[2019] FWC 35

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michelle Arnold
v
DRW Investments Pty Ltd
(U2018/6396)

DEPUTY PRESIDENT MASSON

MELBOURNE, 3 JANUARY 2019

Application for an unfair dismissal remedy- aggressive and threatening conduct – prior conduct warnings – valid reason found – application dismissed.

[1] On 21 June 2018, Ms Michelle Arnold (the Applicant) made an application pursuant to s 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of her dismissal by DRW Investments Pty Ltd T/A Wettenhalls (the Respondent).

[2] The application indicated that the date that the Applicant’s dismissal took effect was 30 May 2018. The dismissal arose out of events on 22 May 2018, during which the Applicant was alleged to have engaged in threatening behaviour towards Linfox staff while delivering containers to the Kraft Heinz/Linfox site (Kraft site).¹

[3] On 10 July 2018, the Respondent filed a response to the unfair dismissal application.

[4] On 23 July 2018, the matter was listed for conciliation before a Fair Work Commission Conciliator but remained unresolved at the end of the conciliation. Consequently the matter was listed for hearing before me on 26 and 27 September 2018.

The Hearing

[5] At the Hearing, the Commission sought submissions from the parties as to whether the Commission should conduct either a conference (s 398) or a hearing (s 399) in relation to the matter. Taking into account the number of witnesses and the parties wishes, it was decided that a hearing would be the most effective and efficient way to conduct the matter.

[6] At the Hearing, the Applicant was granted permission to be represented by Mr M. Latham of counsel pursuant to s 596 of the Act. The Applicant was called to give evidence. The Respondent was represented by Mr Michael Lean, Chief Executive Officer of the Respondent, who led evidence from four witnesses:

Mr Robert Marshall	Linfox Leading Hand, Second in Charge of Afternoon Shift – Kraft Heinz site
Mr Troy Vandewiel	Linfox Co-ordinator – Kraft Heinz site
Mr Trevor McNicol	Linfox PM Shift Supervisor – Kraft Heinz Site
Mr Anthony Sutej	Operations Manager Container Services for the Respondent

Initial matters to be considered

[7] I am required by s 396 of the Fair Work Act 2009 (Cth) (the Act) to decide four matters before I consider the merits of the application. There is no dispute between the parties and I am satisfied on the evidence that:

(a) The application was made within the period required by s 394(2) of the Act;

(b) The Applicant was a person protected from unfair dismissal;

(c) The Respondent employed 250 employees at the time of the Applicant’s dismissal consequently the Small Business Fair Dismissal Code is not relevant; and

(d) The Applicant’s dismissal was not a case of genuine redundancy.

Background and evidence

[8] The Respondent is a road transport logistics business that employs 250 employees, 184 of whom are employed to undertake driving operations.

[9] The Applicant commenced employment with the Respondent as a Multi-combination driver on 11 July 2016 based at the Respondent’s Laverton North site. The Applicant’s role involved transporting containers between the designated depot and the Laverton North Site and from the designated depot to the Kraft site.

[10] The Applicant was employed on a casual basis pursuant to an employment contract (Employment Contract), which included a copy of the Respondent’s Code of Conduct, which was accepted and signed by her on 7 July 2016. 2 The Applicant’s conditions of employment on commencement of her employment were underpinned by the Wettenhalls Group National Enterprise Agreement 20123(the 2012 Agreement) which has since been replaced by the Wettenhalls National Enterprise Agreement 20174 (the 2017 Agreement).

[11] The Employment Contract provided for a rate of pay of $26.63 per hour plus 25% casual loading which was the Grade 9 rate provided for in the 2012 Agreement at the date of the Applicant’s commencement. The Applicant worked a regular weekly roster of 35 hours per week over five days Monday to Friday and was required to work overtime on occasions. She also states that her annual salary from her employment with the Respondent was $86,000.00 plus superannuation. 5

[12] The Applicant acknowledges that on commencement of employment with the Respondent she received copies of and accepted that she was bound by the terms of the Respondent’s policies and procedures⁶, including the Bullying and Harassment Policy 7, the Code of Conduct8 and the terms of her Employment Contract9.

[13] The Code of Conduct includes obligations regarding Personal Behaviour and Harassment and relevantly states as follows:

“Code of Conduct

…………

Personal Behaviour

All employees are expected to conduct themselves in a socially acceptable manner. Specifically, threats, abuse or physical violence are not permitted. Provocation will not be accepted as an excuse.

Harassment

Harassment of any kind is not permitted (e.g. sexual, racial, bullying/intimidation). If an employee believes they have been subject to harassment they must report the matter to their manager as soon as possible so it may be investigated.

…….” 10

[14] The Applicant also acknowledges that she undertook training in the Respondent’s Bullying and Harassment Policy on 19 April 2018 11 and that in doing so scored 100% in the assessment.12 The Bullying and Harassment Policy variously provides that:

(i) Employees must treat colleagues, customers, visitors and anyone else associated with the workplace with dignity and respect;

(ii) Employees must not bully, harass or victimise anyone in the workplace;

(iii) Unlawful harassment occurs when someone engages in conduct that would make a reasonable person feel offended, humiliated or intimidated; 13

(iv) Unlawful harassment occurs when someone engages in conduct that would make a reasonable person feel offended, humiliated or intimidated, because of their race, religion, colour, sex, disability age, or some other attribute specified under anti-discrimination legislation; 14

(v) Bullying is any repeated unreasonable behaviour directed towards a person, or group of people that creates a risk to their mental or physical health and safety. 15

[15] During her employment, the Applicant suffered an arm injury and had been receiving WorkCover payments since approximately 21 April 2017. More recently, the Applicant underwent a procedure on 5 June 2018 and surgery on 3 September 2018 in relation to the work related injury. She has not had the capacity to undertake work duties since undergoing the procedure and surgery. She has been in receipt of WorkCover payments since 5 June 2018 and has received $22,760 in payments from 5 June 2018 up until 19 October 2018. According to the Applicant, the WorkCover payments were based on her pre-injury average weekly earnings (PIAWE) of $1910.00 per week. 16

Prior Conduct

[16] The Respondent submits that the Applicant had been subject to various counselling and warnings prior to the incident of 22 May 2018 that led to her dismissal. The prior counselling and disciplinary events include:

(i) 3 September 2017 –Warning for using mobile phone while driving her truck;

(ii) 3 September 2017 – First written warning for an altercation with a colleague and yelling at two supervisors; 17

(iii) 12 December 2017 – Final written warning for failing to wear a seat belt which was in breach of clause 14.2 of 2017 Agreement; 18

(iv) 5 December 2017 – Counselled for placing objects on the dashboard of her truck; 19

(v) 7 March 2018 – Applicant aggressively sought to gain attention of another truck driver parked across entry to respondent’s Laverton site. 20

[17] In relation to the claimed use of a mobile phone while driving, the Applicant states that she was not aware at the time of the incident that merely handling the phone by picking it up and placing it in her pocket was an offence but she was now aware that it was an offence. 21 She acknowledged that if picking up her mobile phone was an offence then she had broken the law.22 She defended her actions, however, by stating that she had not used the phone and had merely picked it up and placed it in her pocket.23

