasons as to why his employment should not be terminated and advising him that if he was unable to provide a satisfactory response then his employment would be terminated. The letter also advised him he could bring a support person to the meeting.

[42] In particular, the Toll letter of 26 February 2014 stated:

“Requirement to show cause as to why your employment should not be terminated.

The business is seeking your response as to how the employment relationship can be maintained when:

● You are unable / unwilling to take accountability for any of your actions in the workplace;
● You do not have any trust or confidence in the management at Toll;
● You consistently demonstrate behaviour that the company views as victimisation;
● You believe that behaving in a manner that upsets the workplace is ‘not your problem;’
● You have been trained multiple times on the behavioural expectations of the business yet you are still unwilling to modify your behaviour;
● You have been issued 4 counselling/expectations letters for inappropriate behaviour since June 2012;
● You have been issued with 3 written warning letters for inappropriate behaviour since June 2012;
● You have been issued with 2 letters for unacceptable absenteeism including a warning since May 2013;
● It has been clearly stated in our warning letters that continued inappropriate and/or aggressive behaviour could lead to the termination of your employment;
● Your consistent unsubstantiated allegations against Management are viewed as vexatious and/or malicious;
● Your lack of willingness to modify your behaviour is in turn hindering our ability to provide a safe workplace for the other employees as provided for under the Occupational Health and Safety Act 2004;
● Your disregard for the seriousness of your allegations against others and behaviours as demonstrated by your laughter during our meeting on the 20 February 2014.”

[43] On 28 February 2014, Toll emailed the following letter to Mr Tiscia:

“Dear Michele

Re: Response to our letter of 26 February 2014

I write further to my letter of 26 February 2014 requiring your attendance at a meeting on 3 March 2014 to show cause as to why your employment should not be terminated.

You initially responded that you would attend the meeting by accepting a calendar invite that was sent to you. You then sent me an email attaching a medical certificate relating to your rejected Work Cover claim dated two days prior to my request. The certificate states that you do have capacity to work, and that you ‘cannot work for Toll’ but could work for other companies.

This was then followed by an email from you advising me that ‘as I suffer from anxiety due to meetings I have had with Toll in the past I will not be attending any meeting organised by Toll, until my health is better. The email, however, did not advise the business of when you anticipate you will be able to meet with me. In turn, for a doctor to have provided you with this medical certificate, they must understand your medical requirements through information provided by you. As such, it appears you may have no intention of returning to work at Toll as the medical certificates states you ‘cannot work for Toll’ but you are fit for work at another company.

It is prudent that we express our concerns surrounding your unwillingness to attend the meeting to support the resolution of this matter and these are:

○ It does not involve the interaction with any persons you have alleged bullying;

○ It is not to be held at any workplace you are familiar with;

○ You demonstrated a confident, comfortable and at times disrespectfully jovial manner during our meeting on 20 February 2014;

○ At no time did you appear anxious during this meeting or in your correspondence to me; and

○ You have met with both the Fair Work Commission and a WorkCover investigator to discuss your alleged bullying matter for extended periods of time whilst certified unfit without hesitation.

In light of the above and the necessity to finalise this matter to allow both the business, the Managers you have accused of inappropriate behaviour and yourself to move forward, we request you provide us with the following:

1. A confirmed date you intend to be able to meet with the business;

2. A valid reason why you are unable to meet with me in a place you have not attended before and as you are certified fit for work; and

3. If, as per your certificate, you have advised the doctor you cannot return to a Toll site whether you would be agreeable to a funded outplacement program to seek employment external to Toll as a gesture of good will.

I will be requiring you to respond to the above questions within 48 hours (2 March 2014) as I have, as per your initial agreement to attend the meeting on 3 March 2014, paid for travel to attend Melbourne on Monday 3 and Tuesday 4 March 2014 and again request the meeting takes place on either of these days.

In the event you do not respond to the business or provide a valid reason for not being able to attend the meeting, then the business will consider forming a decision based on the evidence it has obtained through investigations and meetings to-date.

If you wish to accept the offer of outplacement services, as offered only based on your advice that you cannot work for Toll, then please provide me with a confirmation in writing.

Please be aware that the business has been seeking to resolve this matter since writing to you on 6 January 2014 and your continued obstructive behaviour during the process is having a detrimental impact on the business.

If you have any questions about this letter please do not hesitate to email me on …

Yours sincerely,

[Signed]

Maria Crabb

Employee Relations Manager - NSW, ACT & QLD

Customised Solutions”.

[44] On 1 March 2014, Mr Tiscia sent the following email to Toll:

“Hello Maria,

As I'm not use to using emails, I accidentally hit the accepting button. I'm sure the email I sent to you after that made it crystal clear I was not attending meeting.

Maria you seem to ignore the fact that I have emailed you I'm more than happy to resolve any issues you have as soon as I'm over my illness. You express an unwillingness to understand my illness, as I have emailed to you this before.

