Mr David Rayner v Little Moreton Pty Ltd T/A H-R Products
[2017] FWC 1652
•21 JULY 2017
| [2017] FWC 1652 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr David Rayner
v
Little Moreton Pty Ltd T/A H-R Products
(U2016/10836)
DEPUTY PRESIDENT BINET | PERTH, 21 JULY 2017 |
Application for relief from unfair dismissal – dismissal was not unfair – application dismissed.
[1] On 31 August 2016, Mr David Rayner (Mr Rayner) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Little Moreton Pty Ltd T/A H-R Products (HR Products).
[2] Mr Rayner was summarily dismissed from his position as a Storeperson and Order Packer by HR Products, a family owned wholesale irrigation business, following a physical altercation with another Storeperson, Mr Darko Yanev (Mr Yanev).
[3] On 7 September 2016, HR Products lodged a Form F3 Employer Response to the Application noting it had no jurisdictional objection(s) to the Application.
[4] The Application could not be resolved by conciliation and was consequently listed for hearing and determination.
[5] On 29 November 2016, directions were issued to the parties outlining the obligations of the parties in preparation for a Determinative Conference listed for Friday 3 March 2017 (Directions). The Directions stated that, should the parties prefer that the matter be heard by way of a Hearing instead of a Determinative Conference, a request should be made in writing to Chambers by close of business, Thursday 8 December 2016.
[6] On 5 December 2016, Mr Rayner sought for the matter to be heard by way of a Hearing instead of a Determinative Conference:
“I would be grateful if you could advise DP Bidet [sic] of my application for a Hearing rather than a Determinative Conference. It has become evident that there are a number of contested facts that must be resolved at an open hearing. See at [2015] FWCFB 1257 FAIR WORK COMMISSION.”
[7] Taking into account the parties’ circumstances, and their wishes, it was determined that a hearing would be the most effective and efficient way to determine the matter.
[8] At the Hearing, Mr Rayner gave evidence in support of his Application. Mr Yanev, Mr Leslie Olivieri - General Manager of HR Products (Mr Olivieri), Mr Tony Saffioti - Warehouse Manager (Mr Saffioti), Mr Nigel Lambert - Warehouse Supervisor (Mr Lambert) and Warehouse Storepersons Mr Scott Allison (Mr Allison), Mr Carl Arandle (Mr Arandle) and Mr Darren Hewitt (Mr Hewitt) all gave evidence on behalf of HR Products.
[9] Final written submissions were subsequently filed by Mr Rayner on 17 March 2017. On 23 March 2017, HR Products advised Chambers that HR Products did not intend to file final written submissions.
Permission to be Represented
[10] On 15 December 2016, HR Products sought permission to be represented at the Hearing by Mr Robert Greig of Greig’s Safety and Employment Lawyers Pty Ltd. Leave was sought on the grounds that the matter was sufficiently complex to warrant representation, and that legal representation would allow the matter to be dealt with more efficiently. By email dated 30 November 2016 and subsequently by email on 16 December 2016, Mr Rayner indicated that he objected to HR Products being granted representation at the Hearing.
[11] Section 596 of the FW Actprovides as follows:
“596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
…”
[12] Cambridge C in Karkamakar v Australian Campus Network Pty Ltd[2013] FWC 2340 made the following comments about section 596 of the FW Act:
“[9] These provisions represent a more stringent requirement for the granting of permission than existed under the predecessor provisions of the Workplace Relations Act 1996. There have been a number of Decisions of the Commission which have recognised the legislative intention to broadly restrict and limit the basis upon which permission would be granted for legal (and paid agent) representation in proceedings before the Commission as compared with the Australian Industrial Relations Commission. In this respect I refer in particular, to the Decision of Harrison C in Rodney James Rogers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572, and the Decision of Lewin C in Chris Lekos v Zoological Parks and Gardens Board [2011] FWA 1520.
[10] Further, the legislative intention underpinning s.596 of the Act has been the subject of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton (Warrell) and I refer in particular to paragraph 25 of that Judgment.
[11] Upon examination of subsection 596 (2) there appears to be three, and only three, criteria which separately or in combination, provide basis upon which the Commission can grant permission for a lawyer or paid agent to represent a party in proceedings such as the Hearing of a claim for unfair dismissal. The three criteria which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability; and (c) fairness.”
[13] On 19 December 2016, HR Products were granted permission to be represented by Mr Grieg at the Hearing to enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
[14] On 21 December 2016, Mr Rayner filed an appeal of the decision to grant permission to HR Products to be represented by Mr Greig. Permission to appeal was refused by the Full Bench on 13 February 2017 at [2017] FWCFB 756.
Background
[15] Mr Rayner commenced employment with HR products on 13 March 2013. 1
[16] HR Products manufactures, imports, and distributes automatic irrigation equipment for commercial and domestic use throughout Australia. It is one of Australia’s largest wholesale and manufacturing suppliers of automatic irrigation and has offices in Western Australia, South Australia, Victoria, New South Wales, and Queensland. HR Products employs approximately 93 staff. 2
[17] Mr Rayner was employed in a warehouse at the Canning Vale Head Office in a team of 10 employees, supervised by the Warehouse Manager Mr Saffioti. Mr Saffioti reports to Mr Olivieri.
