Mr Brett Chapman v Lion-Dairy and Drinks Pty Ltd
[2013] FWC 3436
•14 JUNE 2013
[2013] FWC 3436 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Brett Chapman
v
Lion-Dairy and Drinks Pty Ltd
(U2012/15154)
COMMISSIONER CARGILL | SYDNEY, 14 JUNE 2013 |
Termination of employment
[1] This decision arises from an application by Mr B Chapman (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by Lion Dairy and Drinks Pty Ltd (the respondent or the company). The applicant’s dismissal occurred on 19 November 2012 and his application for relief was lodged on 21 November 2012.
[2] The matter was dealt with by a Conciliator on 7 January 2013 but did not settle. It was heard by me in Sydney on 6, 7 and 8 May 2013. The matter proceeded by way of hearing as I considered that it was appropriate to do so having taken account of the factors set out in section 399 including the views of the parties.
[3] The applicant was represented by Mr Mueller, Senior Industrial Officer with the National Union of Workers (NUW), an organisation of which the applicant is a member. The respondent was represented by Mr Young of Counsel who appeared with permission.
[4] The applicant gave evidence. His statement dated 25 March 2013 was marked Exhibit Applicant 1 and his oral testimony is at PN 24 - 1129 of Transcript. The following witnesses also gave evidence in the applicant’s case:
Mr S Stubbs An employee of a labour hire agency who was at the respondent’s Penrith facility during the relevant period. His statement dated 25 March 2013 was marked Exhibit Applicant 4 and his oral testimony is at PN 1146 -1225 of Transcript;
Mr R Herbert Organiser with the NUW with responsibility for the Penrith facility. His statement dated 25 March 2013 was marked Exhibit Applicant 5 and his oral testimony is at PN 1227 - 1285 of Transcript;
Mr R West Work colleague of the applicant. His statement dated 25 March 2013 was marked Exhibit Applicant 6 and his oral testimony is at PN 1289 -1341 of Transcript.
[5] The following witnesses gave evidence on behalf of the respondent:
Mr S Muir Operations Director - NSW Milk with the respondent. His statement dated 23 April 2013 was marked Exhibit Respondent 5 and his oral testimony is at PN 1367 - 1682 of Transcript;
Mr S Guthrie Tanker Driver who, at the relevant time, delivered milk to the respondent’s Penrith facility. His statement was marked Exhibit Respondent 6 and his oral testimony is at PN 1686 - 2006 of Transcript;
Mr A Watts Tanker Driver who delivers milk to the respondent’s Penrith facility. His statement was marked Exhibit Respondent 8 and his oral testimony is at PN 2018 - 2256 of Transcript;
Mr H Metias Team Leader at the Penrith facility. His statement was marked Exhibit Respondent 9 and his oral testimony is at PN 2277 - 2430 of Transcript;
Mr J Sharpe Leadership Capability Coach at the Penrith facility during the relevant period. His statement was marked Exhibit Respondent 10 and his oral testimony is at PN 2433 -2616 of Transcript;
Mr G Hourn Security Officer at the Penrith facility. He is not an employee of the respondent but of a company contracted to provide security services to the Penrith facility. His statement was marked Exhibit Respondent 11 and his oral testimony is at PN 2633 - 2804 of Transcript.
[6] An affidavit deposed to by Ms E Anderson, solicitor on behalf of the respondent, was admitted into evidence without objection. The affidavit only deals with medical records for Mr Guthrie. It was marked Exhibit Respondent 12.
[7] There was extensive evidence and much material provided in these proceedings. Although I may not specifically refer to each and every issue raised, in reaching my conclusions I have had regard to all relevant materials and evidence before me.
FACTS AND EVIDENCE
[8] The respondent describes itself as having a portfolio of well-known brands of milk, soy beverages, alcoholic beverages, juice, cheese and fresh dairy products. The relevant part of the business, a milk processing plant and distribution centre at Penrith, was previously owned by National Foods Limited (National Foods) which merged with the respondent in May 2011.
[9] The applicant commenced employment with National Foods at the Penrith facility in July 2006. He was engaged as a warehouse operator and in 2008 was promoted to the role of Leading Hand. Around that time he was appointed as a contact officer to liaise between employees and management on sensitive issues. The applicant has been an NUW delegate since November 2007. He was also a member of the Consultative Committee at the site. The applicant has had no previous formal disciplinary action taken against him.
[10] The applicant worked on the night shift which runs from 9pm until 5am. The incident which led to the applicant’s dismissal took place at around 1am on 12 October 2012. At that time he was operating a forklift moving broken pallets from the crate dock area to the waste water treatment plant. This process required going along a laneway between the blow moulding building and the perimeter fence. There is a yellow line on the ground in the laneway to mark out the areas where the forklifts operate and where tankers drivers can park.
[11] The applicant’s evidence is that, as he approached the corner of the blow moulding building, he noticed a milk delivery tanker parked in the wrong place and at an angle which caused it to block the laneway. There was insufficient room for the applicant to get past the tanker with his loaded forklift. The applicant denied being annoyed about this and testified that trucks often parked in this fashion.
[12] Mr Guthrie’s evidence is that he parked his tanker in the laneway because he was waiting for a space to become available in one of the intake bays. He says that he parked at a slight angle in order to make it easier to reverse into the intake bays when one became free. Mr Guthrie’s evidence is that he parked close to the yellow line where he understood he could park. He estimated that the applicant had sufficient room to get past.
[13] Mr Watts was the driver of one of the tankers which was in the intake bays at that time. It should be noted that he and Mr Guthrie were employed by different transport companies. Mr Watts’ evidence is that he is acquainted with Mr Guthrie as he used to see him on site for about 10 minutes three times a week. His evidence is that he never saw Mr Guthrie outside work and denied that they were friends. Mr Watts and Mr Hourn both confirmed that it is customary for tanker drivers to park in the laneway until a space becomes available in one of the intake bays.
