Mr Francis Hughes v BlueScope Steel (AIS) Pty Ltd
[2022] FWC 4
•20 JANUARY 2022
| [2022] FWC 4 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Francis Hughes
v
BlueScope Steel (AIS) Pty Ltd
(U2021/7361)
| COMMISSIONER RIORDAN | SYDNEY, 20 JANUARY 2022 |
Application for an unfair dismissal remedy
On 18 August 2021, Mr Francis Hughes (the Applicant) filed an application (the Application) with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the Act).
The Applicant was engaged by BlueScope Steel (AIS) Pty Ltd (the Respondent) as a Slab Handler in its slab yard, being a section of the Respondent’s steel slab making operation in Port Kembla. The Applicant’s duties fell within the Level 3 classification of the BlueScope Port Kembla Steelworks and Springhill Enterprise Agreement 2019 (the Agreement).
It is noted that throughout this decision profanities are quoted which have been abbreviated so as not to cause offence to any future reader.
Background
The Respondent provided a Show Cause letter to the Applicant on 20 July 2021 stating:
“Dear Frank,
Re: Show Cause Notice - possible termination of employment
On Thursday 15 July 2021 I held a meeting with you, Nicole Lane and your support person - Chris Newbold. The meeting was held to discuss your alleged conduct during a toolbox meeting on 8 July 2021. The following allegations were put to you:
1. That you threatened Chris Nicholson by referring to the fact that you have hit people in the past when you disagreed with them. You acknowledged that Chris said that he took it as a threat, and stated that he would be talking to you about it.
2. That you were using aggressive behaviour, pointing your finger at Chris Nicholson and leaning toward him while talking.
3. That as you were leaving the meeting, you called Chris Nicholson, and potentially other employees, "fools".
4. That during the discussion, you swore, using words such as "f**king" and "bullshit" and raised your voice. You stated that you commonly swear, and it is normal for you to raise your voice. You acknowledged that you have been swearing throughout your career at Bluescope.
5. That you referred to the KMB - Reminder of Appropriate Workplace Behaviour - which explained the expectations set out in 'How We Work', 'Our Bond' and the Workplace Bullying Policy - as "bullshit" and that you passionately disagree with it. You don't believe it is reasonable for the Company to expect you to change your behaviour.
You were provided with an opportunity to address the allegations that had been made and your responses included:
• You deny that Chris took your comment as a threat or raised any issue with what you said.
• You believe that if a threat had been made, someone should have stopped the meeting or pulled you up at the time for your behaviour.
• You do not believe that your comments were threatening for the following reasons:
o You were sitting down. You see a threat as standing over someone and physically intervening or calling them an idiot. You said it is very difficult to threaten someone whilst seated.
o You believe the allegation has disregarded your version of what was said, that includes that you used to hit people but do not anymore. You believe that because you said that you do not hit people anymore, it was not a threat. You said, "If you see your neighbour washing their car and say, "I used to wash my car like that but I don't now." It's the same thing."
• You do not see your words and behaviour to be different to what you have done in the past.
• You deny pointing at Chris and believe you would have been waving your arms around. You were leaning forward in your chair because the tray of the whiteboard behind you was hitting you in your back.
• When you referred to people as "fools" as you were leaving the meeting, it was not directed at Chris, but at anyone who disagreed with your view on the crane situation you were discussing at the time.
• You accept that you swear, and commented that others swear too. You did not swear at anyone so believe it was appropriate.
• You do not believe your voice was raised more than others.
• You do not believe you have bullied or threatened anyone. Your comments were not aimed at anyone, and you did not intend for your comments to be taken that way. You are sorry if anyone took your comments as bullying or a threat.
We have now considered your responses in relation to the allegations. Bluescope considers that the alleged behaviour is a breach of:
1. Cardinal Rules - which says, ""... And because we respect each other and the business we will: ... not physically abuse or verbally threaten anyone with violence..."
2. Our Bond, which says, "we choose to treat each other with trust and respect."
3. The Workplace Bullying Policy, which says: "Workplace bullying is unreasonable conduct/behaviour that a reasonable person, having regard to the circumstances, would see as victimising, humiliating, undermining or threatening . .. Examples of workplace bullying include: ... Publicly insulting or humiliating others .... Yelling and screaming abuse or using foul language ... making threats to 'get' or harm a person"
It is particularly concerning that your behaviour occurred during a toolbox when your Team Leader was delivering a key message board (KMB) titled KMB: Reminder of appropriate workplace behaviour. This KMB was intended to remind you and other employees of behavioural expectations of all workers on a Bluescope site, and specifically referred to Our Bond and the Workplace Bullying Policy.
