Mr David Grogan v Forgacs Engineering Pty Ltd T/A Forgacs

[2013] FWC 1417

[2013] FWC 1417

FAIR WORK COMMISSION

DECISION

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

Mr David Grogan
v
Forgacs Engineering Pty Ltd T/A Forgacs
(U2012/9425)

COMMISSIONER MACDONALD SYDNEY, 29 APRIL 2013

Application for unfair dismissal - injured employee - Applicant’s sustained adverse conduct towards staff seeking to care for injured employee - summary dismissal - unfair dismissal application dismissed.

[1] This decision arises from an application by Mr David Grogan (the Applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by Forgacs Engineering Pty Ltd (the Employer/the Respondent).

[2] The unfair dismissal application was filed on 15 August 2012.

[3] The Employer’s response to the unfair dismissal application was filed on 24 September 2012.

[4] The unfair dismissal application was listed for conciliation before a Fair Work Australia (FWA) Conciliator on 9 October 2012 but did not resolve.

[5] The unfair dismissal application was set down for a two day Hearing before the Fair Work Commission (FWC) in Newcastle on 14 and 15 March 2013.

[6] The Applicant was represented by Mr Adam Walkaden, Legal Officer of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). Mr Walkaden called four witnesses:

David Grogan - the Applicant

Laszlo Groh - Panel Beater/Welder

Larry Crozier - Boilermaker/AMWU delegate

Brian Wilkinson - Production Employee/AMWU delegate

[7] The Respondent was represented by Mr Ralph Warren, Barrister, who called the following witnesses:

Linda Robinson - Workplace Health and Safety Manager

Trevor Santi - Work Health and Safety Co-ordinator

Greg Searles - AWD Project Manger

Peter Sanderson - Operations Manager

Alan Laverick - (Hot Outfit) Production Manager

BACKGROUND

[8] The Applicant was employed by the Respondent for about two years. He was initially engaged as a casual employee and after three months became a full time boilermaker. Later on, he held the position of Leading Hand.

[9] The incidents which led to the Applicant’s summary dismissal occurred on 7 and 8 August 2012.

[10] On 7 August, an employee by the name of Mr Laszlo Groh suffered a workplace injury and was taken to the first aid room. Upon hearing of this injury, the Applicant went to the first aid room. Already there, apart from Laszlo Groh, was Mr Peter Johanson, Workplace Health and Safety Officer, who was attending the injured employee.

[11] The parties are in dispute as to the Applicant’s behaviour in the first aid room. The Respondent contended in its filed Outline of Submissions that the Applicant verbally abused Johanson at first instance. Ms Linda Robinson, Workplace Health and Safety Manager told the Applicant his behaviour was inappropriate and told him to leave. The Applicant allegedly directed abuse at both Johanson and Robinson.

[12] The Applicant left but returned with two AMWU delegates (Mr Larry Crozier and Mr Brian Wilkinson). The Respondent contends that the Applicant was agitated and appeared to be restraining his aggression when asking Robinson if an ambulance had been called and if Laszlo Groh’s wife had been informed.

[13] The Applicant denied he had engaged in threatening and abusive behaviour towards Johanson and Robinson.

[14] Later that morning, a meeting of employees was held in the meal room by Mr Peter Sanderson, Operations Manager, who addressed the Laszlo Groh incident. An exchange took place between the Applicant and Sanderson who said the Applicant had engaged in “ranting and raving” behaviour, in front of Johanson and Robinson.

[15] The Applicant denied he had engaged in “ranting and raving” behaviour by saying, “That’s a fucking lie”. (Ex. 1, para 19)

[16] After Sanderson left the meal room, the assembled employees discussed the Laszlo Groh incident further. The employees did not resume work for a couple of hours and in this time, the AMWU delegates met with management over matters arising out of the Laszlo incident.

[17] The next day, 8 August, the Applicant attended the first aid room to speak with Robinson who deposed she requested Mr Trevor Santi, Work Health and Safety Co-ordinator, to act as a witness. The Respondent’s case is that the Applicant said he wanted to apologise for his behaviour the day before but then changed his mind and shouted that Robinson owed him an apology to be given in front of the entire site of employees.

[18] The Applicant allegedly raised his voice further and became more aggressive and menacing. He threatened to shut the site down.

[19] Peter Johanson was also present during this exchange of 8 August.

[20] The Applicant denied the foregoing account. His version was that he said to Robinson and Johanson that he had not spoken to either in a rude or offensive manner the day before. Further, he required an apology from both of them because of the lies they had told Peter Sanderson yesterday about his alleged behaviour.

[21] About an hour later, the Applicant was approached by a supervisor and told he was required to attend Peter Sanderson’s office for a meeting. The Applicant deposed he was not told what the meeting was about.

[22] At the meeting were:

Peter Sanderson - Operations Manager

Greg Searles - AWD Project Manager

Alan Laverick - (Hot Output) Production Manager

Tony Lobb - Chief Executive Officer

Ben Hill - AMWU Delegate

Larry Crozier - AMWU Delegate

[23] Arising out of the meeting, Mr Sanderson advised the Applicant that his services were at an end and he was given a termination letter. The Applicant collected his tools and was escorted off site.

