Mr Duilio Cutrali v Chubb Security Services Limited
[2010] FWA 5156
•14 JULY 2010
[2010] FWA 5156 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Duilio Cutrali
v
Chubb Security Services Limited
(U2010/6410)
DEPUTY PRESIDENT MCCARTHY | PERTH, 14 JULY 2010 |
Termination of employment - violent behaviour - self defence.
Background
[1] Mr Duilio Cutrali (the Applicant) was employed by Chubb Security Services Limited (the Respondent) as an Armoured Vehicle Officer (AVO). The AVOs work in pairs or in threes driving and attending to the collection and delivery of cash. The Applicant’s employment was terminated on 25 February 2010 following an incident at the beginning of his shift on 16 February 2010 in the loading bay area.
[2] On 16 February 2010 there were five vehicles parked in the loading bay being prepared. The loading bay is a secure room where armoured vehicles are parked and prepared before they are driven out for the work of the day. There were 11 AVOs in the loading bay area at various stages of preparation for departure. They were at various locations, some in their vehicles, some near their vehicles and some walking to or from their vehicles. Each was armed with a live firearm.
[3] The incident involved a scuffle between the Applicant and another AVO, Mr David Digby (Digby). A verbal exchange took place between Digby and the Applicant in the loading bay which led to the scuffle. During that exchange the Applicant pushed Digby away. He shortly afterwards grabbed Digby by the throat and forced him against a vehicle whist holding him by the throat.
[4] The incident was captured by CCTV which was tendered and analysed in the proceedings. There were numerous replays of the CCTV during the proceedings. There was no audio recording of the incident.
[5] The Respondent conducted an inquiry into the incident. Following the completion of that inquiry the Respondent terminated the employment of the Applicant and Digby.
[6] The Applicant contends that his actions were in self defence. He says he believed he was about to be assaulted by Digby. The Respondent did not, and does not, accept that explanation. I note at this juncture that I must make findings regarding Digby’s behaviour as part of the process of making findings about the Applicant’s conduct. However this application is not dealing with the termination of Digby’s employment and any inferences from any findings or observations that I make are not findings in respect of the termination of Digby’s employment.
Circumstances
[7] The Respondent employs about 33 AVOs. About 28 of those are members of the Transport Workers’ Union of Australia (TWU). The terms and conditions of employment terms of the AVOs are governed by an agreement negotiated by the TWU. The term of the agreement expired in December 2009. Since the expiration of the term of the agreement the TWU has been negotiating with the Respondent for a replacement agreement. Employees have also undertaken various forms of protected industrial action. During that protected industrial action AVOs who are not members of the TWU, including Digby and Sam Soltani (Soltani), continued to work. Those AVOs who worked earned more than they usually would have through working more hours.
[8] These circumstances caused angst among employees. Employees who did not take part in the protected industrial action (non-participating employees) are alleged to have been provocative to those that did take part in the industrial action (participating employees). The participating employees are alleged to have ostracised the non-participating employees. The Applicant was also alleged to have encouraged non-participating employees not to work during the protected industrial action.
[9] It is not necessary nor appropriate that I make findings on the various allegations about the participating employees’ behaviour nor of the non-participating employees. One of the reasons for outlining these matters is that it illustrates the environment at the time of the incident that led to the Applicant’s termination of employment and also what probably caused Digby to make comments to the Applicant that was one of the catalysts for what followed. What is clear is that the environment at the time of the incident was such that there were strong tensions between participating and non-participating employees.
[10] An Inquiry into the incident was undertaken immediately after it had occurred by Mr Grant Narbey (Narbey), the Security and Compliance Manager for the Respondent. Narbey has worked for the Respondent for 15 years. He has been the Security and Compliance Manager for three years. Prior to his employment with the Respondent Narbey had extensive experience of carrying out investigations as a member of the New Zealand Police for 18 years. He held the rank of Senior Sergeant. During his police career he had worked as an investigating detective and as a prosecutor.
[11] Narbey interviewed people in the vicinity of the incident on the day of the incident and the following day. Mr Peter Lindsay (Lindsay), an AVO at the scene for the entirety of the incident, was not interviewed but provided a written statement.
