Mr Abdella Osman v Toyota Motor Corporation Australia Pty Limited - [2013] FWC 6917

[2013] FWC 6917

FAIR WORK COMMISSION

DECISION

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

Mr Abdella Osman
v
Toyota Motor Corporation Australia Pty Limited
(U2013/1301)

COMMISSIONER ROE

MELBOURNE, 24 SEPTEMBER 2013

Application for relief from unfair dismissal.

[1] The matter arises from an application filed on 22 April 2013 under s 394 of the Fair Work Act 2009 (the Act) by Abdella Osman (the Applicant) for relief in respect to the termination of his employment from Toyota Motor Corporation Ltd (Toyota or the Respondent).

[2] On 15 April 2013 Toyota terminated the Applicant’s employment with payment in lieu of notice. The Applicant had been employed continuously by Toyota for more than 25 years. The Applicant is 55 years of age. The Applicant is a qualified panel beater and he worked as a panel beater on the afternoon shift at the Toyota Altona assembly plant. The Applicant was represented by his union, the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU).

[3] There is no dispute and I am satisfied that the Applicant was dismissed at the initiative of the employer and is protected from unfair dismissal. The termination was for alleged misconduct. The termination is not for reasons of redundancy and Toyota is not a small business. I am required to determine whether or not the termination was unfair having regard to the matters in Section 387 of the Act.

[4] Toyota does not allege that there was any problem with the performance or conduct of the Applicant during his 25 years of service save for two incidents. The first incident took place in August 2012 and resulted in the Applicant being issued with a final written warning. I will refer to that incident as the Altona Beach incident. The second incident which led to dismissal took place on 26 March 2013. I will refer to that incident as the traffic incident. Both incidents involved a co-worker, Hailemelekot Tadesse. Mr Tadesse received a final written warning for his part in the traffic incident.

The Traffic Incident

[5] The traffic incident took place on 26 March 2013 at around 5.20pm. Both the Applicant and Mr Tadesse worked on the afternoon shift in a similar area of the plant. Mr Tadesse works in the Quality Control Shop which is located next to the Paint Hospital where the Applicant works as a panel beater. On his way to work the Applicant turned left from Grieve Parade onto Toyota Way and then turned right from Toyota Way into the car park. On his way to work Mr Tadesse turned right from Grieve Parade onto Toyota Way and then from Toyota Way into the car park. The entrance to the car park is only a short distance (approximately 50 meters) down Toyota Way.

[6] A security video of the area was relied upon by Toyota in their investigation and was in evidence in the proceedings. The video is of relatively low resolution and relatively low number of frames per second and hence somewhat jerky. There is some obstruction of the view of vehicles shortly behind the stop line of the intersection for cars turning left from Grieve Parade. There is no clear vision of the vehicles approaching the intersection with Toyota Way in Grieve Parade. There is considerable sun glare in the picture and especially where the left turning cars approach and enter the intersection. I put my observations about the video to Mr Kershaw, Plant Manager for Paint and Resin for Toyota.

[7] It appears from the video that the Applicant paused or stopped for less than two seconds at the lights. Mr Kershaw confirmed this as follows:

“It's a short period of stopping?---Very short period of stopping. Which makes me believe that he understood it was a red light to stop. That proceeding into the intersection after stopping at that red light, that the act was intentional.” 1

[8] Another vehicle had turned left into Toyota Way and towards the plant about 5 seconds before the Applicant. When the Applicant proceeded into the intersection he continued on the trajectory which would have been expected if he was executing the turn into Toyota Way and then into the car park. The Applicant accelerated slowly and continued at a steady speed and did not divert from the expected trajectory. There appeared to be some vehicles behind the Applicant but they did not follow him into the intersection. At almost the same time as the Applicant entered the intersection the car driven by Mr Tadesse entered the intersection from the opposite side. Mr Tadesse slowed down behind the Applicant’s vehicle presumably to avoid colliding with the Applicant’s vehicle. At the point where they almost met Mr Tadesse’s vehicle had completed its turn and the Applicant’s vehicle had almost completed the turn into Toyota Way. Mr Tadesse did not have to slow down sharply. Mr Tadesse then accelerated and overtook the Applicant at speed and then cut in front of the Applicant as they entered the car park. The Applicant and Mr Tadesse continued on into the car park. The video does not show the cars stopping but it is not contested that the Applicant and Mr Tadesse parked relatively close to each other in the car park and they both got out of their cars and went into work and there was no discussion or contact between them.

[9] I put a number of points about the video to Mr Kershaw. Part of the exchange was as follows:

“The way I saw it is you can see a car coming along, just the sort of shadow of it coming along, then there's a spot where you can't see, I suspect because something is in the way, maybe a tree or a sign or something. I don't know. I can't see what it is. Then you catch another glance of a car, you know, whatever car it is that's coming, and then you see the cars going into the intersection. Is that the way you saw it?---Very similar, yes. So I did see the vehicle stopped on the top right-hand corner of the image. I did see cars behind that vehicle. Then as the cars proceeded to turn right into the plant, this car proceeded to drive forward. It didn't go quickly, but it drove around to the lane closest to the central median strip.” 2

[10] An important issue is whether the Applicant or Mr Tadesse entered the intersection first. I had the following exchange with Mr Kershaw about this matter:

“Yes, and was your perception that the cars that were turning right left the sort of line I suppose - you can imagine, you can't see. Was it your impression that they left that spot before Mr Osman leaves his spot?---I would suggest just a fraction of a second, yes. I believe that they had the green arrow and they started to proceed into the intersection.

Yes?---Based just on that point, that's when Mr Osman proceeded into the intersection also.

So they seem, when you look at it, to really be leaving at about the same time?

---Very similar times.

Very difficult to distinguish between the two, isn't it?---I would suggest that the vehicles turning right was just a second - or maybe a fraction of a second - prior to Mr Osman entering the intersection.” 3

[11] Following the hearing I have looked at the video again a number of times. I am satisfied that in fact the Applicant’s car enters the intersection beyond the kerb line prior to Mr Tadesse’s car entering the intersection beyond the kerb line. Mr Tadesse’s car accelerates more quickly than the Applicant’s car. The quality of the video is such that it is not possible to tell exactly when Mr Tadesse’s car commences to move but I cannot be satisfied that the Applicant’s car moved from a stationary position to enter the intersection after Mr Tadesse’s car began moving from a stationary position.

[12] The incident was investigated because a complaint was lodged by the Applicant about the behaviour of Mr Tadesse.

[13] Toyota interviewed three witnesses to the incident; namely the Applicant, Mr Tadesse and Mr Rowles.