[14] Mr Watts was completing paperwork after his tanker had been unloaded. The door of his cabin was open and he conceded that it was noisy in the intake bay. Mr Watts’ evidence is that he looked up because he heard a horn tooting and someone yelling. He estimated that he heard six to twelve loud beeps which were more frequent and of a different type to the usual “safety beeps” used to alert others to the presence of a forklift.
[15] Mr Watts’ evidence is that it appeared to him that the tooting was coming from a forklift which was approaching the rear of Mr Guthrie’s truck and the yelling was coming from the driver of that forklift. Mr Watts agreed that he could not see the face of the driver and, consequently, could not see the driver’s mouth move. He says however that there is lighting in the area between the intake bays and the laneway and he could see the forklift quite clearly. Mr Watts agreed that there were always two forklifts in the area.
[16] Mr Watts then observed the forklift driver get off the forklift and walk down the right hand side of the tanker. His view was then obscured by the forklift. Mr Watts’ evidence is that he remarked to one of the employees working nearby in the intake bay “You’ve got an irate forklift driver there”. The employee did not respond and Mr Watts thought the employee had not heard his remark. That is supported by the record of interview held with that employee during the investigation process, Appendix R to Annexure JS9 to Exhibit Respondent 10.
[17] Mr Watts’ evidence is that he thought the forklift driver was irate because of the number of times he sounded his horn, because he was yelling as he got off the forklift and the manner in which he walked around the side of the tanker.
[18] The applicant’s evidence is that the area where the tanker was parked in the laneway was dark. He denied that he had been yelling. He also denied that he had beeped the horn of his forklift six to twelve times or at all after he stopped the forklift.
[19] The applicant’s evidence is that, as he proceeded on foot along the driver’s side of the tanker, he smelt marijuana smoke and heard someone screaming and out of control. He thought the person may have been on a mobile phone. The applicant then saw someone coming towards him still screaming and swearing but could not see the person’s facial features until they were about 30cms away. The applicant’s evidence is that the other person, now known to him as Mr Guthrie, had dilated pupils and appeared to be under the influence of drugs.
[20] The applicant says that he did not notice Mr Guthrie’s height but had observed that he was slimmer than the applicant. The applicant’s evidence is that he is 172cms tall and at the time of the incident weighed about 102kgs. Mr Guthrie’s evidence is that he is 165cms tall and weighs 59 to 60kgs. The applicant regularly attends a gym and does circuit training which includes the use of a punching bag. His evidence is that he did some boxing when he was 17. Mr West’s evidence is that the applicant is fit.
[21] The applicant’s evidence is that Mr Guthrie had his hands up to fight. He punched the applicant in the mouth, on his right cheekbone, twice on both forearms and then on the right thumb causing pain. The applicant’s evidence is that he had no other choice but to strike back to defend himself. He says that he pushed Mr Guthrie once in the face and once in the ribs then he threw him to the ground so that he could get away. The applicant’s evidence is that the whole incident happened very quickly and he feared for his safety.
[22] Mr Guthrie’s evidence is that he did not smoke on the site on the night in question. His evidence is that he had slept in the cabin of his tanker for a couple of hours and, after waking up, had a cigarette before entering the depot. He does not take illegal drugs. Mr Guthrie says that, after parking the tanker, he got out to check the milk samples as required and had the samples and testing kit in his hands.
[23] Mr Guthrie’s evidence is that the applicant came towards him yelling and waving his arms around and told him to move his tanker. Mr Guthrie conceded that he called the applicant a fool and used various expletives towards him. He says that the applicant punched him which made him drop the milk samples. Mr Guthrie then hit the applicant. The applicant hit him again. He then attempted to hit the applicant again although he is unsure if he made contact. They struggled to the ground and the applicant hit him on the head and several times in the ribs. Mr Guthrie’s evidence is that the applicant hit him many times. Mr Guthrie said he could barely breathe and was gasping for air. He was lying on the ground and the applicant left and drove off on his forklift.
[24] The applicant drove to the security gatehouse and informed Mr Hourn that he had been hit in the face or mouth by a tanker driver. Mr Hourn’s evidence is that the applicant said he had “flogged” the driver. The applicant denies saying this but instead said that he “had to give it back to him”. The applicant says that Mr Hourn mentioned Mr Guthrie’s nickname of “ferret”. Mr Hourn denies this and says he actually thought the protagonist might have been another tanker driver whom he described as an “old cranky bastard” or “old cranky bugger”.
[25] The applicant went to find Mr Metias. He reported that he had been hit by a tanker driver. The evidence of Mr Metias is that the applicant told him that he “had to retaliate and take him out”. The applicant denies saying this. The applicant also denies that he was cool and calm as described by Mr Metias. It is the evidence of Mr Metias that he could not see any visible sign of injury to the applicant. He says that he asked the applicant if he was “alright” to which the applicant responded in the affirmative. The applicant denies that Mr Metias made any such inquiry of him.
[26] Meanwhile Mr Guthrie made his way to the intake bays and another tanker driver brought Mr Hourn to him. Mr Hourn has a first aid certificate. His evidence is that Mr Guthrie was sitting on a crate, hunched over and holding his ribs. He says that he observed that Mr Guthrie had grazes and blood on his elbows and knees and a bloody cut to his upper lip. Mr Hourn’s evidence is that, from his earlier quick scan of the applicant he did not see any physical injuries, bleeding or abrasions.
[27] It is the evidence of Mr Metias that it appeared to him that Mr Guthrie had suffered some injuries. He arranged for Mr Hourn to take him to the first aid room. Mr Metias says that he observed that Mr Guthrie was having trouble walking, was partially limping and was holding his side. He also saw blood on Mr Guthrie’s lip and a graze under his nose.