Performance Issues
[18] Both Mr Olivieri and Mr Saffioti say that, throughout his employment, Mr Rayner has struggled to meet the established picking KPIs attached to his role, which are captured daily and benchmarked across the company nationally. The KPIs are assessed by warehouse managers as part of tracking performance, identifying issues, and addressing those issues. The KPIs are also part of an incentive scheme. According to Mr Saffioti, 10 out of the 12 employees to whom these KPIs applied qualified for the incentive each year. During the time that Mr Rayner was employed at HR products, he never qualified for the incentive. 3
[19] Mr Saffioti says that he drew these performance concerns to Mr Rayner’s attention and tried to both assist and encourage Mr Rayner to improve his performance. On 13 October 2015, Mr Saffioti conducted a performance review with Mr Rayner and discussed his underperformance. Mr Saffioti conducted another performance review on 14 December 2015 and, again, discussed Mr Rayner’s underperformance against KPI targets. Mr Rayner signed the meeting record for both meetings. 4
[20] Mr Saffioti says that, despite Mr Rayner’s failure to improve his performance, he persevered with Mr Rayner because it was difficult to find employees willing to perform the entry-level duties that Mr Rayner performed. 5
[21] Mr Olivieri says that he raised Mr Rayner’s poor performance with him a number of times during his employment. He also discussed Mr Rayner’s poor performance with Mr Saffioti, and was aware that Mr Saffioti was encouraging Mr Rayner to improve his performance. Mr Olivieri says that he also had other concerns in relation to Mr Rayner’s work, which included Mr Rayner ignoring work procedures, inaccuracies in Mr Rayner’s work and Mr Rayner excessively using his personal mobile phone in the warehouse. 6
Prior Workplace Incidents not involving Mr Rayner
[22] Mr Yanev commenced employment in April 2014. Shortly after he commenced employment, he was involved in an altercation with Mr Hewitt. Mr Yanev had been picking an order when Mr Hewitt yelled at him to load a truck outside. As Mr Yanev was busy, he yelled to Mr Hewitt to go and load it himself. Mr Hewitt yelled back. Mr Yanev went to Mr Hewitt’s forklift, grabbed him, and pulled him out by the shirt. Mr Hewitt says that Mr Yanev swung a punch at him, which caused a graze to his chin. Mr Yanev denies this and says that Mr Hewitt grabbed him and that they verbally insulted each other for 10 to 15 seconds. Mr Lambert intervened and both men went back to their respective duties. Later that day, Mr Olivieri approached Mr Yanev and told him that the company did not tolerate behaviour of that nature. No formal warning was issued to Mr Yanev as a result of the incident. Mr Yanev says that he has not been aggressive to anyone since that date, nor has he seen any physical altercations or incidents of verbal abuse in the workplace until the incident involving Mr Rayner. 7
[23] Mr Yanev was also involved in incident in 2015 in which he was discovered, by Mr Saffioti, firing a crossbow into a large bail of plastics in a locked warehouse with Mr Lambert. Both Mr Lambert and Mr Yanev apologised and explained that they had locked the shed to prevent anyone coming into the area and were firing the bow at short distance into a bale of plastic, so they were effectively operating in a controlled environment. Mr Saffioti instructed them to stop immediately and told Mr Lambert, who owned the bow, never to bring it to work again. 8
Relationship between Mr Yanev and Mr Rayner
[24] Shortly after he commenced employment, Mr Yanev began martial art training with Mr Rayner in his spare time. Mr Yanev says that Mr Rayner had told him that he had been doing martial arts since he was 20 or 25 and that he was a fifth or sixth dan black belt. Mr Yanev would spar up to three times a week with Mr Rayner, and would pay Mr Rayner for martial art training. Mr Yanev stopped training with Mr Rayner in August 2015 and says from that moment on Mr Rayner stopped talking to him. Mr Yanev says that he did not speak to Mr Rayner from that point until 18 August 2016. 9
Workplace Incidents involving Mr Rayner
[25] On 8 July 2015, Mr Rayner was involved in a serious incident in the warehouse in which he drove a reach truck with the mast in a raised position into the main roller door, causing significant damage to the reach truck and the roller door. Mr Olivieri says that moving the reach truck with the mast raised is in contravention of the forklift reach truck operating rules. He says that Mr Rayner ought to have been aware of these rules because he held a high risk work licence. After investigating the incident, Mr Olivieri and Mr Saffioti concluded that the incident had occurred because Mr Rayner had failed to pay attention and take due care operating the forklift. 10
[26] Consequently, on 8 July 2015, Mr Rayner was issued with a final warning letter in relation to the incident (Final Warning). The Final Warning also made reference to recent performance issues which included Mr Rayner ignoring stocktaking procedures, and his failure to meet his KPIs. The Final Warning also made reference to Mr Rayner’s excessive use of his personal mobile phone during working hours. 11 The Final Warning concluded by stating that:
“Dave, these issues have put your employment at H-R Products at extreme risk … you will need to address the above issues as well as meeting our established picking targets and performing at the required level consistently. 12
[27] On 25 February 2016, a building contractor fell through the ceiling of the lunchroom and landed near Mr Rayner, causing him to spill his cup of tea on his leg causing a scald. The building contractor was uninjured and returned to work. Mr Rayner attended his doctor and had four consultations before being signed off as 100% recovered. 13
[28] On 22 April 2016, Mr Rayner fell from a short ladder while picking an order. Mr Olivieri attended to Mr Rayner shortly after the incident, and asked if he needed any treatment. Mr Rayner declined, said that he “was okay”, and returned to work. One week later, Mr Rayner submitted a Worker’s Compensation First medical certificate to HR Products. Mr Rayner was subsequently certified fit for work, albeit with lifting restrictions of 7kgs. Mr Rayner returned to work, and his medical progress and performance were monitored and regular meetings held with his supervisor to discuss these matters. 14
Request for Voluntary Severance Package and Further Performance Concerns
[29] In early May 2016, Mr Rayner raised with Mr Saffioti the possibility of a voluntary redundancy who, in turn, raised the matter with Mr Olivieri. Mr Saffioti says that Mr Rayner also informed him that he was looking for a part-time job, and asked if Mr Saffioti would be a referee. Mr Olivieri says that, prior to Mr Rayner raising the issue, he had not been planning to make any redundancies. However, given the decrease in sales, he decided to explore the issue further with Mr Rayner. 15
[30] Mr Olivieri met with Mr Rayner on 4 May 2016 to discuss the possibility of voluntary redundancies. At a subsequent meeting held on 12 May 2016, which Mr Saffioti also attended, Mr Olivieri presented a voluntary redundancy package to Mr Rayner. Mr Rayner took the package away to consider. 16
[31] At a meeting held on 22 July 2016, Mr Rayner indicated that he was experiencing some discomfort and it was agreed that he would be temporarily transferred to light duties in the packaging and assembling area. 17
[32] On 9 August 2016, Mr Olivieri and Mr Saffioti met with Mr Rayner to discuss their concerns about his low level of output during his time performing light duties in the packaging and assembling area. Mr Olivieri says that Mr Rayner’s output was less than that of a severely disabled employee called Frank. Mr Rayner was directed to return to his warehouse duties under the previous restrictions of no lifting over 7kgs, no climbing ladders and, additionally, no forklift driving. He was instructed that the picking KPIs would still apply, as these were considered achievable even with the limitations and restrictions which applied because of his injury. 18 These discussions were confirmed by letter of the same date which warned that “Continued failure to meet these KPIs may result in the termination of your employment.”19