FINAL SUBMISSIONS

For the Applicant

[24] Mr Walkaden, for the Applicant, tendered an Outline of Submissions (Ex. 12) and spoke to that document. He made the following points:

(a) The Applicant was employed for about two years.

(b) The Applicant was summarily dismissed.

(c) The Respondent failed to properly articulate the reasons for dismissal. The termination letter merely said that the Applicant had breached Clause 9.7 of the Forgacs Engineering Pty Ltd Enterprise Agreement 2010 (the 2010 Agreement).

(d) The summary dismissal meeting of 8 August only lasted for about four minutes. The Respondent had already made the decision to terminate the Applicant’s services earlier that day and prior to the summary dismissal meeting. During the meeting, the Applicant was merely advised he had abused two staff members.

(e) The Applicant contends there was no valid reason for the dismissal. The FWC will need to make a finding as to what actually occurred on 7 and 8 August. The FWC will need to make a finding whether any conduct of the Applicant is of a sufficient level to serve as a valid reason for dismissal. In considering these findings, the FWC should be guided by case law which considered an applicant’s conduct as “harassment”. Regard is also to be had to the type of worksite in question: a male dominated worksite where swearing is a daily occurrence.

(f) As to valid reason for dismissal, the Applicant denied the conduct as alleged, such as yelling and shouting at staff or making threatening comments to staff. He has a robust and dominant personality which can make people feel uncomfortable but he denied the Respondent’s allegations as to his purported conduct. The Applicant’s denials were supported by witnesses called by the Applicant. Thus, there was no valid reason for dismissal.

(g) The witness statement of Ms Robinson is inconsistent in a couple of matters as between her written chronology of events attached to her witness statement and the same matters referred to in her witness statement.

(h) Ms Robinson found the events of 7 and 8 August distressing but she has overblown the Applicant’s conduct.

(i) Where there is conflict between the evidence of the Applicant’s case and that of the Respondent’s case, the evidence of the Applicant’s case is to be preferred.

(j) In the alternate, the Applicant contends that the sanction of dismissal was disproportionate to any findings of inappropriate behaviour. Consideration also needs to be given to the Applicant’s work record and the impact of the dismissal upon his personal and economic circumstances. As to the work record, the AMWU submitted that the Applicant was not counselled for the prior incident known as the McPherson incident.

(k) The Respondent failed to afford procedural fairness in not notifying the Applicant of the reasons for dismissal and failed to give an opportunity to respond to any reasons for dismissal. The decision to dismiss the Applicant was made before the 8 August summary dismissal meeting took place.

(h) The Applicant seeks reinstatement but in a gesture of contrition does not seek payment of lost wages. In the event of reinstatement not being granted, the Applicant sought compensation.

For the Respondent

[25] Mr Warren, for the Respondent, tendered an Outline of Submissions (Ex.14) and spoke to that document. He made the following points:

(a) The Applicant’s service was summarily terminated on 8 August on the ground of serious misconduct.

(b) The Applicant’s conduct on the 7 and 8 August was one of engaging in a rude, abusive and threatening manner against employees of the work health and safety building.

(c) The Applicant’s witnesses did not witness the Applicant’s conduct of 8 August and therefore cannot give any evidence about the Applicant’s conduct on 8 August towards Ms Robinson and Mr Johanson.

(d) The worksite is a “blokey site” but that does not excuse abusive and disgusting language against other employees. The Applicant’s conduct offended Clause 9.7 of the Agreement: “Vilification of a fellow employee or group of employees”. The Applicant’s conduct warranted summary dismissal.

(e) Apart from the evidence of Ms Robinson as to the Applicant’s conduct, there was evidence from other witnesses as to that abusive conduct.

(f) There is no inconsistency within the evidence of Ms Robinson. The chronology of events of 7 and 8 August was not a document prepared for this court case but prepared with other employees as an incident report.

(g) The evidence of Ms Robinson was to be preferred to that of the Applicant. Her evidence was delivered clearly, succinctly and with a clear memory of what had occurred.

(h) The Applicant had engaged in threatening and abusive behaviour on earlier occasions to 7/8 August 2012 towards Mr McPherson. The Applicant had been counselled verbally on 23 March 2012 by Peter Sanderson as to the McPherson incident and told it was the last straw.

(i) Mr Johanson, Workplace Health and Safety Officer, resigned his employment because of the conduct of the Applicant on 7 and 8 August. (This reasoning for the resignation was challenged by the Applicant, per the AMWU).

(j) The Respondent had not taken a decision to dismiss the Applicant prior to holding what became the summary dismissal meeting. The Respondent had decided that the Applicant was facing dismissal, absent any reasonable explanation.

(k) The Applicant attended the meeting of 8 August and was given an opportunity to respond to the allegations. The Applicant denied acting in the way alleged and refused to participate any further in the meeting.

