Morphett v Pearcedale Egg Farm
[2016] FWC 1940
•31 March 2016
[2016] FWC 1940
DECISION
Fair Work Act 2009 s.394—Unfair dismissal James Morphett v Pearcedale Egg Farm (U2015/14973) DEPUTY PRESIDENT GOOLEY MELBOURNE, 31 MARCH 2016 Application for relief from unfair dismissal. [1] Mr James Morphett was employed by Pearcedale Egg Farm on or about 24 June 2014
until 20 October 2015.
[2] On 23 December 2015 Deputy President Gostencnik granted Mr Morphett an
1
extension of time to lodge his application.
[3] While in its employer response form Pearcedale said it only had 11 employees, at the
hearing Mr Chris Monnier, the General Manager, accepted that Pearcedale was not a small
business.
[4] Therefore the matter to be determined is whether the termination of Mr Morphett’s
employment was unfair. Mr Morphett was dismissed for gross misconduct. In deciding
whether the termination was unfair the Commission must determine, on the basis of the
2
evidence before it, if the conduct relied on by Pearcedale occurred.
Background
[5] On 17 September 2015, Mr Morphett had an accident at work. He said he fell from a
ladder and injured his lower back. He reported the incident to Mr Phillip Van Gent, the Site
Manager, and he was sent home. Mr Morphett alleged that Mr Van Gent discouraged him
from lodging a worker’s compensation claim. A meeting took place on 12 October 2015
between Mr Morphett, Mr Van Gent and Mr Monnier.
[6] Mr Morphett recorded the meeting without Mr Monnier and Mr Van Gent’s
knowledge. The meeting commenced with Mr Monnier asking Mr Morphett about what
happened on Thursday, 17 September 2015. Mr Morphett said he was putting a motor in
when he fell off a ladder. He said he landed on his feet and initially didn’t feel anything but
[2016] FWC 1940started feeling the effect on Saturday. He worked on the Sunday but said he did very little and
he went to the hospital on the Monday.
[7] Mr Monnier asked him what his prognosis was and Mr Morphett explained that he had
had to wait for two weeks before he could have a CT scan - which he had that morning. His
doctor would not give him a diagnosis until he saw the scan but he and the physiotherapist
suspected a fractured lower back.
[8] Mr Monnier said he had a report of the incident and there was no report of an injured
hand or back. He said he had reviewed the CCTV footage of Mr Morphett on the Sunday and
he worked all day and looked fine. He said Mr Morphett was lifting heavy buckets into his
car.
[9] Mr Monnier said he left a message on Mr Morphett’s phone on the Friday because he
wanted to know what was happening because he heard about the broken back for the first time
on the Thursday.
[10] Mr Morphett asked Mr Monnier what he was accusing him of and Mr Monnier said he
was trying to find out what happened. Mr Monnier referred to the CCTV footage and Mr
Morphett asked him if he hadn’t seen him going under something and being in pain. Mr
Morphett said that Mr Monnier had left a message for him threatening to sack him. He said
that this was why he was “f…… pissed off.” He accused Mr Monnier of being a smartarse.
Mr Monnier admitted that he had said he didn’t want it to go through work cover but if Mr
Morphett wanted it to he could go through work cover and it would be dealt with by the
courts.
[11] Mr Morphett said that they had to be aware that he had disconnected the motor. He
asked them how they thought that would go in Court. It is not clear from the audio if it was
Mr Monnier or Mr Van Gent but one of them denied ever directing Mr Morphett to
disconnect the motor or to reconnect the motor. Mr Morphett said he was ordered to do this as
he was told to fix the problem.
[12] Mr Monnier again explained the he had watched the video and there was no sign of
any discomfort. Mr Morphett denied that the buckets he lifted were full and asked to see the
video. Mr Morphett accused Mr Monnier of rolling his eyes and called him a “f…..liar and a
smartarse.” Mr Morphett denied this. Mr Monnier said he was only trying to get a straight
answer. Mr Morphett said he had given him straight answer.