[14] Mr Rowles was said to be driving two or three vehicles behind the Applicant as he approached the intersection in Grieve Parade. Mr Rowles was interviewed by Ms Eather, Human Resources Business Partner for Quality Control. Ms Eather says that Mr Rowles confirmed that Mr Tadesse “braked slightly” to avoid collision with the Applicant. Mr Rowles does not say in his notes or in the notes of the interview that the Applicant stopped at the intersection. It is obvious that Mr Rowles came to a stop because other cars did not follow the Applicant into the intersection. Ms Eather made a note of Mr Rowles’ response to the question: “Did you witness a TMCA employee going through a red light? If yes do you know who?” as “Abdella - red light - I believe so”. 4 There is no record of Mr Rowles saying the Applicant stopped at the intersection before entering it. The diagram produced by Mr Rowles on 9 April 2013 has this commentary: “Vehicle A (red dual cab ute) went through a red arrow and almost collided with vehicle B (white sedan) which then went around vehicle A and cut him off whilst entering gate 4.”5 Toyota referred to the following question and answer from the interview notes: “On 26 March 2013, which car park did you enter? Came in where vehicle A was - I came to a stop”. Toyota suggested that this was evidence that Mr Rowles was confirming that vehicle A driven by the Applicant came to a stop at the intersection. I do not accept this submission. Mr Rowles was not available to give evidence. Toyota witnesses say this was because he was reluctant to appear as he is friends with both Mr Tadesse and the Applicant.

[15] Mr Tadesse gave evidence to Toyota’s investigation and in these proceedings. The notes taken of the interview during the Toyota investigation are that Mr Tadesse said that when he was stopped waiting for the lights “I could see Abdella starring at me. He was glaring at me, he looked agitated. He stopped for a while. As soon as I started moving he pulled in and took further lane. I had to steer away in the far lane. I overtook him and went back in my lane.” 6 During the proceedings Mr Tadesse accepted that the Applicant was only stopped for a couple of seconds.7 In the proceedings Mr Tadesse also said that: “I had a green light to turn right. That means all the traffic coming from the other direction should stop, shouldn’t move. When I start moving, I saw Mr Abdella start turning. At that time he’s closer to the turning point. He can be in front or he can be ahead.”8

[16] In his statement Mr Tadesse says:

“I was the first car waiting at the red light. I watched the traffic on the other side of the intersection slow down, and noticed Abdella’s car stop at the intersection opposite me. I recognised Abdella’s car because we have worked together for approximately 7 years, and we often finish at the same time, so we enter the car park together. Abdella drives a red Toyota Hilux so it is also quite easy to recognise. At the intersection I looked over to Abdella’s car and could see him glaring at me from his car. When the lights on my side of the intersection turned green, I drove forward and as I turned right Abdella accelerated and cut in front of me.” 9

[17] Mr Tadesse refers to being cut off as he turned right and to observing the Applicant turning when Mr Tadesse started to move. This is not clear evidence that the Applicant entered the intersection after Mr Tadesse. If the sequence of events was Mr Tadesse saw the Applicant glaring at him when stopped at the intersection, Mr Tadesse proceeds into the intersection on a green light, Mr Tadesse then observes the Applicant commence to proceed into the intersection then one might have expected Mr Tadesse to have slowed down at an earlier stage than shown on the video.

[18] Mr Tadesse says that he was angered by what had happened and in the heat of the moment sped up and cut the Applicant off. He said: “I do not believe that Abdella only recognised me when I overtook him, because I have tinted passenger windows and he would not have been able to see me.” 10

[19] Mr Tadesse and other Toyota witnesses suggest that there was something unusual about the Applicant moving to the right hand lane rather than the left hand lane. However, the video shows that a number of other vehicles turning left prior to the Applicant moved to the right lane and turned right from that lane into the car park. The left lane leads to an entrance to the plant. It is also possible to turn right into the car park from the left lane but not all drivers adopted this approach. The Applicant also gave evidence to this effect.

[20] The Applicant gave evidence in these proceedings and to the investigation by Toyota that he had driven through what he believed was a green light and that he did not see Mr Tadesse at the intersection because of strong sun glare. The notes of the Toyota interview record him as saying about the lights that “It was green I think. It was an arrow” and later in the interview “I think it was a green arrow” and later again in the notes “I didn’t pay attention to the lights.” 11 The Applicant said that he first recognised that it was Mr Tadesse involved when he passed his car when cutting him off as they entered the car park. In his statement to these proceedings the Applicant said that: “as I approached the turn there was a lot of sun glare shining through my right driver’s side window and I could not see much to my right. I thought the lights indicated that I could turn left onto Toyota Way, and I proceeded to slowly turn left into the driveway toward the carpark.”12

[21] During the proceedings the Applicant maintained that he did not deliberately drive through a red light. He suggested that he might not have seen the lights properly or recognised other vehicles because of the sun glare. 13 He suggested that he looked into the sun glare whilst at the lights and this affected his vision so he might not have seen the light to his half left. It was agreed by other witnesses that there is sun glare at that time of the day when approaching from the north east and that the Applicant may have been affected by the sun if looking straight ahead and to the right when in Grieve Parade but would not have been looking into the sun when looking at the traffic light which was to his half left. The notes taken by Mr Marmara, Senior Site Coordinator for the AMWU at Toyota, of the termination meeting of 15 April 2013 indicate that the claim about the effect of the sun glare was raised in the termination meeting.14 The notes of Mr Italiano, Employee Relations Advisor for Toyota,15 also confirm that the sun glare was raised in that meeting. The Applicant says that he raised the issue of sun glare in the interview on 8 April 2013 and Mr Italiano agrees this occurred.16 The Toyota investigation report of 11 April 2013 also records the sun glare claim.17

[22] It was accepted by Mr Kershaw that Mr Tadesse would not have been able to see the Applicant’s face from across the intersection as the Applicant’s car would have been in the sun glare and it was approximately 40 meters away. 18

[23] The Applicant suggested that there are two opportunities to turn left from Grieve Parade, one when there is a green light for traffic to go straight ahead and the other when there is a green arrow for traffic to turn left. 19

[24] During cross examination The Applicant was questioned further about when he recognised the car to be that driven by Mr Tadesse:

“MS SPARK: When did you recognise that the white car was Mr Tadesse?

---100 per cent I realise after he come out from the car. I was parking to the left and he was coming out, then I realise 100 per cent it's Mr Tadesse.

Can I ask you to look at paragraph 12 of your witness statement, Mr Osman? Can you look at paragraph 12 of your statement? See there you say, "As the car cut me off, I recognised the driver as Hailemelekot Tadesse," but that's inconsistent with what you just said. You just said you were very, very clear that the first time you knew it was Mr Tadesse was after you'd parked your vehicle and he was getting out of the car. So I just want you to understand my question and answer clearly, when did you first know that the white car was Mr Tadesse?---I explained to you in February or the end of January there was been a lot of water – I mean, Fire Brigade cars around there.

That's not my question, Mr Osman?---It is relating to. I was expecting is a police car or ambulance when I give him way. Then when he cut me off, I have seen it is not a police or it is not ambulance because it is civilian white car.

Yes?---Then 100 per cent whenever I realise is when he coming out from his own car because the distance where he cut me off, the pedestrian crossing – you know the area where you mark because of me requesting Mr – the manager is parking in park is by own risk because they scratch my car. I report it a lot and that is the place Tadesse passed me. From that place to the place where he park it's not even 20 metres. Where I park it is not even 10 metres and within 20 metres.” 20

[25] I understood the Applicant to be saying that he thought it was Mr Tadesse when he passed him but he was only 100% sure when he saw him park and get out of the car shortly afterwards. The above quote is illustrative of the nature of the Applicant’s evidence and of his poor English communication skills.

