Mr Ebi Shabani Pour v Star Track Express Pty Ltd
[2011] FWA 4634
•21 JULY 2011
[2011] FWA 4634 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ebi Shabani Pour
v
Star Track Express Pty Ltd
(U2011/5761)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 21 JULY 2011 |
Termination of employment.
[1] I heard this application in Sydney on 4 July 2011.
[2] Mr Pour was represented by Mr O’Sullivan of Counsel. Star Track Express Pty Ltd (Star Track) was represented by Mr Moir of Counsel.
[3] The facts of this application are not contentious. Mr Pour is 50 years of age. He was employed by Star Track from 8 July 1997 until the termination of his employment by letter dated 23 February 2011 effective the same date.
[4] Mr Pour’s misconduct was that he engaged in an instance of threatening conduct towards a fellow employee whilst in a disciplinary meeting which had been called to discuss that particular employee’s misconduct towards Mr Pour. Mr Pour did not deny the misconduct alleged against him. He admitted the conduct and expressed contrition prior to termination of his employment and afterwards.
[5] In addition to Mr Pour’s ordinary duties as a supervisor he was responsible for monitoring employee compliance with Star Track’s Safe Roads policy. This policy is a very important occupational health and safety policy designed to avoid forklift and other machinery contact with pedestrians at the workplace.
[6] Mr Pour’s description of his duties pursuant to that policy is set out below:
“8. ------I was required to walk around the premises, observe any breaches of the policy and address these breaches by discussing the behaviour with the person involved or reporting the incident. I was required to produce a weekly report on my observations and provide it to the safety manager/coordinator. The policy also involved observing positive safe behaviour and encouraging employees to abide by the safety procedures.” 1
[7] In the course of performing this duty Mr Pour had cause to speak to a Mr Andrew Lowe. Mr Pour’s interaction with Mr Lowe on that occasion and over a number of subsequent days, the substance of which is not disputed, is set out below:
“9. On about 14 February 2011 at approximately 2.30-3.00 pm, I was walking back to my office when I observed an employee, Mr Andrew Lowe, breaching the "Safe Roads" policy. Mr Lowe was walking approximately 2-3 metres away from the marked pathway and failing to use the appropriate walkway.
I approached Mr Lowe and said words to the effect of: "Would you use the marked walkway, it's the safest way of crossing."
Mr Lowe responded "Fuck off."
10. I said to Mr Lowe "Can you be polite when talking to me. Can I ask what is your name."
I was required to ask Mr Lowe for his name in order to carry out my responsibility of reporting breaches of the "Safe Roads" policy.
Mr Lowe responded by telling me to "Fuck off."
He continued by saying words to the effect of "None of the fucking managers are using the walkways so why should I use it."
At this time, I did not see any point in continuing the conversation with Mr Lowe as he was speaking to me in a very disrespectful and aggressive manner. I walked away from Mr Lowe and asked a freight handler working in the area to provide me with Mr Lowe's name.
11. At approximately 5.00 pm that day, I was leaving work to go home. I was walking past Mr Lowe when he began swearing obscenities at me. He repeatedly told me to "Fuck off" and called me a "Traffic cop". He made a number of other aggressive and inappropriate remarks as I left and telling me to "Fuck off." He was muttering comments and obscenities towards me in a rude and threatening way. I was extremely distressed by his behaviour and felt intimidated by his comments.
12. On 15 February 2011 Mr Lowe repeatedly made abusive and aggressive comments towards me throughout the day. Mr Lowe's work station is located between lane 30-35 in the depot. I had to walk through this section in order to get to and from my office and work station. On each occasion that I walked past this section and Mr Lowe was present, I heard him mutter comments such as "Fuck off" and “Stupid asshole”. This made me feel extremely apprehensive about going to and from my office. I felt intimidated by Mr Lowe's language and tone and did not want to be subjected to that behaviour.
13. At approximately 5.00 pm that day, I was again leaving work when Mr Lowe yelled obscenities towards me. He again used words such as "Fuck off" and muttered hostile comments about me. He was calling me a “Traffic cop” and “Asshole.” I was frustrated and upset that he was again acting in a very aggressive manner towards me. I felt that he was terrorising me for merely carrying out my responsibilities in respect of the Safe Roads policy. He was using a threatening tone and said words to the effect of "Fuck off".
14. On 16 February 2011 incidents similar to the previous two days occurred. Whenever I walked past his section to go to and from my office, Mr Lowe yelled obscenities and aggressive comments at me. He made comments such as “You are policing us.” Mr Lowe again began swearing at me when I walked past him on my way home. Mr Lowe yelled abusive comments towards me and called me names such as "Traffic cop" and “Fucking asshole.” He repeatedly told me to "Fuck off." Mr Lowe was extremely abusive and aggressive in his behaviour.