Your responses indicate that you do not understand how serious and inappropriate your actions were. You have threatened your Manager and made clear to your Team Leader that you do not intend to align to our appropriate workplace behaviours. You further confirmed that you have not changed your behaviour from any previous coaching and or reminders. You said, "If someone was pulling me up every week about it, I would be addressing it". This threatens your ongoing employment relationship.
You have been "signed off " as having knowledge of Our Bond, the Cardinal Rules and the Workplace Bullying Policy, and have up to date training in the company's EEO training. We have discussed that you have been reminded multiple times on the expectations of appropriate behaviour, including general workplace reminders following incidents. You have also received the following letters:
• You received a Letter of Expectations in 2014 for inappropriate behaviour. You did not take a copy of this letter. Instead, you left it on the table and did not read it.
• You received a warning letter in 2017 for inappropriate behaviour. You challenged the warning letter, as you did not agree with your Manager's findings.
As a result of your behaviour, the Company is now considering the termination of your employment. The Company is issuing you with this Show Cause Notice. You are being given the opportunity to provide the Company with any further information you believe it should take into account before reaching a decision. This information can include details of any mitigating circumstances for this behaviour from your personal or working life. For you to provide this information, the Company is available to meet with you at 9:00am on 21 July 2021.
You are entitled to show this letter to your representative, and to have a support person with you in any meeting that you have with the Company concerning this matter.
In view of the current circumstances, and given your work history, I strongly urge you to contact our Employee Assistance Program (EAP). They can be contacted directly on [redacted]. These services are free to our employee and their immediate family and remain private and confidential at all times.
Yours sincerely
Kamini Wijekulasuriya
BOS Operations Manager”
The Applicant provided his show cause response to the Respondent on 26 July 2021 as follows:
“Show cause letter response
It is alleged in Your Letter that I engaged in the following conduct:
1 that you threatened Chris Nicholson by referring to the fact that you have hit people in the past when you disagree with them. You acknowledge that Chris said he took it as a threat and stated that he would be talking to you about it.
2 that you were using aggressive behavior, point your finger at Chris Nicholson and leaning towards him while talking
3 that as you were leaving the meeting, you called Chris Nicholson, and potentially other employees, "fools"
4 that during the discussion, you swore, using such words as "f**king" and "bullshit" and raised your voice. You stated that you commonly swear, and it is normal for you to raise your voice. You acknowledged that you have been swearing throughout your career at Bluescope steel.
5 that you referred to the KMB - reminder of appropriate workplace behavior- which explained the expectations set out in "How we work" , "our Bond" and the workplace bullying policy - as bullshit and that you passionately disagree with it. You do not believe it is reasonable for the company to expect you to change your behavior
I have known Mr Nicholson for around 18 years as we started in the Slab yard at the same time. Dur ing my time as a delegate and Mr Nicholson's return to Slab yard around 3 year ago I have had multiple passionate discussions with him. If, for any reason, Mr Nicholson has had issues with the way I speak to him, he knows all he has to do is inform me stop and I would have. At no time during the discussions referred to in my show cause letter did Mr Nicholson inform me that he thought my words were threatening in anyway.
The assumption that I was talking to Chris specifically when I made a statement regarding what I used to do and what I do now is incorrect. I was not actually talking to anyone specifically when I made this statement, I was simply indicating that I have changed the way I manage myself when I disagree. I was also pointing out that these policies do not run parallel with staff and employees, which is what I disagree about.
I informed Kamini Wijekulasurika that it was never my intention to threaten Mr Nicholson or anyone at all and it was a silly off the Cuff remark . I regret making this remark now, as it has caused offence. That was not my intention . I will be more careful and considered in my future communication.
In regard to the remark, I made as I left, I said "if youse believe that youse are fools". This was in relation to Mr Nicholson's comment "I'm the manager and what I say goes" - just to provide context Mr Nicholson was directing me to do an illegal lift in the crane. I disagreed with this statement. I hold a high Risk Crane licence and I'm the one that is accountable for driving the crane in a safe and legal manner. I accept that I could have made my point in a less emotional way. However, my intention was never to cause Mr Nicholson any offence.
