Mr Damien O'Connor v Crown Equipment Pty Ltd

[2016] FWC 5719

[2016] FWC 5719

FAIR WORK COMMISSION

DECISION

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

Mr Damien O'Connor
v
Crown Equipment Pty Ltd
(U2015/13212)

COMMISSIONER BOOTH BRISBANE, 19 AUGUST 2016

Application for relief from unfair dismissal – application dismissed

[1] Mr Damien O’Connor has applied for unfair dismissal relief under s. 394 of the Fair Work Act 2009 (“the Act”). He is a trade qualified motor mechanic and heavy-duty diesel fitter. He worked part-time with Crown Equipment Pty Ltd (“Crown”) from November 2009 and full-time since 2010 as a forklift technician/mechanic at Townsville. Mr O'Connor worked in the Townsville branch, which was a small branch of Crown, having only 7 employees.

[2] He was dismissed by Crown on 29 September 2015 for misconduct, in particular an exchange between Mr O’Connor and Crown’s Townsville Manager, Mr Linnane, on 16 September, and an earlier written warning issued in July 2015 for inappropriate aggressive conduct.

[3] Mr O’Connor does not seek reinstatement but he does seek compensation.

[4] The matter was heard in Townsville by way of a determinative conference with the agreement of the parties.

Background

[5] Mr O’Connor asserts that the real reason for his termination was his desire for family friendly roster arrangements and an earlier work-related injury, not because of the alleged misconduct.

[6] Crown’s case is that Mr O’Connor displayed a pattern of conduct including aggression towards other employees over a period of time. This alleged conduct and the failure to acknowledge and address the conduct resulted in his dismissal. The formal letter of dismissal cited the unacceptable conduct with Mr Linnane and the earlier warning.

[7] Mr O’Connor was dismissed with payment in lieu of notice.

Complaints of aggressive conduct

[8] In May 2015 Mr O’Connor and another employee, Ms Michelle Clay, each made formal complaints about the other’s allegedly aggressive conduct in the workplace.

[9] Mr Grogan, Crown’s human resources director for the Pacific Rim, investigated the competing complaints of Mr O'Connor and Ms Clay. He became involved when Mr O’Connor accused Mr Holmes, who would normally investigate such matters, of bias. 1 Mr Grogan found that neither complaint could be substantiated due to a lack of independent witnesses. In the course of that investigation, in interviews with other Townsville employees, Mr Grogan received further complaints about Mr O’Connor’s conduct, characterised as argumentative, confrontational, bullying, harassing and intimidating, and that employees were fearful of Mr O’Connor.

[10] A meeting to discuss Mr Grogan’s investigation was held on 25 June 2015 with Mr O’Connor, Mr Haas, then Townsville Branch Manager, and Mr Ferguson, the State Manager. Mr O’Connor’s father was available as support person, but at Mr O’Connor’s election attended only the second half of the meeting, after a short recess. Mr Grogan’s findings were discussed with Mr O’Connor. Crown wrote to Mr O’Connor after the meeting noting that he declined to discuss the allegations. Crown issued a first warning to Mr O’Connor and instituted workplace-wide training in appropriate conduct. 2

[11] Over the next months, the issue of the roster remained a point of dispute between the parties. A meeting was scheduled for 16 September 2015 to further discuss with Mr O’Connor his request for a family friendly roster. The meeting in the service office at Townsville was to be attended by Mr Ferguson and Mr Linnane who by then was the Townsville Manager. Mr O’Connor wanted to record the meeting. Mr Ferguson and Mr Linnane did not accede to his request and the meeting was suspended. Some 15 minutes later, Mr Linnane asked Mr O’Connor to withdraw for a side meeting in the nearby car park, seeking resumption of the meeting. It was then that Mr O’Connor allegedly engaged in further inappropriate and aggressive conduct towards Mr Linnane.

[12] Following this meeting, Crown firstly wrote a letter Mr O'Connor (the 23 September letter) confirming Crown's earlier directions to Mr O'Connor that the family friendly roster would not be continuing and that Mr O'Connor should return to his original hours. A day later, he was verbally advised he would be required to attend a disciplinary meeting concerning his conduct on 16 September 2016.

Meeting to discuss incident of 16 September 2016

[13] Mr O’Connor elected to meet on 29 September 2015 with the support of his father. Mr O’Connor denied that the conduct took place as alleged. There were two short recesses during the meeting for the parties to consider the allegations and responses. Mr O'Connor denied almost all the allegations and sought further details.

[14] After the second recess, Crown concluded that Mr O’Connor’s employment was to be terminated effective from 29 September 2015 with payment in lieu of notice. 3

Competing versions of events

[15] The parties have presented starkly different versions of the key events. Resolution of this matter requires consideration of these different versions and the evidence offered.

Applicant’s evidence and submissions

[16] Mr O’Connor provided sworn statements, which included responses to the statements and submissions of Crown. Mr Paul O’Connor, the applicant’s father, who acted as his support person at the two meetings, provided evidence and other materials. Mr O’Connor also filed with his application a large amount of other documentation.