(l) There was a valid reason for the termination of the Applicant.

ONUS and STANDARD OF PROOF

[26] Given that this is a summary dismissal case, then the Respondent carries the onus to prove that the facts existed to support the Respondent’s decision to summarily dismiss the Applicant: Pastrycooks Employees, Biscuit Makers, Employees and Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990 35 IR 70 at 83-84.

[27] The standard of proof required to prove that those facts existed, is the balance of probabilities. That is, the Respondent (in summarily dismissing the Applicant) has to prove that those facts existed, on the balance of probabilities.

[28] The above standard of proof required by the Respondent is the Briginshaw standard of proof: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 354-369, per Dixon J.

[29] Von Doussa J in Beach Petroleum NL v Johnson (1993) 115 ALR 411 at 435, applied the principles recognised by Dixon J in Briginshaw and said that the strength of the evidence required (to prove a case on the balance of probabilities) may vary according to the gravity of the fact to be proved. Where a charge of fraudulent and dishonest conduct is made, the court will require a higher degree of probability than it would if it were considering an allegation such as negligence.

RESOLUTION OF CONFLICTING EVIDENCE

[30] The Respondent summarily dismissed the Applicant arising out of the events of 7 and 8 August in which the Respondent claimed that the Applicant had engaged in a rude, abusive and threatening manner against employees of the work, health and safety building. The Applicant denied that he had engaged in such conduct over the said two days.

[31] The Applicant relied upon witnesses to support his denial of his alleged behaviour of 7 August. However, he had no witnesses for his alleged behaviour of 8 August.

[32] In considering the evidence on balance, I find (as set out below) that the weight of the evidence supports the Respondent’s case against the Applicant that he engaged in the behaviour for which he was summarily dismissed.

CONSIDERATION

[33] David Grogan filed an unfair dismissal application against his dismissal for serious conduct.

[34] Section 396 of the Act, sets out four matters which must be decided, before considering the merits of an unfair dismissal application. 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.”

[35] The unfair dismissal application was made seven (7) days after termination and was therefore made within the then existing fourteen day time limit specified in section 394(2). This satisfies paragraph (a) of section 396 above.

[36] Section 396(b) requires cross-referencing to section 382 in order to be satisfied. Neither party raised section 382 as an issue for my consideration. Therefore, the Applicant is a person protected from unfair dismissal.

[37] Paragraph (c) and (d) of section 396 have no relevance in this case.

[38] The Applicant claimed that he had been unfairly dismissed and sought reinstatement and continuity of service. In an act of contrition, he did not seek payment for lost wages. Failing an order for reinstatement, he sought compensation.

[39] Section 385 of the Act provides that a person has been unfairly dismissed if FWC is satisfied as to four criteria:

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.”

[40] Paragraph (a) of section 395 is satisfied by way of the dismissal of the Applicant. Paragraphs (c) and (d) have no relevance in this case. As to paragraph (b), the Applicant said his dismissal was harsh and/or unjust and/or unreasonable.

[41] In order to determine whether the Applicant’s dismissal was harsh, unjust or unreasonable, it is necessary for FWC to consider the factors set out in section 387. Those factors are:

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 matter that FWC considers relevant.”

(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);

[42] The first factor to be considered is whether there was a valid reason for the dismissal. In this case, the issues put against the Applicant related to his conduct.

[43] The termination of employment letter of 8 August 2012 advised that the Applicant had “violated and breached section 9.7 of the Company’s Enterprise Bargaining Agreement by way of serious misconduct”. (Ex. 1, Annexure DG-1) The letter does not elaborate any further as to the reason for the summary dismissal of the Applicant.

[44] The events that led to the Applicant’s dismissal occurred over 7 and 8 August. The Fair Work Commission sets out below the allegations and evidence concerning those events.

7 AUGUST INCIDENTS

[45] After Laszlo Groh had collapsed in the middle of the yard, he was attended to by Johanson and Robinson. Groh was then transported by a ute to the First Aid Room.

[46] Robinson was in the First Aid Room on the telephone to Linguard Hospital. Also present were Groh and Johanson. Robinson deposed that the time was around 8.15 am when she was on the telephone and the Applicant “stormed” into the Safety Office which was connected to the Training Room and the First Aid Room. (Ex. 6, para 7). She contended that the Applicant swore, shouted and demanded, words to the effect:

(a) “Get a fucking ambulance.”

(b) “That it was not fucking good enough to fucking throw him in the back of a fucking ute, call a fucking ambulance you stupid cunts.”

(c) “You cunts don’t know what you are fucking doing.”

[47] The foregoing assertions by the Applicant were responded to by Johanson.

[48] Robinson completed her call with Linguard Hospital and deposed she told the Applicant that his behaviour was inappropriate and he would have to leave. She recorded that the Applicant responded to her and Johanson with words to the effect:

(d) “Fuck off; you cunts don’t know what you are doing”.