[26] The evidence of Toyota is that the Applicant in the investigation interview on 8 April 2013 responded to the question, “Can you identify the person driving the other car?” as follows, “Tadesse Hail - saw him near pedestrian crossing. I recognised his car.” This was confirmed in his answer to the next question. The Applicant also confirmed that he saw the Applicant’s face. Later in the interview he said about the allegation he had cut Mr Tadesse off earlier “I didn’t see him before that. Only at the pedestrian. I wasn’t looking.” 21 In cross examination the Applicant contradicted his earlier statements that he recognised Mr Tadesse’s car when he denied knowing what car the Applicant drove before the traffic incident.22

[27] The Applicant was aware that the area was covered by security video and the Applicant unsuccessfully sought access to the video on a number of occasions after the incident.

The Altona Beach Incident

[28] An incident occurred on 3 August 2012. Mr Tadesse pulled the Andon cord which stopped the assembly line. Mr Tadesse’s team leader, Mr Rowe, and his group leader, Mr Halliwell, then attended. Mr Tadesse then told the managers that the Applicant had spat next to him and had said something like:

“you are sheltered by the company here in the plant, if you are a man like an American jet meet me at Altona Beach and I will crush you.” 23

[29] A Toyota investigation found that the spitting allegation was not substantiated but found that the threatening words had been said and the Applicant was given a final written warning. The Applicant was also required to attend anger management training. Mr Italiano, National Employee Relations Advisor, gave evidence that the final written warning was challenged by the AMWU under the grievance procedure and that after investigation Mr Marmara, AMWU site coordinator, and Mr Cummaudo, AMWU site organiser, agreed that the warning was justified.

[30] In coming to the conclusion that the threatening words had been said the investigation relied upon evidence from Mr Halliwell that similar words had been said to him by the Applicant two days earlier and because other workers were reported to have said that they heard both workers yelling and having an argument but did not hear what was said. 24 In respect to the evidence that similar words had been said to Mr Halliwell two days earlier there was no information about the context in which the words were allegedly said and whether or not there was any direct reference to Mr Tadesse. The investigation report said that Mr Rowe overheard some but not all of the words. Mr Rowe and Mr Halliwell did not give evidence in the proceedings.

[31] The Toyota managers involved in the investigation concluded that there was underlying tension between the two workers. Both workers originally come from Ethiopia. They are from different ethnic or tribal groups. Mr Kershaw gave evidence that in the interview in August 2012 “Mr Osman made several comments about tribal issues, including accusations that Mr Tadesse’s ethnic group had killed his family in Africa.” Mr Millen, Production Manager Paint and Resin for Toyota, gave evidence that the Applicant alleged that Mr Tadesse was a “terrorist”. Mr Millen said that: “Based on Mr Osman’s hostile and emotional behaviour during the meeting, I formed the preliminary view that Mr Osman was capable of making such threats towards Mr Tadesse and using the type of words alleged by Mr Tadesse.” 25 Mr Millen also observed that: “I was also concerned by Mr Osman’s demeanour, which was erratic and aggressive and made it hard to get a clear response from Mr Osman in relation to the allegations. It was difficult to have a properly ordered meeting with him as his level of emotion, even when discussing the rudimentary, was extremely high.”26 Mr Italiano gave similar evidence and said that he was concerned about the Applicant’s mental health and that: “Mr Osman seemed extremely agitated and paranoid that Mt Tadesse was recruiting people at TMCA to make Mr Osman lose his job.”27 Mr Kershaw says he was also concerned about the Applicant’s mental health “due to the nature of the accusations made, and his erratic and emotional demeanour.”28 Mr Kershaw asked the Applicant to attend the company doctor before returning to work. The company doctor found that there was no illness and this was also supported by the Applicant’s own doctor.

The nature of the relationship between Mr Tadesse and the Applicant and other incidents between them

[32] I consider that it would have been likely that Mr Tadesse would have complained if there had been any further incidence of hostile action by the Applicant against him following the Altona Beach incident. The Applicant had received a final warning and had been told to leave Mr Tadesse alone. Mr Tadesse had not received any negative consequences arising from this incident. He had been believed and had been supported by Toyota. In this situation I consider it likely that Mr Tadesse would have complained about any further incident. There was no complaint made.

[33] Following the Altona Beach incident Mr Kershaw gave evidence that he followed up to ensure that the behaviour had been corrected and it was reported to him that there were no issues about the behaviour of the Applicant during the period between September 2012 and the traffic incident of 26 March 2013. 29

[34] Mr Tadesse says in his statement for these proceedings that in December 2012 “Abdella began acting aggressively towards me once again. Abdella would swing his leg in the air whilst looking at me, which is very rude in my culture.” 30 The notes taken by Mr Italiano of the interview with Mr Tadesse after the traffic incident show the following question and answer: “Any further comments? Everyday from this day - he swings his leg like he is planning to hit us.”31 Mr Italiano refers in his statement to Mr Tadesse’s allegations of spitting and leg swinging from December 2012 onwards but this is not consistent with the contemporaneous notes. The notes only allege leg swinging after the traffic incident. The Applicant denies making any leg swinging gestures.

[35] I am not satisfied that the alleged leg swinging actions took place prior to the traffic incident. I am not satisfied that there were any incidents of inappropriate behaviour by the Applicant between the Altona Beach incident and the traffic incident.

[36] Mr Tadesse and the Applicant both deny talking to each other at all during the period of their mutual employment other than Mr Tadesse’s allegation about the threat made in August 2012, the Altona Beach incident. This significantly reduces the scope of any possible negative behaviour between the two workers other than the Altona Beach and the traffic incidents.

[37] Mr Tadesse gave evidence that he and the Applicant don’t talk and that in the period since 2005 when they have been working in the same area he has not spoken to the Applicant and the Applicant has not spoken to him other than the Altona Beach incident. 32 The Applicant also says that he has not spoken to Mr Tadesse.33

[38] The report of the investigation by Toyota into the Altona Beach incident involved interviews with 7 managers and workers from the area where Mr Tadesse and the Applicant worked. None of them had ever seen the Applicant spitting in the workplace and none of them had ever heard the Applicant make racial comments in the workplace. 34

[39] Mr Tadesse alleged that the Applicant spat on the ground near him in the Altona Beach incident. Toyota found that this allegation was not sustained. Mr Tadesse suggested in his statement that the Applicant had spat near him on more than one occasion and also that other employees told him that the Applicant had spoken to others about his ethnic group and said that his ethnic group had killed his family in Africa.

[40] In cross examination Mr Tadesse spoke about the alleged spitting incident associated with the Altona Beach incident. 35 He was asked to specify the nature of any other aggressive incidents but did not identify any apart from suggesting that the Applicant pointed his finger towards him when telling other people about him and the alleged leg swinging incidents.36 I can understand Mr Tadesse’s suspicion that the Applicant was talking to others about him but in the absence of direct evidence I am not satisfied that this has been established.