[18] The Applicant referred to the Guardian in-cabin camera system which had been relied on by the Respondent to detect her handling of the mobile phone and states that it had been used by the Respondent to treat her differently to other drivers. As a consequence, she states that she felt persecuted. She further states that rather than the system being used for training purposes, it was used in her case for disciplinary purposes. The Applicant also claimed that she was the only driver in the fleet that had such technology. 24 The Applicant did, however, concede the health and safety benefits of the Guardian system and that employees had agreed to the introduction of such technology as part of the 2017 Agreement.25

[19] In relation to the first written warning issued to the Applicant on 3 September 2017 in respect of an incident on 28 August 2018, the Applicant denies that the incident occurred as detailed in the warning dated 3 September 2017. 26 She states that she was involved in an exchange with a colleague, Mr Mark Jones, during which she was verbally abused by Mr Jones, following which she yelled out for her supervisors Mr Sutej and Mr Molineux.27 She states that she was only calling out her supervisors names on the day of the incident and if that was “yelling” she conceded that she was yelling.28 The Applicant also claims she would have signed the formal warning subsequently issued to her “under duress”.29

[20] Mr Sutej states that, while the Applicant did not swear during the exchange with Mr Jones on 28 August 2018, she did engage in “aggressive and demonstrative” behaviour. Mr Jones responded inappropriately and there followed an excessive yelling match between the two. 30 Mr Sutej states that the “pitch of the actual noise level” of the interaction drew his and Mr Molineux’s attention and he described the interaction between the Applicant and Mr Jones as an “explosive conversation”.31 As a consequence of the interaction, both Mr Jones and the Applicant were issued with formal warnings.32

[21] The Applicant was involved in a vehicle accident on 24 November 2017, following which she made admissions to the attending police and ambulance officers that she had not been wearing a seatbelt. 33 The Applicant was subsequently issued a “Notice to Show Cause Letter”34 (December 2017 Show Cause Letter) by the Respondent on 6 December 2018 as to why she should not be dismissed for failing to wear a seat belt, such conduct being in breach of Clause 14 Cardinal Rules of the 2017 Agreement.

[22] The Applicant replied to the December 2017 Show Cause Letter on 11 December 2017 35 and stated in her response that she was unaware that her previous medical certificate exempting her from wearing a seat belt had expired and that a new medical certificate exemption was required every twelve months.36 The Applicant provided a Statutory Declaration to that effect.37 The Applicant also provided the Respondent with a copy of her previous medical certificate exemption dated 27 July 201138 and a copy of a new medical certificate exemption dated 27 November 2017.39

[23] After receiving the Applicant’s response to the December 2017 Show Cause Letter, the Respondent decided to issue a Final Warning which was accompanied by an “Explanatory Letter To Final Written Warning Dated 12 December 2017”. 40 In the letter, the Respondent states that the Applicant had failed to make a case for why her employment should not be terminated but it had decided to issue a Final Warning. In doing so, the Respondent made clear to the Applicant that she must comply with the Cardinal Rules in the 2017 Agreement and “must obey the law”. The letter relevantly states:

“……..Clause 49.3.2 of Reference A states that disregard for occupational health and safety obligations and any breach of the Company’s cardinal rules constitutes serious misconduct.

You need to understand that the Company will monitor your performance and behaviour closely. You need to do your job diligently and professionally. Above all you must obey the law.

If you disobey the law again you will be instantly dismissed.

……..”

[24] The Applicant was, as part of her Final Warning, provided with a copy of the 2017 Agreement and her attention was drawn to the Cardinal Rules and all other safety rules and related conduct clauses in the 2017 Agreement. The Applicant acknowledged in her evidence that, while she had received a copy of the 2017 Agreement as part of her Final Warning, she subsequently failed to read the cardinal rules. 41

[25] In relation to the 5 December 2017 counselling referred to by the Respondent, the Applicant acknowledged that she was obliged to keep her truck “clean and tidy” 42 consistent with the Code of Conduct which relevantly states as follows:

“……

It is the employee’s responsibility to keep the interior and exterior of the vehicle clean and tidy.

……….” 43

[26] The Applicant acknowledges that she placed tinsel on the dashboard of her truck but that it was just Christmas decorations, was good for morale, was not hurtful or damaging, did not dirty the truck and had only been placed on the dashboard after checking with the driver with whom she shared the driving of the truck. 44

[27] The Applicant states in respect of the alleged 7 March 2018 incident that she had experienced a number of problems with Viterra truck drivers parking in a manner that impeded access to the shared entrance to the Viterra and Respondent’s sites at Laverton. The emails to Mr Sutej 45 reveal that the Applicant was frustrated and annoyed with the repeated access issues she was confronting and detailed the steps she had taken to get the Viterra drivers to move their vehicles so she could access the site. This included using the horn on her truck to gain the offending driver’s attention.

[28] The Respondent submits that in addition to the particular disciplinary incidents referred to, the Applicant displayed a pattern of prior conduct in which it is claimed she had difficulties with her colleagues. Mr Sutej states that the Applicant’s work colleagues became weary and intolerant of the manner in which she approached them, that there was a consensus among the driving group that she had a negative impact upon their well-being and that one former employee, Mr Kumar, was so impacted by his interactions with the Applicant that he claimed to be afraid of approaching her. 46

[29] The Applicant rejected Mr Sutej’s evidence regarding her behaviour towards her colleagues 47 and states that she treated people whom she came into contact with in the workplace with dignity and respect, consistent with the Bullying and Harassment policy.48 The Applicant further states that she is actually “quiet” but concedes that when subject to bullying or threatening behaviour she may act inappropriately which she attributes to her post-traumatic stress disorder (PTSD).49

[30] The Applicant further states that she had disclosed her PTSD to Mr Sutej during her employment interview. 50 Details of that condition were also disclosed to the Respondent by way of copies of medical certificates51 appended to her response to the December 2017 Show Cause Letter.

22 May 2018 Incident

[31] The Applicant was required to deliver two containers to the Kraft site on 22 May 2018 and arrived at site at approximately 3.50 pm. On arrival, she was met by Mr Troy Vandewiel who is the Dispatch Co-ordinator for Linfox at the Kraft site at Altona. The Applicant was requested by Mr Vandewiel to fill in the “Linfox/Heinz Driver Declaration Form” 52 (Declaration Form).

[32] According to Mr Vandewiel, he noticed on completion of the form by the Applicant that she had not filled in the container numbers on the form, at which point he states that he asked her to fill in the numbers. He states that on being requested to fill in the container numbers on two occasions, the Applicant refused to do so and became “very aggressive, very loud”. 53

[33] Mr Vandewiel further states that the Applicant also refused to correctly fill in the response to the statement in the Declaration Form regarding Alcohol and Drugs. The Declaration Form required a Yes or No answer to the statement ….“I have NOT consumed alcohol and/or drugs (prescription or otherwise) that may impair my ability to work and drive”. According to Mr Vandewiel, Linfox policy required a “No” response to that statement. The Applicant refused to answer the relevant question in the manner sought by Mr Vandewiel. It was made clear by Mr Vandewiel to the Applicant that if she did not fill in the Declaration Form in the correct way she would not be permitted to enter the site. 54

[34] The Applicant states that in discussion with Mr Vandewiel she declined to answer “No” to the drug and alcohol statement in the Declaration Form without first speaking with her supervisor Mr Sutej. She states that she was concerned as to her personal liability as she believed that an answer of “No” would have been an admission on her part that she was under the influence of drugs and/or alcohol. 55 She further states that she then contacted Mr Sutej on her mobile phone to obtain instructions during which conversation she was advised by Mr Sutej to remain on site while he confirmed how she was required to answer the statement.56

[35] Mr Vandewiel states that when asked to change her answer from “Yes” to “No”, the Applicant refused to comply and became agitated and aggressive towards him at which point he withdrew and went and contacted his supervisor Mr McNichol. The Applicant denies having become angry or aggressive in her exchange with Mr Vandewiel.