[33] On 10 August 2016, Mr Olivieri met with Mr Rayner again to discuss his performance targets and worker’s compensation claim. Mr Rayner asked Mr Olivieri if the voluntary redundancy offer was still available. Mr Olivieri agreed to make it available. However, on 14 August 2016 by way of email, Mr Rayner advised Mr Olivieri that he rejected the voluntary redundancy package. 20
[34] In that email, Mr Rayner stated that he had obtained legal advice and, on the basis of that advice, he believed the voluntary severance package he had been offered was inadequate. He also stated that dismissal as a result of his failure to meet the targets detailed in Mr Olivieri’s letter of 9 August 2017 would result in an action for unfair dismissal. Mr Rayner concluded by saying he was happy for negotiations be undertaken between HR Products and his lawyers “… with the aim of achieving a meaningful and speedy resolution”. 21
Further Workplace Incidents
[35] Mr Saffioti says that, in early August, a number of employees complained to him that Mr Rayner had been taking photos in the workplace and that this disturbed them. Mr Saffioti says he instructed Mr Rayner to cease taking photos to protect the privacy of the business and other employees. Mr Saffioti reported to Mr Olivieri that Mr Rayner had been taking photos in the workplace, and that it was causing issues with other warehouse employees. 22
[36] Mr Olivieri says he did not consider it appropriate for Mr Rayner to take photographs in the workplace because:
a) at that time Mr Rayner had not raised, either informally or formally, any safety issues;
b) it had privacy implications for both the business and other employees;
c) it had the potential to create a distraction and therefore pose a safety risk for Mr Rayner and other employees;
d) Mr Rayner’s performance was already substandard, and further distractions would only worsen the situation; and
e) employees had been instructed not to use their mobile phones while at work other than during authorised breaks. 23
[37] On 16 August 2016, Mr Olivieri and Mr Saffioti met with Mr Rayner to discuss this matter, and various matters, raised by Mr Rayner in the email sent by Mr Rayner to Mr Olivieri on 14 August 2016. At the meeting, Mr Olivieri instructed Mr Rayner to cease taking photos within the workplace, and instructed him that if he identified any safety hazard or incidents he was to report it using the established reporting system within 24 hours or sooner. Mr Olivieri also again reminded Mr Rayner of the need to perform to the required level of productivity. 24 Mr Olivieri confirmed the content of the discussions in a letter of the same date. The letter inter alia stated that:
“For the purposes of HR’s commercial interests you are not to take any photographs within the workplace without the express permission of your direct supervisor or other management representative.” 25
[38] Mr Olivieri and Mr Saffioti met again with Mr Rayner on 17 August 2016. At the meeting, Mr Olivieri raised his concern that Mr Rayner was not returning to work after attending medical appointments. Mr Olivieri also reinforced the requirement that Mr Rayner meet his KPIs. Mr Olivieri’s file notes of the meeting reveal that Mr Rayner reported feeling stressed and “… having a lot of bottled up anger” as an after-effect of the incident on 25 February 2016 where the building contractor had fallen through the roof. Mr Olivieri’s notes also reveal that he informed Mr Rayner that HR Products were happy to consider reduced hours of work for him if that would assist his recovery. 26
Incident on 18 August 2016
[39] Mr Yanev says that, at 2:30pm on 18 August, he was on the forklift wrapping pallets when he saw Mr Rayner standing in Aisle CB. Mr Yanev says that it appeared to him that Mr Rayner was taking photos of him. Mr Yanev says that he had seen Mr Rayner doing the same thing several days earlier and had reported it to Mr Saffioti. 27 Mr Yanev says he felt uncomfortable being filmed or photographed while he was working, and believed that employees were not permitted to take photographs in the workplace.28
[40] Mr Rayner says that he was not photographing or filming Mr Yanev, but instead was retrieving a voicemail message on his phone. Mr Rayner says that Mr Yanev made the assumption he was filming him because he says he had previously obtained photographs of Mr Yanev acting recklessly. 29
[41] At “smoko break” at around 3:00pm, Mr Yanev approached Mr Rayner, who was sitting in his usual place in the staff room. Mr Rayner says that Mr Yanev began screaming obscenities at him about Mr Rayner filming him. 30 Mr Yanev says that he simply told Mr Rayner to stop taking photos.
[42] In his witness statement, Mr Rayner said that he has no further recollection of the event after he stood up to address Mr Yanev, other than the sensation of a burning on his neck running down his arm. He says he later discovered that this pain was the result of nerve impingement at C5/6 of his cervical spine. 31
[43] Mr Yanev says that Mr Rayner said: “Come on what you going to do … let’s go outside” before calling Mr Yanev a number of profanities. Mr Yanev says that Mr Rayner poked him aggressively in the chest/shoulder region with three fingers together five or six times. Mr Yanev says that he said to Mr Rayner: “…35 years of training and you can’t sort out a Macedonian guy you trained for year”. Mr Yanev says that they exchanged profanities before Mr Rayner pushed him in the throat with a closed fist. Mr Yanev says he reacted instinctively by swinging his left hand. Mr Yanev says that his hand did not hit Mr Rayner with any force, but that it brushed the right side of his face. 32
[44] Mr Rayner reported the incident to Mr Saffioti, claiming that Mr Yanev hit him and demanding that Mr Yanev be dismissed. 33
[45] Mr Yanev says he went and reported the incident to Mr Olivieri. 34 Mr Olivieri says that Mr Yanev approached him at about 3.10pm and said: “I hit him but he punched me first. That bastard was taking photos of me”.35
Investigation
[46] Mr Olivieri immediately convened a meeting with Mr Rayner and Mr Saffioti, and asked Mr Rayner what had happened. Mr Olivieri took notes of the meeting. Mr Olivieri says that he took particular note of Mr Rayner’s appearance and noted that his appearance was normal and that there were no blood, abrasions, bruising or other markings on his face. Mr Olivieri also says that Mr Rayner appeared to act normally and showed no sign of pain or discomfort. 36
[47] In his witness statement, Mr Rayner says he cannot recount with certainty what he said at the interview. 37 Mr Olivieri says that Mr Rayner admitted taking a photograph in the warehouse, but would not show it to him. Mr Olivieri says that Mr Rayner told him that he had been sitting in the lunchroom having afternoon tea facing the sink when Mr Yanev approached him and asked if he had been filming Mr Yanev in Aisle CB. Mr Olivieri says that Mr Rayner told him that he stood up and that there was a heated exchange, before he pushed Mr Yanev away with a closed fist action to the chest. Mr Olivieri says that Mr Rayner claimed that Mr Yanev then swung at Mr Rayner and hit him in the face. Mr Olivieri says that Mr Rayner demanded Mr Yanev be dismissed immediately. Mr Saffioti corroborated Mr Olivieri’s recollection of the interview.38