[41] Mr Italiano was asked about other incidents raised at the time of the Altona Beach incident investigation. The only other incident he suggests was raised by Mr Tadesse was a reference to more than one instance of spitting. 37

[42] Mr Millen who was asked by Mr Kershaw to investigate and report on the Altona Beach incident accepted that Mr Tadesse did not tell him of other incidents or abuse:

“And did he tell you that he had seven years of abuse from Mr Osman?---I was aware that - - -

No, did he tell you; not were you aware. Did he tell you?---No.” 38

[43] The Toyota managers did not give direct evidence of any other incidents of aggressive behaviour by the Applicant towards Mr Tadesse.

[44] The Toyota managers who investigated the Altona Beach incident and the traffic incident say that they were influenced by the history of conflict between the Applicant and Mr Tadesse in coming to their conclusions. This particularly influenced their conclusion that the traffic incident was a deliberate hostile and violent act by the Applicant directed against Mr Tadesse.

[45] The Applicant denies any personal hostility towards Mr Tadesse and Mr Tadesse denies any personal hostility towards the Applicant. 39

[46] The Toyota managers involved say that during the interview with the Applicant concerning the Altona Beach incident the Applicant talked about the tribal issues and alleged that Mr Tadesse’s tribal group had killed members of the Applicant’s family. Mr Millen and Mr Italiano said that the Applicant referred to Mr Tadesse as a terrorist. 40

[47] Mr Kershaw describes the conversation in this way:

“Mr Osman raised that? What did he say?---Look, I can't exactly remember what he did say. But he did talk about how Tadesse killed his family, and I said, "Where," and he said, "In Africa." I said, "Who," and he said, "My parents," and I said, "So this was some time ago? It couldn't have been Tadesse." He said, no, his tribe killed his family in Africa.

Right, and that was the underlying tension, the reference to his family?---There was quite a bit of agitation by Mr Osman, and it was particularly around the tribal issues between the two tribes and the issues back in Africa and Ethiopia.” 41

[48] The account of the conversation given by Mr Kershaw is quite consistent with the way the Applicant responded in the proceedings. It illustrates some of the difficulties in communication. It illustrates the failure of the Applicant to either listen carefully to the questions or to understand the questions. I am satisfied that when the Applicant refers to Mr Tadesse as a terrorist or having killed his family he is actually referring to the tribal conflict not to Mr Tadesse’s personal role.

[49] During cross examination the Applicant denied that he had called Mr Tadesse a terrorist. 42 The Applicant was focused on defending himself and explaining the situation from his point of view. The Applicant did not listen carefully to the questions asked before responding.

[50] However, I am satisfied by the evidence of the Toyota managers that the Applicant did talk about the ethnic conflict at the interview concerning the Altona Beach incident and did refer to Mr Tadesse’s tribe in negative terms and this probably included a reference to terrorist.

[51] The Toyota management witnesses did not give direct evidence concerning the underlying tension or conflict between Mr Tadesse and the Applicant other than what was said at the interview concerning the Altona Beach incident. They did however refer to what another manager Mr Halliwell had told them. Mr Kershaw said that managers, particularly Mr Halliwell, had reported that there had been “a lot of verbal stouches” or “verbal fighting” and referred to the Applicant as “argumentative and abusive.” 43 Mr Halliwell did not give evidence. Mr Millen referred to words having been exchanged in the past44 but the source of this evidence was uncertain and the evidence lacked specificity.

[52] However, both Mr Tadesse and the Applicant strongly deny any verbal communication between them other than the Altona Beach incident. I can see no reason why Mr Tadesse would seek to underplay the history of conflict with the Applicant. If anything he tended to embellish the history of the conflict. I therefore prefer the direct evidence of Mr Tadesse on this point to the hearsay evidence of the Toyota managers and am satisfied that there was no direct conflict between the Applicant and Mr Tadesse other than the Altona Beach incident and the traffic incident.

[53] I am satisfied that Mr Tadesse felt that the Applicant was hostile to him because of the historical tribal issues and was talking to others about him in a negative manner. I accept the evidence of the Toyota witnesses that the Applicant did express hostility towards Mr Tadesse because of the tribal issues in the Altona Beach incident interview. I accept that it is possible based upon the observations of other managers reported by Mr Kershaw and Mr Italiano that the Applicant may have said negative things about Mr Tadesse and his tribe to others prior to the Altona Beach incident. However, it is not possible to draw a reliable conclusion that this occurred given the lack of direct evidence and the contrary evidence of the Applicant.

The discussion with Mr Kershaw

[54] Following the 8 April 2013 investigation interview with the Applicant Toyota suspended him on pay whilst the investigation continued. The Applicant and Mr Kershaw had a conversation when the Applicant was being escorted from the site. Mr Kershaw and the Applicant have differing versions of this conversation. The Applicant says he got “the impression that he regretted the decision to suspend me, and that the decision to suspend me was influenced by someone else.” 45 I am satisfied that Mr Kershaw was attempting to sympathetically explain that suspension was Toyota policy and was not something within his discretion. I accept Mr Kershaw’s version of the conversation but I am satisfied that the Applicant simply misunderstood what Mr Kershaw was communicating. Such a misunderstanding is consistent with the Applicant’s behaviour as a witness and the poor English communication and listening skills he displayed.

[55] During the proceedings the Applicant made a further claim that Mr Kershaw said something negative about the union. Mr Kershaw denies that this occurred. I am not satisfied that Mr Kershaw made negative comments about the union.

Further Conclusions regarding the traffic incident

[56] I accept the submissions of Toyota that if it was established that the Applicant deliberately drove through a red light in order to endanger or cut off Mr Tadesse this would constitute misconduct.

[57] The Toyota managers came to the conclusion that the Applicant deliberately sought to cut off Mr Tadesse. I do not intend to repeat all of the considerations but the major reasons why the managers decided it was not an accident but was deliberate and directed at Mr Tadesse included: 46

a. The history of the conflict between the Applicant and Mr Tadesse and the hostility shown by the Applicant towards Mr Tadesse. The managers concluded that this made it implausible that it was a coincidence that the incident involved the same two employees who had been previously involved in the Altona Beach incident. It also explained the motive for the Applicant’s actions.

b. The conclusion that the Applicant had stopped at a red light before proceeding. This suggests that it was a deliberate decision to proceed.

c. The conclusion that the Applicant proceeded into the intersection shortly after Mr Tadesse proceeded into the intersection suggesting that he went through the red light in order to cut off Mr Tadesse.

d. The fact that the Applicant moved to the right lane rather than moving to the left lane after turning.

e. The evidence of Mr Tadesse that the Applicant was glaring at him from across the lights which suggests premeditation.

f. The fact that the Applicant said that he didn’t recognise Mr Tadesse’s car until it passed him when Mr Tadesse’s car windows are tinted.

g. The likelihood that the Applicant would have know Mr Tadesse’s car. The denial of the Applicant suggests that his evidence is unreliable.

h. The Applicant sought to see the video of the incident prior to putting in a complaint suggesting that he wanted to make sure that his own actions were not included in the video.