15. At this point, it had been a total of three days that I was subjected to this aggressive behaviour from Mr Lowe. He had repeatedly told me to "Fuck off" and commented that I was a "Traffic cop" and "Stupid asshole". I felt intimidated by his aggressive behaviour and felt concerned for my safety at work. I felt like I was being terrorised by Mr Lowe through his constant abuse. I decided to approach my manager the following day.
I said words to the effect of "I'm going to report this to my manger tomorrow."
Mr Lowe replied words to the effect of "I have union support behind me, you can't do anything. Go and report it to management. They can't touch me."
16. On 17 February 2011 I approached my manager, Steve Dickens.
I said to Mr Dickens words to the effect of: "What would be company policy if someone has been abusing you for 3 days."
Mr Dickens replied words to the effect of "Who has been abused."
I explained what had occurred over the past three days. I told Mr Dickens that I have felt terrorised by Mr Lowe for the past three days. Mr Dickens advised me that I would have to talk to the afternoon manager, Roger Azzopardi.
17. At approximately 4.00 pm that day, I attended a meeting with Mr Azzopardi and explained what had happened over the last three days.
I said words to the effect of “I have been verbally abused and insulted by Mr Lowe and I have been terrorised by him the last 3 days. I need you to talk to Mr Lowe. I cannot be abused or insulted by him anymore. I cannot take it anymore.”
He said words to the effect of "Lets go and talk to Douglas Hannan."
We went to see Mr Hannan and he arranged a meeting with Mr Lowe at 5.00 pm.” 2
[8] According to Mr Pour’s account of the meeting on 17 February 2011 Mr Lowe’s conduct towards him did not improve. Mr Pour’s account was not disputed in any relevant respect. The conduct of the two Transport Workers Union (TWU) delegates in attendance at the meeting was also highly unsatisfactory.
[9] After Mr Pour had outlined Mr Lowe’s conduct towards him the following undisputed exchange took place:
“19. Mr Hannan then stated words to the effect of "Is this true Mr Lowe."
Mr Lowe then responded words to the effect of "Yes, on several occasions I told him to "Fuck off" and I said that they are policing us and called him a "Traffic cop."
Mr Lowe then asked why I had asked for his name and ID on 14 February 2011.
I said words to the effect of "I was just doing my job in regards to Safe Road observations."
Mr Hackett then stated words to the effect of "What the fuck is this "Safe Roads" about?"
I said words to the effect of "Everyone knows about it. This program has been going on for 3 years. I was just doing my job."
Mr Hackett responded words to the effect of "None of the fucking managers have told us about this program and we don't know about it. You are policing us and spying on us. We will tell all the handlers to start spying on you from tomorrow."
Mr Andre then stated words to the effect of "Fucking management is not communicating with us. Fucking managers."
Mr Hackett then said words to the effect of “I want a copy of the Safe Road report. From tomorrow we will ask freight handlers to do the same with management to see if management are following the rules."
Mr Hackett continued with words to the effect of "He [Mr Lowe] didn't do anything wrong. He shouldn't have to use the walkway. Ebi should not have approached him and bothered Andrew to use them."
Mr Hannan responded words to the effect of "This has been company policy for 3 years and we have done advertising through newsletters and safety tool box meetings so you should know about it."
Mr Hackett replied words to the effect of "We don't know anything about the fucking program, we haven't heard of it. We have been watched by management and we didn't know about it."
20. The Safe Road program was discussed for about 25-30 minutes. Mr Lowe's inappropriate and aggressive behaviour was not addressed. In the course of the meeting, management did not stand up for me when the union delegates stated that I should not have bothered Mr Lowe. I felt that I was being attacked by Mr Hackett and Mr Andre every time they abused management. They were placing the blame on me rather than Mr Lowe and his abusive and terrorising behaviour.
21. Throughout the meeting Mr Lowe was constantly making faces and smiling at me every time I spoke. I felt that my life would be hell from tomorrow if I didn’t stand up for myself as Mr Lowe would continue abusing and insulting me and he had the support of the two union delegates. I felt that no-one was supporting me. I felt that the delegates were supporting Mr Lowe's abusive behaviour towards me over the last three days. Mr Lowe was continually making fun of me and provoking me with his behaviour. I became extremely frustrated, angry, stressed and confused as to why no-one was supporting me in the meeting. I felt defenceless.” 3
[10] Mr Pour’s conduct arose as follows:
“22. Due to the constant harassment and intimidating behaviour, I lost control and in the heat of the moment I made a statement that I knew I would never act upon.
I said words to the effect of "I was just trying to do my job. I have been polite with you and everyone else. I spoke to people with respect and expected the same from people. If you swear at me one more time I will punch you in the face and will fuck you."
Mr Lowe and the two union delegates stood up and went to walk out of the meeting.