[12] The procedure Narbey adopted was to have a discussion with each of those involved. During that discussion he took handwritten notes. He photocopied those notes and provided them to the person who had been interviewed. Those notes were also typed up.
Evidence
The Lead up
[13] Prior to the scuffle Soltani had greeted the Applicant. The Applicant looked to Soltani and did not respond. The Applicant says that Soltani again came up to him and said, “Good Morning.” The Applicant then spoke to Soltani and told him not to speak to him. The Applicant then walked away between two trucks on the driver’s side of that vehicle. One of the vehicles he walked between was Digby’s. Digby was the assigned driver for that truck on that day.
[14] Digby had been observing the interchange and after it had occurred got into his truck. Digby’s door was part open when the Applicant walked past his truck after his discussion with Soltani. Digby made a comment, apparently to the effect that the Applicant should not bully Soltani. The Applicant says he did not actually hear what Digby said but that it was loud, aggressive and he was swearing at him.
[15] Digby was in the act of closing his door when he made the comments and then shut the vehicle door. The Applicant was by this time at the rear of the two vehicles he had walked between. From near the rear of Digby’s vehicle the Applicant said in a voice, obviously loud enough for Digby to hear, that if Digby had something to say to him he should get out of his vehicle and say it.
The Initial Shove by the Applicant
[16] Digby then got out of his vehicle, walked towards the Applicant and an exchange occurred. Digby came very close to the Applicant and his face was extremely close to the Applicant’s face. Digby is a taller man than the Applicant and was looking down at him and clearly “in the Applicant’s face.” The Applicant pushed Digby in the chest causing Digby to take a few steps backwards.
Findings to the point of the Initial Shove
[17] There is no real conflict in the main elements of the evidence to this juncture. Both the Applicant and Digby also agree that their actions to that juncture were not appropriate. Digby should have minded his own business and if he had a complaint about the Applicant’s behaviour he should have taken it to management. Digby had previously made a written complaint about the Applicant to the Respondent’s management in late December. In December Digby asserted that the Applicant had endeavoured to improperly influence him over working during the industrial action.
[18] I do not consider that the actions of the Applicant to this juncture were a valid reason for the Applicant’s termination of employment. The conduct of the Applicant was inappropriate but I do not consider that his pushing Digby away was misconduct. Digby had clearly stepped towards the Applicant and was extremely close to him. Whilst it would have been better for the Applicant to turn his back and walked away, the act of pushing was not an overly aggressive response to the actions of Digby.
The Grabbing of Digby’s throat by the Applicant
[19] It is what occurred after the initial push or shove by the Applicant that the contentions differ significantly. The Applicant says that Digby took a number of steps towards him. The Applicant says that he believed that Digby was about to assault him and therefore he grabbed him by the throat. He forced Digby back a few steps and momentarily held him up against a vehicle. Digby says that he did step back towards the Applicant but that he was not in his face again and that he had no intention of assaulting the Applicant.
[20] The Respondent says that in their view the movement of Digby was to regain his footing and his balance and any steps he took forward were in that context. They argue that the Applicant was never under any physical threat and that there was no justification in his grabbing Digby by the throat and forcing him up against the vehicle. They also argue that the force the Applicant used was significant and greater than what was necessary if he did feel under threat.
Immediately after the incident
[21] Immediately after the incident it appears that Digby wanted to carry on with the altercation at least verbally. The Applicant seemed unconcerned about any further contact as he was looking for something that had fallen to the ground during the incident.
[22] I do not consider the conduct of Digby after the Applicant released his hold is indicative of what led to the incident and what occurred.
Evidence about the incident
[23] The central issue is whether the second part of the incident, namely the grabbing of Digby by the throat and pushing him up against the vehicle, was an assault on Digby and if it was, was it an act of self defence?
The Applicant’s evidence
[24] The Applicant’s written statement asserted that Digby had said “something smart” (to the Applicant). He claimed he had not heard what was said but Digby started yelling and screaming in his face. The Applicant claimed he had just said “go away.” He stated that Digby was right in his face and he pushed him away.
[25] In his verbal evidence the Applicant says that when he walked past Digby’s van that Digby was swearing and was aggressive but that he didn’t get a clear grasp of what he’d said. He claimed it was abuse.