[58] I will briefly review each of these matters.

The history of the conflict

[59] For the reasons discussed earlier I am not satisfied that there were any incidents of hostility between the Altona Beach incident in August 2012 and the traffic incident in March 2013. I am also satisfied that the Applicant and Mr Tadesse did not talk to each other in the period before the Altona Beach incident which limits the potential scope of negative incidents and the level of conflict and hostility.

[60] The behaviour of the Applicant is consistent with him having hostile feelings towards Mr Tadesse but also with him being worried that Mr Tadesse is seeking to damage his employment. The Applicant claimed in proceedings that Mr Tadesse was seeking to damage his employment and Mr Italiano confirmed that the Applicant raised this during the investigation of the Altona Beach incident. I am satisfied that the Applicant sought to avoid contact with and communication with Mr Tadesse in order to protect his employment. This was particularly the case after having received the final warning. The behaviour in the traffic incident alleged by Toyota, that is directly confronting Mr Tadesse by deliberately driving through a red light in order to cut Mr Tadesse off, is inconsistent with the behaviour of the Applicant during the previous seven months. I am satisfied that the Applicant had some hostility towards Mr Tadesse for reasons related to tribal history, however, for the reasons discussed, I am not satisfied that he directly expressed this to Mr Tadesse in the period prior to the Altona Beach incident. I am also unable to be satisfied that he expressed his hostility to others except at the Altona Beach incident interview. For these reasons I am satisfied that the behaviour alleged by Toyota in the traffic incident is also inconsistent with his behaviour towards Mr Tadesse prior to the Altona Beach incident

[61] I observed the Applicant during the proceedings. He generally sat extremely still. Unusually so. He also had a fixed expression. These characteristics gave the impression of a stare. When answering questions as a witness he was difficult to understand and seemed more focused on defending himself than on responding to the question at hand. This is of course quite a common reaction to accusations of misconduct. Consequently it took a long time to progress any issue. Having observed this behaviour I can understand why the Toyota managers may have become frustrated during the interview following the Altona Beach incident. The Toyota managers said that it was hard to get a clear response in their interview. The same was true during the proceedings. They said that they felt intimidated by the Applicant’s stare. The medical opinion was that there was no illness at that time. I consider that a combination of cultural characteristics, personality and language skills explains some of the Applicant’s behaviour during the proceedings.

[62] It is to be expected that the Applicant and Mr Tadesse will arrive at the intersection at the same time given that they work on the same shift and in adjacent locations. It is therefore not an extraordinary coincidence that the Applicant would cut off Mr Tadesse if he went through a red light.

Did the Applicant stop and then go through a Red light?

[63] Given that it is the normal behaviour of traffic lights that green lights are not showing at the same time for conflicting traffic movements, and given that the video shows that a stream of traffic followed Mr Tadesse, I am satisfied that Mr Tadesse had a green light. It follows that it is almost certain that the Applicant did not have a green light. However, I am satisfied that he did not have a red light only a few seconds beforehand. A vehicle turned left approximately 5 seconds before the Applicant arrived and the right turning traffic did not start moving until around the time the Applicant entered the intersection. The Applicant in the investigation interview with Toyota on 8 April 2013 said that he thought it was a green light not that he was categorical that it was a green light. I consider that this was also the effect of his evidence during the proceedings. Toyota’s conclusion on this matter was reinforced by their interview with Mr Rowles. For reasons discussed earlier I am not satisfied Mr Rowles offered other evidence about the Applicant stopping. Mr Rowles was not available for cross examination, however, it is not necessary to rely on the evidence of Mr Rowles as I consider that the video evidence establishes that it is probable that the Applicant did not have a green light when he proceeded and it also establishes that he stopped before proceeding into the intersection for a short period of up to two seconds.

Who went first?

[64] For the reasons discussed earlier I consider it likely that the Applicant’s car enters the intersection beyond the kerb line just prior to Mr Tadesse’s car entering the intersection beyond the kerb line. However, even if I am wrong about this matter it cannot be established that the Applicant’s car moved from a stationary position to enter the intersection after Mr Tadesse’s car began to move from a stationary position. Mr Tadesse’s car accelerates more quickly than the Applicant’s car. The quality of the video is such that it is not possible to tell exactly when Mr Tadesse’s car commences to move.

The use of the right hand lane to enter the car park

[65] For the reasons discussed earlier I am satisfied that some other drivers use the right hand lane after turning left from Grieve Parade when they are intending to enter the car park. The behaviour of the Applicant was not unusual.

Was the Applicant glaring at Mr Tadesse across the lights?

[66] I do not accept the evidence of Mr Tadesse that he could see the Applicant glaring at him from across the lights. There was no queue of traffic in the left turn lane as the previous vehicle had turned into Toyota Way approximately five seconds before the Applicant arrived at the intersection. The video shows that the Applicant was only stopped for two seconds or less at the lights. Mr Kershaw agreed that it was unlikely that Mr Tadesse could have seen the Applicant although he said that he believed the type of car could be recognised. Given the conditions and the very short period of time the Applicant paused at the intersection I am not satisfied that Mr Tadesse saw the Applicant glare at him.

The inconsistency of the Applicant’s evidence about when he recognised Mr Tadesse

[67] I accept the uncontested evidence that the windows of Mr Tadesse’s car were tinted. I accept that this would make identification of a driver more difficult if the only sighting was through the particular windows which were tinted. However in the absence of further evidence including about the type of tinting I cannot conclude that this would prevent the Applicant from identifying that it was Mr Tadesse or likely to be Mr Tadesse when he passed him to cut him off.

[68] For reasons discussed earlier I am not satisfied that there is a major inconsistency in the Applicant’s evidence about whether he recognised Mr Tadesse when his vehicle passed him or whether he recognised him a few moments later in the car park.

The plausibility of the Applicant’s denial that he recognised Mr Tadesse’s car

[69] Given their assessment of the hostility between the Applicant and Mr Tadesse it is understandable that the Toyota managers decided it was likely that the Applicant was familiar with Mr Tadesse’s car just as Mr Tadesse is familiar with the Applicant’s car. I consider that given that the Applicant had received a final warning for the Altona Beach incident and clearly felt that this was an injustice he would have paid attention to Mr Tadesse. Given that they started work at the same time and parked in the same car park this makes it more likely that the Applicant would be familiar with Mr Tadesse’s car. I accept the evidence of Mr Italiano that the Applicant said that he recognised the car when Mr Tadesse cut him off during the 8 April 2013 investigation interview. I do not accept the contradictory evidence he gave during the proceedings. However, people differ as to the extent to which they pay close attention to and are able to recognise vehicles. Mr Italiano said that “it is clear that he would have at least seen the shape of the car”. 47 However, Mr Tadesse’s white sedan is not a particularly distinctive model. I also accept the evidence that there was sun glare which may have affected the Applicant’s vision even though the sun was not directly in the Applicant’s eyes when looking towards Mr Tadesse’s vehicle.