[48] Mr Olivieri and Mr Saffioti then interviewed Mr Yanev at 3:45pm. Mr Olivieri says that Mr Yanev told him that he had been putting away pallets with a forklift, when Mr Lambert approached him and warned him that Mr Rayner had been filming or taking photographs of him. Mr Olivieri says that Mr Yanev told him that he approached Mr Rayner in the lunchroom at “smoko” and told him to stop taking photos of him. Mr Olivieri says that Mr Yanev reported that Mr Rayner stood up and they called each other names. Mr Olivieri says that Mr Yanev admitted that he had called Mr Rayner a “pussy” three or four times because he knew Mr Rayner “didn’t like that”, and that Mr Rayner had then poked Mr Yanev in the shoulder about six times, then hit him in the throat area with a closed fist. Mr Olivieri says that Mr Yanev admitted that he punched Mr Rayner, but claimed that it was not a hard punch. Mr Saffioti corroborated Mr Olivieri’s recollection of the interview. 39
[49] Later that evening, and over the following days, Mr Olivieri and Mr Saffioti interviewed Mr Allison and Mr Arandle, who witnessed the incident. Mr Olivieri also interviewed Mr Lambert, who witnessed the events which led to the incident. Mr Olivieri took notes of the meetings. A few days later, Mr Olivieri provided each witness with a typed copy of the notes of their meeting, which each employee agreed was a true and accurate record of their conversation. 40
[50] Mr Lambert, who was working near Mr Yanev at the time, told Mr Olivieri that he saw Mr Rayner holding his phone at arm’s length as if he was filming or taking photos of Mr Yanev. He says that when Mr Rayner saw him, Mr Rayner put his phone away. When Mr Yanev walked pass him, Mr Lambert warned him that Mr Rayner had been taking photos of him. 41
[51] Mr Allison told Mr Olivieri that Mr Yanev initially approached Mr Rayner in a calm manner. Mr Arandle told him that Mr Yanev was annoyed. Both agreed that Mr Rayner stood up and the discussion became heated. Mr Arandle recalled Mr Rayner saying “Lets sort this out now”. Mr Allison told Mr Olivieri that Mr Rayner approached Mr Yanev and pushed his fist against Mr Yanev’s throat, pushing him backwards and prompting Mr Yanev to take a swing at Mr Rayner. Mr Arandle says that Mr Rayner pushed Mr Yanev out of his view, but that he heard the sound of pushing and possibly a slight slapping sound. Mr Arandle told Mr Olivieri that Mr Rayner initiated the physical contact, and was the aggressor in the incident. 42
Outcome of Investigation
[52] On 19 August 2016, the day after the incident, Mr Rayner did not arrive at work at the normal time. At around 9.30am, he arrived and presented Mr Olivieri with a medical certificate certifying him unfit for work that day. Mr Olivieri says that Mr Rayner told him that Mr Yanev was not a ‘bad guy’ and that he did not want Mr Yanev to lose his job. Mr Olivieri and Mr Rayner discussed some safety issues and the earlier redundancy offer, but Mr Rayner rejected it as being inadequate. Mr Rayner left the workplace and did not return to work again. 43
[53] On 20 August 2016, Mr Rayner sent Mr Olivieri an email stating that he had made an application to, what he described as the ‘FWA’, for interim orders that he:
“… be immediately stood down from my position at HR products on FULL pay pending a hearing and determination of the matters. This decision has not been taken lightly, however, it has become manifestly apparent that HR products is totally unable to guarantee myself a safe working environment, following the unprovoked and violent events on the 18/8/16. It is absolutely clear, that the fear have for my personal safety is totally justified, if as a person in my 60s a diabetic, and on workers compensation, can be violently assaulted in such a public manner, it is beyond contemplation that I may ever be able to set foot on site again.”
[54] He concluded his email by saying that the application would proceed in the ‘FWA’ “…if you’re not disposed to consider a mutual consent outcome.” 44
[55] On 22 August 2016, he sent a further email which again appeared to seek a commercial resolution of the matter: “I hereby restate my preparedness to enter into genuine and meaningful dialogue aimed at achieving a mutually agreeable resolution. This however rests on your hands”. 45 On 24 August 2016, Mr Rayner sent another email stating that: “I further confirm my preparedness to pursue an outcome without recourse to FWA should HR be so minded.”46 A further email on 26 August 2016 stated:
“I write specifically for the purposes of reaching a negotiated outcome prior to legal costs adding substantially to the claims being made. If this offer is rejected, then it is intended to have the lawyers acting for myself to seek leave to apply for costs on an indemnified basis.” 47
[56] On 22 and 23 August 2016, Mr Rayner and Mr Yanev, respectively, were separately issued with a letter informing them that they were each required to attend an investigation meeting to provide their explanation of the incident. The letters invited them to bring a support person and warned that disciplinary action, up to and including termination of employment, might be imposed as a consequence of their involvement in the incident. 48
[57] On 24 August 2016, Mr Olivieri and Mr Saffioti interviewed Mr Yanev. Mr Olivieri told Mr Yanev that he would be issued with a final warning. 49 A Final Warning was issued to Mr Yanev on 29 August 2016, which noted that any further incidences of physical or verbal aggression would result in summary dismissal.50
[58] On 25 August 2015, Mr Olivieri and Mr Saffioti interviewed Mr Rayner. Mr Rayner denied photographing or filming Mr Yanev, but admitted taking a photograph of a carton in the warehouse that morning, despite being directed not to do so. Mr Olivieri says that Mr Rayner initially admitted to initiating the physical contact, but then seemed to retract from that. When Mr Olivieri told Mr Rayner that there were witnesses who claimed to have seen Mr Rayner hit Mr Yanev first, Mr Rayner asserted that they were lying. Mr Rayner also asserted that he pushed rather than punched Mr Yanev. At the conclusion of the meeting, Mr Olivieri told Mr Rayner that he would consider his responses and let him know the outcome of the investigation in the upcoming days. 51
[59] Based on his investigation, Mr Olivieri concluded that Mr Rayner had breached a clear and direct instruction not to take photographs in the workplace. He says that he took into account Mr Rayner’s assertion that he was lawfully entitled to collect photographs of safety breaches, but says that he expected Mr Rayner to stop any unsafe act immediately, and report it Mr Saffioti or himself as he instructed Mr Rayner in his letter to him on 16 August 2016. 52
[60] Based on his investigation, Mr Olivieri also concluded that Mr Rayner had initiated the physical altercation, and had not needed to strike first to defend himself against being hurt. Mr Olivieri took the view that, given Mr Rayner’s training and experience as a fifth dan black belt, he should have been able to exercise greater self-control. 53
[61] In determining the appropriate disciplinary action, Mr Olivieri says he took into account:
a. Mr Rayner’s past employment record, including his on-going poor performance;
b. the fact Mr Rayner was on a final warning; and
c. Mr Rayner was aggressive, threatening, and had a belligerent attitude in many of his communications 54
[62] Mr Olivieri says he also took into account the fact that Mr Rayner was 63 years old, that the employment market was depressed and that Mr Rayner had, prior to the incident, expressed a desire to leave the organisation. 55
[63] On 30 August 2016, Mr Olivieri met with the other directors of HR Products and outlined the background to the incident, the outcome of his investigation, and his rationale for his proposal that the appropriate disciplinary action was summary dismissal. The other directors endorsed his recommendation. 56
[64] On 30 August 2016, Mr Rayner was advised he had been summarily dismissed by HR Products. The following day he lodged an unfair dismissal claim seeking reinstatement and compensation. 57
Is Mr Rayner protected from unfair dismissal?