[36] Following the initial exchange between the Applicant and Mr Vandewiel, Mr McNicol was contacted by Mr Vandewiel and advised of an issue with one of the drivers refusing to fill out the Declaration Form as required. Following this report, Mr McNicol went down to the container park area accompanied by Mr Vandewiel and the afternoon shift leading hand, Mr John Marshall.

[37] According to Mr McNicol, he then discussed with the Applicant her objection to filling out the Declaration Form as required by Linfox. He states that he again explained to the Applicant that Linfox site policy required a “No” answer in response to the drug and alcohol statement which the Applicant continued to refuse to sign. Mr McNicol confirmed that he would not allow the Applicant to unload her truck unless she filled out the Declaration Form in the required manner. Mr McNicol concedes that by requiring the Applicant to comply with the Linfox policy could have been perceived as placing pressure on her. 57

[38] Mr McNichol states that during the course of this conversation, the Applicant became increasingly aggressive at which point he then asked her to leave the site. Towards the end of the conversation with Mr McNicol, the Applicant said words to the effect that by asking her to leave the site without her truck being unloaded implied that she was being accused of being under the influence of alcohol and/or drugs to which Mr McNicol replied “don’t put words in my mouth”. 58 The Applicant also stated to Mr McNicol and his colleagues that she may need to seek legal advice.59 Mr McNicol states that he had not had reason to turn any other driver away from the site for refusing to comply with site provisions and was unaware of anyone else who had.60

[39] Mr Sutej confirms that he spoke with the Applicant on her mobile phone on three occasions during the course of the incident. Following the initial call from the Applicant, Mr Sutej states that he then called Mr Vandewiel and spoke with him as well as Mr McNicol to try and clarify the situation. During his second call with the Applicant, she confirmed to Mr Sutej that she would not alter the Declaration Form in the manner sought by Linfox and she asked to be drug tested. During the third call, Mr Sutej advised the Applicant to return to the Respondent’s yard with the containers as Linfox had advised him that she would not be permitted access to the Kraft site. Mr Sutej states that the Applicant’s tone during the phone calls to him was “raised and intense but audible enough to understand and comprehend”. 61

[40] It was variously claimed by Messrs Vandewiel, McNichol and Marshall in regard to the Applicant’s behaviour that she was angry and aggressive 62, failed to show respect63, raised her voice64, was a bit loud and aggressive65, had an aggressive tone66, became more angry as discussions continued67 and “threatened” Linfox staff with legal action.68 They did, however, concede that the Applicant did not engage in swearing69, made no personal or denigrating comments towards the Linfox staff70 and they could not remember the exact words that the Applicant had used.71

[41] Mr Marshall states that working in the transport industry exposed him to agitated or “narky drivers all the time” and that the Applicant’s behaviour was, in terms of aggression, similar to what he experienced “every day”. 72 Mr McNicol also confirms that drivers can get agitated at times and gave an example of another recent incident where a driver had sworn repeatedly and abused Linfox staff.73 Mr McNicol states that after he spoke with the driver in question, the agitated driver calmed down and apologised. Mr McNicol concedes that that particular driver’s conduct was worse than the Applicants on the 22 May 201874 but that he was not banned from site, as the agitated driver had been willing to enter into a discussion with Mr McNicol, the driver’s reason for being upset seemed genuine and he was prepared to apologise.75

[42] The Applicant denies claims that she was angry, abusive or aggressive 76 and states she spoke in a sweet voice to the Linfox staff. The Applicant states that she suffers from PTSD which can be triggered by her being in the presence of aggressive males77 which can lead to her acting inappropriately.78 She states that at no stage did her interactions with the Linfox staff on 22 May 2018 trigger her PTSD. She states that the Linfox staff were not aggressive and that she did not experience any feelings of shaking or unsafety.79

[43] In relation to the particular drug and alcohol statement that the Applicant refused to answer “No” to, it was conceded by Messrs Vandewiel, McNichol and Marshall that the question was poorly drafted 80, that the correct answer was in fact “Yes”81 as maintained by the Applicant because of the use of the word “Not” in the statement and that the form had now been amended to remove the word “Not”.82 Mr Marshall went even further and states that if he had been directed to sign a form saying he had consumed alcohol and/or drugs when he had not, his reaction would have been to state “You can jam it”. 83 Notwithstanding their views on the problems with the phrasing of the alcohol and/or drugs statement as it was on 22 May 2018, they maintained that Linfox Compliance required the form to be filled out in a particular way and there was no flexibility.84

[44] Mr Sutej also states that the Applicant had used a photocopy version of the Linfox declaration form from a collection of copies retained by her in the cabin of the truck and not a copy provided by Linfox. 85 Mr Sutej was, however, unable to say with certainty whether the form the Applicant completed on the 22 May 2018 was the correct one.86 The Applicant denied that she had used a photocopy from the truck and states she filled out the declaration form provided to her by Mr Vandeweil.87

Investigation and reasons for termination

[45] After having been asked to leave the Kraft site by Mr McNicol, the Applicant returned to the Respondent’s Laverton site and completed a “Person Involved In Incident Statement” 88 (Incident Statement) at approximately 5.15pm on 22 May 2018.

[46] Mr Sutej states that in a telephone call with Mr McNicol on the evening of the 22 May 2018, he was advised by Mr McNicol that the Applicant was turned away from the Kraft site that afternoon because of her behaviour, not because she refused to complete the Declaration Form as required by Linfox. 89 Mr Sutej further states that he spoke with his superiors regarding the issue and a decision was made that he was to undertake an investigation into the incident.90

[47] Mr Sutej states that he spoke via telephone to Mr Greg Evans, the Linfox Distribution Centre Manager, on the morning of 23 May 2018 and was advised by Mr Evans that the Applicant was banned from site. 91 Mr Sutej also received an email from Mr Evans at 8.40 am on 23 May 201892 to which were attached two witness statements from Mr Marshall and Mr Vandewiel. Mr Evans also stated in the email that the Applicant was turned away from the site on 22 May 2018 by Mr McNicol because of her behaviour, not because of her refusal to fill out the Declaration Form as required by Linfox.