[13] Mr Van Gent then asked how the matter could be resolved without an argument. Mr
Morphett asked if they want it resolved by a solicitor contacting them. He told them he had
looked into it and that they “couldn’t fire him, they can’t do f….. shit. That the threat on the
phone had “pissed [him] off”. Mr Van Gent again asked him how the matter could be
resolved. He said that Mr Monnier should speak to him the way Mr Van Gent did without the
“smart arsy looks and the smart arsy gestures.”
[14] He then said “because by god if my back wasn’t f….. sore…” at which point Mr Van
Gent interrupted and said “no don’t say it… don’t.” Mr Morphett then said “we can” and Mr
Van Gent said “you want to do that?” and Mr Morphett said “we can go down anytime you
want.” At which point Mr Van Gent said “we don’t need those kind of threats” and told Mr
[2016] FWC 1940Morphett that he needed to calm down. Mr Morphett then said that he knew he should not
have come to the meeting alone and he wouldn’t do that for the next meeting.
[15] Mr Van Gent said he didn’t like the confrontation and he wasn’t trying to be
confrontational. Mr Morphett responded by asking how he would like to receive a phone
message implying he was going to be fired for not following an order and doing what you
were not meant to be told.
[16] There was then a discussion between Mr Morphett and Mr Van Gent about whether
Mr Van Gent had ordered him to put the motor in. Mr Van Gent accepted that the instruction
may have been ambiguous but he said he did not intend Mr Morphett to rewire the motor. Mr
Morphett disagreed and said Mr Van Gent was aware that he had disconnected the motor
which involved the wiring.
[17] Mr Van Gent again asked him what he wanted. Mr Morphett said he didn’t want to be
treated the way he had been treated or spoken to the way he has been spoken to.
[18] After some more discussion, Mr Monnier explained that he didn’t want to go through
work cover because the electrical thing “opens a can of worms” irrespective of whose fault it
was. Both accepted that now it was with work cover.
[19] Mr Morphett said that Mr Monnier had threatened to fire him if it went through work
cover. He asked how they then expect him to come in a sit down and be fine. Mr Monnier
denied threatening him.
[20] Again Mr Van Gent asked how the matter could be resolved and Mr Morphett said
“I’m asking Chris, he’s the one calling me a liar.”
[21] Mr Van Gent asked Mr Morphett what he wanted. He again said “I want to be treated
with f…… respect; I don’t want the smart arse gestures I don’t want any of it.”
[22] Mr Monnier said, “I am sorry that if you perceived what I said as smart arse. I am
assuring you it is not. It was not intended to be. Ok. So if it’s been treated, I am sorry for what
it has been perceived to be treated.”
[23] Mr Van Gent asked “How do we move forward?”
[24] Mr Morphett said he thought he would be coming back to work when his back was
fixed until he “got a f….. answering machine message and cracked the shits.” Mr Van Gent
accepted that his might have been partly his fault because he was getting concerned because
he wasn’t hearing from him.
[25] Mr Van Gent again asked “where to from here” as a fight would only enrich the
lawyers. [26] Mr Morphett was again asked what he wanted. [27] He said he wanted what was agreed to before. He wanted his hours put back. Mr Morphett was told that this would be retrospectively be done through work cover. He also
said he wanted his bills paid. He was told his bills would be sorted. He was told that now they
[2016] FWC 1940had the paper work they would process the work cover claim. He was told they needed to do a
proper report because the current report did not mention the back injury.
[28] Some further discussion occurred about why Mr Monnier left the message he did. Mr
Morphett said that was no reason to leave him the message. Mr Monnier apologised if he
appeared terse on the phone.
[29] There was further discussion about when he would be returning to work and Mr
Morphett said he didn’t know until he saw his doctor that afternoon.
[30] He was told he would be looked after by the business. He was told he could not come
back until he had a clearance.
[31] The meeting ended amicably.
[32] Mr Morphett denied threatening Mr Monnier. He said that he got up to leave the
meeting but his back was so sore he sat down again. The meeting then settled down and it was
resolved amicably. In his outline of argument, Mr Morphett said “[he] was being treated
inappropriate (sic) by Chris Monnier to the stage where Phillip Van Gent asked Chris to stop
and became very angry with the way Chris was speaking to [him]. During this time I tried to
stand up and leave due to my back injury I got a sharp pain and was unable to go anywhere I
said I wish my back wasn’t stuffed as I placed my belongings back on the table and had no
option but to continue the meeting.”