The Applicant then left and as he did so, “heavily slammed the glass exit door”.(Ex. 6, para 7).

[49] The Applicant denied in the witness box making the foregoing assertions: (a) to (d) inclusive and deposed that he was not aggressive or rude in his dealing with Johanson. (Ex. 2, para 3).

[50] Mr Johanson did not give evidence in the proceedings. He is no longer employed by the Respondent.

[51] Groh (the injured employee) in his witness statement said that the Applicant “was not aggressive or rude (and was speaking) in his usual speaking voice and was not yelling.” (Ex. 3, para 7) Under cross-examination from the AMWU, Robinson disagreed with Groh’s evidence. (PN 692)

[52] The Applicant left the area and returned with two other employees: Crozier and Wilkinson

[53] Robinson contacted a family practice centre to arrange consultation with the doctor. Robinson deposed that the time was 8.21 am and whilst on the telephone, the Applicant “started knocking heavily on the glass outside the window of the Safety Office gesturing (for Robinson) to come outside. I was unable to continue on the phone as I was unable to hear the nurse to whom I was describing the symptoms or continue on the phone due to the distraction”. She also said that the Applicant was accompanied by Mr Larry Crozier (employee and lead AMWU delegate) (Ex. 6, para 8).

[54] The Applicant’s first witness statement makes no reference to this alleged incident. His right of reply witness statement disagreed that he had knocked heavily on the glass outside of the Safety Office gesturing for Robinson to come outside. (Ex. 2, para 4). Mr Crozier only put on a witness statement in reply and he also disagreed that the Applicant had knocked heavily on the glass. (Ex. 4, para 5) Under cross-examination from the AMWU, Robinson recalled this incident as, “I can replay it as a video. It was very distressing.” (PN 787)

[55] Ms Robinson again contacted the family practice: she deposed at 8.23 am. The practice advised they were busy and did not have any availability in the doctor’s surgery. In consultation with Johanson, Robinson called an ambulance.

[56] Robinson deposed that at 8.30 am, the Applicant, Crozier and Brian Wilkinson (AMWU delegate) entered the Safety Office through the Training Room door. She asked the three men to withdraw into the Training Room to discuss their concerns. Robinson deposed that the Applicant was “agitated and appeared as restrained aggression”. The Applicant said words to the effect:

“What are you doing about it, have you called a fucking ambulance or what? Has anyone fucking bothered to contact his wife?”

Robinson said she advised that the ambulance was on its way and Groh’s wife would be contacted to advise of Groh’s condition and hospital location, once the ambulance officers advised of the hospital destination. Ms Robinson said the foregoing procedure was the usual practice. (Ex. 6, para 11).

[57] The Applicant’s statement in reply disagreed with Robinson’s account above and referred to his first witness statement for the account of the conversation. Therein, he denied being aggressive or rude. (Ex. 2, para 5).

[58] Brian Wilkinson (AMWU delegate) deposed that the Applicant, during his conversation with Robinson, “was emotional, however, he was not yelling or shouting. He was speaking in his usual speaking voice.” (Ex. 5, para 4)

[59] Larry Crozier deposed as to the Applicant - Robinson conversation. (Ex. 4, para 6) A reading of his telling of their conversation is that it was civil and it does not record any swearing. Mr Crozier added that the Applicant “did not yell and was speaking in his usual speaking voice.”

[60] Ms Robinson deposed that the ambulance arrived at 8.48 am and left the site, with Groh, bound for the Mater Hospital. Johanson went in the ambulance.

[61] Ms Robinson contacted Groh’s wife to advise of her husband’s condition and hospital location, “as per the usual practice”. (Ex. 6, para 14)

8 AUGUST INCIDENT

[62] Ms Robinson deposed that she saw the Applicant approaching the Safety Office at 7.50 am on 8 August. This was a new Safety Office, located in a different building, to the day before. She said that as the Applicant had been “agitated” the day before, she moved out of the Safety Office and requested the attendance of Mr Trevor Santi (Work Health and Safety Co-ordinator), as a witness. (Ex. 6, para 18A)

[63] Ms Robinson stated that the Applicant appeared “very tense”. The Applicant began saying that he was here to apologise for “storming into the first aid room, ranting and raving and making me hang up the phone the day before. Whilst saying this his tone and mannerisms were extremely sarcastic, he then raised his voice and started shouting”. (para 18A)

[64] The Applicant allegedly then said words to the effect:

“I’ve changed my mind, No, Linda (that is, Robinson) you owe me a fucking apology”.

Then he demanded that:

“Linda you should get up in front of the entire fucking site and fucking apologise”.

and (whilst swearing):

“that I never fucking swear and you are both fucking liars, you are all fucking liars” (para 18A).

[65] Ms Robinson further stated that the Applicant “continued to raise his voice and surge in a menancing way, becoming more aggressive and ranting and raving about Peter Johanson and the events of the previous day. He moved deeper into the office. Trevor Santi and Peter Johanson stood in the passage way. David Grogan’s (that is, the Applicant) behaviour was menacing.” (para 18A)

[66] She said that the Applicant “began threatening to shut down the site.” He said words to the effect:

“I have the power to stop the site if I don’t get a public apology by smoko. Fucking liars, you are both fucking liars. You’ll pay”.