[48] A further email was sent by Mr Evans to Mr Sutej at 10.12 am on 24 May 2018 confirming the verbal advice given to Mr Sutej the previous day that the Applicant was banned from the Kraft site effective immediately. 93 While not stated explicitly in the email, Mr Sutej states that the site ban was interpreted by the Respondent as being one of an indefinite nature.94 Mr Sutej states that he has been employed by the Respondent as a supervisor or manager in the container services division since 2010 and was aware of no other driver of the Respondent having been banned from entering a client’s site in that time.95

[49] The Applicant states that at or about 12.30 pm on 23 May 2018, she received a text message stating that she was required to attend work that day. She further states that she was subsequently contacted by Mr Sutej by telephone at approximately 1.40 pm on that day and advised that her shift had been cancelled and that she was now required to attend work on 24 May 2018 starting at her normal start time of 2.00 pm. The Applicant states that Mr Sutej what not clear as to the purpose of her attendance on 24 May 2018 despite her asking him. 96

[50] Mr Sutej states that the Applicant’s shift of 23 May 2018 was cancelled, due to the ban placed by Linfox on the Applicant and that there was no other work available for her. 97 He further states that in his conversation with the Applicant on 23 May 2018, he advised her that the purpose of her attendance on 24 May 2018 was, in part, for the purpose of the investigation into the incident of 22 May 201898 and that she was entitled to be accompanied by a support person.99 When subsequently pressed under cross examination however as to when he advised the Applicant of the planned meeting Mr Sutej was equivocal and concedes he was unsure if he advised her on 23 May 2018.100 Mr Sutej states that when he advised the Applicant to attend work on 24 May 2018 she did not agree and declined to offer her services on that day.101

[51] The Applicant states that she was not advised by Mr Sutej on 23 May 2018 of the meeting proposed to be conducted on 24 May 2018 and was unaware of it until she received an email from Mr Sutej at 12.09 pm on 24 May 2018. 102 She also states that in a telephone conversation with Mr Sutej at lunchtime on 24 May 2018, she advised Mr Sutej that she would not be attending work that day103 and followed that up with an email at 1.46 pm confirming that she would be having a week off on personal leave.

[52] The following series of emails were exchanged between the Applicant and Mr Sutej on 23 & 24 May 2018:

(i) 2.39 pm 23 May 2018 – Applicant sends Mr Sutej an email confirming his earlier telephone conversations held with her. The email records advice given to the Applicant by Mr Sutej that her shift of 23 May 2018 had been cancelled at short notice and that she had been banned by Linfox from the Kraft site. 104

(ii) 10.47 am 24 May 2018 – Mr Sutej responds to the Applicants email of 23 May 2018 and advises that the he will discuss with her when she comes in that day. 105

(iii) 11.25 am 24 May 2018 – Applicant responds by acknowledging Mr Sutej’s response and asking whether a meeting is scheduled that day. 106

(iv) 12.09 pm 24 May 2018 – Mr Sutej responds to the Applicant confirming that a meeting is scheduled for that day and that she is offered a support person to attend the meeting. 107

(v) 1.46 pm 24 May 2018 – Applicant emails Mr Sutej advising that she has been unable to arrange her preferred support person (Mr Peter Bernie) for the planned meeting for that day as he is unavailable until approximately 4.00 pm. She further advises Mr Sutej in the email that as a result of stress and her PTSD she is taking “a week of personal leave to sort my head out”. 108

[53] As the meeting proposed to be conducted on 24 May 2018 did not proceed the Respondent decided, rather than delay a meeting until the Applicant’s return from personal leave, to send a “Notice To Show Cause Letter” to the Applicant on 24 May 2018. 109 The letter requested a written response by no later than 4.00 pm on 29 May 2018 and relevantly stated as follows:

“………….

Upon arrival at the Kraft Heinz/Linfox site at Altona, and whilst completing the necessary documents as required for entry to the site, an incident occurred whereby a verbal altercation has arisen. Upon further investigation it was found that the staff involved reported that you were acting in an aggressive and threatening manner towards them. As a result of this incident, Linfox have advised that you have been permanently banned from their site, effective immediately.

As per the Wettenhalls National Enterprise Agreement 2017 that you are employed under and in particular Clause 49.3.2.5 of this agreement, engaging in threatening behaviour constitutes serious misconduct. Clause 49.3.2.9 also states that “behaviour that has the capacity to adversely affect the reputation, viability or profitability of Wettenhalls’ also constitutes serious misconduct.

You are being asked to ‘show cause’ in writing as to why your employment should not be terminated for serious misconduct.

………..”

[54] The Respondent did not include or provide copies of the Linfox staff statements to the Applicant with the Notice to Show Cause Letter of 24 May 2018. Mr Sutej states that he had intended as part of the investigation to provide the Applicant with an opportunity to read those statements at the meeting on 24 May 2018. 110 Mr Sutej acknowledges that the Notice to Show Cause Letter of 24 May 2018 did not include particulars of the allegations or the Linfox staff statements and he was unable to explain why the Linfox staff statements were not provided to the Applicant. He states that he did not prepare the Notice to Show Cause Letter of 24 May 2018.111

[55] The Applicant provided a response 112 to the Notice to Show Cause Letter on 29 May 2018. The Applicant in her response denied the allegations of threatening and aggressive behaviour and described her tone of voice during the incidents on 22 may 2018 as one of “responding sweetly”. She did, however, acknowledge her frustration at being asked to leave the site and confirmed that she stated to the Linfox staff that she had been accused of being under the influence of drugs or alcohol and may need to consult a solicitor about it.

[56] On 30 May 2018, the Respondent sent the Applicant a Notice of Termination letter. 113 The Respondent concluded that the Applicant had acted in an aggressive manner towards Linfox staff that was contrary to:

(i) Clause 49.3.2.5 of the 2017 Agreement by engaging in “threatening behaviour”; and

(ii) Clause 49.3.2.9 of the 2017 Agreement by engaging in “behaviour that has the capacity to adversely affect the reputation, viability or profitability of Wettenhalls”.

[57] Clauses 49.3.2.5 and 49.3.2.9 of the 2017 Agreement relevantly provide as follows:

49.3 Terminating Employment without Notice

49.3.1 The period of notice in clause 49.2 will not apply in the case of:

49.3.1.1 employees terminated for serious misconduct;

49.3.1.2 casual employees; or

49.3.1.3 employees engaged for a specified period or task.

49.3.2 Examples of serious misconduct include:

…………………

49.3.2.5 engaging in threatening behaviour, assault, or fighting;

………………..

49.3.2.9 behaviour that has the capacity to adversely affect the reputation, viability or profitability of Wettenhalls;

…………….”

[58] The Respondent in its Notice of Termination letter specifically referred to and relied on the Final Warning that the Applicant had received on 12 December 2017 in relation to her workplace behaviour.

[59] The Respondent stated in the Notice of Termination that the action to dismiss the Applicant was not taken for her refusal to change her response to the drug and alcohol statement in the Declaration Form and that the Respondent agreed with her interpretation of the statement as it was on the 22 May 2018. The letter relevantly states as follows:

“………………

Your response at Reference D, did not provide any justification for your actions in relation to your behaviour towards the customer’s staff. From the witness statements it is clear that you acted in an aggressive manner. To be clear, this action was not taken because of your refusal to change your answer on the driver declaration form. For the record, the Company supports your interpretation of the form and the only correct answer was/is yes. The issue at hand here is your interaction with the customer’s staff and the manner in which you engaged with them once the issue was raised with you by customer’s staff.

……..” 114 (emphasis added)

Was the dismissal unfair?

[60] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

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

(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.”

[61] In this case, there was no dispute and I am satisfied that the matter was confined to a determination of that element contained in s 385(b) of the Act, specifically, whether the dismissal of the Applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable:

“387 Criteria for considering harshness etc.

(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 the dismissal; and

(e) If the dismissal related to unsatisfactory performance – 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 FWA considers relevant.”