[33] Mr Monnier gave evidence in chief that Mr Morphett said to him during the meeting
“that if he didn’t have a sore back that he would stand up and “thump” [him].” Mr Monnier
said that Mr Morphett “had his fist clenched and his elbow cocked as if to throw a punch
towards [him].” He said he felt extremely threatened and intimidated by James’ suggestion of
3
physical violence.”
[34] At the hearing, Mr Monnier said that Mr Morphett got out of his chair and came
around the table to threaten him. Mr Monnier said that occurred when Mr Morphett said that
“if he didn’t have a sore back…” He said Mr Morphett had a clenched fist.
[35] Mr Van Gent said that Mr Morphett was “in a very confrontational mood and
extremely angry with Chris regarding a voice message Chris left on his phone the previous
4
Friday.” He said at one point in the meeting Mr Morphett “said if he did not have a sore back
5
he would get up and “thump” Chris and wanted to take things to a physical challenge.” He 6
said that once he calmed things down they were able to discuss the issue at hand.
[36] Mr Van Gent said that Mr Morphett started to get up but did not. It was his clear
impression that Mr Morphett that he was getting up to “clock Chris”. For this reasons he
intervened.
[2016] FWC 1940
[37] On 13 October 2015, Mr Morphett rang Mr Monnier about the payment of some
medical expenses. He told him to speak to the business accountant. Mr Monnier said that Mr
Morphett became aggressive and threatened that it would have to happen today or this claim
7
would “go a different way.”
[38] On 15 October 2015, Mr Van Gent said he visited Mr Morphett to discuss his injury
and his conduct. He said he told Mr Morphett that “he had made the relationship with Chris
8
untenable after his threat of physical violence.” He said he told Mr Morphett that he was “very uncomfortable and apprehensive if he were to return to work and if [he] had to give him
9
any warning how would he react…..more violence??”
[39] Ms Taylah Glover, Mr Morphett’s partner, gave evidence that she heard Mr Van Gent
and Mr Morphett speaking on 15 October 2015. She said Mr Van Gent apologised for Mr
Monnier’s conduct. She said that he told Mr Morphett that he could not be accommodated
because of his injury. He offered Mr Morphett four weeks’ pay to resign and not lodge a work
cover claim. Mr Van Gent told Mr Morphett that Mr Monnier had made it clear that he would
10
not be returning to work. Mr Morphett characterised this as an attempt to bribe him. [40] On 19 October 2015, Mr Monnier decided to terminate Mr Morphett’s employment
and sent him a letter which advised that his employment had been terminated because he had
threatened Mr Monnier with violence at the meeting on 12 October 2015. He said that both he
and Mr Van Gent “both felt personally threatened and refuse to work with someone who is
11
unable to control their temper and clearly sees violence as acceptable.” It was said that his conduct was gross misconduct. It said he had been cautioned about his behaviour in the past.
[41] Mr Monnier gave evidence that prior to sending this letter he attempted to contact Mr
Morphett by telephone but he could not get a response.
[42] On 21 October 2015, Mr Morphett sent a text message asking Mr Van Gent who the
contact person was for his return to work plan. Mr Monnier sent a reply telling him not to
contact them again. He said “you cannot threaten your employer with violence and litigation
and expect to come back to work. Your termination was done under legal advice and is
perfectly within the law. You were not bullied or harassed but asked to some (sic)
abnormalities within your claim when you got aggressive and threatened violence which as
12
stated in your employment contract constitutes gross misconduct.”
[43] Mr Morphett said he was not dismissed until he made inquiries about returning to
work. He said that the real reason for his dismissal was because he made a workers
compensation claim.
[2016] FWC 1940Was the termination of employment harsh, unjust or unreasonable?
[44] In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the Fair Work Commission must take into account the following.