[26] The Applicant asserts that then Digby came back at him and he thought that Digby was going to grab him or attack him. He stated that he grabbed Digby and pushed him against the truck.
[27] He described the reasons for his actions variously as:
(i) He was defending himself from a threatening action;
(ii) He believed his physical safety was being put at risk; and
(iii) He was defending himself from the threat of a physical attack.
[28] He stated that Digby:
(i) Was behaving in a threatening manner;
(ii) Had used the most insulting personal abuse he had heard in 11 years with the Respondent; and
(iii) The insults were of a racist and personal nature.
[29] The Applicant stated that he used reasonable force until Digby stopped behaving in a threatening manner.
[30] The Applicant also stated that he believed Digby had constructed the incident to provoke a reaction from him and that the motivation for Digby to do so was because of his role as the shop steward involved in negotiating an enterprise agreement.
Digby’s Evidence
[31] Digby gives a different account of the incident. He says that when the Applicant walked past his truck he said something along the lines of, “you guys are nothing but a bunch of f...n bullies.” He says the Applicant invited him to “step out of the truck and say that” and he did. Digby asserts that he was not agitated when he got out of the truck. He says he did not yell at the Applicant but rather had been quite firm and that he was not angry.
[32] Digby acknowledged he swore at the Applicant calling the union members “f...n bullies and thugs.” He also recalls making comment about “is that all you’ve got” and making comment that the CCTV was there.
[33] Digby says that the Applicant then said to Digby that, “he couldn’t run away quickly enough” in December. Digby then got much closer to the Applicant’s face.
[34] The Applicant then pushed him away. Digby says he then stated to the Applicant that he had just assaulted him. He says he stepped back towards the Applicant as a reaction to being pushed but that he had no intention of touching him. He admits that momentarily he had a clenched fist. The Applicant then had him against the truck with a hand around his neck.
[35] Digby stated that he did not retaliate at any time. Digby said that he did say repeatedly to the Applicant something like “is that all you’ve got.” He also said, but it is not clear at which point, that the Applicant had assaulted him and that it was all on CCTV.
[36] Digby stated that he felt choked and became breathless with the force used. In the days that followed he realised how hard he had hit the truck. He was bruised around the neck and he received treatment for it.
Peter Lindsay’s Evidence
[37] Lindsay initially stated that he was not asked by Narbey for an interview. When challenged he then said he did not recall but he might have been asked. I accept Narbey’s account that he rang Lindsay on the following day and requested that he be interviewed but Lindsay told Narbey he did not want to be interviewed but would provide a statement.
[38] Lindsay stated that after the initial shove that Digby came back at the Applicant again and it looked to him like Digby was about to headbutt the Applicant. The CCTV does not indicate that there should have been any concerns about a headbutt risk to the Applicant and no-one, including the Applicant, made any claims about there being that potential. Indeed to me, if there was a risk of that occurring, then it was just prior to the initial shove rather than later just before the Applicant grabbed Digby by the throat. Lindsay asserted he thought there was a risk of the Applicant being headbutted at that later juncture. The CCTV however shows that Digby at that point was in no position to headbutt.
[39] Lindsay also asserts that in the immediate aftermath of the incident that Digby called the Applicant “a wog.” There was also no reference in any of the interviews undertaken by Narbey and Narbey stated that no-one did make mention of it. He maintained that he had heard the racial slur by Digby. The Applicant also asserts that Digby called him a wog. I do not accept the evidence of either the Applicant or Lindsay on this point. I consider it most unlikely that no-one other than the Applicant and Lindsay heard the slur nor did they mention it in their interview with Narbey. Further, it is improbable that Digby, having taken the action of criticising the treatment of Soltani, would then make a racially derogatory remark to someone with a surname of apparent similar Mediterranean origins. The issue by itself is not of significance especially as it is asserted to have occurred after the main events.
[40] Lindsay also told Narbey, after he had provided him with his statement, that he would do whatever he could to assist the Applicant.
[41] Lindsay had been a policeman for 15 years reaching the rank of Acting Sergeant. Therefore I expected him to be confident and clear in giving evidence. However his demeanour appeared to me to be anything but confident. I usually do not have strong regard to demeanour as a reliable indicator of credibility as witnesses often appear to me to be nervous about giving evidence probably because of the lack of familiarity with court type surroundings. I was on this occasion influenced somewhat Lindsay’s poor demeanour.