[17] Mr O’Connor sought various ad hoc family friendly roster arrangements following the breakdown of his marriage in 2011. He is father to four children aged at the time of hearing between 9 and 15 years and gave evidence that he has care of the children on a week-around basis. In December 2014 he submitted a formal written request for a family friendly roster arrangement.

[18] Local management did not approve his request however Mr Grogan put a trial family friendly roster in place in February 2015.

[19] In June 2015, Mr O’Connor was invited to a meeting with Mr Siggy Haas, then manager of the Townsville branch, and Mr Jason Wickham and advised that this arrangement was not to continue. He submitted that Mr Haas and Mr Wickham “tried to verbally coerce me into terminating the … arrangement 4” but he declined to do so. 5

[20] He also lodged a dispute under the Crown enterprise agreement and the matter was the subject of the conference at the Commission. It was not resolved.

[21] At the same time as the dispute about the roster, Crown was also investigating the allegations in the complaints made by Mr O'Connor and Ms Clay.

[22] This investigation was the subject of the meeting of 25 June 2016.

Meeting-25 June 2016

[23] At the meeting on 25 June the employer raised a number of allegations that it asserts were revealed during the course of the investigation into the original complaints between Mr O'Connor and Ms Clay.

[24] The complaint concerning Ms Clay and Mr O’Connor were both unsubstantiated. It is Mr O'Connor submission that should have been the end of the matter. 6

[25] It was not. Crown also raised allegations revealed during the investigation.

[26] The allegations included conduct that employees described as argumentative, confrontational, bullying, harassing and intimidating. 7 Mr O’Connor asked for the allegations to be put to him in writing, but Crown declined and relied on the verbal description of the behaviour put to Mr O’Connor at the meeting.

[27] Mr O’Connor submitted as follows in response to these verbal allegations:

● The employer preferred the verbal allegations from Messrs Haas, Brock, Wickham and Ms Clay (presumably to his denial and, where relevant, counter-accusations);

● There was no evidence to support the allegations;

● There was no police investigation or invitation to staff to lodge formal written complaints;

● He should have been given a right of response;

● The meeting was a “premeditated disciplinary ambush” and was not transparent. 8

[28] On Mr O’Connor’s version of events, which is a matter in dispute, the parties agreed the meeting would be suspended and that Mr Ferguson would seek Mr Grogan’s permission to obtain a copy of the investigation report.

[29] Mr O’Connor’s assertion was supported his father. 9

[30] Additionally, Mr O’Connor submitted that Mr Ferguson had not sighted the ‘investigation outcome report’ and had relied on Mr Grogan’s summary.

[31] He asserted that on being allowed to review his personal file, he noted it was 'devoid of adverse reports'. Mr O’Connor’s version of the second part of the meeting was that it concluded with all parties in agreement that the meeting would be suspended.

[32] He received a written warning dated 1 July 2015 and responded on 6 July 2015 asserting that the meeting’s intention was to deliver to him the investigation report, responding that the warning letter:

“is untrue, spurious unsubstantiated, physically discriminatory and against Crowns own Conduct and Behaviour Policies and therefore it is REJECTED OUTRIGHT” [sic].

[33] He demanded that the first written warning be withdrawn immediately. It was not.

Mr O’Connor submitted that Mr Grogan’s letter of 23 June 2015 supported his contention about the purpose of the meeting: It dealt with obligations under the EBA and award but not the conduct issues be the subject of the meeting of 25 June 2015.  10 However he also deposed that the letter specifically raised the investigation.11

Events leading to termination

[34] The second event preceding Mr O’Connor’s dismissal initially concerned his request for a family friendly roster that was still unresolved by September 2015. Mr O'Connor continued to assert his right to the roster and did not comply with directions to return to his regular hours.

[35] On 15 September 2015 Mr O’Connor was invited to attend a meeting with Mr Linnane and Mr Ferguson to discuss the roster. He was invited to bring someone with him to the meeting. The meeting was to be held on 16 September in a conference room but because Mr O'Connor wished to record the meeting and the refusal of Crown to allow the recording, the meeting did not happen as planned.

[36] Mr O’Connor’s version of events was that after the meeting was suspended he was invited by Mr Linnane to go outside into the car park, a matter that caused him concern. He asserted: 12

● the meeting in the car park lasted less than 60 seconds;

● voices were “animated a little”;

● Mr Linnane imposed the car park location on him with the intention of bullying him in private;

● Mr Linnane danced around Mr O’Connor provocatively in the car park as a boxer does whispering threateningly and abusing him through clenched teeth. 13

[37] In a letter to the Department of Justice and Attorney-General written after the termination he described this meeting as a street brawl and referring to Mr Linnane as “a thug, a bully and a pretentious liar”. The letter was in the nature of a complaint about Mr Linnane as a justice of the peace, and was additionally addressed to various Crown managers.

[38] In response to the counter version put by Crown – that Mr O’Connor was aggressive and abusive in the car park - he stated in oral evidence: 14

“The net result was that Mr Linnane took me outside into the car park, attempting to convince me that he was within his rights to resume control of the work roster dispute as the branch manager and that I had no right to record the meeting. I convinced him otherwise in what is rightly described as an animated meeting lasting, at most, 60 seconds. He resiled from his position, presumably as the result of my advice, and sent me back to work. I thanked him, as I customarily thank anyone, and returned to work and thought nothing more of the matter.”