Mr Nicholson never informed me whilst in the room or leaving that I was stood down at all. In fact, he knew I was going back on the job to drive the Crane. Mr Nicholson attended the Crane Cabin over 4 hours after my comments were made. Mr Nicholson approached me in a small space and informed me I was stood down. His comfort in taking this action affirms that he did not feel threatened by my comment.
Management has referred to me in the Tool Box meeting as pointing my finger and leaning forward whilst talking. I do not recall pointing my finger at anyone. If I did engage in any actions like this, it was merely to express my view and not intended to threaten or bully in any way.
I admit that I passionately expressed a view during the toolbox meeting. However, I was not the only one to have opposition to the KMB. Swearing has long been accepted at Bluescope. I was making the point that cultural change takes time. Swearing in the workplace occurs routinely and it is going to take a concerted effort by all to cease it. As a workplace leader (Delegate) I want to help implement with this change.
My role as a union delegate has often seen me talking to management in difficult circumstances. I never get personal and always advocate on behalf of members while navigating management's concerns.
Personal circumstances
I have worked for Bluescope for almost 41 years, I am married and have 3 dependent children as well as 3 grandchildren. My daughter has an upcoming wedding in November which I am financially responsible for, and I continue to have financial expenses which without my employment would not be sustainable. In this current climate where things are very uncertain due to COVID-19 I hold very serious concerns about being able to find other work, if I am dismissed from Bluescope.
I first started my employment with Bluescope in August 1980 at the Fabrication shop as a tradesman's assistant, moved onto a forklift driver and finally a crane chaser. From there I secured a position at O'Brien's drift as a tradesman's assistant, then transferred to the coal receival station at O'Brien's Drift (OBD) and remained there until it was closed in March 2002.
I then successfully obtained a position in the Slab yard, effective today I have been in this position for almost 20 years. Reflecting on my service I would like to draw attention to all the contributions I have made for the company:
• I have kept all my required tickets valid
• I was awarded multiple times for my excellent attendance in both positions at OBD and the Slab yard
• I was also awarded for Lost time injuries at OBD 100,000 hrs and Slab yard 1 million hrs which demonstrates my commitment to my role and to safety
• OH&S representative - 8 years
• Union delegate for my shift since 2010
The training courses I have completed are Auditing, flow charting, trouble shooting, total performance maintenance, writing standard procedures, authority to work permits (at), firefighting, isolation regulations, hazard awareness, back care awareness, Gega machine (slab yard).
My approximate leave entitlements are:
Annual Leave - 350 hours
Long Service Leave -1640 hours
Sick Leave - 2040 hours
These high balances demonstrate that I value my employment with Bluescope highly. I take my role at Bluescope seriously.
Further considerations
a) I have been an employee of the Company for approximately 41 years.
b) I am a diligent employee who has applied a high standard of work throughout my employment with the Company, including my valuable contribution to safety.
c) My employment supports my family which includes my wife, 3 children and 3 grandchildren that I financially assist.
d) My chance of gaining employment at 59 years of age after dedicating over 40 years' service to the company makes it extremely hard as a lot of skills obtained are not transferable to outside employment.
e) If my employment does cease its going to have a negative impact on my home life and financial capacity to provide for my family.
f) My Injuries that I have sustained whilst working for company over the years will also have negative impact on me gaining employment.
g) I reside in a regional area which will make it difficult for me to obtain alternate employment; and the current economic climate, exacerbated by the COVID-19 pandemic will make it very difficult for myself to obtain alternate employment.
For the above reasons, I consider that my employment should not be terminated and thank you for considering these matters.
Please contact me if you have any questions.
Yours Sincerely
Frank Hughes”
The Respondent dismissed the Applicant on 29 July 2021, via written termination letter stating:
“Dear Francis,
We wish to confirm the end of your employment with BlueScope’s ASP Manufacturing business which becomes effective on 29.07.2021.
People Services have been notified of your departure date and will commence calculating your final pay. If you have any questions please contact People Services on [redacted].
Regards,
People Services Team”
The Respondent’s position is that the Applicant was dismissed following substantiated findings that he engaged in misconduct during a toolbox meeting on 8 July 2021.