[67] Ms Robinson advised that the Applicant was referring to her and Johanson for the above. The Applicant exited the building and Santi locked the sliding door as the Applicant departed. She said that she and Johanson were very distressed. (para 18A)

[68] Further to the foregoing account by Robinson, she said that during that account, she removed herself from the First Aid Room and stood in the hallway. Whilst in the hallway, she rang Mr Peter Sanderson (Operations Manager) and held a phone above her shoulder to ensure the Applicant could see the phone and to allow Sanderson to hear the events unfolding. (Ex. 6, para 19).

[69] The Applicant gave a different account of this conversation in his first witness statement (Ex. 1, paras 26-27).

[70] The Applicant deposed he arrived for work and he was “feeling upset and annoyed that Peter Sanderson had incorrectly claimed in front of my workmates the day prior that it was my fault that an ambulance had not been called because of my supposed bad behaviour. I felt that a lie had been told about me of front of all workmates.”

[71] The Applicant went to the First Aid Room to have a conversation with Robinson, who told him to wait a moment. She left the First Aid Room and returned with Mr Santi. (This account by the Applicant confirms the presence of Santi, as stated by Robinson: Macdonald C). The Applicant said that Johanson then entered the First Aid Room. (This account confirms Robinson’s account as to Johanson’s presence: Macdonald C).

[72] The Applicant deposed that he told Robinson and Johnanson that “if” he had spoken to her in a “rude and offensive way the day before, would you expect an apology from me?´ They both said “yes”.

[73] The Applicant claimed that he then retorted that he had not spoken to either that way and he would like an apology from both of them “because of the lies that you have told Peter Sanderson yesterday. It doesn’t have to be straight away, you can call over and see me any time today”.

[74] The Applicant then left the First Aid Room. He denied being aggressive or rude or yelling, during the above conversation.

[75] The Applicant’s right of reply witness statement disagreed with Robinson’s account of the conversation. (Ex. 2, para 6). He also deposed that the conversation took place at about 6.50 am and not 7.50 am, as claimed by Robinson. He deposed further that Trevor Santi (or it could have been Ron Game) was not present during the exchange between him and Robinson.

The Applicant did not dispute that Johanson was present for the conversation. (As already stated above, Johanson left the employ of the Respondent and did not give evidence in the proceeding. If I concluded that Santi was not present on 8 August, then the case against the Applicant for 8 August would be Robinson’s word plus what Sanderson overheard on the mobile phone. I accept, however, that Santi was present on 8 August: Macdonald C.)

[76] Trevor Santi’s witness statement is one page long (three paragraphs) but it refers to an attached statement which he deposed he made on 8 August 2012. It recounts an incident he witnessed on 7 August and another on 8 August. (Ex. 9).

[77] As to the 8 August incident, Santi gives an account of the Applicant’s behaviour which he said occurred at 7.50 am (the Applicant said 6.50).

[78] Mr Santi described the Applicant as talking in a “loud and aggressive manner”. The Applicant began by saying he was present to apologise for “barging in yesterday, ranting and raving and making Linda hang up on the Raymond Terrace Medical Centre”.

The Applicant, however, said Santi was “being sarcastic” and told Robinson she owed him an apology.

[79] The Applicant then “raised his voice significantly to address Peter Johanson and Linda Robinson and threatened to pull the site out if he didn’t get an apology by smoko. He called Peter and Linda ‘liars’ and that he had the power to stop the site unless he got an apology in writing and in front of everybody. He then left the area.”

[80] I note that the foregoing account by Santi supports the account by Robinson as to the Applicant’s raising the issue of an apology but then saying that Robinson owed him an apology. Mr Santi’s account supports Robinson’s account of a threat to pull out the site, if he did not get an apology by smoko; also supports that the Applicant called Robinson and Johanson liars; and also supports that an apology was to be given in front of everybody.

[81] Under cross-examination from the AMWU, Mr Santi said of the 8 August incident, that:

(a) the Applicant had sworn at Robinson and Johanson whilst calling them liars. (PN 1264)

(b) the Applicant swore a few times; the Applicant said he did not “f’ing swear” and Robinson and Johanson are “f’ing liars”. (PN 1265)

(For the record, Mr Santi was being courteous by using the term “f’ing” in the court room, rather than “fucking” - Macdonald C)

(c) the Applicant engaged in aggression in a very intimidatory fashion towards Robinson and Johanson. (PN 1271)

(d) the Applicant was speaking in a loud voice. (PN 1289)

(d) the Applicant was abusive. (PN 1291, 1298, 1299, 1300 and 1301)