[39] On 24September he was verbally instructed to attend a further meeting.

[40] Mr O'Connor responded to this request the next day, the 25 September 2016. In that response he wrote:

● "allegations/accusations of unbecoming conduct" at the beginning of the letter;

● referred to roster issues

● said that in 'today's meeting you made a number of serious allegations against me'

● that Crown alleged 'conduct unbecoming'

● sought in writing how he allegedly had transgressed. 15”

[41] This meeting occurred on 29 September 2015.

[42] Mr O'Connor submissions about this meeting are:

● There is an absence of evidence that Mr Linnane in fact lodged or made a complaint, and that he has not seen any relevant investigation report. Mr O’Connor suggests that Mr Linnane did not lodge a complaint rather the complaint was based on a file note at the request of Mr Holmes.

● On the disrespectful use of the word ‘champ’ at the conclusion of the side meeting. Mr O’Connor asserted that this is a term he uses frequently with no insult intended and that Mr Linnane has a thin skin and made no mention of being offended at the time. Had he been given the opportunity to apologise he would have done so.

● When he asked for clarification of the 'unbecoming conduct' Mr Linnane replied with a smirk on his face ‘turn up and find out’. This is said to be evidence of predetermination of the outcome.

[43] In response to Crown’s case that Mr O’Connor did not raise in the 29 September meeting that it was in fact Mr Linnane who was the aggressor not Mr O’Connor, he stated that he was not given the opportunity to raise this fact. He further elaborated in cross-examination as follows:

“Mr O'Connor, you have identified some concerning elements regarding Mr Linnane's conduct towards you during your meeting outside the service office on 16 September 2015, elements which you believe identified him as the aggressor rather than yourself.  As noted, in the respondent's outline of merits, we found it odd that you didn't raise the issue of misconduct at the meeting on 29 September 2015, however you have written on two occasions in your response that this was because you were not given the opportunity to do so.  Did you want to raise the issue of Mr Linnane's conduct towards you at that meeting?---I wanted to go away and have a considered and meaningful sort of look at the material before me.  I was ambushed on the day, on the 29th of the allegations.  Prior to that I'd been told unbecoming conduct. 16”

[44] Mr O’Connor also points to the WorkCover Queensland matter asserting that Crown prematurely finalised his injury claim, relying on the privacy breaches. 17 Mr O’Connor remains injured and is unable to perform his pre-injury duties.

Crown’s evidence and submissions

[45] Crown’s evidence was provided by statements from Messrs Linnane, Ferguson, Grogan and Brennan. The witnesses were cross-examined.

First warning

[46] On the respondent’s evidence, the first warning issued to Mr O’Connor in July 2015 arose following an investigation into the cross-complaints by Mr O’Connor and Ms Clay. Although both these complaints were ultimately unsubstantiated, their investigation gave rise to allegations from at least four other employees who described Mr O’Connor’s conduct as argumentative, confrontational, bullying, harassing and intimidating, and that employees were fearful of him. Crown’s case is that Mr O’Connor simply rejected these complaints: Mr Ferguson deposed that “Damien rejected all of the concerns, claiming that they had been fabricated in response to his complaint against Michelle Clay.” 18

[47] Mr O’Connor agrees with the proposition that he rejected the complaints as fabricated. 19

[48] Crown submitted that the purpose of the meeting was to advise the applicant that based on the investigation and Mr O’Connor’s responses, the company had determined that the applicant’s conduct and interactions with other employees at the branch was unacceptable and immediate improvement was required. 20

[49] Crown submits it was unable to achieve this outcome or to offer support because Mr O’Connor and his father refused to continue any further conversation until a written copy of the report was provided. Mr Grogan’s testimony was that he did not write a report as such, but had notes of his various meetings with employees. 21 There was no agreement to provide any material in writing when the meeting concluded.

[50] Crown’s considered the applicant's response to the issues raised in the meeting and issued a first written warning for unacceptable conduct.

[51] All employees, including Mr O'Connor, then participated in training on acceptable conduct in the workplace.

[52] He was also offered counselling and employee assistance at Crown's expense. He did not avail himself of this assistance.

Meeting of 16 September 2015

[53] Crown argued that Mr O’Connor’s conduct on 16 September demonstrated a ‘return to his conduct and behaviour which was aggressive confrontational and intimidating towards other employees’, 22 confrontational conduct that led to his termination. 23

[54] Crown submitted that the initialpurpose of the meeting on 16 September was for the Queensland state manager, Mr Ferguson to meet with Mr O’Connor to discuss his request for family friendly roster arrangements and his attendance in accordance with company requirements.

[55] Mr Linnane’s evidence was that he spoke to Mr O’Connor on 15 September and advised him that Mr Ferguson would like to meet with him regarding his roster and the fact that he was not meeting his roster requirements, and that he could bring a support person to that meeting if he chose.

[56] When Mr O’Connor sought clarification about this meeting and its topic Mr Linnane’s evidence replied was that re-reiterated its intent and that the company needed to ‘sort out this roster’. 24

[57] The 16 September meeting opened with a dispute over whether the matter would be recorded. Mr Linnane had earlier told Mr O’Connor that he would not permit recording, and opened the meeting with words to that effect. Mr Ferguson concurred. The meeting was suspended.