[28] It is the evidence of Mr Stubbs that there had been a previous incident, in late August 2012, during which Mr Guthrie had aggressively threatened him with a pen. Mr Guthrie testified that he didn’t know Mr Stubbs and could not recall having an argument with anyone in which he pointed a pen at them. Mr Guthrie’s evidence is that he had a good relationship with people at the depot and was not aware of any complaint against him. No-one had indicated to him that they were unhappy with the way in which he dealt with them.
[29] Mr Herbert’s evidence is that, during the previous two years, a number of delegates had mentioned a tanker driver with the nickname of “ferret” in connection with instances of aggression and verbal abuse. He says that management had not acted on complaints in relation to this person or other tanker drivers.
[30] Mr Stubbs testified that, on 12 October, while Mr Guthrie was walking away from the area of the intake bays with Mr Metias and Mr Hourn he stumbled then turned around to Mr Stubbs and said “There’s another fuckwit. I’ll get you back”. Mr Guthrie, Mr Metias and Mr Hourn each deny that this happened.
[31] Mr Hourn took Mr Guthrie to the first aid room, gave him pads with which to remove the blood from his face and elbows and an icepack for his ribs. He also filled in an incident report, Annexure GJH3 to Exhibit Respondent 11. Mr Hourn asked Mr Guthrie on several occasions if he wanted an ambulance or to go to a medical centre. Mr Guthrie declined each time. Mr Hourn also asked questions to assess Mr Guthrie’s mental alertness and ensure he was not concussed.
[32] Mr Guthrie was asked to prepare a written statement about what had happened, Annexure SJG1 to Exhibit Respondent 6. Mr Metias took a photo of Mr Guthrie on his mobile phone, Annexure HM2 to Exhibit Respondent 9. It is also part of Exhibit Respondent 7 and part of a bundle of documents attached to Exhibit Respondent 10. The photo appears to show bruising to the left side of Mr Guthrie’s face and blood on his upper lip.
[33] After reporting the incident to Mr Metias the applicant had returned to his forklift duties. His evidence is that he was in a lot of pain especially to his thumb and right cheek and felt blood in his mouth. The evidence of Mr Metias is that he did not observe any blood on the applicant neither did the applicant complain of pain in his cheek or blood in his mouth. The applicant did not ask for any first aid. About 35 minutes after the incident Mr Metias approached the applicant for him to make a statement and asked whether he wanted to have a witness. The applicant’s preferred witnesses, other NUW delegates, were not on site so he requested that Mr West attend the meeting which he did.
[34] The applicant was asked what had happened. There is a difference between the applicant and Mr Metias as to parts of what was said including whether the applicant said that he had to “take him out”, referring to Mr Guthrie. The applicant denies that he was asked how many times he had hit Mr Guthrie or that he responded to any such question. The applicant was then left alone to write out his statement. That statement is Exhibit Respondent 2 and part of Annexure HM3 to Exhibit Respondent 9.
[35] Mr Metias had telephoned the Distribution Centre Leader, Mr Fitzgerald, and one of the senior supervisors about the incident. He was instructed to inform the applicant that he was to be stood down on full pay pending an investigation. He told the applicant of this. The applicant objected. His evidence is that he was shocked as he had been the person who had been assaulted. He asked for Mr Guthrie to be drug tested and for the company to view surveillance footage of the area.
[36] The applicant’s evidence is that he understood that there was recorded CCTV coverage of the relevant part of the site. Mr Muir provides evidence about the security arrangements at the facility. He says that none of the cameras face the laneway where the incident took place and, in any event, the cameras do not record information but are for the purpose of allowing the security personnel to view different parts of the site from the gatehouse.
[37] After having a cup of tea the applicant drove home. He says that it was difficult to drive because of his injuries. When the applicant arrived home his housemate took photos of his injuries. These are at Attachment BC2 to Exhibit Applicant 1. A coloured version is at Appendix X to Mr Sharpe’s investigation report which is Annexure JS9 to Exhibit Respondent 10. The applicant telephoned Mr Metias sometime after he returned home. His evidence is that he did this to inquire why Mr Metias had not contacted him to ensure that he had arrived safely.
[38] Later on 12 October Mr Sharpe and Mr Fitzgerald telephoned the applicant to inform him that there was to be an investigation into the incident and remind him that he was stood down pending that process. A letter confirming these matters was sent to the applicant that same day. It is Attachment BC3 to Exhibit Applicant 1 and Annexure JS5 to Exhibit Respondent 10. Attached to this letter was a copy of the respondent’s Personal Behaviour Standards and other relevant policies.
[39] On 13 October the applicant attended his general practitioner who provided a medical certificate reporting that, upon examination, the applicant “has tenderness and swelling on his right 1st metacarpal phalangeal joint (thumb), he has swelling upper and lower lip on the right side. He has tenderness over the right cheek. These findings are consistent with being soft tissue injuries to these area (sic) from being punched”. This certificate is Attachment BC4 to Exhibit Applicant 1.
[40] After an hour and a half in the first aid room Mr Guthrie drove the now empty tanker back to Maitland where it was required for another delivery. One of the other drivers followed him to ensure he returned safely. After he dropped off the tanker Mr Guthrie attended The Maitland Hospital. He was examined by a doctor and declared unfit to work until 15 October. This initial medical certificate is unclear but appears to provide a diagnosis of right sided lower rib cage pain, Annexure SJG2 to Exhibit Respondent 6. A report of a chest X-ray which, from the time noted in it seems to relate to this visit, notes evidence of a small right apical pneumothorax, page 25 of Exhibit Respondent 12.
[41] Mr Guthrie returned to the hospital later that day and received a progress medical certificate declaring him unfit for work until 28 October. Again the certificate is difficult to read but appears to provide a diagnosis of a small pneumothorax at right lung apex. This certificate is also at Annexure SJG2 to Exhibit Respondent 6.
[42] Mr Guthrie had a further review at the hospital on 29 October, received a medical certificate noting that he was treated for bruised rib left side and small right apical pneumothorax and was declared fit to return to work on 30 October with light duties for two weeks, Annexure SJG4 to Exhibit Respondent 6.