[62] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd¹¹⁵ by McHugh and Gummow JJ as follows:

“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[63] I am under a duty to consider each of these criteria in reaching my conclusion.¹¹⁶

Was there a valid reason – s 387(a)

[64] I turn first to consider whether there was a valid reason related to the person’s capacity or conduct. A valid reason for the dismissal of the Applicant need not be the reason given to the Applicant at the time of the dismissal.¹¹⁷ The reasons should be “…sound, defensible and well founded”¹¹⁸ and should not be “…capricious, fanciful, spiteful or prejudiced.”¹¹⁹

[65] Having been dismissed for misconduct, the Commission must first satisfy itself that, on the balance of probabilities that the alleged misconduct occurred.¹²⁰ In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct, without applying a standard of proof higher than the balance of probabilities.¹²¹

[66] 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 matter 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.¹²²

[67] The Respondent submits that there was a valid reason for the Applicant’s dismissal, that being her conduct on the 22 May 2018 in which she engaged in “threatening behaviour” directed towards Linfox staff and which also had the “capacity to adversely affect the reputation, viability or profitability” of the Respondent. According to the Respondent, the conduct was in breach of terms of the 2017 Agreement, her Employment Contract, the Respondent’s Code of Conduct and the Bullying and Harassment Policy.

[68] As the interactions between the Applicant and Linfox staff on 22 May 2018 precipitated the termination of the Applicant’s employment, it is necessary to consider the nature of those interactions and whether the alleged misconduct occurred.

[69] It is not in issue that the Applicant was required to transport two containers to the Kraft site on the afternoon shift of 22 May 2018. She arrived at the Kraft site at approximately 3.50 pm, at which point she was met by Mr Vandewiel and asked to fill out the Declaration Form. She declined to fill out the form in two key respects. Firstly, she declined to include container numbers on the form and refused to answer the drug and alcohol statement with a “No” response as required by Linfox. Mr Vandewiel explained the site requirements and asked the Applicant to answer the drug and alcohol statement with a “No” on at least two occasions, which the Applicant refused to do. It was made clear to the Applicant by Mr Vandewiel that unless the Applicant complied with site requirements she would not be allowed site entry to unload the containers.

[70] Confronted with the Applicant’s refusal to complete the Declaration Form in the required manner, Mr Vandewiel contacted his supervisor Mr McNicol who shortly after came down to the container park area accompanied by Mr Marshall. Attempts by Mr McNicol to convince the Applicant of the need to fill out the Declaration Form with a “No” answer to the drug and alcohol statement were unsuccessful and ultimately the Applicant was asked by Mr McNicol to leave the site.

[71] At the core of the exchange between the Applicant and the Linfox staff was the wording of the Declaration Form which required a response of “Yes” or “No” to a number of statements including the drug and alcohol statement which said “I have NOT consumed alcohol and/or drugs (prescription or otherwise) that may impair my ability to work and drive”. Linfox witnesses and Mr Sutej concede that the statement was poorly worded. Furthermore, the Respondent in its Notice of Termination agreed that the Applicant’s interpretation of the drug and alcohol statement as requiring a “Yes” response was in fact the “only correct answer”. It is also telling that since the incident on 22 May 2018 the drug and alcohol statement in the Declaration Form has been amended by Linfox by removal of the word “Not” from the drug and alcohol statement.

[72] I am satisfied that the wording of the drug and alcohol statement in the Declaration Form and the required response of “No”, as it was on 22 May 2018, can best be described as not easily reconciled. In my view, the requirement imposed on the Applicant on 22 May 2018 to answer “No” to the drug and alcohol statement put her in a position where she was being asked to disagree with a statement that she was not under the influence of drugs and/or alcohol. She was within her rights to resist that requirement and seek advice from her supervisor Mr Sutej, which she did. No criticism is made of the Applicant’s interpretation of the drug and alcohol statement in the Declaration Form or her unwillingness to alter her declared response to the question from “Yes” to “No”. It is the manner in which the Applicant responded and communicated her position that is at issue.

[73] I am satisfied on the evidence that the Linfox staff who engaged in discussions with the Applicant on 22 May 2018 conducted themselves in a polite and professional manner. The Applicant in her evidence confirmed this. As regards the Applicant’s behaviour, I am unable to accept her evidence that she only used a “sweet voice” in her discussions with Linfox staff. The evidence of Messrs’ Vandewiel, Marshall and McNicol, which I prefer, was consistent and presented a picture of the Applicant as having been resolute in her refusal to alter the Declaration Form and becoming increasingly loud, angry and aggressive in her demeanour and tone as the interactions proceeded. My acceptance of the Linfox staff evidence on the Applicant’s behaviour is fortified by Mr Sutej’s description of the Applicant’s tone in his conversations with her as “raised and intense”.
[74] I am also satisfied on the evidence that despite the Applicant becoming increasingly angry and aggressive in her demeanour, she did not swear, abuse or personally denigrate the Linfox staff. While the specific language used by the Applicant was unable to be recalled by the Linfox staff, I have little doubt that the Applicant felt pressured to alter the Declaration Form in the manner sought by Linfox in order to access the site but she was unwilling to do so for reasons of her belief that she would be admitting to being under the influence of drugs and/or alcohol. In these circumstances, I accept the evidence of the Linfox staff that she became angry and aggressive in her demeanour and tone and was unable to contain her frustration at the position she was put in, the end result being that she was turned away from the site without unloading the containers on her truck.

[75] Evidence as to threats made by the Applicant was confined to the Applicant’s concluding statements to Mr McNicol that she was being accused of being under the influence of drugs and/or alcohol and that she may need to seek legal advice. These comments were ill-advised and unnecessary. While Mr McNicol and the other Linfox witnesses were unable to recall the specific words or phrase used by the Applicant, I accept their evidence that they perceived the statements as a threat. While the Applicant characterised her statements as an expression of frustration, I find that the statements were provocative, unnecessary and inappropriate.

[76] Linfox witnesses also characterised the communication of the Applicant towards them as disrespectful, not in words but in tone. I accept that the tone of the Applicant was resolute and increasingly angry as she persisted in her refusal to alter the Declaration Form in the manner required by Linfox. In the circumstances, I am satisfied that she was disrespectful in her manner and tone of communication with the Linfox staff.

[77] The seriousness with which Linfox, by imposing a site ban, treated the Applicant’s conduct is difficult to reconcile with the evidence of both Mr Marshall and Mr McNicol. Mr Marshall states that he deals with “narky drivers” all the time and that the Applicant’s behaviour towards the end of her interactions with Mr McNicol and himself was similar to behaviour he confronted regularly. Mr McNicol for his part states that he recently dealt with another agitated river whose behaviour was by his own admission “significantly worse” than the Applicant’s behaviour but did not result in that particular driver’s ban from the Kraft site.

[78] Having regard to the apparent inconsistent treatment of other agitated drivers by Linfox at the Kraft site it is difficult to accept that the reason for the Applicant’s site ban was solely that of her behaviour. Were it the Applicant’s behaviour alone that resulted in her ban from the site it is curious that, on Messrs Marshall and McNichol’s own evidence, other drivers exhibiting similar or worse behaviour had not been similarly subject to site bans.