[58] Crown’s version of what transpired, on Mr Linnane’s evidence, was that:

● Mr O’Connor left the meeting when it was suspended;

● some short time later Mr Linnane sought out Mr O’Connor in the service office;

● he quietly said to Mr O’Connor to come outside to talk about reconvening the meeting and finding a solution;

● they both then walked outside and stood under the awning;

● at the request to come back inside Mr O’Connor replied only if he could record it and it was his right to do so;

● there was a discussion about whether the refusal was a reasonable and lawful request;

● there was some discussion of whether concerns in Mr O’Connor’s email had been addressed;

● Mr O’Connor then became angry, yelling there was no such law regarding reasonable and lawful requests;

● at this point Mr O’Connor erupted, lent forward close towards Mr Linnane thrusting his fingers towards his shoulder in anger;

● Mr O’Connor asserted that his roster was none of Mr Linnane’s business;

● Mr Linnane responded it was, because he was the branch manager and that Mr O’Connor had directed his recent correspondence to him;

● Mr Linnane then requested him to stop and raised his open hand indicating he was terminating the conversation;

● Mr O’Connor responded in a bitter and condescending manner stating ‘yeah alright whatever thanks champ’;

● Mr O’Connor was aggressive by way of the volume of his voice and his body language;

● on this basis Mr Linnane formed the belief Mr O’Connor was trying to intimidate him;

● Mr O’Connor had not acted like that towards Mr Linnane in the past.

[59] Mr Linnane then returned to the meeting room and told Mr Ferguson that Mr O’Connor would not return to the meeting. Mr Linnane described Mr O’Connor’s behaviour as agitated, loud and aggressive. Mr Ferguson indicated that Mr Linnane should contact HR about what happened. As a result he was advised to put his concerns in writing.

[60] Mr Linnane indicated that the matter of the roster remained unresolved and that Mr O’Connor continued not to notify anyone or seek permission to finish work early.

[61] The matter of the roster was dealt with by way of letter dated 23 September. That letter explicitly required Mr O’Connor to work his rostered hours in place before the trial, and stated in part:

..“The Company is justifiably concerned with your ongoing failure to work your rostered hours. The Company is justifiably concerned with your ongoing failure to follow lawful instruction from management to work your required roster from 31 August 2015. This requirement has been communicated to you, as a possible outcome of the trial arrangements, in writing, on 9 February 2015 and again on 20 July 2015, and the absolute requirement for you to work the roster was confirmed with you in writing on 31 July 2015, 10 August 2015, 25 August 2015, 1 September 2015, 4 September 2015 and 11 September 2015, as well as being verbally communicated to you on a number of occasions.”

[62] Additionally, Crown sought to deal with what it saw as Mr O'Connor's unacceptable behaviour from the meeting on 16 September.

[63] On 24 September Mr O’Connor was advised of the intention to hold a formal meeting and that this meeting had the potential for disciplinary outcomes.

[64] Mr Linnane, in response to a request from Mr O’Connor for a formal letter, stated there was no need. He did however explain the conduct the subject of the meeting as follows:

“Damien then asked what the conduct was about..

...our conversation outside the service department on Wednesday and his conduct during that conversation.

He responded “I reject that”.”

[65] Mr Linnane asserted that the letter sent by Mr O’Connor dated 25 September 2015 in which he stated “In today’s meeting you made a number of serious allegations /accusations against me” confirms Mr O’Connor was aware the purpose of the meeting was to address his conduct on the previous Wednesday.

[66] It is Mr Grogan’s evidence that he started the meeting on 29 September by indicating the purpose was to discuss inappropriate conduct and behaviour by Mr O’Connor towards Mr Linnane following the attempted meeting on 16 September and to provide an opportunity for Mr O’Connor to respond. He put to Mr O’Connor that he was aggressive and confrontational towards Mr Linnane.

[67] Mr Grogan says Mr O’Connor denied that and also denied being asked to re-join the meeting or that he yelled or was aggressive.

[68] Mr Grogan put to him that other staff had witnessed it but he again denied aggressive and confrontational behaviour and required that the allegations be put in writing and that he be allowed to obtain legal advice.

[69] Mr Grogan responded that the purpose of the meeting was to put specific concerns to him and provide an opportunity to respond.

[70] On the ‘thanks champ’ remark Crown’s evidence is that Mr O’Connor acknowledged he used the phrase but denied it was in a derogatory or inappropriate manner.

[71] Mr Grogan’s stated that during the course of the meeting Mr O’Connor agreed he was asked to come back into the meeting by Mr Linnane, but that he later reverted to his original position (that he was never asked to come back into the meeting).

[72] After a short break, it was put to Mr O’Connor that Mr Linnane was very unhappy with the aggressive and confrontational behaviour and had decided to walk away. Mr O’Connor again sought the allegations in writing and denied any aggression or confrontation.