[82] As already stated above, Robinson telephoned Peter Sanderson, Operations Manager, on a mobile phone. She held the phone above her shoulder to ensure the Applicant could see the phone and to allow Sanderson to hear the events of 8 August unfolding. Sanderson’s witness statement confirmed that he could hear the Applicant’s voice and that it was “very loud and abusive which caused me to investigate (the incident)”. (Ex. 8, para 10) He also deposed he heard the Applicant shout, “You are all fuckin liars and I demand an apology.” (para.15)

FINDING AS TO 8 AUGUST INCIDENT

[83] The weight of the evidence as to the 8 August Incident is against the Applicant’s account of his interaction with Robinson and Johanson. He had no witness to support his version of the account. The Respondent’s account of the conversation primarily comes from Robinson and Santi. Mr Sanderson was not present but heard over the mobile phone what he described as the Applicant being “very loud and abusive”. This evidence of Sanderson is consistent with that of Santi who said the Applicant was “loud” and “abusive”.

[84] My assessment of Robinson’s and Santi’s demeanour in the witness box is that they were witnesses of truth. Robinson came across as a witness who carefully assessed that her responses to questions were truthful and accurate to the best of her knowledge. Santi’s evidence was given in a straightforward manner.

[85] Accordingly, I find that the account given by Robinson in her witness statement and in the witness box (and which is supported by Santi and Sanderson as to what the latter overheard) of the Applicant’s conduct on the morning of 8 August, is the conduct that took place.

FINDING AS TO 7 AUGUST INCIDENTS

[86] The Applicant’s account of his interaction with Johanson at first instance and thence Robinson was one of denying the Respondent’s case that he swore, shouted and demanded to Johanson the getting of an ambulance for Groh, the injured worker. He denied knocking so heavily on the glass outside the window of the Safety Office as to stop Robinson from continuing with a phone call to a family practice centre to arrange consultation for Groh with a doctor. The Applicant denied being rude or aggressive towards Robinson.

[87] The Applicant had witnesses as to the incidents of 7 August. These witnesses gave evidence that the Applicant was not yelling, was not aggressive or rude and was speaking in his usual speaking voice.

[88] I have already accepted the evidence of Robinson and Santi as to the Applicant’s conduct of 8 August. That conduct by the Applicant was one of being “loud”, “abusive”, “swearing” and being engaged in “aggression ... (in) a very intimidatory fashion” towards Robinson and Johanson.

[89] I found Robinson to be a witness of truth. The evidence she gave as to the Applicant’s conduct of 8 August (and supported by Santi), is consistent with her evidence as to the Applicant’s conduct of 7 August. That is, I accept that the Applicant’s conduct of 8 August was a continuation of his conduct (the same type) of 7 August.

[90] Mr Santi gave evidence about the Applicant’s conduct of 7 August. That evidence, like that for 8 August, came from his incident report made out on 8 August. (Annexure to Ex. 9)

[91] Mr Santi was cross-examined by the AMWU as to that 7 August incident report. During that cross-examination, Santi gave evidence about the Applicant’s conduct towards Johanson and Robinson concerning getting an ambulance for Groh. Mr Santi said that:

(a) the Applicant spoke in a “pretty loud” voice (PN 1211); he was “loud” (PN 1221); and he was “certainly loud”. (PN 1222)

(b) the Applicant was “yelling”. (PN 1224)

(c) the Applicant called for an “f’ing ambulance.” (PN 1233)

(Santi was being courteous to the court by using the term, “f’ing” but it stood for the Applicant using the term “fucking” - Macdonald C.)

(d) the Applicant was shouting abuse in the period he was present in the First Aid Room. (PN 1234)

[92] I have already found Santi to be a witness of truth. The evidence he gave as to the Applicant’s conduct of 8 August (and supported by Robinson and by Sanderson as to what the latter overheard), is consistent with his evidence as to the Applicant’s conduct of 7 August. That is, I accept that the Applicant’s conduct of 8 August was a continuation of his conduct (the same type) of 7 August.

[93] It follows that where the evidence of the Applicant’s three witnesses is inconsistent with that of Robinson and Santi, then I prefer the evidence of Robinson and Santi as to the conduct of the Applicant. This is so, even where the Applicant’s denial that he engaged in certain conduct is supported by one or more of his witnesses.

[94] In final submissions, the AMWU called into question a couple of matters contained in Robinson’s witness statement in that these couple of matters were inconsistent with an incident report prepared by Robinson and one or more other employees. The incident report was made out at the time of the incident(s) of 7 and 8 August. Robinson’s witness statement was made out some time later. The Respondent’s Barrister, Mr Warren, pointed out that the purpose for which the incident report was prepared (for management) has a different purpose to that of preparing a witness statement (for court proceedings) and the difference in purposes explains any alleged inconsistencies. I accept Mr Warren’s submission and find in this case, that nothing turns on any alleged inconsistencies between any incident report(s) and Robinson’s or Santi’s witness statements.