[43] Mr Guthrie reported the incident to the police at Maitland on 15 October. On 17 October the applicant contacted the police at Penrith about the incident. It appears that the police have declined to take any action because there are conflicting versions of the events in question.
[44] Mr Sharpe carried out the investigation into the events of 12 October. The process for such investigations is set out in the company’s Issue Resolution Policy and is detailed in an appendix to the enterprise agreement which applies at the Penrith facility. Both of these documents were provided to the applicant. Mr Sharpe was assisted in the interview process by Mr Fitzgerald.
[45] Mr Sharpe had the written statements taken after the incident from the applicant, Mr Guthrie and Mr Hourn as well as an email from Mr Metias setting out his recollection of events, Annexure JS4 to Exhibit Respondent 10. Interviews were held with Mr Guthrie, Mr Hourn, Mr Metias, Mr West and Mr Watts as well as various other employees and contractors who were in the vicinity of the incident or whose names had been put forward as possibly having relevant information. Notes of these interviews are at Appendices G, J, N, O, P, Q, R, S, T and Z to the investigation report Annexure JS9 to Exhibit Respondent 10.
[46] Around 18 October a further letter was sent to the applicant, Attachment BC5 to Exhibit Applicant 1. It is also at Appendix C to the investigation report, Annexure JS9 to Exhibit Respondent 10. In this letter the company set out the allegations against the applicant and the policies which may have been breached. The applicant was asked to provide a written response prior to an interview. He was encouraged to bring a support person to that interview. The applicant’s written response is at Exhibit Respondent 3 and Annexure JS6 to Exhibit Respondent 10 and also appendix D to the investigation report.
[47] The applicant was interviewed on 22 October. He was accompanied by Mr Herbert and an NUW delegate from the site. The notes of the interview are at Appendix Y to the investigation report, Annexure JS9 to Exhibit Respondent 10.
[48] Mr Sharpe finalised the investigation report on 31 October. He found that the applicant had approached Mr Guthrie in an aggravated manner and had then acted towards him in a violent fashion which had resulted in injury to Mr Guthrie. Mr Sharpe also found that the applicant’s behaviour breached sections 1(a)(iv), 2(f), 3 and 4 of the company’s Personal Behaviour Standards.
[49] On 1 November Mr Sharpe met with Mr Muir to discuss the findings of the investigation report. It was decided that the applicant should be asked to show cause as to why his employment should not be terminated. A letter to that effect dated 2 November was sent to the applicant, Attachment BC6 to Exhibit Applicant 1. In the letter the applicant was provided with the findings of the investigation and invited to respond in writing with reasons why he should not be dismissed. He was also asked to attend a meeting to discuss those reasons and encouraged to bring a support person to that meeting. The applicant’s written response is Attachment BC7 to Exhibit Applicant 1.
[50] A meeting was held with the applicant on 8 November. He was supported by Mr Herbert and an NUW delegate. During that meeting the applicant put forward the names of two persons who would support his assertion that Mr Guthrie had previously acted aggressively. One of these was Mr Stubbs whom Mr Sharpe then interviewed. The other was a former employee.
[51] Mr Sharpe then prepared a “Proposed Termination Memo”, Annexure JS10 to Exhibit Respondent 10. In it he recommended that the applicant be dismissed with notice. He noted that alternative sanctions were not appropriate because of the violent nature of the applicant’s actions. Mr Sharpe also recommended that Mr Guthrie not be permitted to access any of the company’s sites. I understand that this recommendation was accepted.
[52] On 12 November Mr Muir and Mr Sharpe met to discuss the situation and review all of the material. Mr Muir’s evidence is that, prior to this meeting, he had not made any definite decision about the applicant’s ongoing employment. He then took a few days to consider the material and the process and on 16 November decided that the applicant’s employment should be terminated.
[53] Mr Muir’s evidence is that his decision was based on several factors: the applicant’s disregard for the company’s policies; his failure to accept responsibility for his actions; the company’s position as demonstrated in its policies that physical violence in the workplace is completely unacceptable; the fact that the incident involved a visitor to the site; the level of the violence and the threat it involved to the health and safety of others on site; the applicant’s lack of candour; the disproportionate nature of the applicant’s response; the options available to the applicant to have avoided the incident altogether; and the applicant’s role as a Leading Hand. He also considered the issues raised by the applicant in his responses to the company.
[54] On 19 November a meeting was held with the applicant. Mr Herbert and an NUW delegate were also in attendance. Mr Muir informed the applicant that he had decided to terminate the applicant’s employment. A letter confirming this was sent to the applicant later that day, Attachment BC1 to Exhibit Applicant 1. The applicant was provided with four weeks’ pay in lieu of notice, his accrued entitlements and three sessions with the counselling service provided as part of the respondent’s Personal Support Program.
[55] The applicant seeks reinstatement. He has been employed as a casual through a labour hire agency earning approximately $500 gross less per week than when employed with the respondent. Evidence of his earnings is at Exhibit Applicant 7. The applicant’s evidence is that, as a result, he is unable to maintain his mortgage and will have to sell his house. He is 43 years old and because of the circumstances of his dismissal it is difficult for him to obtain fulltime employment.
[56] The applicant makes child support payments for his three children one of whom has a medical condition which requires surgery. The applicant has to cover some of the costs of that procedure. The applicant’s evidence is that the stress of the dismissal has caused him to separate from his former fiancé.
[57] The applicant testified that he would accept redeployment to a different site. He also testified that, although it would be unfortunate, he would accept losing his Team Leader’s position if he was reinstated. The applicant’s evidence is that he regrets acting unprofessionally by using force and he regrets that Mr Guthrie was injured.
[58] Mr West’s evidence is that he would be happy to work with the applicant if he was reinstated. He has not heard from anyone that they do not want the applicant back.