[73] Mr Grogan deposed that after the break:

● He considered Mr O’Connor’s refusal to acknowledge that he conducted himself unacceptably was a concern for the company;

● On the use of the phrase ‘thanks champ’ Mr O’Connor refused to acknowledge that it was said in a condescending way;

● Mr O’Connor would not acknowledge any wrongdoing on his part, nor was he prepared to take any responsibility for his actions;

● Mr O’Connor had previously been warned in writing about his aggressive and confrontational behaviour;

● Efforts by the company to get Mr O’Connor to take responsibility for his inappropriate conduct and behaviour appeared on the evidence to have been unsuccessful.

[74] Mr Grogan further deposed that many members of staff, in a small branch office, had made it known to him previously they were fearful of the applicant and felt intimidated.

Mr Grogan deposed he formed the view that the company could have no trust or confidence that Mr O’Connor would not repeat his aggressive conduct and behaviour and that the company found it to be unacceptable.

[75] The company considered whether another formal warning was appropriate in the circumstances because of the loss of trust and confidence that Mr O’Connor would not repeat his unacceptable behaviour.

The Act

[76] Under s. 385(b) of the Act, the Commission in determining an application for unfair dismissal relief must determine whether the dismissal was harsh, unjust or unreasonable.

[77] Section 387 of the Act sets out the matters the Tribunal must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable:

(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.

[78] I deal with these issues below:

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct (including its effect on the safety and welfare of other employees)?  25

[79] Crown submitted that Mr O’Connor’s conduct was unacceptable – he was aggressive and confrontational towards other employees. It bases that conclusion primarily on two matters:

(i) the investigation into his complaint against Ms Clay and her complaint against him (both unsubstantiated), but disclosing complaints by at least four other employees about Mr O’Connor, resulting in his first written warning;

and

(ii) his later alleged aggressive and inappropriate conduct with Mr Linnane.

[80] Crown also gave evidence about other complaints by Mr Brock, and Mr O’Connor’s response to complaints and management intervention, said by Crown to form a pattern of conduct justifying Crown losing trust and confidence in Mr O’Connor.

[81] Mr O’Connor submitted that the first written warning should not be taken into account as it was not supported by evidence and was arrived at after an unfair process. His version of events was that the meeting was terminated with an intention of giving him a written report.

[82] Second, he submitted that the incident involving Mr Linnane was not the subject of a formal complaint; he was not afforded natural justice; and there was no evidence to support the accusations about his alleged conduct. He denied the alleged misconduct in each incident.

[83] The task of this Commission is not to judge whether the first warning was valid, but whether the decision to dismiss was valid. 26 I also point out that this matter is not concerned with the substance of Mr O’Connor’s request for family friendly roster arrangements, which, in any case, was the subject of a dispute raised separately in this Commission.

[84] To determine a valid reason relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred,  27based on the evidence before it. 28

[85] As noted above the parties’ competing view of relevant matters are diametrically opposed, and in order to form the required view the Commission must assess the evidence of each party and which view is to be preferred.

[86] In regard to the first warning, it should be noted that there was no capacity in this matter to decide the truth or otherwise of the allegations of aggressive conduct put to Mr O’Connor in the first warning meeting. Further the truth or otherwise of those matters is not the essence of determining this application. What is relevant is whether it was reasonable for Crown to rely on the first written warning. It is undisputed that the warning was issued to Mr O’Connor and that it related to aggressive and inappropriate conduct towards other employees, and it was not withdrawn.

[87] However, as Mr O’Connor placed some emphasis on his objections to the first written warning, I note that the evidence clearly reveals that Mr O’Connor was given notice by Crown that it was investigating the two competing complaints, and that it had concerns about his conduct arising from that investigation. The substance of the allegations was put to Mr O’Connor orally, and he had an opportunity to respond. He chose not to respond to the substance except to deny the allegations and to comment adversely about the process used and an apparent preference for the word of others against his. He asked for but was not given documentation of Mr Grogan’s investigation.

[88] For the sake of completeness, I accept Crown’s evidence that there was in fact no written “report” of Mr Grogan’s investigation, only some notes prepared by him, and that Mr O’Connor was given orally a summary of the investigation’s outcome relevant to adverse findings against him.

[89] The process of an oral summary does not in any way invalidate the warning: there was no obligation to convey the complaints or investigation findings in a particular form, merely to convey it clearly.

[90] I am satisfied that the matters of concern were put to Mr O’Connor and while it is an employee’s choice not to respond, that does not make the process unfair. In this matter, relevant information about his conduct was clearly conveyed to him in a way that Mr O’Connor understood or should have understood. Having provided no adequate, or any, response it was reasonable for Crown to issue the warning and later to take it into account.

[91] Further support that Mr O'Connor understood the case against him is demonstrated by his own letter of rejection of the complaint dated 6 July 2016.

[92] As to the second incident relied on by Crown on 16 September, there are also competing versions of the interaction between Mr Linnane and Mr O’Connor.