[79] I am not however persuaded that the Applicant’s conduct on 22 May 2018 in her interactions with Linfox staff could be characterised as either “sweet” or polite. Rather, I am satisfied that she was frustrated and became increasingly angry and aggressive as it became clear to her that her refusal to alter the Declaration Form in the manner required by Linfox would result in her not being able to unload her containers at the Kraft site. She stood her ground on her interpretation of the alcohol and drugs statement and communicated this in an increasingly angry and aggressive manner. There was no latitude for Mr McNicol and his colleagues to relax the Linfox site requirements and this ultimately led to the Applicant being turned away from site.

[80] I am satisfied that while justified in her interpretation of the drug and alcohol statement in the Declaration Form, the Applicant failed to handle the situation in a calm and professional manner. I am further satisfied that she became angry and aggressive and made statements to the Linfox staff that were reasonably perceived by them as threats, whether intended as such or not by the Applicant. I note, however, that the Applicant did not swear at, abuse or denigrate the Linfox staff in her exchanges with them. It is also worth noting that the Applicant did not engage with the Linfox staff without reference to her supervisor. The evidence reveals that she spoke with Mr Sutej on three separate occasions by phone during the course of her interactions with Mr Vandewiel and Mr McNicol.

[81] On balance, I am satisfied that the Applicant’s demeanour and tone of communication with the Linfox staff combined with the “threat” of legal action, while not abusive, may be characterised as aggressive and threatening conduct in breach of clause 49.3.2.5 of the 2017 Agreement and the Code of Conduct.

[82] I am also satisfied that the Applicant’s conduct was contrary to an obligation under the Bullying and Harassment policy that she treats all customers with “dignity and respect”. However, I am not persuaded that the Applicant’s conduct constituted bullying and/or harassment under the policy as the conduct did not have the elements necessary to enliven that policy. Specifically, I am not satisfied on the evidence that the Linfox staff felt offended, humiliated or intimidated and/or the conduct was in relation to a prohibited reason such as sex or race, or that the conduct was “repeated and unreasonable”. The event was a one off incident in which the Applicant failed to behave calmly and professionally as she would have been well advised to do.

[83] As regards to whether the Applicant’s conduct had the “capacity to adversely affect the reputation, viability or profitability of Wettenhalls”, I accept the evidence of Mr Sutej that he was not aware of any other driver of the Respondent in his area of responsibility having been banned from a client’s site. Mr McNicol also gave evidence that he was personally unaware of any other driver being banned from the Kraft site.

[84] The banning of the Applicant from the Kraft site was an unusual and serious event. However, it is difficult to conclude that the Applicant’s behaviour was unusual based on the evidence of Messrs Marshall and McNicol. They cited circumstances of other drivers that were “narky” and had engaged in similar conduct to the Applicant and one case in which a driver had engaged in worse conduct but was not banned from site. In the circumstances of a one off event at the Kraft site, in the absence of evidence from the Respondent as to the potential implications of the Applicant’s conduct and given the prevalence of similar conduct from other drivers entering the Kraft site, I am not persuaded that the conduct was such as to place the “reputation, viability or profitability” of the Respondent at risk.

[85] As I have previously found, the Applicant’s conduct was aggressive and threatening, contrary to her obligations under the 2017 Agreement, the Code of Conduct and the Bullying and Harassment Policy. While justified in her refusal to alter her response to the drug and alcohol statement in the Declaration Form, she was not entitled to behave in an aggressive and threatening manner towards the Linfox staff.

[86] For the above reasons, I am satisfied that the Applicant’s behaviour on 22 May 2018 constitutes misconduct that establishes a valid reason for her dismissal. The presence of a valid reason weighs strongly in favour of a finding that the dismissal was not unfair.

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

[87] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,¹²³ in explicit terms¹²⁴ and in plain and clear terms.¹²⁵ In Crozier v Palazzo Corporation Pty Ltd¹²⁶ the Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

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

[88] The Applicant was advised of the reason for her dismissal in the Notice to Show Cause Letter dated 24 May 2018 and Notice of Termination Letter of 30 May 2018. In the circumstances of this matter, this factor weighs in favour of a finding that the dismissal was not unfair.

Opportunity to respond to any reason related to capacity or conduct - s.387(c)

[89] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.¹²⁷

[90] I am satisfied on the evidence that the Respondent proposed that a meeting with the Applicant be conducted at the start of afternoon shift (2.00 pm) on 24 May 2018 for the purpose of progressing its investigation of the incident of 22 May 2018 at the Kraft site. Mr Sutej’s initial evidence was that he advised the Applicant of the meeting planned for 24 May 2018 in a telephone discussion with her on 23 May 2018. This timing was however undermined by contrary evidence he subsequently gave under cross-examination and was contradicted by the Applicant who states that she was completely unaware of the meeting until she received an email from Mr Sutej at 12.09 pm on 24 May 2018.

[91] While Mr Sutej was equivocal in his evidence as to the timing of his advice to the Applicant of the proposed meeting, I also found the Applicant’s evidence as to when she became aware of the proposed meeting unconvincing. Specifically, the Applicant herself queried whether there was a meeting on the 24 May 2018 in her email sent to Mr Sutej at 11.25 am. No explanation was provided by the Applicant as to why she specifically asked whether a meeting was being held “today” prior to the email sent to her by Mr Sutej at 12.09 pm that day.

[92] It is difficult to reconcile the Applicant’s statement that she was completely unaware of the proposed meeting until 12.09 pm on 24 May 2018 with the email sent by her to Mr Sutej at 11.25 am on the 24 May 2018. Ultimately I found the evidence of both Mr Sutej and the Applicant to be unsatisfactory in establishing when the Applicant was notified of the 24 May 2018 meeting. What can be said with certainty is that the Applicant was on notice at least by 12.09pm on 24 May 2018 that a meeting was planned for the start of her afternoon shift that day.

[93] In any event, the planned meeting did not proceed on 24 May 2018. The Applicant confirmed at 1.46 pm that she was unwilling to meet as her preferred support person was not available until after 4.00 pm that day and she had decided to take a week’s personal leave due to feelings of stress and PTSD. The Respondent subsequently decided not to reschedule the meeting to a date and time pending the Applicant’s return to work but rather, prepared and forwarded the Notice to Show Cause Letter dated 24 May 2018. In doing so, the Respondent outlined the allegations against the Applicant in general terms but did not provide the particulars that were contained in the witness statements of Mr Vandewiel and Mr Marshall that had been provided to the Respondent by Linfox on 23 May 2018.

[94] Mr Sutej gave evidence that had the meeting with the Applicant proceeded as proposed for 24 May 2018, he would have allowed the Applicant an opportunity to read the witness statements but they were not provided to the Applicant as part of the “show cause” process. He further states that he was not involved in the preparation or forwarding of the Notice to Show Cause Letter dated 24 May 2018.

[95] The Applicant was unwilling to meet with Mr Sutej on the 24 May 2018 due to the unavailability of her preferred support person and her cited stress and PTSD. The Respondent took this as a refusal to meet which in my view overstated the Applicant’s position. It would have been prudent in the circumstances of progressing its investigation for the Respondent to have deferred the conduct of the planned meeting until the Applicant’s return from personal leave. The prejudice that would have been suffered by the Respondent for a short delay was not adequately explained or apparent. Deferral of the planned meeting would also have allowed the Respondent to present all of the relevant material to the Applicant, including the witness statements of the Linfox staff.