[42] Each of these issues by themselves are not important but they were influential in me assessing Lindsay’s evidence. Indeed he appeared to me to have been the least convincing of any witness.
Robert Salter’s Evidence
[43] Mr Salter (Salter) has been employed as an AVO for 28 years. Mr Millman, solicitor for the Applicant, says I should accept Salter’s evidence in totality as there was little cross examination of him. Salter said he had no problems working with Digby and neither did he have any problems working with the Applicant.
[44] There were two aspects of his evidence I mention. Firstly he did not, as other witnesses for the Applicant did, endeavour to portray Digby as an aggressive person. Secondly and most importantly he did not think that the situation would develop anything beyond a verbal altercation. Salter was there the whole time and I gave preference to his opinion to that of Lindsay.
The Evidence for the Applicant
[45] I was concerned throughout these proceedings with what I consider to have been exaggerations and unreliable, if not convenient, memories of the Applicant’s witnesses.
[46] There was a consistent theme of endeavouring to portray Digby as an aggressive man. The incidents used to rely on that portrayal were mainly second hand accounts. Furthermore they were scant on detail, trivial in effect and not of recent occurrence. I do not accept the portrayal of Digby as an aggressive person.
[47] Secondly, the Applicant’s witnesses had memory lapses about whether the Applicant had said anything during the verbal interchange between the two despite the Applicant stating that he told him three or four times very aggressively to go away. To me the Applicant’s witnesses, by their forgetfulness, were trying to portray the verbal interchange as a one way affair when clearly it was not. The CCTV clearly shows the Applicant actively involved in the discussion and obviously pointing to the location where a previous verbal altercation had taken place some weeks beforehand.
[48] Thirdly, the Applicant’s witnesses endeavoured to establish that there had been a history of incidents of physical altercations between employees that had not resulted in the Respondent taking similar action to this incident. However the history related to few incidents, the circumstances of which were unclear and had occurred some time ago under different ownership. I do not accept that the Respondent has tolerated similar behaviour in other incidents.
[49] Fourthly, witnesses for the Applicant tried to establish that there had been significant misbehaviour in the form of provocation or goading by non-participating employees, including Digby, about the industrial action. There was no pattern of conduct by anyone established regarding those allegations. Nor was there any evidence of any co-ordination of any effort by the non-participating employees in that regard. The incidents that were referred to also appear to me to have been minor and occasional. The Applicant’s witnesses also appeared to be oblivious to there being anything improper about their own demonstrative collective contempt towards non-participating employees and efforts to ostracise them.
[50] The Applicant also sought to portray the Respondent as having a history of tolerance of physical altercations. Todd Wilson’s (Wilson) evidence in this aspect was indicative of the evidence presented by the Applicant. I found Wilson’s evidence to be evasive and exaggerated. He exaggerated the number of times there had been physical altercations in the workplace. He claimed there were many but when challenged he knew of only two. He was questioned about whether one of those incidents was reported to management or not but he refused to say whether he knew or repeatedly stated he was not sure. It was a simple question and deserved a simple honest answer. His evidence was indicative to me of an approach taken by most of the Applicant’s witnesses of embellishment and exaggeration.
[51] There are also differing accounts of what was said in the lead up to the grabbing of Digby by the throat. Strangely most witnesses that were present did not remember hearing the Applicant say anything provocative during the incident yet can remember much of what Digby said. Salter could not remember if the Applicant said anything at all. Mr Jamie Baker (Baker) did say had heard the Applicant tell Digby three or four times to “get out of my [the Applicant’s] face.” Baker had also said that Digby had “just jumped out and got in his face and started giving him [the Applicant] a spray” not mentioning that the Applicant had invited Digby out of his van. This is not a fair and accurate description by Baker of what led up to the incident.
Credibility of Applicant
[52] Much of this matter is reliant on accepting the Applicant’s version that he thought he was about to be assaulted by Digby.