The matter was listed for Hearing by video via Microsoft Teams, on 17 and 18 November 2021. The Applicant was represented by Ms Sandra Doumit of the Australian Workers’ Union (the AWU). The Respondent was granted leave in accordance with section 596(2) of the Act, to be represented by Mr Peter Willink, solicitor with Kingston Reid, at the Hearing.
The Applicant gave evidence on his own behalf in the proceedings. The following witnesses also provided statements and gave evidence for the Applicant:
· Jimmy Konstandaras, Slab Handler for the Respondent;
· Glenn Leake, Slab Handler for the Respondent and AWU delegate;
· Joseph Da Silva, Slab Handler for the Respondent;
· Christopher Newbold, Union Organiser with the AWU and previous employee of the Respondent.
The following witnesses provided statements and appeared and gave evidence for the Respondent in the proceedings:
· Nicole Lane, Senior HR Advisor for the Respondent;
· Christopher Nicholson, Operations Manager for the Slab Yard and Scrap Handling Departments for the Respondent;
· Chris Brown, Health and Safety Professional for the Respondent;
· Kamini Wikejulasuriya, BOS Furnace Operations Manager for the Respondent;
· Alex Zuzek, Manager of the Health and Safety Professionals, gave evidence at short notice at the request of the Commission.
Statutory Provisions
The relevant sections of the Act relating to an unfair dismissal application are:
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.
381 Object of this Part
(1) The object of this Part is:(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.
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.
384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer atthat time as an employee.
(2) However:(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee’s period of employment with the new employer.
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.
see section 388.
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.
Applicant’s Outline of Submissions
The Applicant submitted that at the time of his dismissal, he was a person protected from unfair dismissal pursuant to s.382 of the Act, and the Respondent has not raised any jurisdictional objections to his application. He submitted therefore, there are two issues for the Commission to determine:
(a)whether the Applicant’s dismissal was harsh, unjust or unreasonable having regard to the matters set out in s.387 of the Act; and
(b)if so—whether the Applicant should be reinstated or awarded compensation.
8 July 2021 toolbox meeting
The Applicant submitted that the evidence demonstrates:
(a)Mr Hughes is a passionate speaker, and a union delegate, who has always advocated strongly in the best interests of his colleagues.[1]
(b)During the toolbox meeting in question, Mr Hughes was offended by the suggestion that employees should not swear, considering the inconsistent application of this policy between staff and non-staff employees.[2] Many of his colleagues shared the same sentiment.[3]
(c)Mr Hughes has never received a warning for threatening or aggressive behaviour.
(d)Mr Hughes has received two previous warnings which BlueScope representatives acknowledged in interviews in relation to the events in question could not be relied upon as they were subject to sunset clauses.[4]
(e)Mr Hughes was no more passionate in the meeting in question than he would ordinarily be when discussing issues of this nature.[5]
(f)Mr Hughes did not threaten Mr Nicholson. Mr Hughes said words to the effect of “You talk bullshit to us and we talk bullshit to you, I used to hit people for telling me bullshit but don’t anymore. You make threats all the time. I don’t make threats. I only make promises”. These words, considered in context, could not constitute a threat.
(g)Nobody in the room at the time of the events in question, other than Mr Nicholson, perceived Mr Hughes to be threatening Mr Nicholson, including Mr Hughes’ team leader, Mick Agim.[6]
(h)Nobody in the room at the time in question took active steps to stop the meeting. On the contrary, Mr Nicholson was affronted by Mr Leake stopping Mr Hughes from speaking to raise a health and safety matter.[7]
Mr Nicholson’s actions, including taking notes while Mr Hughes was speaking and approaching Mr Hughes personally after the event, do not support the conclusion that Mr Nicholson felt threatened.
The Respondent’s investigation
The Applicant submitted that the evidence demonstrates that the Respondent did not employ a fair investigative process, including for the following reasons:
(a)The interviewers, Ms Wijekulasuriya and Ms Lane, were prone to twisting the words of the applicant in their interviews with him in order to manipulate his responses.[8]
(b)Both Ms Wijekulasuriya and Ms Lane withheld details regarding the allegations against Mr Hughes, despite his request for such details.[9]
(c)Ms Wijekulasuriya preferred the evidence of Mr Nicholson over the evidence of Mr Leake,[10] Mr Konstandaras,[11] Mr Grozdanovski[12] and Mr Agim,[13] all of whom did not perceive Mr Hughes to be threatening Mr Nicholson.