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): s387(a)
[45] The best evidence I have about what happened in the meeting on 12 October 2016 was
the recording. While I accept that Mr Morphett did not go around the table towards Mr
Monnier, I do not accept his evidence that he was merely getting up to leave. The statement
made by Mr Morphett referred to at paragraph [14] above was clearly a threat. The recording
does not support Mr Morphett’s description of what he said or what he did. Even when Mr
Van Gent tried to calm him down he clearly wished to continue the altercation. I prefer Mr
Van Gent’s evidence that Mr Morphett’s behaviour, at this time, was threatening. He made a
clear reference to the threat at the meeting. Mr Morphett did not challenge Mr Van Gent’s
reference to the threat at that time. He did not say he was just trying to leave.
[46] From the beginning of the meeting Mr Morphett responded aggressively to Mr
Monnier’s legitimate questions about what had happened to him. While Mr Morphett was
entitled to be aggrieved that the legitimacy of his worker’s compensation claim was being
challenged his aggressive response was inappropriate. While I accept the submission that this
was a workplace in which swearing was tolerated this did not entitle Mr Morphett to behave
the way he did at the meeting. I am satisfied that Mr Morphett’s behaviour was aggressive and
unacceptable and therefore there was a valid reason to terminate his employment.
Whether Mr Morphett was notified of that reason: s387(b)
[47] Mr Morphett was not notified of the reason for the dismissal before the decision to
terminate his employment was made.
Whether Mr Morphett was given an opportunity to respond to any reason related to the
capacity or conduct of the person: s387(c)
[48] Mr Morphett was not given an opportunity to respond to the reason.
Any unreasonable refusal by the employer to allow Mr Morphett to have a support
person present to assist at any discussions relating to dismissal: s387(d)
[49] Mr Morphett did not request a support person.
If the dismissal related to unsatisfactory performance by the person—whether Mr
Morphett had been warned about that unsatisfactory performance before the dismissal:
s387(e)
[50] Mr Morphett was not dismissed for poor performance.
[2016] FWC 1940
The degree to which the size of the employer’s enterprise would be likely to impact on
the procedures followed in effecting the dismissal: s387(f)
[51] There was no evidence or submissions made on this criterion. Mr Monnier said he
received legal advice before the decision to terminate Mr Morphett’s employment was made.
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; s387(g)
[52] There was no evidence or submissions made on this criterion.
Any other matters that the Commission considers relevant: s387(h)
[53] Mr Morphett had been employed for approximately 16 months. I am not satisfied that
Mr Morphett’s employment was terminated because he made a work cover claim. It is clear
that Mr Monnier did not want Mr Morphett to make a claim. This was clear in the meeting.
He was concerned that given Mr Morphett was injured whilst doing work he was not qualified
to do, there would have been repercussions for everyone. However, by the end of the meeting,
all parties accepted that the matter would proceed through the work cover system. While Mr
Van Gent subsequently met with Mr Morphett to see if the matter could be resolved, I do not
accept Mr Morphett’s characterisation of this meeting as an attempt to bribe him.
[54] In its dismissal letter it was said that Mr Morphett had been counselled about his
behaviour in the past. No evidence was called to support this claim. Mr Morphett denied
being counselled about his behaviour.
Conclusion
[55] I am not satisfied that because Mr Morphett was not afforded procedural fairness that
the dismissal was harsh, or unjust or unreasonable. Mr Morphett was angry when he attended
the meeting. That anger may have been justified. However his conduct was not. While bad
language may have been acceptable in this workplace, threatening behaviour is not. I
therefore dismiss Mr Morphett’s unfair dismissal application.
DEPUTY PRESIDENT
| Appearances: |
| Mr J. Morphett representing himself. |
| Mr P. Van Gent and Mr Monnier representing Pearcedale Egg Farm. |
| [2016] FWC 1940 |
| Hearing details: |
| 2016. |
| Melbourne: |
| March 2. |
| Printed by authority of the Commonwealth Government Printer |
| <Price code C, PR578434> |
1
PR575247.
2
King v Freshmore (Vic) Pty Ltd Print S4213
3
Exhibit R2.
4
Exhibit R3.
5
Ibid.
6
Ibid.
7
Exhibit R1.
8
Exhibit R3.
9
Ibid.
10
Exhibit A2.
11
Letter of Termination, dated 19 October 2015.
12
Statement of Chris Monnier, 29 October 2015.
0
0
0