[93] It is uncontested between the parties that:

● Crown invited Mr O’Connor to a meeting to be attended by Mr Ferguson and Mr Linnane, and that he was invited to bring a support person;

● Mr O’Connor attended the meeting on 16 September, but had not brought a support person with him;

● Mr O’Connor understood the meeting to be (at least in part) about his request for a family friendly roster arrangement;

● Mr O’Connor sought to record the meeting;

● Crown’s representatives declined permission to record the meeting;

● the meeting was suspended and Mr O’Connor left the meeting room;

● Mr Linnane later joined Mr O’Connor in the service office and invited him to discuss further progress of the meeting (the side meeting);

● the side meeting took place in a car park or under an awning outside the building;

● there were no other people present at the side meeting;

● after a discussion between the two men, the meeting was terminated with no further discussion.

[94] Crown’s version: 29

● Mr Linnane asked Mr O’Connor to step outside in order to have a discussion out of earshot of other employees;

● Mr O’Connor repeated his insistence on recording the meeting and Mr Linnane reiterated that recording was not agreed to;

● Mr Linnane then invited Mr O’Connor to return to the meeting. He refused and Mr Linnane asked if he was refusing to follow a lawful direction, which Mr O’Connor denied;

● Mr O’Connor became “red faced, angry and agitated” and “erupted and thrust his finger at me”;

● Mr O’Connor’s aggressive conduct included raised voices, aggressive body language, inappropriate language and a refusal to participate further in the meeting unless permitted to record proceedings;

● The aggressive conduct by Mr O’Connor included finger pointing, speaking loudly, and insulting use of the word “champ”;

● Mr O’Connor voiced the opinion that Mr Linnane should not be involved in his request;

● Mr Linnane countered that as branch manager and because of previous correspondence to him he was indeed involved;

● Mr Linnane held his hand up to indicate the side meeting was terminated;

● the side meeting took something in the order of 3 to 5 minutes.

[95] Mr O’Connor’s version

● Mr O’Connor’s evidence was that he denied the alleged conduct took place at all, and rather that Mr Linnane was aggressive towards him;

● Mr Linnane was provocative, dancing in the way of a boxer and lowered his voice and spoke abusively in a whisper; 30

● Mr Linnane attempted to engage Mr O’Connor in a ‘street brawl’ and ‘gratuitous thuggery’; 31

● the incident did, he admitted, include raised voices and use of the term “champ” but not in a derogatory way;

● He returned to work and thought nothing more of the side meeting.

[96] Mr Linnane made a contemporaneous note consistent with his evidence, 32 and raised the alleged conduct with Crown’s HR. Witnesses overheard, but did not see the two men and is of limited use. Mr Linnane's oral evidence was consistent with his contemporaneous note. Further the documentation, including the various crucial letters from Crown to Mr O’Connor, are also consistent with that version of events.

[97] On Mr O’Connor’s version of events there was no aggression from Mr O'Connor but significant aggression from Mr Linnane, dancing around him provocatively like a boxer and whispering threateningly. Despite this aggression, he thanked Mr Linnane, returned to work and thought nothing more of it.

[98] Mr O’Connor also raised a number of facts in support of his position including, for example, that no police complaint was ever made. Those matters, while they may be correct, are not relevant to this application: there is no obligation to make a police complaint (and probably no grounds to do so), or for complaints to be reduced to writing.

[99] I accept as genuine Mr O’Connor’s stated belief that Mr Linnane had no role in rostering because the matter had been escalated to Mr Ferguson. At the same time I accept Crown’s submission that Mr Linnane, as branch manager, was indeed responsible for the branch roster. Similarly I accept Mr O’Connor’s assertion that he habitually uses the term “champ” in his ordinary conversation.

[100] Mr O’Connor Snr’s evidence 33 and other documents34 were highly coloured and sometimes inflammatory, and in the nature of opinion and hearsay evidence. They were of limited assistance in this matter.

[101] In my view, on whether Mr O’Connor was aggressive or Mr Linnane was aggressive, the evidence of Mr Linnane is preferred. His oral evidence was consistent with the contemporaneous complaint made.

[102] In contrast, Mr O'Connor asserts Mr Linnane was aggressive. He agrees that he did not raise this as a defence when the allegation was put to him on 29 September.

[103] This is because he had been “ambushed” and the process lacked procedural fairness.

[104] However, Mr O'Connor's own evidence demonstrates that as an employee he is capable of asserting his rights. For example, he indicated despite what he described as “verbal coercion” (from both Mr Haas and Mr Wickham) to terminate his rostered hours he declined to do so.

[105] As well, the behaviour that Mr O’Connor ascribed to Mr Linnane is extraordinary, being described as 'street brawl’ and ‘gratuitous thuggery’.

[106] On the basis of Mr O’Connor’s ability to assert his rights on previous occasions and the extraordinary behaviour ascribed to Mr Linnane, it is implausible that Mr O’Connor would not mention what Mr Linnane did to him during the disciplinary meeting if the matter had occurred in the manner asserted by Mr O’Connor.

[107] Based on the consistency in Mr Linnane’s evidence and the reasons detailed above about Mr O’Connor’s evidence, I prefer the evidence of Mr Linnane.

[108] I therefore find on the balance of probabilities that Mr O’Connor was aggressive and argumentative with Mr Linnane in the car park. Further, such aggressive and argumentative behaviour is not acceptable in the workplace.