I will not be attending meeting on the 3rd march 2014, or any future meetings organised by any toll members until my illness is better.

I only feel comfortable meeting toll personnel in a proper forum like an independent counsellor or at fair work. If you have a problem with understanding why i feel like this you should make effort to contact my main witness to my bullying by toll Billah Naja. Only then you might understand how my illness come about, and why I don't trust any toll management.

I take all toll matters seriously, and if toll did take their matters seriously and did a proper investigation to my past bulling toll would interview the main witness to my bullying Billah Naja.

Maria you claim I was disrespectful and jovial like on the 20th feb 2014. But yet you made no complaint to the commissioner, and in fact expressed to the commissioner the meeting went well, and you yourself laughed during meeting.

You claim I'm unable/unwillingness to take accountability for my action in the workplace. Again if toll took their investigations seriously they would interview the main witness Billah Naja and you will quickly realise I have nothing to be accountable for, it is only toll management only that believe I have to be accountable for so called actions.

I believe toll are dilebretly in this investigation avoiding to interview my witness Billah Naja because the evidence to my claims in past will be sustained.

Regards

Michele Tiscia”.

[45] Toll responded to Mr Tiscia on 4 March 2014 by email as follows:

“Dear Michele,

Thank you for your email relating to the necessity for you to provide a response to our correspondence dated 26th February 2014.

In light of your statements contained in your response, the business will take the time to consider the information provided. In particular, the business notes your response that you ‘have nothing to be accountable for’ and your belief that it is only Toll management that have formed a view that you should ‘be accountable for so called actions’. I confirm that in finalising this matter and deciding whether your employment with Toll Customised Solution Solutions will continue, the business will be considering the following:

1. your response below to our correspondence dated 26th February 2014;

2. the process to date;

2. your responses provided during our meeting on 20 February 2014;

3. the documentation contained in your employment file, which includes counselling letters, file notes and warning letters; and

4. the information provided as part of the investigation into your allegations of bullying.

Please be advised as it has been confirmed that Mr Naja was not present nor party to your complaint recently investigated, our correspondence dated 6 January 2014, and in an effort to resolve this matter appropriately, we will not be seeking to interview him at this juncture.

We have also requested in a prior communication that you provide us with a valid reason as to why you are unable to meet with us. You have maintained as a response that you are suffering from an illness, which is preventing you from meeting with us. However, the previous medical certificates you have provided did not state that you were unable to meet with us, and your current medical certificate states that you have capacity to work but ‘cannot work for Toll’. In these circumstances, as you continue to maintain that you are unable to meet with us, we request you provide us with a medical certificate stating you are unable to participate in meetings.

I await your response to support moving the matter forward.

Regards,

Maria”.

[46] Mr Tiscia’s response email sent later on 4 March 2014 was as follows:

“Dear Maria

have given you a valid reason why I’m not going to any meetings organised by toll. But toll does not take me seriously and only believe what toll management say and think only. Because of that, When my doctor comes back from holidays I will provide more information to you”.

[47] On 6 March 2014, Toll sent the following letter to Mr Tiscia terminating his employment:

“Dear Michele

Re: Outcome of investigation into the business’ concerns

I write further to my letter of 26 February 2014 requiring your attendance at a meeting on 3 March 2014 to show cause as to why your employment should not be terminated.

Since that date, you have advised that you are unable to attend any meetings with Toll due to your health and provided us with a WorkCover certificate that states that you do have capacity to work, and that you ‘cannot work for Toll’ but could work for other companies.

As the above medical certificate did not advise the business that you were unable to attend meetings with Toll employees we requested you provide us with medical evidence confirming this. On 4 March 2014, you advised us that your doctor was on annual leave and as such you would be unable to provide a medical certificate for some time.

I confirm the business accepts that you are unable to meet with your doctor and in light of your email responses of 1 March 2014 to my letter of 26 February 2014, we are satisfied that you do not have to appear in person and the business is now in a position to finalise this matter.

In considering and reaching the outcome the business carefully reviewed the following:

● your response of 1 March 2014 to our correspondence dated 26th February 2014;

● the process to date;

● responses provided during our meeting on 20 February 2014;

● the documentation contained in your employment file, which includes counselling letters, file notes and warning letters; and

● the information provided as part of the investigation into your allegations of bullying...

The business also took into account your request on 1 March 2014 after receiving our show cause letter that we meet and interview Bilah Naja. The concerns of the business as set out in my letter of 6 January 2014 and discussed with you on 20 February 2014, do not include any meetings or incidents that involved Mr Naja or to which he was a party to. As such, in relation to this matter the business has not interviewed Mr Naja.

As you have advised us that you are unable to meet with any Toll employee, I have formalised the outcome in writing below.