[65] An order for reinstatement or compensation may only be issued if Mr Rayner was protected from unfair dismissal at the time of his dismissal.
[66] Section 396 of the FW Act requires that the FWC to decide four preliminary issues before considering the merits of an application for unfair dismissal.
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(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.”
[67] I am satisfied that the Application was made within the 21 day period required by subsection 394(2) of the FW Act. I am also satisfied that the Small Business Fair Dismissal Code, which applies to employers of fewer than 15 employees, does not apply to Mr Rayner’s dismissal. There is no assertion that Mr Rayner’s dismissal involved redundancy.
[68] Section 382 sets out the circumstances that must exist for Mr Rayner to be protected from unfair dismissal:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[69] It is uncontested, and I am satisfied, that Mr Rayner had completed the minimum employment period and that Mr Rayner was covered by a modern award. Consequently, I am satisfied the Mr Rayner was protected from unfair dismissal.
Was Mr Rayner’s dismissal unfair?
[70] Section 385 of the FW Act sets out the circumstances in which a dismissal will be considered unfair:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[71] It was not contested, and I am satisfied, that Mr Rayner was dismissed for the purposes of section 385(a) of the FW Act and that his dismissal was not a case of genuine redundancy, nor subject to the Small Business Fair Dismissal Code.
Was Mr Rayner’s dismissal harsh, unjust or unreasonable?
[72] Having been satisfied of each of s.385(a),(c)-(d) of the FW Act, it is necessary to determine whether the dismissal was harsh, unjust or unreasonable. The criteria to be taken into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the FW Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person— whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[73] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd(1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:
“.... 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.”
[74] To determine whether Mr Rayner’s dismissal was, in the circumstances, harsh, unjust or unreasonable, it is necessary to consider each of the criteria set out in section 387 of the FW Act.
Did HR Products have a valid reason for dismissing Mr Rayner? (s.387(a))
[75] An employer must have a valid reason for the dismissal of an employee protected from unfair dismissal, although it need not be the reason given to the employee at the time of the dismissal.58 The reasons should be ‘sound, defensible and well founded’59 and should not be ‘capricious, fanciful, spiteful or prejudiced.’60 The reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. The requirement to be reasonable must be applied in a practical common sense way to ensure that the employer and employee are each treated fairly.61
[76] HR Products summarily dismissed Mr Rayner for failing to comply with a direction not to take photographs in the workplace and for physically assaulting another employee. HR Products submit that summary dismissal was an appropriate disciplinary consequence in the circumstances. HR Products say that those circumstances were that Mr Rayner had a continuous history of poor performance, was on a final warning, had behaved in an aggressive, threatening manner, and had a belligerent attitude in communications with Mr Olivieri and Mr Saffioti. 62
[77] I am satisfied that the direction given to Mr Rayner not to take photographs in the workplace without approval was both a lawful and reasonable direction for the following reasons:
a. Mr Rayner’s duties do not include any duty that required the taking of photographs or videos in the workplace.
b. The taking of photographs or videos had the potential to distract Mr Rayner from performing the duties which he was engaged and paid to perform. Given HR Products on-going concerns about Mr Rayner’s productivity, it was appropriate for them to take steps to minimise factors which might adversely impact on his productivity.
c. HR Products were entitled to act on complaints of other employees that they found being photographed without their permission both upsetting and distracting.
d. The taking of photographs or videos had the potential to distract Mr Rayner and/or other employees in a manner which might pose a risk to their own or others’ safety.
e. It was reasonable for HR Products to be concerned about the commercial implications of unauthorised photographs which revealed commercial confidences or adversely impacted on the reputation and standing of the business.
f. There is no evidence that the direction was unlawful.
[78] I am not satisfied that, as Mr Rayner asserts, the direction was unreasonable on safety grounds. It was made clear to Mr Rayner that employees were expected and required to immediately report safety hazards to their managers and that, therefore, it was unnecessary for him to take photographs. There is no requirement under the Occupational Safety and Health Act 1984 for an employee to provide photographic evidence of safety breaches in order for WorkSafe to investigate such allegations. There was no evidence that HR Products had sought to conceal any safety breaches, other than Mr Rayner’s assertion that he was not allowed to take photographs. Mr Rayner did not tender any evidence that he has reported any safety breaches to WorkSafe, or that WorkSafe have investigated or prosecuted HR Products for any safety breaches. Mr Rayner did not produce any evidence of the safety breaches which he asserts occurred. 63
[79] I am satisfied that the direction was clear, that it was given to Mr Rayner both verbally and in writing on 16 August 2016, and that he understood the direction.