[109] Mr O’Connor’s case is that this incident was not one of the reasons for his dismissal. He asserted that he was dismissed because of his request for family friendly roster arrangements and his earlier, and still unresolved, back injury. If that is the case, it may be that his dismissal was not for a valid reason.

[110] There is no issue that the request for a family friendly roster was made, or that the back injury happened and affected his work. However having raised the prospect that the dismissal was in fact a result of these two factors, Mr O’Connor had to demonstrate the causal link was at least plausible. There is nothing in the evidence that leads to such a conclusion.

[111] On the contrary, the overwhelming weight of the evidence is that:

● Crown asked to meet with Mr O’Connor precisely to discuss the roster request;

● Mr O’Connor’s conduct was separate from the roster request;

● The incident with Mr Linnane was considered by Crown to be unacceptable conduct;

● Mr O’Connor had repeatedly failed to demonstrate understanding that his conduct was unacceptable and that he was required to take steps to remedy it;

● Crown afforded workplace assistance to him to achieve that end.

[112] I am satisfied the evidence shows that the car park conduct in fact occurred as alleged by Crown, and that the conduct (in the face of the earlier warning) was the reason for the dismissal. The roster request and the injury were not, on the evidence, the reason for Crown’s decision.

[113] The company's conclusion that there was a lack of trust and confidence was reasonable based on the combination of what occurred in the car park and the denial of any misconduct by the applicant at the meeting on 29 September.

[114] The sake of completeness I also make reference to the letter 23 September 2015. Mr O’Connor suggests that this letter which deals only with the issue of the roster supports his case that a dismissal one week later was unfair.

[115] In my view the letter supports a view that the company had not at that time formed a final or even firm view about terminating Mr O’Connor’s employment.

[116] When the allegations of misconduct were put to the applicant at the meeting on 29 September it was the combination of the allegations of aggressive and inappropriate conduct andthe lack of insight and the response from the applicant that led to the conclusion that termination was appropriate in all the circumstances.

[117] I consider this approach from the company appropriate. I therefore conclude that the company had a valid reason to terminate the applicant.

Was the person notified of that reason and given an opportunity to respond?  35

[118] Mr O’Connor submitted that he was told the purpose of the meeting was ‘unbecoming conduct’ and that he did not know the purpose of the meeting. However in a letter to Mr Linnane concerning the meeting, while headed allegations/accusations of ‘unbecoming conduct’ he also acknowledges as follows ‘you made a number of serious allegations accusations against me’.

[119] In my view this part of the letter from Mr O'Connor favours a conclusion that Mr O’Connor knew purpose of the meeting: it was to be a discussion about (at least) “unbecoming conduct” the basis of which was serious allegations against him and in particular his conduct on 16 September 2015. Mr O’Connor admits so much in the undated submissions to the Commission signed by his father on his behalf at paragraphs 6 to 8.

[120] Mr O’Connor submitted he was not given an opportunity to provide a considered and meaningful response to the allegations at the meeting. However he agreed with the proposition that he denied he had engaged with Mr Linnane in an aggressive manner.

[121] Crown submitted it gave the applicant multiple opportunities to respond to its concerns about his conduct. It put each of the particular allegations arising out of the 16 September meeting to him, all of which were denied, save that the comments ‘right oh champ’ may have been said but not aggressively. I note that the use of that term is the single element of Mr O’Connor’s conduct directly witnessed by another employee, Mr Brennan. 36

[122] Crown agreed that once the allegations had been put Mr O’Connor he sought to have them put in writing. However, this does not mean that the employer did not provide an opportunity to respond. 37

[123] In my view Crown did provide a reasonable opportunity to respond to the reasons identified for the possible termination during the termination meeting.

[124] I accept the evidence of Mr Grogan that Crown considered Mr O’Connor’s responses. Further, the company had lost trust and confidence in Mr O’Connor, and in particular, on the evidence of previous conduct, that he would not change his behaviour.

[125] I further accept that other possible outcomes were considered but based on the loss of trust and confidence the decision was made to terminate the employment relationship. 38

[126] The content of that letter is supported on the evidence before me.

[127] I find that Mr O’Connor was notified of the reason for his dismissal.

[128] I am also satisfied that Mr O’Connor was given the opportunity to respond before the decision was made to terminate.

[129] In this case, Mr O’Connor was aware that the disciplinary meeting concerned his conduct on 16 September 2015 and he was given a full opportunity to respond to this concern.

[130] While the time given for response during the 29 September meeting was limited, I have concluded in all the circumstances it was adequate and that Mr O’Connor was given sufficient opportunity to respond about his conduct. His refusal to participate in discussions unless material was reduced to writing or he was permitted to record the meeting cannot be grounds for him to object to the process. 39

Was there any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal. 40

[131] The applicant attended the meeting with his father, a person experienced in industrial relations and employment matters, as a support person.

[132] Crown did not unreasonably refuse to allow Mr O’Connor a support person.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal.  41

[133] This matter related to Mr O’Connor’s conduct. No issues about his performance were raised.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.  42

[134] Crown is a large employer, even though the Townsville office itself is small (7 employees). In the disciplinary proceedings, the local office was supported by Mr Ferguson (State Manager) and Mr Grogan (HR regional director). This factor is neutral.