[53] Whilst the CCTV was of strong assistance it did not have volume and was not conclusive. The CCTV does clearly show that the Applicant did assault Digby. It does not clearly showexactly what force was used but it does show to my satisfaction that the force was substantial and substantial enough to rock the vehicle that Digby was pushed against.
[54] The Applicant endeavoured to portray Soltani as someone who had “a history of lying to him.” That belief appears to have been based on Soltani indicating he wished to join the union but didn’t join. Soltani explained that as he felt he had been ostracised he decided not to join. This appears to be the basis of the Applicant forming a view and having no hesitation in describing Soltani as a person that had a history of lying. Rather than assisting the Applicant as having a fair and balanced approach to matters it undermined his credibility in my eyes.
[55] The Applicant also endeavoured to portray the incident as a setup up to provoke a reaction from him. If it was a setup Digby would not have closed the door of his vehicle. It was only Digby’s reaction to the Applicant’s invitation, if not demand, to get out of his truck that led to the escalation of the incident from a remark to the Applicant to a confrontation. The Applicant also appeared at one juncture to infer that Digby and Soltani had collaborated in the setup. The evidence does not support the Applicant’s view of there being a setup by Digby or anyone else.
[56] Digby’s first action was to walk towards the Applicant with an open hand and arms gesture and not, in my view, with a threatening disposition. It was after this and after the Applicant had pointed towards the area where an incident had occurred in December that Digby got close to the Applicant’s face. The degree of provocation was not solely on Digby’s part at all but equally on the Applicant’s part.
[57] The Applicant also suggested, along with other witnesses to give evidence for him, that Digby had a history of aggressive incidents. The Applicant endeavoured to portray Digby variously as “a nervous type”, “aggressive”, “abusive”, “discourteous” and “antagonistic” including against the public. The examples provided however were generally old, of little seriousness and mainly innuendo and rumour. I do not accept any evidence or inferences about Digby’s history to support the contention that he had a history of aggressive or abusive behaviour. Indeed the only incident that was credible was an endeavour by the Applicant to intimidate Digby some weeks beforehand to not take part in the industrial action. Digby asserted that the Applicant had said, “you better not be f...n’ working next week or there will be repercussions.” Digby to his credit reported the incident to the Respondent. The Respondent to their discredit took no action because of concerns about inflaming the industrial situation.
[58] The Applicant’s main contention is that he felt that he was threatened by Digby and thought he was about to be assaulted. This seems to be counter to his evidence that if Digby wanted to say something to him he should have said it before slamming the door shut. The Applicant seems to be inferring that Digby had made his comments after shutting the door. This does not appear to be the way it happened. The CCTV seems to show that Digby made the comments as he was shutting the door and not after he had shut it. This is not important in itself but is indicative to me that the Applicant was as concerned about Digby as he contends and any capacity for him to be a physical threat to him.
[59] The Applicant did not consider taking a step back to avoid the confrontation. Having pushed Digby away it does not seem to me that the Applicant made any endeavour to avoid any further confrontation. He could easily at that point have walked away, whether or not he turned around. Baker was there and even if the Applicant had turned his back he could have been reasonably confident that Baker would have impeded Digby. Baker is young man who appeared to be a much taller man than any of those present and also of a strong build. The Applicant’s contention that he did not step back because there may have been a forklift parked there seemed a convenient but implausible explanation to me. Rather his statement that he is not a person who takes a step backwards was more accurate.
Existence of a threat
[60] I find that the Applicant was not acting in self defence when he grabbed Digby by the throat. I do not consider that there were any reasonable grounds for him to have that belief. Rather, I consider that the Applicant was endeavouring to intimidate Digby. He had previously endeavoured to intimidate Digby. Even if there had been a threat to the Applicant it did not continue beyond his pushing of Digby away. He should have left it there and walked away then.
[61] The evidence of Salter was that he “thought it was just going to be like a verbal dispute and it was going to finish at that and it didn’t in the end...” Whilst he stated that Digby should have minded his own business he was surprised at how it developed. That is not consistent with there being a threat to the Applicant of such a nature that he should have reacted physically in the way that he did.
[62] I do not consider the evidence establishes that he had grounds to feel under physical threat.