[59] Mr Muir’s evidence is that the applicant’s reinstatement would be neither practicable nor tenable. He has lost trust in the applicant and could not be satisfied that the applicant would not engage in similar behaviour if presented with a like situation. Mr Muir’s evidence is that he is unable to ensure that a truck will not be parked inappropriately in the future. Reinstatement would set the wrong standard of expected behaviour and could result in further incidents. The applicant’s conduct was a serious breach of the company’s policies and undermines the importance of the zero tolerance approach to violence at the workplace
[60] Mr Muir’s evidence is that the company’s policies make it clear that violence in the workplace is unacceptable. This is contained in the Personal Behaviour Standards referred to earlier, Exhibit Respondent 4. The Standards identify examples of inappropriate behaviours which are not of an acceptable standard for the workplace. These include, at 2(f), “Violence or threats of violence and/or intimidation towards any other person/s. Provocation will not be accepted as an excuse”. The Standards note that inappropriate behaviour can equate to misconduct or serious misconduct which may lead to disciplinary action, including termination.
[61] The applicant’s evidence is that, although he had not read the Personal Behaviour Standards prior to receiving them on or about 12 October, he agreed that they were in effect the same as the National Foods policies that he received when he began employment at the Penrith facility. The applicant also agreed that he knew that if the company found that he had acted violently it was likely that his employment would be terminated.
SUBMISSIONS ON BEHALF OF THE APPLICANT
[62] A written outline of submissions on behalf of the applicant was provided prior to the hearing. Mr Mueller also made oral submissions.
[63] Mr Mueller noted that the applicant had been dismissed for serious misconduct. He referred to the Full Bench decision of Hinchey v North Goonyella Coal Mines Pty Ltd (2009) 178 IR 252 (Hinchey) and the shifting of the evidentiary onus to the employer to establish the misconduct. Mr Mueller also referred to the High Court decision of Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 as confirming that the relevant standard of proof is the balance of probabilities.
[64] Mr Mueller referred to the summary of the law concerning fighting in the workplace set out in AWU-FIME Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385 @ 393 (Queensland Alumina). He also referred to a recent decision of the Federal Court which he submits reinforces the requirement to consider all of the circumstances of a case including the previous history of the dismissed employee and whether the person had been provoked or was acting in self-defence: Lambley v DP World Sydney Limited [2013] FCA 4 (Lambley).
[65] Mr Mueller submitted that the applicant’s primary case is that he acted in self-defence. He was attacked by Mr Guthrie and had no ability to remove himself from the situation because of the location and speed of the attack. Mr Mueller noted that the company had not been able to substantiate that the applicant had initiated the fight. Further, the respondent had accepted that both the applicant and Mr Guthrie had been injured in the altercation.
[66] Mr Mueller noted that there had been no expert medical evidence called about whether Mr Guthrie’s injuries were consistent with being hit repeatedly. He also noted that Mr Guthrie received only limited first aid from Mr Hourn. Mr Mueller submitted that the evidence supported the applicant’s version of his physical interaction with Mr Guthrie, for example, there was no evidence that the applicant had any injuries to his knees as would have been likely if there had been wrestling on the ground as alleged by Mr Guthrie. The applicant’s evidence as to the smell of smoke had been corroborated by Mr Guthrie’s admission that he had smoked in the cabin of the tanker before coming onto the site.
[67] Mr Mueller noted that Mr Guthrie had been able to drive back to Maitland and indeed was anxious to do so. He also noted that the medical notes from the hospital had not been in the respondent’s possession at the time of the investigation. Mr Mueller submitted that this indicated that the company did not consider the level of Mr Guthrie’s injuries to be an important issue at the time. Further, the medical notes recorded that Mr Guthrie had no obvious injuries when he first attended the hospital.
[68] Mr Mueller submitted that Mr Guthrie was not a credible witness. Examples of discrepancies in his evidence included the level of his injuries, reasons for his non-driving duties, his description of the applicant’s appearance and whether he had a previous encounter with the applicant. Mr Mueller submitted that Mr Guthrie had admitted that he was the aggressor as he had agreed that he had turned back to confront the applicant and had both hands in the air. In addition Mr Mueller submitted that Mr Guthrie was the only witness who believed that he had parked properly on the night in question.
[69] Mr Mueller noted that there was no evidence of any history of animosity between the applicant and Mr Guthrie. He also noted that Mr Sharpe’s investigation report had found that Mr Guthrie had a history of acting aggressively. Mr Mueller referred to the evidence of Mr Stubbs and a written statement of a Mr Cager at page 244 of Exhibit Respondent 10 in this regard. Mr Mueller submitted that Mr Stubbs was an independent witness whose credibility should not be questioned. He noted that the respondent had not provided the notes of the interview with Mr Stubbs and invited me to draw an adverse inference from this.
[70] Mr Mueller submitted that the applicant’s response to being attacked by an aggressive person was proportionate and did not go beyond the bounds of force necessary to defend himself. Mr Mueller noted that Mr Sharpe had not ruled out that the applicant had been acting in self-defence, he had found only that such a claim had not been substantiated. Mr Mueller submitted that, even if it is accepted that the applicant had approached Mr Guthrie in an agitated fashion, this did not defeat the claim of self-defence. Further, he submitted that there were difficulties with Mr Watts’ evidence which did not support the applicant being agitated in any event.
[71] Mr Mueller referred to the issue of the applicant’s statements as to how he left the scene of the altercation. He noted that Mr Muir had been unable to identify any advantage that the applicant would have gained by deliberately misstating what had occurred.
[72] Mr Mueller submitted that the question of whether the applicant should have blocked Mr Guthrie’s punches rather than hit him back should be decided in the context of the reality of the situation not in an “ivory tower”. The applicant had been hit, couldn’t escape and feared for his safety. The applicant denied that he said that he had flogged Mr Guthrie, however, even if he had done so, that is not inconsistent with his having acted in self-defence.