[80] At the Hearing, Mr Rayner denied taking photographs or video of Mr Yanev. He asserts that, on 18 August 2016, Mr Lambert witnessed him trying to retrieve a voice message. Mr Rayner admits to taking numerous photographs in the workplace to document what he alleges were safety hazards. Mr Lambert’s evidence that Mr Rayner was holding his phone away from his body is consistent with Mr Rayner taking photos of Mr Yanev as alleged. 64
[81] Mr Olivieri conducted an investigation into the allegation that Mr Rayner was taking photographs, and provided Mr Rayner with the opportunity to provide his version of events. Mr Olivieri and Mr Saffioti say that, at that meeting, Mr Rayner showed them a photograph of a carton which, they say, Mr Rayner said was a photograph he had taken that day. I believe Mr Olivieri’s conclusion that Mr Rayner was taking photographs was reasonable in the circumstances. 65
[82] Wilful and deliberate disobedience by an employee of a reasonable and lawful direction may be treated by an employer as a renunciation entitling the employer to terminate the contract. 66
[83] A physical assault on another person in the context of the employment relationship has frequently been recognised by courts and tribunals as a valid reason for dismissal and, in the absence of extenuating circumstances, not viewed as harsh, unjust or unreasonable. This is consistent with regulation 1.07 of the Fair Work Regulations 2009 (Cth) which relevantly defines serious misconduct to include assault. The types of extenuating circumstances which are typically taken into account include the circumstances in which the fight occurred, the length of service of the employee including their work record, whether the employee was provoked, and whether the employee was acting in self defence. 67
[84] Relevant to this Application is the majority’s finding in B, C, D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 at [70]that:
“…there are some forms of wilful misconduct (like deliberate fraud against the employer or a serious unprovoked assault) that will almost certainly merit dismissal irrespective of employee’s length of the service, good disciplinary record and personal circumstances. Employees do not need to be warned that such conduct will be treated seriously by the employer.”
[85] Mr Rayner says that Mr Yanev approached him from behind, screaming obscenities at him. He says that his memories of what happened after that point are unclear, but he conceded he probably exchange profanities with Mr Yanev before Mr Yanev advanced towards him, and he was forced to push Mr Yanev away. He says that, at this point, Mr Yanev punched him in the face, forcing his head backwards violently. 68
[86] As is common with human memories, those of the witnesses differ slightly. However, there is a general consistency among the evidence of Mr Yanev, Mr Allison and Mr Arandle. There is also sufficient consistency between the evidence they provided shortly after the incident, in their witness statements, and in oral evidence at Hearing to given this evidence credibility without appearing rehearsed or coached.
[87] Mr Allison says Mr Yanev initially approached Mr Rayner in a calm manner. Mr Arandle says that Mr Yanev was clearly upset, but does not recalling him swearing. All the witnesses agree that Mr Rayner stood up and the discussion became heated. Mr Arandle recalls Mr Rayner saying: “Let’s sort this out now”. Mr Yanev says Mr Rayner said: “Come on what you going to do … let’s go outside” before calling Mr Yanev a number of profanities. Mr Yanev says that Mr Rayner poked him aggressively in the chest/shoulder region with three fingers together five or six times. Mr Arandle corroborates this. Mr Allison and Mr Yanev say that Mr Rayner approached Mr Yanev and pushed his fist against Mr Yanev’s throat, pushing him backwards and prompting Mr Yanev to take a swing at Mr Rayner. Mr Arandle says that Mr Rayner pushed Mr Yanev out of his view. Mr Yanev says he reacted instinctively by swinging his left hand. Mr Yanev says that his hand did not hit Mr Rayner with any force, but that it brushed the right side of his face. Mr Allison says that he saw Mr Yanev’s fist strike Mr Rayner’s head, but it appeared that it did not hit Mr Rayner very hard and was more in the nature of a tap. 69
[88] Mr Olivieri and Mr Saffioti say that, when they interviewed Mr Rayner immediately after the incident, he admitted that he had initiated the physical contact. 70
[89] In his outline of submissions, Mr Rayner asserted that he was physically incapable of pushing his fist into Mr Yanev’s throat as alleged because of various medical conditions from which he asserts he suffers, of which no medical evidence was tendered. 71
[90] Given that Mr Rayner concedes that his memory of the incident is unclear, and given the consistency of the evidence of the other witnesses, I have favoured their evidence to Mr Rayner’s.
[91] I am satisfied that:
a. Mr Rayner physically assaulted Mr Yanev by repeatedly poking Mr Yanev in the chest and pushing his fist up to Mr Yanev’s throat after a short verbal altercation between the men.
b. Mr Rayner triggered the verbal altercation by disobeying a lawful and reasonable direction not to take photographs in the workplace.
c. There was no evidence that Mr Yanev posed any physical threat to Mr Rayner before Mr Rayner struck him.
d. Mr Rayner was the first to strike, and was therefore the aggressor.
e. Given his martial arts training and the wisdom of age, Mr Rayner ought to have been able to exercise restraint.
[92] I am not satisfied that Mr Rayner’s claim of self-defence can be sustained as:
a. There was no evidence that Mr Yanev posed any physical threat to Mr Rayner before Mr Rayner struck him.
b. There is no evidence that Mr Rayner could not simply walk away from any confrontation and, in fact, did so immediately after Mr Yanev retaliated.
c. Given his significant martial arts experience and that he had, in fact, trained Mr Yanev and was familiar with sparring with him, he ought to have easily been able to resist or deflect any physical assault. I am therefore not satisfied that it was necessary for Mr Rayner to strike first to avoid injury.
[93] Mr Rayner submits that his physical assault on Mr Yanev does not constitute a valid reason for his dismissal because of a lack of consistency between his treatment and the treatment of Mr Yanev, both in relation to this incident and in relation to the earlier incident involving Mr Yanev and Mr Lambert.
[94] There are a number of factors which differentiate Mr Rayner’s circumstances to Mr Yanev’s which might justify HR Products imposing a different disciplinary outcome in relation to the incident on 18 August 2016, and with respect to the prior incidents involving Mr Yanev. These are that:
a. Mr Rayner triggered the initial verbal altercation by disobeying a lawful and reasonable direction not to take photographs in the workplace.
b. There was no evidence that Mr Yanev posed any physical threat to Mr Rayner before Mr Rayner struck him.
c. Mr Rayner was the first to strike and was therefore the aggressor.
d. Mr Rayner had been the subject of on-going performance counselling.
e. Mr Rayner was in receipt of a formal final written warning.
f. Mr Rayner demonstrated no remorse and was, in fact, aggressive and combative in communications with his employer.
g. Given his martial arts training and the wisdom of age, Mr Rayner ought to have been able to exercise restraint.
h. There is no evidence that HR Products had any concerns about Mr Yanev’s performance.
i. The incident involving the bow occurred in a ‘quarantined area’, with the authority (albeit misplaced) of the Warehouse Supervisor, Mr Lambert.
j. Neither Mr Yanev nor Mr Hewitt complained of any serious injury in their altercation. Mr Yanev and Mr Lambert denied that any punches were thrown. They say the extent of the physical contact was pushing/pulling (this is consistent with the contemporaneous notes of Mr Olivieri). Neither employee complained about the incident. Mr Yanev was remorseful. No formal written warning was issued in relation to the incident. 72
[95] Mr Rayner submitted that HR Product’s reasons for his dismissal were not valid because HR Products engaged in prejudicial conduct toward him. The evidence which Mr Rayner sought to rely in support of this assertion related to the management of his worker’s compensation claim, and not to the reasons upon which HR Products sought to rely for dismissal and are therefore irrelevant. 73
[96] Taking into account all of the extenuating circumstances, including that Mr Rayner has been employed by HR Products for a relatively short period of time, that HR Products had on-going concerns about his productivity, that Mr Rayner was on a final warning, and that Mr Rayner was aggressive, threatening, and belligerent in his communications following the incident, I am satisfied that HR Products had a valid reason for Mr Rayner’s dismissal.