[70] I consider it probable that the Applicant was aware of the type of car driven by Mr Tadesse prior to the traffic incident. However, I am not satisfied on the balance of probabilities that he recognised Mr Tadesse’s car when he arrived at the Grieve Parade intersection. In reaching this conclusion I do not rely on the Applicant’s denial or Mr Tadesse’s evidence that he saw the Applicant glaring at him. An assessment of this matter is speculation based upon the circumstances including matters which are known or can reasonably be inferred such as the nature of the car, the distance between the vehicles, the length of time prior to the Applicant’s vehicle entering the intersection, and the light conditions. To some extent a conclusion that the Applicant recognised the vehicle also relies upon assumptions about the attentiveness of the Applicant at the time. It also depends upon an overall assessment of the plausibility of a conclusion that the incident was a coincidence having regard to the history of conflict and the lack of reliability of aspects of the Applicant’s evidence.

Request to see video first

[71] It is possible to interpret the desire to see the video before making a complaint as evidence that the Applicant wanted to check that the incident of him cutting off Mr Tadesse was not in the video.

[72] On the other hand the fact that the Applicant knew that video surveillance was available and yet still made a complaint suggests that he believed that he was in the right over the incident. Given the fact that he had been on a final warning over his behaviour towards Mr Tadesse it is unlikely he would have deliberately led Toyota to evidence which established that he had taken further hostile action against Mr Tadesse. It is understandable that the Applicant would be cautious about making a complaint against Mr Tadesse unless he knew that evidence was available which supported his allegation. The Applicant had demonstrated a cautious approach to contact with Mr Tadesse over a significant period of time. This may explain why the Applicant wanted to see the video before making a complaint.

[73] There is no direct evidence about the Applicant’s motivation other than what he wrote on the complaint form. The Applicant wrote on the complaint form “the surveillance camera need to be analyzed, if the camera evidence is not sufficient for you then ignore this complaint.” 48

[74] Either explanation is possible. I am satisfied that no conclusion adverse to the Applicant can be drawn from his desire to see the video before making a complaint.

Summary

[75] It is plausible that the Applicant recognised Mr Tadesse’s car and drove through a red light to cut him off because of the anger he felt towards Mr Tadesse. I can understand why Toyota came to this conclusion particularly given the final warning issued in August, their perceptions about the history of conflict between the two men, their perceptions about the Applicant’s mental state at the August interview and the inconsistencies or points of implausibility they identified in the Applicant’s version of events. However, I consider that the perceptions about the Applicant’s mental state were not well founded as evidenced by the medical opinions and for the reasons discussed earlier I have reached somewhat different conclusions about the history of the conflict between the two men.

[76] Toyota concluded that Mr Tadesse was a reliable witness. Mr Tadesse acted dangerously and aggressively towards the Applicant in the traffic incident. I am satisfied that there were some instances where Mr Tadesse embellished his testimony to harm the Applicant. In these proceedings Mr Tadesse was unable to give specificity to some of his generalised allegations. Toyota relies to some extent on the evidence of Mr Tadesse that the Altona Beach incident was not a one off and for the reasons discussed earlier I was not satisfied by this evidence. 49 His total denial of hostility towards the Applicant was unconvincing. For example, the report of the investigation by Toyota into the Altona Beach incident included reports by witnesses that both the Applicant and Mr Tadesse were yelling.50 Mr Tadesse claimed in the investigation interview with Toyota that he had overtaken the Applicant because he was afraid and wanted to get away from the Applicant51 but in later proceedings he gave evidence that it was because he was angry.

[77] Toyota concluded that the Applicant was not a reliable witness. As detailed earlier I was not satisfied by some aspects of the Applicant’s evidence. I did not accept his evidence concerning Mr Kershaw’s comment about the union. His total denial of hostility towards Mr Tadesse was unconvincing. I accept that the behaviour of the Applicant at the time of the Altona Beach incident investigation may have been erratic and that his statements about the tribal conflict may have been extreme. I do not accept the Applicant’s denial that he made comments about Mr Tadesse and the tribal conflict at the interview concerning the Altona Beach incident. I am satisfied that Toyota was justified in concluding that a threatening statement was made by the Applicant in the Altona Beach incident. It was appropriate for Toyota to issue a warning over the incident. For reasons discussed earlier some, but by no means all, of the apparent weaknesses in the Applicant’s testimony are attributable to poor English communication and listening skills. Given these aspects of the Applicant’s evidence his denial is not a strong reason to find that the traffic incident was not directed at Mr Tadesse.

[78] It is possible to establish from the witness evidence and from the video evidence that it is probable that the Applicant did not have a green light when he proceeded into the intersection. In other words the Applicant probably broke the traffic rules. However, a valid reason for termination based upon a finding that the Applicant deliberately drove through a red light in order to cut off Mr Tadesse cannot be established based upon the evidence of witnesses. The motivation of the Applicant can only be established by inference. Toyota drew the inference mainly because of the factors I canvassed earlier. I am not satisfied that Mr Tadesse saw the Applicant staring at him and I found some other aspects of Mr Tadesse’s evidence to be unreliable. For the reasons discussed earlier I concluded that the history of behaviour by the Applicant towards Mr Tadesse was relevant but was not as serious as Toyota believed. I considered that the concern of the Applicant that Mr Tadesse was seeking to harm his employment and the successful and sustained efforts of the Applicant to avoid direct contact with Mr Tadesse apart from the Altona Beach incident seven months earlier were relevant considerations. I was not satisfied that it can be established that the Applicant entered the intersection after Mr Tadesse. I concluded that the Applicant’s use of the right lane could not properly add to an inference of his guilt. I concluded that the Applicant’s request for the video could not properly add to an inference of his guilt. I was satisfied that the fact that the Applicant stopped briefly before proceeding is suspicious. I was not satisfied that I could rely on the denial of the Applicant that he did not deliberately cut off the Applicant. I was satisfied that the Applicant probably was familiar with Mr Tadesse’s car but I was not satisfied in all the circumstances that I could infer on the balance of probabilities that the Applicant recognised the car before entering the intersection.

[79] In deciding whether or not an inference can be drawn it is necessary to consider whether or not there are other plausible explanations. One can speculate about the many possibilities. It is possible that the Applicant deliberately broke the road rules but this was not motivated by him having seen Mr Tadesse’s car. It is possible that the lights changed just as he reached the intersection and he hesitated before making a decision to proceed considering it safe to do so. There is evidence to support a conclusion that the light was not red shortly before the Applicant reached the intersection. It is possible that the Applicant did not see the lights or was mistaken in what he saw because he was affected by sun glare. Although I am satisfied the sun did not prevent the traffic light from being seen when looking straight at the traffic light, it is feasible that sun glare did have an effect on the Applicant’s vision and driving behaviour as he claimed during the proceedings. It is also possible that the Applicant simply was not paying attention.

[80] The strongest evidence in support of a conclusion that the actions of the Applicant were deliberately directed at Mr Tadesse is the fact that the video shows that he stopped briefly before entering the intersection. However, in all the circumstances this is not sufficient to establish on the balance of probabilities that the Applicant deliberately sought to cut off Mr Tadesse.