[73] Mr Mueller noted Mr Muir’s evidence as to the company’s zero tolerance for physical violence. He submitted that such a policy does not remove the need for discretion and a consideration of the consequences in deciding whether misconduct has taken place and whether an employee should be dismissed. Mr Mueller submitted that Mr Sharpe’s consideration of the absence of any prior warnings as being a neutral rather than a positive factor for the applicant demonstrated a flawed understanding of the discretion to be exercised in the circumstances.
[74] It is submitted that the applicant’s dismissal was too harsh and unreasonable a punishment when his conduct is compared to that of Mr Guthrie.
[75] Mr Mueller noted that the applicant seeks to be reinstated with continuity of employment. He referred to sections 381(1)(c) and 390(3) of the Act and submitted that there is a clear legislative intention that reinstatement should be the primary remedy for an unfair dismissal. Mr Mueller noted that the applicant had been employed for six years. He submitted that there was no valid reason for the dismissal and that it was unfair.
[76] Mr Mueller submitted that Mr Muir’s concerns about the applicant’s possible reinstatement were based on his belief that the applicant was guilty of serious misconduct. Such a belief was not supported by the evidence. Mr Mueller submitted that it was important to properly scrutinise the respondent’s claim of loss of trust in the applicant. He also submitted that it would be an injustice not to reinstate the applicant.
[77] Mr Mueller noted that the applicant had stated that he was prepared to accept redeployment to another site which would involve the loss of his Leading Hand allowance. He submitted that, if there is a finding that the applicant had not engaged in serious misconduct, it would not be reasonable for him not to work for the respondent again. Mr Mueller noted the applicant’s evidence as to the significant impact which the dismissal has had upon his personal life.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
[78] A written outline of submissions on behalf of the respondent was provided prior to the hearing. Mr Young also made oral submissions.
[79] Mr Young submitted that the law in relation to instances of fighting in the workplace is well settled and reflected in the principles set out in the Queensland Alumina decision. The Lambley matter involves a very different scenario and is distinguishable from the present case.
[80] Mr Young noted that much of the applicant’s case focussed on what was before the respondent at the time of the dismissal. He submitted that it is firmly established that it is the material and evidence before this tribunal which is relevant to the question of whether there is a valid reason and whether a termination is harsh, unjust and unreasonable.
[81] Mr Young noted that the Hinchey decision does not shift the onus from an applicant to positively establish that he or she was unfairly dismissed. He submitted that, in this matter, even on the applicant’s case, there was prima facie misconduct. It is therefore up to the applicant to establish self-defence or some other extenuating circumstances. Mr Young submitted that the applicant had not done that.
[82] Mr Young submitted that there were numerous aspects of the applicant’s case which were inherently unlikely. These included: the applicant’s denial that he was annoyed about the manner in which Mr Guthrie had parked his tanker; his evidence about the number of toots and reason for tooting the horn on the forklift; his baseless assertion that he had smelt marijuana smoke coming from the tanker in an attempt to cast aspersions upon Mr Guthrie; the suggestion that Mr Guthrie was screaming in a fashion which escalated from loud to out of control; the applicant’s prevaricating evidence as to when or where he first saw Mr Guthrie; the evidence that he observed that Mr Guthrie had dilated pupils; his description of Mr Guthrie as having an athletic build when he is clearly slight; and the suggestion that a person of that build would throw punches at someone of the applicant’s size shortly after waking up.
[83] Mr Young submitted that further unlikely aspects of the applicant’s case included: his denial that Mr Guthrie had called him a fool; the applicant’s evidence that he didn’t immediately respond to being punched repeatedly when he could clearly defend himself; his failure to mention the noise of his thumb cracking or the blood in his mouth before the hearing; his evidence that there was no means of escape from the situation despite the obvious ability to return the way he came; the fact that the applicant’s description of the fight was more akin to a caricature of such an event rather than what really happened; his evidence that he hit Mr Guthrie only twice which is at odds with the level and nature of Mr Guthrie’s injuries; the applicant’s lack of candour about the manner in which he left the scene of the altercation; his demand that the company look at the CCTV recording when he knew that there was no camera in the area and no footage; the applicant’s evidence about his difficulty in driving home when he had continued to work after the incident; the reason given for the applicant’s call to Mr Metias after he returned home; the extent to which the applicant is involved in boxing; and, his evidence of regret when his case is that he was the victim.
[84] Mr Young noted several objective factors which, he submitted, also underscored the unlikely nature of parts of the applicant’s evidence. These included: the physical difference between the applicant and Mr Guthrie; the different injuries to each of them; the fact that Mr Guthrie was not permitted to work for an extended period because of his injuries whereas there was no suggestion that the applicant was unfit to work and indeed he opposed being stood down; and, the timing of the reporting of the incident to the police.
[85] Mr Young submitted that Mr West’s evidence added little to the case but noted that he had testified that the applicant was physically very fit. Mr Young submitted that Mr Herbert’s evidence consisted only of vague, second-hand rumours about tanker drivers in general and Mr Guthrie in particular. None of these allegations had ever been put to Mr Guthrie. He submitted that it was noteworthy that none of the allegations related to any physical aggression.
[86] Mr Young submitted that Mr Stubbs had exaggerated his evidence and his testimony of his alleged interaction with Mr Guthrie on 12 October should be rejected. He was contradicted by Mr Guthrie, and more objectively, by Mr Metias and Mr Hourn. Further, it was not credible that Mr Guthrie would be threatening anyone when he had just been beaten up. Mr Young noted that Mr Sharpe had testified as to the explanation for the absence of any notes from his interview with Mr Stubbs.
[87] Mr Young submitted that, in contrast, Mr Guthrie had given candid, straightforward and fulsome evidence and had not prevaricated or been evasive. Mr Young submitted that Mr Guthrie’s evidence should be accepted and preferred over that of the applicant. The evidence of both Mr Watts and Mr Hourn was clear and unshaken and should be accepted. They are independent of both parties and have no interest in the outcome of these proceedings.