(d)Ms Wijekulasuriya unreasonably found that the applicant would not be able to change his behaviour, despite the Applicant never having been warned in relation to this behaviour, and having only received two previous warnings related to different matters (4 and 7 years ago) and challenged at the time.
(e)Ms Wijekulasuriya unreasonably found that there was a possibility that the Applicant would engage in actual violence, despite never having worked with the Applicant and the evidence of Mr Hughes’ forty-year employment history in which he had never been violent towards a colleague.
(f)Ms Wijekulasuriya also unreasonably found that Mr Hughes might offend women, despite Mr Hughes’ long and incident-free history of working with women.
The Applicant submitted that for these reasons, the Respondent’s investigation was miscarried.
The Applicant specifically addressed the criteria in s.387 of the Act as follows.
Reason for Dismissal—s 387(a)
The Applicant submitted that a valid reason for dismissal is one which is sound, well-founded or defensible.[14] The Applicant submitted that the decision to dismiss him from his employment was not valid for the following reasons:
(a)in the context of pervasive swearing at the Company, the Applicant’s actions did not warrant termination;
(b)The Applicant did not, and did not intend to, threaten any person as alleged by the Company; and
(c)The Applicant’s conduct was not sufficiently serious to warrant his dismissal.
The Applicant submitted that his evidence demonstrates that he did not physically abuse or verbally threaten anybody with violence, and what he said could not constitute a threat. The Applicant submitted that his colleagues were concerned about his welfare as they perceived that he was being unfairly treated in the meeting.[15] The Applicant submitted at no time had his colleagues said, including in their investigation interviews, that he was in any way threatening.
The Applicant submitted that he did not lack accountability and insight into his actions. He submitted that on several occasions he apologised if his comments were ill-received or perceived as a threat.[16] Further, the Applicant submitted that he said he did not intend to offend anybody and he would undergo any training deemed necessary to address this.[17]
Notification of Reasons for Dismissal—s 387(b)
The Applicant did not contend that he was not notified of the reasons for his dismissal.
Opportunity to Respond—s 387(c)
The Applicant did not contend that he was not afforded an opportunity to respond to the allegations.
Unreasonable Refusal to Allow Support Person—s 387(d)
The Applicant did not contend that he was refused a support person.
Unsatisfactory Performance—s 387(e)
The Applicant submitted that his dismissal did not relate to his performance.
Impact of Size of the Employer’s Enterprise on Procedures Followed—s 387(f)
The Applicant submitted that the Respondent is a large employer, with well-developed and extensive procedures in place. The Applicant therefore submitted this factor did not impact on the procedures effecting the dismissal.
Impact of Human Resources Expertise on Procedures Followed—s 387(g)
The Applicant submitted that the Respondent has a dedicated and well-resourced human resources team. The Applicant submitted this factor did not impact on the procedures effecting the dismissal.
Other Factors—s 387(h)
Application of the Policy and Disciplinary Outcomes in Similar Cases
The Applicant submitted that selective enforcement of a policy is a legitimate workplace grievance. The Applicant cited the decision in Woolworths v Brown,[18] which held that prior non-enforcement or inconsistent application of a policy can render termination for breach of the policy harsh, unjust or unreasonable. The Applicant relied on his evidence, as well as the evidence of Mr Newbold, Mr Da Silva, Mr Konstandaras and Mr Leake as demonstrating that the Respondent’s policy regarding swearing had been selectively applied.
The Applicant submitted that on a comparative review of warnings issued to other employees involved in analogous incidents, it is clear that the decision to dismiss the Applicant was harsh, in comparison to the Respondent’s response in other cases.
In reply submissions, the Applicant submitted that despite the Respondent’s denial, it is apparent from his evidence that the Respondent selectively enforces its conduct policies, being a matter that he had previously complained about to Senior Management.
Relationship between Mr Nicholson and Mr Hughes
The Applicant relied on his evidence that Mr Nicholson had previously displayed animosity towards him, because of a complaint made by him in relation to Mr Nicholson’s conduct. The Applicant submitted that Mr Nicholson’s complaint was ill-founded, unwarranted and inconsistent with his previous behaviour.