[81] If there was clear evidence that the Applicant entered the intersection after Mr Tadesse commenced to enter the intersection that would also support a conclusion that the actions of the Applicant were not accidental and may have been directed at Mr Tadesse. However, the video evidence does not clearly support this conclusion and the evidence of Mr Tadesse on this matter is not completely clear. A conclusion that the Applicant entered the intersection before Mr Tadesse or at the same time as Mr Tadesse does not eliminate the possibility that he was deliberately seeking to cut off Mr Tadesse but it does make it less likely.

[82] There are too many unknowns and too many alternative possibilities to reliably come to a conclusion that on the balance of probabilities the Applicant deliberately sought to cut off and endanger Mr Tadesse by driving through a red light. The careful behaviour of the Applicant over a six month period to avoid any conflict with Mr Tadesse and the failure of the Applicant to confront Mr Tadesse after the incident is not consistent with the irrational behaviour of deliberately driving through a red light to endanger and cut off Mr Tadesse.

Criteria for determining whether a termination is unfair.

[83] The legislation provides as follows:

“s387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

(h) any other matters that FWA considers relevant.”

Was there a valid reason for termination? (S 387(a))

[84] Toyota referred to the Teamwork Charter which is set out in the Toyota Motor Corporation Australia (TMCA) Workplace Agreement (Altona) 2011 (the Agreement). They also referred to Toyota’s Workplace Relationships Policy. I am satisfied that deliberately running a red light in order to cut off the driver of another vehicle does constitute a breach of the policies. If the action was deliberate then there is a sufficient link between the conduct and the employment relationship to warrant disciplinary action by the employer. I accept that if the actions were deliberate and directed at Mr Tadesse then they can be fairly described as constituting a risk to health and safety and as a threat of violence which is breach of the policy at Clause 33 of the Agreement and also of the Workplace Relationships Policy.

[85] I consider that the Applicant did breach the road rules and this did create a safety risk to other employees on the public road just prior to entering the plant and upon entering the plant. However, this is a public order matter which is more appropriately the province of Victoria Police rather than the employer. In the circumstances this does not amount to a valid reason for dismissal. Although, like Toyota, I did not accept some aspects of the Applicant’s evidence, I am not satisfied that the way in which he participated in the Toyota inquiry into the incident amounted to misconduct.

[86] For the reasons set out earlier I am not satisfied that there was a valid reason for the dismissal related to the Applicant’s conduct including its effect on the safety and welfare of other employees.

Procedural matters. S387(b)-(g)

[87] The AMWU raised two matters which they say affected the fairness of the procedures. Firstly, they say that the Applicant was denied the opportunity to view the video and that an opportunity was only provided to the Applicant’s union representative. Secondly, they say that at the interview on 8 April 2013 it was not clearly stated to the Applicant that it was alleged that he had engaged in violent and dangerous behaviour in the traffic incident and that his job might be in jeopardy at the end of the investigation. They also say that at the meeting when the dismissal occurred on 15 April 2013 it was not clearly stated that the behaviour in the traffic incident was violent and dangerous conduct. During proceedings the Applicant accepted that there may have been reference to violent and dangerous conduct during the 15 April 2013 meeting.

[88] Having considered the evidence and submissions in respect to these matters I am satisfied that the Applicant was told of the nature of the allegation at the interview on 8 April 2013 and that it was clear that it was alleged that this was a breach of the Teamwork Charter set out in the Toyota Motor Corporation Australia (TMCA) Workplace Agreement (Altona) 2011 (the Agreement). I am satisfied that all Toyota employees are provided with copies of the Agreement. Even if the words violent and dangerous were not used at the meeting on 8 April 2013 I am satisfied that the nature of the allegations to which the Applicant was asked to respond was sufficiently clear. I am satisfied that the allegations and their link to the Agreement and policies were also clear at the 15 April 2013 meeting. For similar reasons I am satisfied that the Applicant was given an opportunity to respond. The notes of Mr Marmara and of Toyota confirm the opportunity to respond.

[89] I am not satisfied that there was any significant unfairness in all the circumstances which arose from the Applicant’s representative rather than the Applicant viewing the video.

[90] I am satisfied from the evidence of Mr Kershaw that he considered the question of whether or not dismissal would be harsh given the long and good service of the Applicant. Mr Kershaw concluded that these factors were outweighed by his view of the seriousness of the incident and his view of the history of the conflict between the two workers. I am satisfied that Mr Kershaw also considered the issue of the sun glare and rejected this explanation. I am not satisfied that Mr Kershaw considered the alternative penalty of Suspension without Pay which is available in cases where an employee reoffends within 12 months of a final written warning under Clause 34.4 of the Agreement.

[91] The Applicant was notified of the reason for the dismissal and was given an opportunity to respond. The Applicant was represented by the AMWU. The dismissal did not relate to unsatisfactory performance.

[92] Toyota is a large employer with dedicated human resource personnel. The procedures in this matter were consistent with the standards expected of such an employer and with the obligations of Toyota under the Agreement.

Other relevant matters. (S387(h))

[93] I consider that the 25 years of good service to Toyota by the Applicant and the absence of any earlier issues with conduct and or performance other than the two matters which led to the termination to be a relevant consideration standing in favour of a finding that the termination was harsh.

Conclusion as to whether the termination unfair

[94] As I consider that there was no valid reason for the termination and having regard to the long service and the good work record of the Applicant I am satisfied that the termination is harsh, unjust and unreasonable.

[95] If I am wrong about my conclusion concerning valid reason I would still conclude that the termination was harsh and disproportionate. I reach this conclusion when regard is had for the following:

● The Applicant had 25 years service.

● The Applicant is 55 years of age and has a dependent child.

● The Applicant does not have good communication skills and this will affect his employment prospects.

● The Applicant had a good employment record and had been recently praised by Mr Kershaw for his performance.

● The Applicant had altered his behaviour in response to the final warning about his behaviour towards Mr Tadesse and there had been no problem with his conduct during a seven month period since the incident which led to the warning.

● The issue for which the Applicant received a final warning was serious. However, it did not involve actual violence.

● The traffic incident, even if it was found to be a deliberate act directed at Mr Tadesse, endangered the safety of others but did not involve a serious likelihood of collision and there was no speed involved and there was no subsequent altercation.

● The Agreement Counselling and Disciplinary procedure provides at Clause 34.4 that if an employee reoffends within twelve months of a final warning the consequences are termination of employment or suspension without pay. An alternative remedy was available and would have been appropriate given all of the circumstances. Toyota’s written submission incorrectly stated that under the Agreement “Toyota had “nowhere else to go” once it had formed the view on the balance of probabilities that Mr Osman’s conduct in the Traffic Incident was deliberate”. 52

● Mr Kershaw gave evidence that he considered that the Applicant’s continuing employment would be inconsistent with his responsibilities for a safe workplace given that he had no confidence that the ongoing tensions between the two workers would not continue. 53 He also considered that separating the two workers could not be done reasonably and would be contrary to the Toyota Work Charter which requires employees to be able to work alongside each other. Although these are relevant considerations they are not absolutes and in the circumstances I consider that reasonable adjustments should have been considered.