The business has made a decision to terminate your employment with Toll Customised Solutions. You will not be required to work out your notice period and will be paid out in lieu of this notice together with any accrued but unused annual leave entitlements. The business has made this decision due to the following:

● You are unable/unwilling to take accountability for any of your actions in the workplace, which includes you as recently as 1 March 2014 advising the business you ‘have nothing to be accountable for, it is only toll management only that believe I have to be accountable for so called actions’;

● You do not have any trust or confidence in the management at Toll, which has irretrievably broken down the employment relationship;

● You consistently demonstrate behaviour that the company views as victimisation, which now also includes allegations that I have not complied with requests from the Fair Work Commission due to me providing correspondence that was not to your liking;

● You believe that behaving in a manner that upsets the workplace is ‘not your problem’;

● You have been trained multiple times on the behavioural expectations of the business yet you are still unwilling to modify your behaviour. As such the business is unable to take any further risks with the safety of our workers and our obligation to provide our workers with a working environment free from inappropriate behaviour and victimisation.

● You have been issued 4 counselling/expectations letters and 3 written warning letters for inappropriate behaviour since June 2012 and you continue to demonstrate a consistent pattern of inappropriate behaviour;

● It has been clearly stated in our warning letters that continued inappropriate and/or aggressive behaviour could lead to the termination of your employment;

● Your consistent unsubstantiated allegations against Management are viewed as vexatious and/or malicious;

● Your lack of willingness to modify your behaviour is in turn hindering our ability to provide a safe workplace for the other employees as provided for under the Occupational Health and Safety Act 2004;

● Your disregard for the seriousness of your allegations against others and behaviours as demonstrated by your laughter during our meeting on the 20 February 2014 when you spoke about the behaviour

You will appreciate the seriousness of your actions and the liability to which such behaviour exposes both the business and yourself. Further, your actions were in serious breach of your obligations as a Team Member, the Appropriate Behaviour Policy and our STRIVE values. As such you have engaged in conduct which warrants the termination of your employment.

I confirm that Thursday, 6 March 2014, will be your last day of employment. If you have any queries about this letter, please do not hesitate to contact me.

Yours sincerely,

[Signed]

Maria Crabb

Employee Relations Manager - NSW, ACT & QLD

Customised Solutions”

[48] Having regard to the above chain of events, I am satisfied Mr Tiscia was notified of the valid reason for his dismissal and given an opportunity to respond in accordance with ss.387(b) and (c) of the FW Act.

s.387(d) - Support person

[49] There is no evidence that there was any unreasonable refusal by Toll to allow Mr Tiscia to have a support person present to assist at any discussions relating to dismissal. Accordingly, I am satisfied there was no such unreasonable refusal.

s.387(e) - Warning about unsatisfactory performance

[50] Mr Tiscia’s dismissal did not relate to unsatisfactory performance. Therefore, whether he had been warned about unsatisfactory performance before his dismissal is not relevant in this matter.

ss.387(f) and (g) - Size of the employer’s enterprise and absence of dedicated human resource management specialists or expertise

[51] Toll is a large enterprise with dedicated human resource management specialists or enterprise. Accordingly, I am satisfied the procedures Toll followed in effecting Mr Tiscia’s dismissal were not detrimentally affected by the size of Toll’s enterprise or the absence of such specialists or expertise.

s.387(h) - Other matters

[52] Mr Tiscia maintains that he was bullied and harassed at Toll. The evidence, in my view, does not support Mr Tiscia’s claims that he was bullied and harassed at Toll.

[53] I accept that one Toll manager used an inappropriate term at or after one meeting involving Mr Tiscia and to which Mr Tiscia took offence. That Toll manager was disciplined for doing so. The Toll manager’s conduct in using the inappropriate term is insufficient to constitute bullying and harassment and the other evidence does not support a conclusion that Mr Tiscia was bullied and harassed at Toll.

Conclusion

[54] Taking into account my findings in respect of the matters in ss.387(a) to (h) of the FW Act, I am not satisfied the dismissal of Mr Tiscia by Toll was harsh, unjust or unreasonable. There was a valid reason for his dismissal and he was afforded procedural fairness. None of my findings on the other matters in s.387 support a conclusion his dismissal was harsh, unjust or unreasonable.

[55] As I am not satisfied the dismissal of Mr Tiscia by Toll was harsh, unjust or unreasonable, Mr Tiscia was not unfairly dismissed. Mr Tiscia’s UDR application to the FWC is therefore dismissed. An order 1 to that effect is being issued at the same time as this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

M. Tiscia on his own behalf.

M. Smith for Toll Transport Pty Ltd T/A Toll Customised Solutions.

Hearing details:

2014.

Melbourne:

August 5, 6, 7, 8;

September 8.

 1   Tiscia v Toll Transport Pty Ltd T/A Toll Customised Solutions, PR555271.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR555270>