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.  43

[135] For the reasons stated in the preceding paragraph this factor is neutral.

Any other matters that FWA considers relevant.  44

[136] A lot of issues were raised in this matter. It is apparent there was animosity between Mr O’Connor and his former employer.

[137] Mr O’Connor suggested there was bad faith on Crown’s part shown by the inappropriate provision of private information discussed above. The evidence shows Mr O’Connor appropriately raised his concerns and they were dealt with, including the employee involved being disciplined.

[138] There is no evidence of the WorkCover claim being a determining factor in Mr O’Connor’s dismissal.

[139] He also expressed the view that his request for a family friendly roster was the real reason for dismissal. As discussed above there is no evidence to support this, and in fact the weight of evidence leads compellingly to his conduct and a loss of trust and confidence being the primary reasons for the decision to terminate his employment.

[140] After his termination, the applicant wrote in unnecessarily provocative language to some current employees of Crown and to another government agency. The company submitted this should be taken into consideration. I have not done so: they were not facts in existence at the time of the dismissal.

[141] Finally I take into consideration that the applicant was employed by Crown since 2009, a reasonably long employment history, just less than six years. I am mindful that any dismissal has a significant effect on a person’s personal and economic situation and that that is something that I am required to take into consideration. I also note Mr O’Connor has on-going injuries and significant family responsibilities. These are factors that go to consideration of harshness.

[142] If Mr O’Connor’s conduct had been a single, one-off incident, dismissal may have indeed been harsh. However in this case the misconduct was repeated. Further, Mr O’Connor repeatedly denied wrongdoing against the weight of evidence, showed a predilection to insisting that the other person had instead treated him badly, and to refuse further discussion, demonstrating a lack of insight on his part.

[143] In all these circumstances the decision to terminate his employment was not harsh.

Conclusion on unfairness

[144] Having taken into account all the criteria in section 387 of the Act, I conclude the dismissal was not harsh unjust or unreasonable, and would dismiss the application.

[145] Orders will issue dismissing the application.

COMMISSIONER

Appearances:

Applicant in person

Mr D. Holmes for the Respondent

Hearing details:

Brisbane

May 2016

17 and 18

 1   Statement of Mr Grogan [62]-[65] and PN950

 2   Crown’s documents 14 and 15

 3   Crown’s document 12 – termination letter dated 1 October 2015

 4   Mr O'Connor also lodged a dispute about the roster with the Fair Work Commission

 5   Affidavit of Mr D. O’Connor dated 7 March 2016, [24]

 6   Closing submission 2

 7   Statement of Mr Grogan

 8   Mr O’Connor’s closing submissions page 2

 9   Affidavit of Paul O'Connor paragraph 23

 10   Statement of Damien O'Connor dated 7/03/2016 [6]

 11   Statement of Damien O’Connor [27]

 12   Statement of Damien O'Connor [74] – [76]

 13   Closing submission of Damien O'Connor page 3; denied by Mr Linnane: PN 1091

 14   PN50

 15   Affidavit of Damien O'Connor paragraph 103 (7/3/16)

 16   PN 215

 17   Further statement of Damien Connor paragraph 18-21 10 /3/2016

 18   Statement of Neil Ferguson paragraph 76

 19   Exhibit 23 to statement of Damien O'Connor “ My point by point response to document 3 - Neil Ferguson's witness statement

 20   Submissions of the respondent paragraph 97

 21   PN795, PN799 and following

 22   Respondent's outline of arguments paragraph 5

 23   Respondent's outline of arguments paragraph 1

 24   Statement of Stephen Linnane paragraph 5

 25 Section 387 (a)

 26   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685

 27   Edwards v Giudice (1999) 94 FCR 561 [6][7]. See also Rail Corporation New South Wales v Vrettos (2008) 176 IR 129 [27]; Container Terminals Australia Ltd v Toby Print S8434 [13].

 28 King v Freshmore (Vic) Pty Ltd Print S4213 [24].

 29   See in particular Annexure B to Statement of Mr Linnanne

 30   See cross-examination at PN225 and following

 31   PN242 and following

 32   Annexure B to Statement of Mr Linnane

 33   Exhibit 18 to applicant’s affidavit and PB571 and following

 34   “Pleadings”, Exh 6 to Mr D. O’Connor’s affidavit, in which Mr O’Connor Snr purports to be the applicant’s advocate: for example referring to “violent exception”; “attempted corruption of proceedings”; “fictitious KPIs”; “this stupidity”; reference to “lies” and “false and misleading information”; suggestion that an employee was caught “pilfering”; suggestions that an employee committed criminal acts and had “a penchant for psychotic rage and violence”; accusations that Crown acted in bad faith without reference to evidence.

 35 Section 387 (b) (c)

 36   Statement of Mr Brennan [7]

 37   Dissanayake v Busways Blacktown Pty Ltd [2011] FWAFB 6487

 38   Statement of Michael Grogan paragraph 48 -50

 39   Grant v BHP Coal Pty Ltd[2014] FWCFB 3027; Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374

 40 Section 387 (d)

 41 Section 387 (e)

 42 Section 387 (f)

 43 Section 387 (g)

 44 Section 387 (h)

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