Remedy

[96] The Act provides as follows:

“390 When the FWC may order remedy for unfair dismissal

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

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

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

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

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

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

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

[97] I am satisfied that the conditions in Sections 390(1) and 390(2) have been met. Toyota argued that reinstatement is inappropriate for the following reasons:

“As to reinstatement, we say reinstatement is not an appropriate remedy. It's not an appropriate remedy because we say there is still and would be still underlying tension between Mr Osman and Mr Tadesse, and Toyota can have no confidence that Mr Osman will not behave in this way in the future given his previous behaviour, the way he has spoken to managers about Mr Tadesse and the two incidents. It would be really highly detrimental to the culture of the Toyota workplace if Mr Osman was reinstated in these circumstances. It would send absolutely the wrong message to the workforce. It would undermine Toyota's policies in this regard, and clear acceptable standards of behaviour that the parties have agreed to in their workplace agreement.

On top of that, Commissioner, we say that reinstatement is not an appropriate remedy because of Mr Osman's denial of everything all along. He can't even come here and say that he doesn't like Mr Tadesse.” 54

[98] I consider that the Applicant’s age and long period of service strongly stand in favour of the appropriateness of reinstatement in the circumstances of this case. Toyota is a large employer with sophisticated human resource management capabilities. There are many things that Toyota can do to ensure appropriate behaviour by the Applicant and to avoid conflict between Mr Tadesse and the Applicant in the event that he is reinstated.

[99] When an employer dismisses an employee for misconduct or poor performance it will be commonplace that they have an expectation that the behaviour would continue if the employee is reinstated. That argument will often simply be a restatement of the reasons for dismissal. A concern about the possibility of repetition of past behaviour is not an adequate reason to determine reinstatement to be inappropriate in the circumstances of this case.

[100] I accept that Toyota’s ability to manage appropriate workplace culture in such a large and diverse workplace is important. I do not consider that a decision to reinstate the Applicant would send the wrong message or undermine the clear and acceptable standards of behaviour that are well articulated by the parties in the Agreement. If the Applicant is reinstated it will be a decision which is consistent with those standards. A decision to reinstate is not a decision to condone unacceptable behaviour but a decision that the misconduct was not established or did not warrant termination. The Agreement itself allows for different penalties depending upon the circumstances and the nature of the misconduct.

[101] I have earlier expressed my reservations about aspects of the evidence of the Applicant and of Mr Tadesse. I have taken that into account in reaching my decision. I do not see that as rendering reinstatement inappropriate.

[102] Subject to one matter which I consider next, I am not satisfied that reinstatement is inappropriate in the circumstances of this case and I consider that I should make an Order for the Applicant to be reinstated.

[103] I note that the Applicant was on a final warning arising from the Altona Beach incident. Under the Agreement the final warning lasts for twelve months. I consider that the period between the termination of employment and the date of the Order for reinstatement should not be counted as part of that twelve month period. I request the AMWU and the Applicant to advise Toyota in writing that they accept this. In the event that this does not occur Toyota will be at liberty to apply for a variation to my Order.

[104] I must now consider the provisions of Section 391:

“Reinstatement

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

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

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

.....

Order to maintain continuity

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

(a) the continuity of the person’s employment;

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

Order to restore lost pay

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

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

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

[105] I am satisfied that reinstatement to the position formerly occupied by the Applicant is possible. However, Toyota and the AMWU should have discussions about the appropriate arrangements to reduce the prospects of further conflict between Mr Tadesse and the Applicant. I am open to the possibility that this could result in an alternative position on terms and conditions no less favourable than those on which the Applicant was previously employed being appropriate.

[106] I consider it appropriate to make an order to maintain continuity of employment and service. I can see no argument as to why this should not occur in the circumstances of this case.

[107] In considering the matter of lost remuneration I do not consider that there should be any discount for misconduct. I was not satisfied that misconduct by the Applicant was established in the traffic incident and this was the only incident established in the previous seven months. I consider it appropriate to make an order for lost remuneration. I note the evidence of the Applicant that as at the date of the hearing he had not earned any income since the dismissal. The Applicant did however receive payment for notice and payment of his accrued annual leave and long service leave entitlements.

[108] Prior to finalising the Orders I will provide the AMWU and Toyota with an opportunity to consider the issues of:

● The discounting of the period since the termination in respect of the period of the final warning.

● The appropriate position for reinstatement and the arrangements to reduce the likelihood of further conflict between the Applicant and Mr Tadesse.

● The appropriate Order in respect to lost remuneration.

[109] A hearing for the finalisation of the Orders will take place at 10 am on Tuesday 1 October 2013.

COMMISSIONER

Appearances:

Mr M Georgiou with Mr C Marmara appeared for the AMWU.

Ms N Spark with Ms C Slattery appeared for Toyota.

Hearing details:

2013

Melbourne

September 2, 3

1 PN1414.

2 PN1404.

3 PN1408 to PN1411.

4 Exhibit T4, Attachments RE3 and RE4.

5 Exhibit T4, Attachment RE2.

6 Exhibit T3, Attachment JI 9.

7 PN652.

8 PN642.

9 Exhibit T1, at paras 20 and 21.

10 Exhibit T1, at para 23.

11 Exhibit T3, Attachment JI7.

12 Exhibit O2, at para 9.

13 PN187, PN291, PN294 and PN336.

14 Exhibit O1, Attachment CM1.

15 Exhibit T3, Attachment JI11.

16 Exhibit T3, at para 29(b).

17 Exhibit T3, Attachment JI10.

18 PN1277 to PN1278.

19 PN297.

20 PN332 to PN335.

21 Exhibit T3, Attachments JI6 and JI7.

22 PN347 to PN348.

23 Exhibit T1, at para 11,

24 Exhibit T3, Attachment JI2.

25 Exhibit T2, at para 17.

26 Exhibit T2, at para 15.

27 Exhibit T3, at para 15.

28 Exhibit T5, at para 12.

29 PN1369.

30 Exhibit T1, at para 19.

31 Exhibit T3, Attachments JI8 and JI9.

32 PN493, PN494 and PN609.

33 PN234.

34 Exhibit T3, Attachment JI2.

35 PN497 to PN499.

36 PN571 to PN573.

37 PN901.

38 PN764 to PN765.

39 PN234 and PN677 to PN678.

40 PN213 to PN225.

41 PN12102 to PN12103.

42 PN224.

43 PN1230 and PN1232.

44 PN779.

45 Exhibit O2, at para 34.

46 See Submission of Toyota, Exhibit T7, at paras 17-23.

47 PN1055.

48 Exhibit T3, Attachment JI 4.

49 See for example Submissions of Toyota, Exhibit T7, at paras 19 and 28.

50 Exhibit T3, Attachment JI2.

51 Exhibit T3, at para 33(b).

52 Exhibit T7, at para 30.

53 Exhibit T5, at paras 35 and 36.

54 PN1611 to PN1612.

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