Was Mr Rayner notified of the reason for his dismissal? (s.387(b))
[97] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,74 in explicit terms,75 and in plain and clear terms.76 In Crozier v Palazzo Corporation Pty Ltd,77 a Full Bench of the Australian Industrial Relations Commission, dealing with a similar provision of the Workplace Relations Act 1996 (Cth), stated that:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”78
[98] On 22 August 2016, HR products issued Mr Rayner with a letter outlining the allegations against him. Mr Rayner was interviewed by Mr Olivieri and Mr Saffioti on 25 August 2016. The reasons for his proposed dismissal were put to him in that meeting. Between 19 August 2016 and 30 August 2016 there were also a number of emails between Mr Rayner and Mr Olivieri in which the reasons for his proposed dismissal were discussed.
[99] Mr Rayner conceded at the Hearing that he was notified of the reasons which HR Products relied upon for his dismissal. 79
[100] I am therefore satisfied that Mr Rayner was notified of the reasons for his dismissal such that he was in a position to respond to those reasons.
Was Mr Rayner given an opportunity to respond? (s.387(c))
[101] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.80
[102] Mr Rayner was interviewed by Mr Olivieri and Mr Saffioti immediately after the incident on 18 August 2016, and given the opportunity to provide his version of events. On 22 August 2016, HR Products issued Mr Rayner with a letter formally outlining the allegations against him. Mr Rayner was then interviewed by Mr Olivieri and Mr Saffioti on 25 August 2016 and given the opportunity to respond to the allegations contained in the letter of 22 August 2016. Between 19 August 2016 and 30 August 2016, there were also a number of emails between Mr Rayner and Mr Olivieri in which the reasons for his proposed dismissal were discussed.
[103] Mr Rayner conceded at the hearing he had been given an opportunity to respond to the reasons for his dismissal. 81
[104] I am therefore satisfied that Mr Rayner was given an opportunity to respond to the reasons for his dismissal.
Was Mr Rayner unreasonably refused a support person? (s.387(d))
[105] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present. There is no positive obligation on an employer to offer an employee the opportunity to have a support person.82
[106] In the letter dated 22 August 2016, setting out the allegations against him, Mr Rayner was invited to bring a support person to the scheduled meeting to discuss those allegations. 83 Mr Rayner did not request a support person be present at the meeting held on 25 August 2016.
[107] I am satisfied that Mr Rayner had the opportunity to have a support person and chose not to do so. I therefore find that HR Products did not unreasonably refuse to allow Mr Rayner to have a support person present at discussions relating to the dismissal.
Was Mr Rayner given warnings regarding his unsatisfactory performance? ( s.387(e))
[108] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct.84
[109] HR Products dismissed Mr Rayner for misconduct. HR Products did not rely on Mr Rayner’s work performance as ground or reason for his dismissal. HR Products only took Mr Rayner’s performance into account in the context of ensuring that Mr Rayner’s dismissal, albeit for a valid reason, was not harsh, unjust or unfair.
[110] HR Products therefore had no obligation to provide warnings to Mr Rayner about his unsatisfactory performance. Nevertheless, Mr Rayner was clearly on notice of HR Product’s on-going concerns about his work performance.
[111] Mr Rayner was warned numerous times about his performance, including:
a. at performance review meetings held on 13 October 2015 and 14 December 2015; 85
b. in meetings with his managers on 9 August 2016, 10 August 2016 and 16 August 2016; 86 and
c. in writing on 8 July 2015, 9 August 2016 and on 16 August 2016. 87
[112] Mr Rayner asserts that the Final Warning was unjustified, and that his performance was not unsatisfactory. Based on my assessment of the various witnesses at the Hearing, and the contemporaneous documentary evidence tendered, I am satisfied that HR Products had genuine concerns about Mr Rayner’s performance, which it raised with him. 88
[113] Notwithstanding that HR Products had no obligation pursuant subsection 387(e) to provide warnings to Mr Rayner about his unsatisfactory performance, I am satisfied that Mr Rayner had been notified of HR Product’s concerns about his unsatisfactory performance, and that he was given an opportunity to respond to those concerns at the time they were raised with him and subsequently.
What is the impact of the size of the respondent on procedures followed and the presence or absence of dedicated human resources management specialist/expertise on the procedures followed? (s.387(f) and s.387(g))
[114] Mr Olivieri gave evidence that HR Products is an organisation with around 93 employees across Australia, 23 of whom were employed in Western Australia at the time of Mr Rayner’s dismissal. 89 HR Products has no dedicated human resource management specialists or managers with expertise in human resources. Nevertheless, Mr Olivieri undertook a prompt investigation, during which he sought evidence from all available witnesses. He documented that evidence in writing, and provided copies of those notes to the relevant witnesses for them to confirm the accuracy of the notes shortly thereafter. In reaching a conclusion in the investigation, Mr Olivieri took into account a wide range of relevant circumstances and considerations. Mr Olivieri then provided the outcome of his investigation and his recommendation to the other directors for their input and review. I am satisfied that, despite HR Products having no dedicated human resource management specialists or managers with expertise in human resources, Mr Rayner was afforded procedural fairness.
Are there any other relevant matters? (s.387(h))
[115] Section 387(h) provides the FWC with a broad scope to consider any other matters it considers relevant.
[116] At the Hearing, Mr Rayner made a submission that his mental health, at the time of the incidents which led to his dismissal, was an extenuating circumstance which should be taken into account. Mr Rayner submitted that his employer should have realised he was having mental health issues, and stood him down until he obtained medical assistance. Mr Rayner conceded he did not inform his employer that he was suffering from mental health issues, other than mention he was feeling anxious at the meeting on the 17 August 2016, despite providing details of the various physical injuries he suffered. 90
[117] In fact, Mr Rayner conceded he didn’t start counselling until late December. 91
[118] Mr Rayner indicated that he had requested a report from his treating psychologist. However, the report was not available at the time of the Hearing, nor had it been available to HR Products at the time of the dismissal. Mr Rayner did not file any witness statements from his treating medical practitioners, nor did he call them to give oral evidence. 92
[119] I have considered the various other matters raised by Mr Rayner in his written and oral submissions. Many of these were irrelevant to the matters to be determined in this Application, involved incorrect application of legal principles, and/or were not supported by any evidence.