CONCLUSION - VALID REASON FOR TERMINATION

[95] After the incident of 8 August, the Applicant (and delegates) was called to a meeting with management. According to the Applicant’s witness statement, he was advised by Sanderson “Come on Dave (the Applicant) you know what you have done. You have abused two of my staff.” (Ex. 1, para 29) The Applicant was also handed a letter of termination which began, “We wish to confirm that you have violated and breached section 9.7 of the companies Enterprise Bargaining Agreement by way of serious misconduct.” (Ex. 1, Annex. DG1)

[96] In final submissions, Mr Warren for the Respondent, took FWC to Clause 9.7 - Instant Dismissal - and in particular to sub-clause “(iv) Vilification of a fellow employee or group of employees.” (Ex. 13) Mr Warren submitted that the Applicant’s conduct of 7 and 8 August fell into the category of Clause 9.7(iv).

[97] Having considered the evidence as to the incidents alleged against the Applicant for 7 and 8 August, I find that the Respondent has made out its case (onus and burden of proof) against the Applicant that he had engaged in the conduct witnessed by Robinson and Santi on 7 and 8 August and part of which conduct on 8 August, was overheard on a mobile phone by Sanderson.

[98] The conduct of the Applicant that the FWC has found to have occurred on 7 and 8 August is set out in the witness statements of Robinson and Santi (and partly supported by Sanderson as to what he overheard). In summary, that conduct can be labelled as:

● Swearing, shouting and being demanding at Mr Johanson and Ms Robinson;

● Obscene language directed at Mr Johanson and Ms Robinson as in, “Fuck off; you cunts...”;

● Knocking heavily on the glass outside the window of the Safety Office, so as to cause Robinson to terminate a phone call with a family practice centre nurse as to the symptoms of the injured employee (Groh).

That conduct in particular and the Applicant’s conduct on 7 August was one of interfering in the role of the Work Safety employees in looking after an injured employee. Ms Robinson gave evidence as to the impact of that interference on the treatment of the injured employee. Ms Robinson said the Applicant’s conduct prevented her from having a proper conversation with the nurse at Lingard Hospital; the Applicant was a distraction; the Applicant had flustered Johanson and upset him because of the Applicant’s yelling and abuse which had also upset Robinson. She concluded her evidence on this issue with: “We’re there to make sure that this person is cared for and having somebody storm through and behave so poorly, so poorly, we’re supposed to be assisting this person and giving this person first aid.” (PN 802) Mr Searles also gave evidence on this issue: “I accept that the concern (the Applicant’s concern for the injured employee) was there, however, I do not accept the manner in which he interfered with the person being attended to by a qualified - a 30 year qualified ambulance officer.” (PN 1388);

● As to the incident of 8 August, the Applicant called Johanson and Robinson “fucking liars”; he demanded an apology from Robinson and Johanson to be given in front of all employees (several hundred) and threatened that if the apology was not given then the Applicant would shut the site down. According to Santi, the Applicant’s conduct towards Robinson and Johanson was loud, abusive and aggressive in a very intimidatory fashion. Sanderson’s evidence was that the Applicant was loud and abusive.

[99] Accordingly, I find that the Applicant’s conduct was such as to constitute a valid reason for dismissal: Selvachandran v Peteron Plastics Pty Ltd [1995[1995] 62 IR 371.

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

[100] The Applicant’s Outline of Submissions states that the Applicant was not given articulated reasons for his dismissal.

[101] On a strict view, that submission is open to the Applicant. However, the Applicant’s witness statement states that he was called to a meeting (of managerial persons and delegates) and told by Sanderson, “Come on Dave you know what you have done. You have abused two of my staff”. The Applicant and Sanderson then disagreed as to the content of the conversation at that meeting of some four minutes’ duration. However, I have preferred the evidence of the Respondent’s case as against that of the Applicant. Accordingly, I accept Sanderson’s version of the conversation which includes Sanderson advising the Applicant as to the loud and abusive language he had heard on the mobile phone from the Applicant’s mouth.

[102] I accept that the termination letter gives no detail as to the reasons for dismissal. It merely said that the Applicant was being dismissed for serious misconduct for violation and breach of “section 9.7 of the companies Enterprise Bargaining Agreement.”

[103] The context of the meeting (abuser of staff and reference to Section 9.7) gave the Applicant some idea, at least, as to the reason for his dismissal.

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

[104] The matters set out for (a) above (valid reason)are relevant for consideration of the opportunity to respond.

[105] Mr Sanderson’s version of the conversation (which I accept) is that after stating what he had overheard on the mobile phone, Sanderson asked “Do you have anything else to say about this?” The Applicant did not respond to this question. Prior to this question, the Applicant denied he had engaged in any abuse. Given the denial and the non response to the follow up question, I accept that he was given the opportunity to respond to the abuse issue put to him but that the Applicant declined to do so.

(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;

[106] The Applicant did not raise this issue as he had union delegate representation.

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

[107] The reason for termination was not based on the Applicant’s performance.

(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;

[108] This was not an issue.

(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;

[109] This was not an issue.

(h) any other matters that FWC considers relevant;

[110] The Applicant’s Outline of Submissions raised issues for FWC’s consideration:

(a) The Applicant was employed for a period of about two years and had a good work record.