[96] Having determined that it was not prepared to defer the investigation/disciplinary process, the Respondent at the very least ought to have properly detailed all of the relevant material to the Applicant in the Notice to Show Cause Letter dated 24 May 2018, including the substance of, if not the full witness statements from the Linfox staff. That it failed to do so for reasons that were not adduced in evidence tells against a finding that it accorded the Applicant an opportunity to respond to the reasons for dismissal.

[97] Notwithstanding the above-described deficiencies in the show cause process, the Applicant had an opportunity to put her version of events. She did so by completing her Incident Statement on 22 May 2018 and also by her 29 May 2018 “Show just cause” response. While some of the comments in the Applicant’s response that questioned the masculinity of the Linfox staff involved in the incident of 22 May 2018 were inappropriate and sarcastic, she dealt with the general allegations made against her. This weighs in favour of a finding that she was provided with an opportunity to respond to the reasons for her dismissal.

[98] I have weighed the identified deficiencies of the show cause process with the opportunity the Applicant was afforded to respond to the general allegations. I have concluded on balance that the opportunity for the Applicant to respond to the reasons for her dismissal was compromised by the failure of the Respondent to provide the Applicant with all relevant material as part of the show cause process. This weighs in favour of a finding that the dismissal was unfair.

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

[99] While the Applicant was unable to arrange her preferred support person for the meeting proposed for 2.00 pm on 24 May 2018, she was offered alternative support persons but declined. While the Applicant characterised the limited notice of the meeting as an “ambush”, I do not accept that characterisation and am satisfied that that the Applicant was not unreasonably refused a support person for the proposed meeting on 24 May 2018. This weighs in favour of a finding that the dismissal was not unfair.

Warnings regarding unsatisfactory performance - s.387(e)

[100] The Applicant had been subject to previous counselling and warnings in relation to her conduct. She received a formal written warning on 3 September 2017 for a verbal altercation with a colleague and a Final Warning on 12 December 2017 for failing to wear a seatbelt while driving her truck. Other incidents were also raised by the Respondent which they submit reveal a pattern of unacceptable behaviour and conduct on the part of the Applicant.

[101] The Applicant sought to challenge the basis of the formal written warning and Final Warning issued to her in 2017 in these proceedings. I note that on both of the occasions that she was formally warned she signed the relevant forms acknowledging those warnings. Despite the Applicant’s attempts to discredit the basis of the warnings, I am not persuaded that those warnings were without basis and/or justification.

[102] Unsatisfactory performance is more likely to relate to an employee’s capacity rather than conduct 128 but it does not follow that prior warnings are only relevant where the dismissal is related to unsatisfactory performance. In the present case, the dismissal was related to the Applicant’s conduct, conduct that was not entirely dissimilar to conduct that resulted in a prior formal warning on 3 September 2017 for an altercation with a work colleague.

[103] It is also significant that the Explanatory Letter to the Final Written Warning Dated 12 December 2017 included a copy of and explicitly referred to the Applicant’s obligations in relation to all safety and related conduct clauses of the 2017 Agreement. The Applicant was under clear notice of her obligations under the 2017 Agreement and related company policies.

[104] In the circumstances of the present matter, the fact that the Applicant had been subject to previous formal warnings and was in fact on a Final Warning at the time of the 22 May 2018 incident weighs strongly in favour of a finding that the dismissal was not unfair

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

[105] The Respondent’s Form F3 - Employer Response indicates that at the time of the Applicant’s dismissal it employed 250 employees. There is no evidence before me that establishes that the Respondent organisation’s size impacted on the procedures followed by it in dismissing the Applicant. This factor weighs neutrally in my consideration.

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

[106] The evidence in this matter indicates that the Respondent had access to the services of a human resources specialist employed by the Respondent. This factor weighs neutrally in my consideration.

Other relevant matters - s.387(h)

[107] The Applicant submits that there a number of further matters that weigh in favour of a finding that the dismissal of the Applicant was unfair. They are:

(i) Lack of procedural fairness;

(ii) Lack of natural justice in that Mr Sutej who investigated the incident was not impartial;

(iii) The Applicant’s age, workplace injury, PTSD and gender in a male dominated industry; and

(iv) The limited relevance of past conduct.

[108] As regards procedural fairness, I have already found that the failure of the Respondent to provide the Applicant with all relevant material including Linfox staff witness statements as part of the show cause process weighs in favour of a finding that the dismissal was unfair.

[109] The Applicant submits that Mr Sutej was bias, and as consequence, the investigation was incomplete and tainted rendering the dismissal unfair. Mr Sutej concedes that he had formed a view of the Applicant’s conduct on the 22 May 2018 based on his previous observations of the Applicant’s conduct. 129 I am satisfied that Mr Sutej’s pre-existing view of the Applicant’s behaviour may have coloured his conclusions regarding the Applicant’s conduct on 22 May 2018. This weighs in favour of a finding that the investigation process was procedurally flawed.

[110] The Applicant submits that her age (49) is a factor that goes to the harshness of the dismissal. While one might surmise that older workers are more likely to have greater difficulty securing work than younger workers, there was no evidence adduced as to the age profile of workers in the transport industry that would persuade me that the Applicant’s future employment prospects were bleak because of her age.

[111] The Applicant herself adduced evidence by way of a letter from TRP Recruitment 130 to the effect that she was well regarded and that ongoing work would be available for her if she was ever to become available again. I also note that the Applicant only commenced employment with the Respondent in July 2016. Both these factors do not support the Applicant’s submission of a likely bias against her because of her age. I am not persuaded that the Applicant’s age is a factor in this matter that goes to the harshness of the dismissal.

[112] The Applicant also submits that her gender in a male dominated industry was also a matter that went to harshness although the submission did not go beyond that statement. While it may be self-evident that the transport industry is male dominated, the Applicant’s own evidence as to her being well regarded and sought after (by TRP Recruitment) appears to belie her submission of gender bias against her. In the circumstances of this matter and in the absence of relevant evidence, I give the gender submission no weight.

[113] The Applicant submits that her diagnosed PTSD is a matter that goes to harshness. Evidence adduced in relation to the condition was limited to a brief medical certificate/report dated 15 May 2015. 131 There was no further medical evidence adduced as to the Applicant’s current condition. I am unwilling to make findings as to the relevance or weight that should be given to the Applicant’s PTSD in the absence of contemporaneous medical evidence. I further note that the Applicant in her evidence states that the events of the 22 May 2018 did not in any event trigger her PTSD and that she did not feel threatened by the male Linfox staff.

[114] As regards the Applicant’s workplace injury, I accept the Applicant’s submissions that her workplace injury is disclosable to future employers and that there is also discretion for WorkCover self-insurers to consider the termination of weekly payments in circumstances where an individual receiving payments has been dismissed for misconduct. I am not however persuaded that these adverse and foreseeable consequences of the Applicant’s misconduct are relevant to whether the dismissal was harsh. Were it the case that adverse consequences flowing from a dismissal rendered a dismissal harsh then it is hard to imagine any dismissal that could not be characterised as harsh. To reach a conclusion in favour of the Applicant on this submission also requires me to speculate as to how the insurer may approach the issue of workers compensation payments to the Applicant and what if any legal challenge is made to such decision, if made, to reduce or terminate payments. I am unwilling to speculate on this point.