Mr Hannan said words to the effect of "Please come back and sit down. I know Ebi and he is not that sort of character. Please let him explain. I’m sure he didn't mean it."
This was the first time in the meeting that I felt I was receiving some support. Mr Lowe and the two delegates did not accept Mr Hannan’s comments and left the meeting.
23. After Mr Lowe and the two delegates left the office, Mr Hannan said words to the effect of "You shouldn't have said that. They will use that against you. Stay here, I’ll be back in a few minutes."
Mr Hannan left the room and after about 5 or 10 minutes he returned with Mr Azzopardi and Mr Dickens.
Mr Azzopardi said words to the effect of “You should not have said that Ebi. ------” 4
[11] There are a number of things to say about the background to Mr Pour’s misconduct. Firstly, Mr Pour was offended, upset and provoked by the continuously offensive and impertinent conduct of Mr Lowe prior to the meeting of 17 February 2011. He told Mr Azzopardi that he could not take it any more. Mr Pour was Mr Lowe’s supervisor in relation to implementation and compliance with the Safe Roads policy. Mr Lowe had an obligation to follow the policy and do as he was told. Mr Lowe was not entitled to swear at Mr Pour, or to pursue him and bully him, which I find that he did over a number of days.
[12] Secondly, Mr Pour, who was in a vulnerable state, was further provoked by Mr Lowe’s derogatory and humiliating conduct, and the aggressive and inappropriate conduct of the two TWU delegates, at the meeting of 17 February 2011.
[13] The conduct of the TWU delegates at the meeting was entirely unsatisfactory. It was inappropriate in relation to Mr Pour and also the manager conducting the meeting. The delegates and Mr Lowe incited Mr Pour’s inappropriate response at the meeting. Robust language is not in all circumstances a subject for criticism. However, not only was the delegate’s language abusive, but their attitude was inappropriately aggressive towards a supervisor who was enforcing a policy implemented for the benefit of all employees including other members. This is hard to understand. Compliance with the Safe Roads policy can only prevent employees from suffering serious injury. The TWU delegate’s opposition to that policy and support for Mr Lowe’s failure to abide by it is incomprehensible. It is incompatible with their obligations to their membership at large and also to Mr Lowe.
[14] I find that the TWU delegates engaged in bullying conduct at the meeting of 17 February 2011. Instead of dealing with their member’s breach of policy they sought to divert attention from his failure by berating and attempting to bully Star Track management and Mr Pour. In respect of Mr Pour they succeeded. They and Mr Lowe provoked an otherwise polite, civilised and admirable man with an exemplary employment record to behave in an entirely uncharacteristic and inappropriate manner.
[15] When Mr Hannan said “Please come back and sit down. I know Ebi and he is not that sort of character. Please let him explain. I’m sure he didn’t mean it” he was trying to get Mr Lowe and the delegates to return to the meeting and deal with the issue properly. They refused. Mr Hannan was also accurately representing Mr Pour’s true character and usual conduct.
[16] This circumstance demonstrated a complete dereliction of the TWU delegate’s obligations in relation to the policy and I find that their course of conduct amounted to bullying and a misuse of influence from which they should refrain in the future.
[17] To return to Mr Pour’s conduct. Mr Pour’s conduct in threatening Mr Lowe was misconduct. It was a valid reason for the termination of his employment.
[18] I have considered the criteria specified by s387 of the Fair Work Act (the Act) for consideration by the Tribunal when it is determining whether or not a termination of employment has been harsh, unjust or unreasonable. I have determined that the termination of Mr Pour was harsh, unjust or unreasonable.
[19] The issues to which I gave weight in my determination of this issue were:
- Mr Pour’s emotional state at commencement of the meeting. He had already told management that he could not take it any more;
- The uncharacteristic nature of Mr Pour’s conduct confirmed by Mr Azzopardi;
- Mr Pour’s remorse;
- The unlikelihood of any reoccurance;
- Mr Pour’s lengthy period of employment;
- Mr Pour’s exemplary employment record;
- The extreme provocation to Mr Pour by Mr Lowe’s persistent refusal to take direction and offensive disputation;
- The extreme provocation to Mr Pour by Mr Lowe and the TWU delegates in the course of the meeting of 17 February 2011 called to deal with Mr Lowe’s conduct, and
- The disastrous financial and social consequences of termination of employment for Mr Pour arising from misconduct which was both uncharacteristic and provoked.
[20] I will allow the parties 21 days to confer and attempt to agree on a mutually acceptable remedy.
[21] I will relist the matter should the parties require assistance.
SENIOR DEPUTY PRESIDENT
1 Exhibit Pour 1 para 8
2 Exhibit Pour 8 paras 9 - 17
3 Exhibit Pour 8 paras 19 - 21
4 Exhibit Pour 8 paras 22 - 23
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