[88] Mr Metias gave similarly clear and uncontradicted evidence. Any suggestion that Mr Metias had made up evidence to ensure that the applicant would not be reinstated should be rejected. He clearly followed all relevant procedures and treated both the applicant and Mr Guthrie in a similar fashion. There was no evidence of any history of animosity between Mr Metias and the applicant.
[89] Mr Young noted that the evidence of Mr Sharpe and Mr Muir was primarily directed to the policies and procedures governing the investigation. He also noted that there was no real question about procedural unfairness in this case. Mr Young submitted that, in any event, the investigation had been detailed, thorough and fair. In making his decision Mr Muir had given careful consideration to a range of matters and had appreciated that not all of the allegations against the applicant had been substantiated.
[90] Mr Young submitted that Mr Muir’s view about the excessive level of violence against Mr Guthrie should weigh heavily in consideration of this matter. He noted that the applicant had agreed that he was aware of the policies concerning violence in the workplace and that those policies were appropriate. The applicant had accepted that fighting in the particular workplace was inherently dangerous. It was also relevant to note the applicant’s supervisory role.
[91] Mr Young submitted that the applicant’s alternative position that his dismissal was unfair because of his length of service and the effect upon his personal circumstances should be rejected. The length of service, though not short, did not give rise to any special consideration. The impact of the dismissal is simply the consequence of the applicant’s own actions.
[92] It is submitted that there is a valid reason for the dismissal, the applicant was informed of that reason and provided with an opportunity to respond. The respondent did not refuse to allow the applicant to have a support person. The size of the respondent and the presence of human resources specialists were reflected in the thoroughness of the investigation process. Mr Young submitted that the applicant had not made out any extenuating circumstances.
SUBMISSIONS IN REPLY ON BEHALF OF THE APPLICANT
[93] In his submissions in reply Mr Mueller made the following points:
● the absence of any previous disciplinary warnings is a relevant consideration as to whether the dismissal was appropriate;
● the dismissal letter does not raise the issues of the alleged level of violence perpetrated against Mr Guthrie or the applicant’s argument of self-defence;
● the respondent has not made out a case that the applicant used excessive violence. The level of Mr Guthrie’s injuries is consistent with the applicant’s actions in defending himself;
● the respondent should not be permitted to move away from its finding that Mr Guthrie had a history of acting in an aggressive manner;
● the different physical size and strength of the applicant and Mr Guthrie and the extent of their injuries is irrelevant to the question of who was the aggressor. The applicant’s boxing history is not relevant;
● the applicant’s evidence that he had no other option but to defend himself from the attack should be accepted. The circumstances facing the applicant at that time should not be over-analysed.
CONCLUSIONS
[94] Section 396 of the Act sets out four matters which must be decided in applications of this type before the merits of a claim are considered. Those matters are:
“(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[95] As will have been apparent from paragraph 1 of this decision the application was made within the period required in subsection 394(2). There is no dispute that the applicant is a person protected from unfair dismissal. Paragraphs (c) and (d) of subsection 396 have no relevance in the present matter.
[96] Section 385 provides that a person has been unfairly dismissed if FWC is satisfied that:
“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[97] Paragraph (a) is clearly met in relation to the applicant. Paragraphs (c) and (d) have no relevance. Consequently it is to paragraph (b) that my attention must be directed. In considering whether the dismissal of the applicant was harsh, unjust or unreasonable it is relevant to refer to the comments of McHugh and Gummow JJ in Byrne & Frew v Australian Airlines Pty Ltd (1995) 61 IR 32 @ 72:
“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.”
[98] In the particular circumstances of this case it is also helpful to set out the comments of Moore J in Queensland Alumina which were referred to by both parties. His Honour referred to a number of decisions concerning fights in the workplace and noted:
“What emerges from these decisions is that whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self-defence.”
[99] It is necessary to turn to section 387 which sets out the factors which must be taken into account by FWC in deciding whether a dismissal is harsh, unjust or unreasonable. Those factors are as follows:
“(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 FWC considers relevant.”
[100] The first matter which must be taken into account is whether there was a valid reason for the dismissal. The meaning of valid reason has been the subject of much consideration by the Courts as well as by this Tribunal and its predecessors. There seems to be general acceptance of the often quoted words of Northrop J in Selvachandran v Peteron Plastics Ltd (1995) 62 IR 371 @373:
“In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, ...”.
[101] The reasons relied on for the termination in this matter relate to the alleged misconduct of the applicant. In this regard I have to determine for myself whether the misconduct, or any part of it that is contested, took place and, if so, whether it amounted to a valid reason for the dismissal: King v Freshmore (Vic) Pty Ltd [Print S4213].
[102] Before considering the events of 12 October I wish to address the issue of whether an adverse inference should be drawn because of the respondent’s failure to provide any notes of the interview which was held with Mr Stubbs: the rule in Jones v Dunkel (1959) 101 CLR 298. It needs to be remembered that this rule concerns the unexplained failure of a party to call a witness who is in that party’s “camp” or to tender documents within its control. In this case Mr Sharpe provided a credible explanation for the absence of the notes. I accept that explanation and consequently do not draw any inference from the absence.
[103] I shall now turn to the incident on 12 October. As will have been apparent from my earlier recitation of the evidence there are conflicts between witnesses about the course of events. The first issue concerns whether the applicant or Mr Guthrie was the initiator of the physical altercation between them. Each of them points the finger at the other.
[104] The applicant’s evidence portrays Mr Guthrie as being in a drug fuelled rage, attacking without provocation whilst he, the applicant, was going about his work in a professional manner. The evidence of Mr Stubbs and Mr Herbert seeks to fill out the picture of Mr Guthrie having a history of aggression.