(b) The Applicant had found casual employment since the dismissal but that employment had come to an end.

(c) The sanction of dismissal is disproportionate to any findings of inappropriate behaviour.

(d) The Applicant was not formally counselled over the McPherson incident and therefore this incident should not form part of FWC’s consideration.

(e) The Respondent’s appropriate officers had met on 8 August before their meeting with the Applicant and determined beforehand to dismiss the Applicant. I reject that submission and accept the respondent’s evidence that a termination letter had been prepared before that meeting with the Applicant but it was only given to the Applicant at the meeting because the Applicant “had no explanation for his actions.” (Ex. 8, para 16). Mr Sanderson’s witness statement recorded that the Applicant denied abusing Johanson and Robinson. (para 15) Given the denial and no explanation, the termination letter was then handed to the Applicant.

(f) The swearing by the Applicant (if I accepted he swore) was to be seen in its context: the worksite is a “blokey” environment. That submission is rejected on the ground of context. The incidents of 7 and 8 August took place in a First Aid Room/Workplace Health and Safety Building. The swearing did not take place in a “smoko” environment. The swearing was not in the context of workers talking about a sporting result(s) over the weekend. The swearing (as distinct to the obscene language) was directed at Mr Johanson and Ms Robinson and with the demeanour of intimidation and aggression.

CONCLUSION

[111] The Applicant filed an unfair dismissal application following his summary dismissal. He claims to have been unfairly dismissed because he denies the allegations made by the Respondent as to his conduct on 7 and 8 August 2012.

[112] Section 387 sets out those matters (substantive and procedural) that FWC must take into account in deciding whether a dismissal is unfair, that is, “harsh, unjust or unreasonable”. The meaning of the expression, “harsh, unjust or unreasonable” is stated by the High Court of Australia in Byrne & Frew v Australian Airlines Ltd [1995] HCA 24, where McHugh and Gummow JJ said at para [128]:

“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.”

[113] Section 387 sets out matters (a) to (h) inclusive that are to be considered by FWC when considering if any applicant’s dismissal was “harsh, unjust or unreasonable”. I have set out above my consideration of the evidence as to (a) to (h) inclusive.

[114] I found that there was a valid reason for the summary dismissal of the Applicant given his conduct of 7 and 8 August. In holding that there was a valid reason, I have preferred the evidence of the Respondent’s witnesses to that of the Applicant for the incident of 8 August and to that of the Applicant and his witnesses for the incidents of 7 August.

[115] After considering all the matters (a) to (h) inclusive set out in Section 387, I have concluded that the summary dismissal of the Applicant was not “harsh, unjust or unreasonable”. In coming to that finding, I have preferred the Respondent’s case to that of the Applicant as to his conduct on 7 and 8 August and as to the meeting of 8 August wherein the Applicant was given his summary dismissal letter.

[116] In forming that view, I have also taken on board the AMWU’s submission as to lack of procedural fairness. That is, the AMWU submitted that there was a lack of detail as to the meaning of “abuse of staff” levelled against the Applicant. Certainly the detail as to the “abuse of staff” has been given full rein in the witness statements of the Respondent but there was enough information provided to the Applicant at the meeting of 8 August by Sanderson (Ex. 8, para 15) as to that “abuse of staff”, for the Applicant to deny the allegation.

[117] Even if there was any foundation to the AMWU’s claim of a lack of procedural fairness, it is not of any significance to outweigh the substantive reason(s) for the Applicant’s summary dismissal: that is, his conduct of 7 and 8 August was of such gravity as to outweigh consideration of any alleged denial of procedural fairness.

[118] Even if I found that the Applicant had been unfairly dismissed, I would not have ordered reinstatement because of the Applicant’s sustained adverse conduct over a two day period against fellow employees. Although I did not take into account the McPherson incident for the substantive incidents of 7 and 8 August, I do so in respect of this issue The McPherson incident is another example of the Applicant’s “verbal abuse” of another member of the workforce. (Ex. 10, para 5) In finding that way as to the inappropriateness of reinstatement (if I found the dismissal to be unfair), I also rely upon my observation of the Applicant in my courtroom and my observation of Ms Robinson’s evidence in the witness box which evidence was given whilst the Applicant was present in my courtroom. I have made the foregoing observation because the Respondent raised the inappropriateness of reinstatement. The Respondent did so because of the Applicant’s conduct of 7 and 8 August and prior conduct. For the record, the Respondent’s witnesses who held managerial status gave evidence to the effect that the Applicant was a very respected tradesman.

[119] Having considered all of the evidence and submissions and the relevant legislation, the application for an unfair dismissal remedy is dismissed.

COMMISSIONER

Appearances:

Mr A Walkaden, Industrial Advocate for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

Mr R Warren, Barrister, for Forgacs Engineering Pty Ltd T/A Forgacs

Hearing details:

2013

Newcastle

March 14, 15

Printed by authority of the Commonwealth Government Printer

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