Overall contribution
The Applicant cited the decision in Grantham v NSW Trains,[19] in which Easton DP considered the views of peers and an employee’s contribution to the workplace when assessing an employee’s conduct.[20] The Applicant submitted that the evidence of his colleagues demonstrates the high regard of his peers and the Applicant’s substantial contribution to the workplace.
Personal Circumstances, Length of Service and Age
The Applicant submitted that he had been engaged by the Respondent for approximately 41 years, and submitted that the Commission has regularly recognised the significance of service of this length.[21]
The Applicant further submitted that his age is a relevant factor towards harshness, noting that he is 59 years old (at the time of filing his submissions), and consideration should be given to the greater difficulty older workers have in seeking new employment in the workforce.[22]
In his reply submissions, the Applicant added that while the Respondent contends that the Applicant’s length of service should work against a finding of unfairness on the basis that the Applicant had a detailed understanding of the applicable policies, the Applicant submitted that it is inconsistent for the Respondent to make this submission while conceding that “The evidence discloses that there is some degree of tolerance of swearing”.[23] The Applicant submitted that he could not have had a sound understanding of policies that have not been consistently applied.
The Applicant maintained that the decision in Grantham v NSW Trains supports the conclusion that he should not have been dismissed. The Applicant submitted that in Grantham, the applicant had told his supervisor to “get f***ed”. The Applicant submitted this is more serious than any swearing engaged in by him in the present case. The Applicant submitted that he at no time directed his swearing at any other person in the room. The Applicant further submitted that the words used by him in the relevant incident are less serious than the words used by Mr Grantham.
The Applicant submitted that the Grantham decision is critical of the Respondent’s failure to take any disciplinary action about Mr Grantham’s escalating behaviours[24] and favourably considers that Mr Grantham was a long-term employee, was active in the workplace as a Health and Safety Representative and also as a Peer Support Volunteer for the Blue Mountains area and that Mr Grantham’s peers supported his return.[25] The Applicant submitted that these are all matters that apply equally in the present case and support the conclusion that his dismissal was unfair.
Harsh, Unjust or Unreasonable
The Applicant submitted that the classic description of the phrase “harsh, unjust or unreasonable” was given by the High Court in Byrne v Australian Airlines Ltd:
“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”.[26]
The Applicant submitted that his dismissal was harsh and unreasonable and unjust, for the following reasons:
(a)the dismissal was unjust because the conduct did not rise to a level warranting disciplinary action;
(b)the dismissal was unreasonable and harsh because the penalty was disproportionate to the conduct;
(c)the dismissal was further harsh because of the impact of dismissal on Mr Hughes given his personal circumstances and length of service.
Alternative Argument
The Applicant submitted that in the alternative, if the Commission is satisfied that his conduct provided a valid reason for dismissal, the Commission should nonetheless find that his dismissal was harsh having regard to the totality of the circumstances.
The Applicant submitted that the Commission has found that one-off instances of inappropriate workplace behaviour may still result in the dismissal being deemed unfair, especially in the case of long-serving employees.[27] The Applicant submitted that on the evidence before the Commission, he expressed remorse in relation to the incident which is a relevant factor going to the Commission’s discretion.[28] The Applicant submitted that his dismissal is therefore distinguishable from those cases in which a lack of remorse, among other factors, has outweighed the employee’s length of service.[29]
Remedy
The Applicant submitted that on his evidence, and the evidence of his other witnesses, there is no practical impediment to reinstatement to his former role. The Applicant submitted that he has a good working relationship with his co-workers at the Company and remains motivated to return to his former position.
The Applicant submitted that reinstatement would not be inappropriate for the reasons given above and in light of his evidence as to the importance of the job to him, his relationship with other staff and his ability to perform the role to a high standard.
The Applicant submitted that compensation would not be an adequate remedy given his age and length of service. He noted that he has not received any remuneration since his dismissal.
The Applicant seeks the following orders by the Commission:
(a)directing the Respondent to reinstate the Applicant to his former position (or, in the alternative, to an alternative position on no less favourable conditions):
(b)maintaining his continuity of service; and
(c)directing the Respondent to make payment to the Applicant for lost remuneration.
In the event that the Commission determines that reinstatement is inappropriate, the Applicant seeks an order pursuant to s.392 that the Respondent pay him the maximum amount of compensation in lieu thereof.