[115] With respect to the past conduct of the Applicant, I do not accept that it has limited relevance. The Applicant was warned in September 2017 regarding an aggressive confrontation with a work colleague, was on a Final Warning for a safety breach at the time of the 22 May 2018 incident and was, as part of the Final Warning, put on notice regarding her safety and related conduct obligations under the 2017 Agreement. I am satisfied the Applicant’s prior conduct is a relevant consideration in this case and weighs in favour of a finding that the dismissal was not unfair.

Conclusion

[116] I have considered those factors that support a finding that the dismissal was not unfair, specifically, the valid reason for the Applicant’s dismissal; that the Applicant was notified of that reason prior to her dismissal; the warnings that the Applicant had received in relation to her prior conduct; and that the Applicant was not unreasonably denied a support person.

[117] Balanced against those factors are the procedural deficiencies of the termination process which I have carefully weighed. I am not persuaded that those procedural deficiencies in the circumstances of this case are so significant as to displace the particular weight that I accord to the valid reason for dismissal and the prior warnings issued to the Applicant. I am consequently satisfied that the Applicant’s dismissal was not harsh, unjust or unreasonable and consequently, she was not unfairly dismissed within the meaning of the Act.

[118] The Application is dismissed. An Order will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Appearances:

M Latham on behalf of the Applicant.

M Lean on behalf of the Respondent.

Hearing details:

2018.

Melbourne.

26 and 27 September 2018.

Printed by authority of the Commonwealth Government Printer

1 Exhibit A1, Witness Statement of Ms. Michelle Arnold, dated 20 August 2018, at paragraph [8]-[10].

2 Ibid Annexure MA-2.

3 AG 2012/8565.

4 Exhibit R5, AG 2017/2393.

5 Exhibit A1 at paragraphs [9] & [13].

6 Transcript at PN856.

7 Exhibit R7, Bullying and Harassment Policy.

8 Transcript at PN864.

9 Transcript at PN864.

10 Ibid Annexure MA-2.

11 Exhibit R15, Certificate of Completion in Wettenhalls Workplace Bullying and Harassment, dated 19 April 2018.

12 Transcript at PN996-PN997.

13 Exhibit R7, Bullying and Harassment Policy, Clause 1.2.

14 Ibid, Clause 1.2.

15 Ibid, Clause 1.3.

16 Applicant Closing Submissions, dated 22 October 2018, Annexure A.

17 Exhibit R8, Employee Counselling & Discipline Form, dated 3 September 2017.

18 Exhibit R9, Employee Counselling & Discipline Form, dated 13 December 2018.

19 Exhibit R10, File Note of 5 December 2017.

20 Exhibit R11, Email thread titled “Another muppet”.

21 Ibid at PN960-PN961.

22 Ibid at PN954.

23 Ibid at PN955.

24 Ibid at PN948-PN953.

25 Ibid at PN973-PN979.

26 Ibid at PN907.

27 Ibid at PN915-PN919.

28 Ibid at PN911.

29 Ibid at PN908.

30 Ibid at PN474, PN550.

31 Transcript at PN548.

32 Transcript at PN477.

33 Exhibit R16, Annexure 1, Email dated 24 November 2018 from Ms. Megan Fisher.

34 Ibid, Notice to Show Cause Letter, dated 6 December 2018.

35 Ibid, Annexure 2.

36 Exhibit R17, Exemptions from wearing a seat belt or bicycle helmet.

37 Exhibit R16, Annexure 3.

38 Ibid, Annexure 5.

39 Ibid, Annexure 6

40 Ibid, Annexure 9, Explanatory Letter To Final Written warning Dated 12 December 2017.

41 Transcript at PN1239.

42 Transcript at PN884.

43 Exhibit A1, Annexure MA2.

44 Transcript at PN884-PN891.

45 Exhibit R11.

46 Transcript at PN478.

47 Ibid at PN1013-PN1014.

48 Ibid at PN1010.

49 Ibid at PN1011.

50 Ibid at PN1011-PN1012.

51 Exhibit R16, Annexure 4.

52 Exhibit R3, Witness Statement of Mr. Anthony Sutej, dated 10 September 2018, Annexure 1.

53 Transcript at PN182.

54 Ibid at PN251.

55 Exhibit A1 at paragraph [15]-[17].

56 Ibid at [18].

57 Ibid at PN332-PN336.

58 Ibid at PN290.

59 Ibid at PN341-PN343.

60 Ibid at PN302.

61 Exhibit R3 at Paragraph [6].

62 Ibid at PN291.

63 Ibid at PN207, PN234-PN235.

64 Ibid at PN92, PN208, PN232.

65 Ibid at PN207, PN291.

66 Ibid at PN349.

67 Ibid at PN422.

68 Ibid at PN290.

69 Ibid at PN212, PN283.

70 Ibid at PN406, PN409-PN412.

71 Ibid at PN211.

72 Ibid at PN155-PN157.

73 Ibid at PN358.

74 Ibid at PN359.

75 Ibid at PN400.

76 Ibid at PN1030-PN1031.

77 Exhibit A1 at paragraph [5], Transcript at PN1011.

78 Transcript at PN1012.

79 Ibid at [19].

80 Transcript at PN219, PN320-PN321.

81 Ibid at PN126.

82 Ibid at PN128, PN130, PN221, PN318-PN319.

83 Ibid at PN137.

84 Ibid at PN322-PN325.

85 Exhibit R3 at paragraph [7].

86 Transcript at PN460.

87 Transcript at PN1196.

88 Exhibit A1, Annexure MA3.

89 Exhibit R3 at paragraph [8].

90 Ibid at paragraph [9], Transcript at PN528.

91 Transcript at PN491-PN495.

92 Exhibit R12, Email dated 23 May 2018.

93 Ibid, Email dated 24 May 2018.

94 Transcript at PN463-PN464.

95 Ibid at PN465.

96 Exhibit A1 at paragraph [21].

97 Transcript at PN500.

98 Transcript at PN502, PN504, PN518-PN519, PN526, PN647.

99 Ibid at PN663.

100 Ibid at PN653.

101 Ibid at PN509.

102 Ibid at PN808, PN1270.

103 Ibid at PN879.

104 Exhibit R4, Email thread, Subject: “Me”.

105 Ibid.

106 Ibid.

107 Ibid.

108 Exhibit R1, Email dated 24 May 2018, Subject: Michelle Arnold.

109 Exhibit R13, Notice To Show Cause Letter, dated 24 May 2018.

110 Exhibit R3 at paragraph [11] .

111 Transcript at PN631-PN633.

112 Exhibit R14, Email dated 29 May 2018, Subject: Show just cause.

113 Exhibit R19, Notice Of Termination, dated 30 May 2018.

114 Ibid.

115Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465.

116 Sayer v Melsteel[2011] FWAFB 7498.

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

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

119 Ibid.

120 Edwards v Giudice (1999) 94 FCR 561 [6]-[7].

121 Budd v Dampier Salt Ltd (2007) 166 IR 407, at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171.

122 King v Freshmore (Vic) Pty Ltd[2000] AIRC 1019 [24].

123 Chubb Security Australia Pty Ltd v Thomas,Print S2679 at [41].

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

125 Previsic v Australian Quarantine Inspection Services, Print Q3730.

126 (2000) 98 IR 137.

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

128 Annetta v Ansett Australia (2000) 98 IR 233 at 237.

129 Transcript at PN600-PN603.

130 Exhibit A1, Annexure MA-1.

131 Exhibit R16, Annexures 4.

Michelle Arnold v DRW Investments Pty Ltd