The degree of force in the incident
[63] The degree of force in the scuffle was substantial. Digby was a taller man than the Applicant. However the Applicant appears to me, from his appearance during his evidence and from the effect of the force he exerted during the scuffle, to be a quite strong man. I certainly think he is a much stronger man than the Applicant. The initial shove obviously forced Digby a few steps back and it seemed to me to have forced Digby back without major effort by the Applicant. I prefer the evidence of Digby and Soltani regarding the degree of force used over that of the Applicant and other witnesses.
[64] I have mentioned above my view of Lindsay’s evidence. I prefer the evidence of Digby to that of Lindsay. I also prefer the evidence of Soltani and Digby to that of Lindsay. Consequently I do not accept Lindsay’s version about the level of force applied by the Applicant and nor do I accept his view that the Applicant was acting in self defence.
[65] The evidence of Soltani and Digby confirms to me that the force used was substantial and I consider it to have been excessive for the situation that the Applicant says he believed existed. Even if the Applicant was under any threat, in my view it was not to the degree that it was appropriate or reasonable to grab Digby by the throat and force him against the vehicle. Mr Millman says that the whole thing only took eight or so seconds and that is indicative of it being not overly forceful and in self defence in any event. His argument being that had it been a series of blows or of longer duration then it would have been more serious and as it was not it was more indicative that it was self defence. I do not accept that argument. One action, such as grabbing someone by the throat, in my view, can be an assault just as much as one blow can. Indeed eight seconds might be quite an extended time compared to some other assaults.
[66] The force the Applicant exerted was substantial and in my view greater than what was necessary, even if he did feel threatened.
Alternatives to taking the action he did
[67] I find that the Applicant did have alternatives to his actions. He could have walked away. He could have again pushed Digby away or he could have sought the intervention or assistance of his colleagues to restrain Digby.
Findings regarding violence and self defence
[68] For these reasons I find that:
(i) The conduct of the Applicant was a violent act; and
(ii) That the violent act was not justifiable or excusable by reason that the Applicant was acting in self defence or had reasonable grounds acting in self defence.
Considerations
Valid reason for termination
[69] The Applicant thus did commit an act of misconduct in his altercation with Digby. The nature of the conduct was such that it was not a disproportionate response to terminate his employment, even though it was one incident and the Applicant had had long service with the Respondent and previous owners of the business. Nor do I consider that the Respondent has approached previous incidents in a different manner. I do not accept the Applicant’s submission that some of the managers and the Respondent took an opportunity to terminate the employment of an active union member and that the decision would have been different but for the union activities.
[70] I find that there was valid reason for termination.
[71] I also find that the Applicant was informed of the reason for his termination of employment and had the opportunity to respond. The Respondent has human resource specialists employed and those specialists had a role in the decision that the Respondent took.
[72] I agree with the Respondent that the nature of the conduct should be considered in the context of a number of employees carrying firearms when the incident occurred. Just as important as the presence of firearms is the need for the Respondent to have confidence that people who carry firearms will be controlled in their behaviours and responses to incidents.
Conclusion
[73] The Applicant had almost 12 years of service and there is no evidence of any conduct or performance issues in that period. However given the nature of the reasons for his termination I do not consider that it was harsh. Nor do I consider that it was unreasonable. I also consider that it was just, given the nature of the Respondent’s operations and the responsibility the AVOs have.
[74] The application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr S Millman for the Applicant.
Mr J Blackburn for the Respondent.
Hearing details:
2010.
Perth:
June 22, 23, 24 & 29.
Decision Summary
TERMINATION OF EMPLOYMENT – misconduct – assault – verbal abuse - whether self defence - s394 Fair Work Act 2009 – applicant terminated for alleged misconduct - satisfied that conduct of applicant was a violent act – violence was not justifiable as ‘self defence’ – termination not disproportionate even though relevant conduct was one incident in context of long service with company – valid reason – not harsh, unjust or unreasonable – application dismissed. | ||||
Cutrali v Chubb Security Services Ltd | ||||
U2010/6410 | [2010] FWA 5156 | |||
McCarthy DP | Perth | 14 July 2010 | ||
Citation: Cutrali v Chubb Security Services Ltd [2010] FWA 5156 (14 July 2010) | ||||
Printed by authority of the Commonwealth Government Printer
<Price code C, PR999223>
0
0