[105] I do not accept this evidence. The applicant’s testimony as to his observation of Mr Guthrie’s pupils appears to me highly improbable. In the situation described by the applicant of a screaming, out of control individual looming out of the darkness but not properly seen until 30cms away, it seems unlikely that one would notice whether or not that person’s pupils were dilated or otherwise.
[106] I consider that the applicant’s testimony as to the smell of marijuana to be similarly contrived. There was no evidence that anyone else noticed any sign that Mr Guthrie was under the influence of drugs whilst at the facility on 12 October. It is of note that Mr Hourn was keeping Mr Guthrie under close observation following the incident and would probably have noticed anything untoward in this regard. He was not questioned about this.
[107] I do not accept the evidence of Mr Stubbs as to the comments he alleges Mr Guthrie made to him on his way to the first aid room. The words were denied by Mr Guthrie but also by Mr Metias and, in particular, Mr Hourn who was clearly an independent and impartial witness. This finding also casts doubt on the veracity of the remainder of Mr Stubbs’ evidence of Mr Guthrie’s previous aggression towards him. Mr Herbert’s evidence is hearsay and, without more, I do not consider that it establishes a history of aggressive behaviour, whether physical or otherwise, on the part of Mr Guthrie. Mr Cager did not give evidence in the matter so I am unable to draw any conclusion from his written statement referred to in paragraph 60 above.
[108] I found Mr Watts to be a helpful witness. He was clear, firm and responsive and made concessions where appropriate. For example, he agreed that he could not be sure of the source of the tooting and yelling in the lead up to the altercation. It is of note however that Mr Watts was not challenged in his evidence as to the manner in which the forklift driver walked around to the side of the tanker which is in part what informed his view that the person was irate. Even though the evidence was that there was generally two forklifts operating in the area, there was no suggestion that anyone other than the applicant alighted from the particular forklift and walked around to the side of the tanker. I accept Mr Watts’ evidence that the applicant was irate at the time. Of course it does not necessarily follow that the applicant was the aggressor in the fight. People become irate for all sorts of reasons and most do not go on to initiate physical altercations.
[109] Despite a submission to the contrary Mr Guthrie did not admit to being the aggressor in the altercation with the applicant. He agreed that if he hadn’t turned back towards the applicant the fight would probably not have begun however that is not the same as being the initiator of the fight. His evidence is that he was holding the test kit and milk samples in his hands and making rude remarks to the applicant. That is different to the approaching someone with raised fists.
[110] I consider that Mr Guthrie provided his evidence in a frank and straightforward manner. I generally accept his evidence and prefer it to that of the applicant where there is a conflict. It follows that I accept that the applicant was the aggressor in a fight that involved far more than a couple of pushes by him as he would have me believe. This behaviour amounts to misconduct and is a valid reason for the applicant’s dismissal.
[111] However, in the event that I am wrong about this and Mr Guthrie was in fact the aggressor, it is necessary to consider whether the applicant acted in self-defence. Self-defence requires more than merely being the recipient of physically aggressive behaviour. The response to that behaviour needs to be proportionate and reasonable in the circumstances.
[112] I do not accept that the applicant had no choice but to retaliate. He was not cornered and could have returned up the laneway to his forklift or beyond. Further, I consider that the applicant’s response was disproportionate to any threat against him by Mr Guthrie. The evidence is that, at the time of the incident, the applicant was more than 40kg heavier than Mr Guthrie and fit. I accept the evidence of Mr Hourn and Mr Metias as to the applicant’s description of his actions as being a “flogging” or “taking him out”. I have also taken account of the evidence as to Mr Guthrie’s injuries and the fact that he required more than two weeks off work.
[113] I do not consider the applicant’s actions to have been reasonable or proportionate in the particular circumstances and do not accept that he acted in self defence. Consequently, regardless of whether or not the applicant or Mr Guthrie was the aggressor in the fight I consider that there is a valid reason for the applicant’s dismissal.
[114] The applicant was informed of the allegations against him and the reasons for his dismissal. He was provided with the opportunity to respond to the allegations and to be separately heard in relation to penalty. There was no unreasonable refusal to allow the applicant to have a support person present to assist at any discussions concerning the incident, the allegations and the proposed penalty. Indeed, he was encouraged to and did have such a person with him at each relevant discussion.
[115] Paragraph (e) of section 387 is not relevant as the applicant was not dismissed for performance reasons.
[116] I have had regard to paragraphs (f) and (g). In Form F3, Employer’s Response to Application For Unfair Dismissal Remedy, the respondent states that at the time of the dismissal it had approximately 7000 employees. Mr Muir’s evidence is that the company employs close to 7,500 people across Australia and New Zealand. It has dedicated human resource management specialists. I am satisfied that these factors were reflected in the procedures which were followed in effecting the applicant’s dismissal.
[117] There are several matters I wish to consider under paragraph (h) of section 387. The first is the applicant’s length of service of over six years. The second is the fact that he had no previous formal disciplinary action taken against him during that period. The third is that the applicant held the position of Team Leader. The fourth is the effect that the dismissal has had upon the applicant’s personal and financial circumstances. The fifth is that Mr Guthrie was also penalised for the incident by being banned from the respondent’s sites.
[118] In all of the circumstances and having taken account of each of the factors in section 387 and my findings thereon I have determined, on balance, that the dismissal of the applicant was not harsh, unjust or unreasonable. It follows from this and other matters addressed in paragraphs 96 and 97 that the dismissal was not unfair.
[119] The application is dismissed. An order PR537388 to this effect is issued at the same time as this decision.
[120] It should be noted that, in deciding this matter, I have given consideration to the need to ensure that a “fair go all round” has been accorded to each of the parties as provided in section 381(2) of the Act.
COMMISSIONER
Appearances:
S. Mueller and M. Valentin for the National Union of Workers on behalf of the applicant.
E. Young of Counsel with E. Anderson on behalf of the respondent.
Hearing details:
Sydney.
2013
May, 6, 7 and 8.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR537387>
0
6
0