[120] There were no matters raised by Mr Rayner that I consider make the dismissal of Mr Rayner harsh, unjust or unreasonable.
[121] Notwithstanding Mr Rayner’s age and the depressed job market in Western Australia, I am satisfied that – in light of his work history, including his short period of service, his work performance, the fact that he was already on a final warning, and his aggressive and combative communication during the investigation – his dismissal was not harsh, unjust or unreasonable in the circumstances.
Conclusions
[122] Having considered each of the matters specified in s.387, including whether there are any other relevant matters which make Mr Rayner’s dismissal harsh, unjust or unreasonable, I am satisfied that the dismissal of Mr Rayner was not, in all the circumstances harsh, unjust or unreasonable. Accordingly, I find Mr Rayners dismissal was not unfair, and his application is dismissed.
[123] An order (PR591232) to this effect will be issued with this decision
DEPUTY PRESIDENT
Appearances:
D Rayner, Applicant.
R Greig of Greigs Safety and Employment Lawyers Pty Ltd for the Respondent.
Hearing details:
2017.
Perth:
March 3.
Final written submissions:
Applicant, 17 March 2017.
1 Exhibit R40 at [28]-[30].
2 Ibid at [7]-[9].
3 Exhibit R40 at [31]-[35]; Exhibit R39 at [10]-[16].
4 Exhibit R39 at [17]-[19].
5 Ibid at [20].
6 Exhibit R40 at [40]-[42].
7 Exhibit R34 at [10]-[20]; Exhibit R35 at [7]-[27]; Exhibit R40 at [16]-[20].
8 Exhibit R39 at [26]-[29].
9 Exhibit R34 at [24]-[33].
10 Exhibit R39 at [30]-[36]; Exhibit R40 at [43]-[48].
11 Exhibit R39 at [30]-[36], Exhibit R40 at [43]-[48].
12 Exhibit R40 at Attachment R3.
13 Ibid at [49]-[51].
14 Ibid at [53]-[65].
15 Exhibit R40 at [68]-[69]; Exhibit R39 at [37]-[42].
16 Exhibit R40 at [70]-[72]; Exhibit R39 at [43]-[44].
17 Exhibit R40 at [75].
18 Ibid at [76]-[79].
19 Ibid at Attachment R8.
20 Ibid at [80]-[81].
21 Ibid at Attachment R10.
22 Exhibit R39 at [71]-[78].
23 Exhibit R40 at [86].
24 Ibid at [89]-[95].
25 Ibid at Attachment R11.
26 Exhibit R40 at [96]-[99]; Exhibit R40 at Attachment R12.
27 Exhibit R34 at [34]-[38].
28 Ibid at [39]-[40].
29 Exhibit A1 at [1]-[5].
30 Ibid at [11].
31 Ibid at [13].
32 Exhibit R34 at [41]-[54].
33 Exhibit R34 at [55]-[57]; Exhibit A1 at [13].
34 Exhibit R34 at [58].
35 Exhibit R40 at [101]-[102].
36 Ibid at [103]-[105].
37 Exhibit A1 at [16].
38 Exhibit R40 at [107]-[109]; Exhibit R39 at [93]-[96].
39 Exhibit R34 at Attachment R17; Exhibit R39 at [99]-[100].
40 Exhibit R36 at [36]-[44]; Exhibit R37 at [57]-[58]; Exhibit R37 at [47]-[53]; Exhibit R40 at Attachments R18, R20 and R25.
41 Exhibit R37 at [48]-[54]; Exhibit R40 at Attachment R20.
42 Exhibit R36 at [12]-[32]; Exhibit R38 [18]-[46]; Exhibit R40 at Attachments R25 and R18.
43 Exhibit A1 at [20]; Exhibit R40 at [131]-[140].
44 Exhibit R40 at Attachment R30.
45 Ibid.
46 Ibid.
47 Ibid.
48 Exhibit R34 at Attachment 23.
49 Exhibit R34 at [65]; Exhibit R40 at [170]-[174].
50 Exhibit R34 at Attachment R29; Exhibit R40 at [175]-[176].
51 Exhibit R40 at [150]-[161].
52 Ibid at [162]-[166] and Attachment R11.
53 Ibid at [162]-[165].
54 Ibid at [164]-[167].
55 Ibid at [168]-[169].
56 Ibid at [177]-[178].
57 Exhibit A1 at [30]-[31].
58 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377-378.
59 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
60 Ibid.
61 Ibid.
62 Exhibit R40 at [164]-[167].
63 Exhibit A2 at [19].
64 Transcript at PN839–PN840 and PN846.
65 Transcript at PN977 and PN934– PN935.
66 Adami v Maison de Luxe Ltd (1924) 35 CLR 143 at 153-154.
67 Gleeson v Aurora Energy Pty Ltd[2010] FWA 2956; AWU-FIME Amalgamated Union v Queensland Alumina (1995) 62 IR 385; DP World Sydney Ltd v Stefan Lambley[2013] FWCFB 9230 at [45]-[46].
68 Transcript at PN191.
69 Transcript at PN697, PN720, PN734, PN736, PN873, PN876 and PN 879.
70 Exhibit R40 at [150]-[161].
71 Exhibit A2 at [22].
72 Exhibit R34 at [10]-[20]; Exhibit R35 at [7]-[27]; Exhibit R40 at Attachment R1.
73 Exhibit A2 at [15].
74 Chubb Security Australia Pty Ltd v Thomas (Print S2679) at [41].
75 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
76 Previsic v Australian Quarantine Inspection Services (Print Q3730).
77 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137.
78 Ibid at 151.
79 Transcript at PN115.
80 RMIT v Asher (2010) 194 IR 1, 14-15.
81 Transcript at PN119.
82 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
83 Exhibit R40 at [142 ] and Attachment R22.
84 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
85 Exhibit R39 at Attachment R2 and R4.
86 Exhibit R40 at [76]-[79], [80] and [94].
87 Ibid at Attachment R3, R8, R11.
88 Exhibit A2 at [25]-[26].
89 Exhibit R40 at [8].
90 Exhibit R12.
91 Transcript at PN57 and PN320.
92 Transcript at PN48-PN68 and PN1186.
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