The Applicant submitted that the Respondent’s submissions on remedy are based on a mischaracterisation of the facts, and the Applicant maintained that there is no practical impediment to reinstatement to his former role. Further, the Applicant submitted that the Respondent’s submission that any compensation should be reduced as the Applicant has not applied for jobs should not be accepted. The Applicant submitted that on his evidence he has not found suitable roles to apply for and has concerns regarding the exacerbation of his injuries.[30]
Respondent’s Outline of Submissions
The Respondent accepted that the Applicant was a person protected from unfair dismissal pursuant to s.382 of the Act at this time of his dismissal, and agreed with the two issues outlined by the Applicant for determination by the Commission in this matter.
The Respondent’s position is that the Applicant’s dismissal was not unfair within the meaning of the Act and the application should be dismissed.
8 July 2021 toolbox meeting
The Respondent submitted that the Applicant was dismissed for engaging in misconduct during a toolbox meeting on the morning of 8 July 2021.
The Respondent submitted that the Applicant was in a team of Operators in the slab yard, including his supervisor, Mr Mick Agim, and his Manager, Mr Christopher Nicholson.
The Respondent submitted that on 7 July 2021, Mr Nicholson asked the Team Leaders, including Mr Agim, to deliver a key messages board to remind them of appropriate workplace behaviours.[31]
The Respondent submitted that on 8 July 2021, Mr Agim held a toolbox meeting at around 6.30am and a Work, Health and Safety (WHS) Committee meeting was scheduled to start at 7am in the same room. The Respondent submitted that Mr Nicholson needed to attend the WHS committee meeting and he entered the room shortly before 7am. The Respondent submitted that when Mr Nicholson entered, he sat down and began setting up his laptop in preparation for the WHS committee meeting. It submitted however that as he was walking into the room, Mr Nicholson noticed the Applicant was speaking “loudly and in an angry tone”.[32] The Respondent submitted that at that time, Mr Agim was delivering the reminder on appropriate workplace behaviours to the team.
The Respondent submitted that the Applicant disagreed with the key message board and the behaviours that were said to be appropriate, and that the Applicant said “This is my behaviour for the last 40 years. You won’t change the way I say things, I’ve always sworn.”[33]
The Respondent submitted that on Mr Nicholson’s evidence, he observed the Applicant was getting louder and more aggressive and that Mr Nicholson tried to calm the Applicant down by saying to him in a ‘calm and measured tone’, “Frank, Mick is simply trying to tell you what the expected behaviours are.”[34]
The Respondent submitted that Mr Chris Brown, the WHS Professional, was also in the room for the WHS committee meeting. The Respondent submitted that on Mr Brown’s evidence, the Applicant was saying “f**k” frequently,[35] and that Mr Brown tried to calm the Applicant down three times, initially by saying “Frank, you’re speaking inappropriately”, then saying, “If your son or daughter was in the room would you be speaking like this?”. The Respondent submitted that the evidence shows that, the Applicant continued to speake over him. The Respondent relied on Mr Brown’s evidence that finally he said to the Applicant, “Frank, calm down” and gestured to the Applicant to calm down by waving his hand palm downwards.[36] The Respondent submitted that Mr Brown’s evidence is that by this time, he felt himself becoming frustrated and left the room to take a ‘breather’.[37]
The Respondent submitted that on the evidence, the Applicant was ‘clearly angry’ at this point in the meeting, and was “leaning forward in his chair and pointing at Mr Nicholson”.[38] The Respondent submitted that the Applicant said to Mr Nicholson in a
loud and aggressive voice:
“If you want to threaten me, I’m going to threaten you. I’ve hit people before, I don’t give a f**k. If you’re going to speak shit to me, I’m going to speak shit to you.”[39]
The Respondent relied on handwritten notes taken by Mr Nicholson during the meeting which reflect this wording.
The Respondent submitted that on Mr Nicholson’s evidence, Mr Glenn Leake called out the Applicant’s name and Mr Jimmy Konstandaras also asked the Applicant to calm down.[40]
The Respondent relied on Mr Nicholson’s evidence that he believed the Applicant would have no issue with physically assaulting him which is why and Mr Nicholson took the comment as a threat.[41]
The Respondent submitted that the meeting progressed to the WHS committee meeting, which the Applicant attended despite not being on the committee. The Respondent submitted that the topic progressed to a particular method of work, and the Applicant again started to “work himself up” and left the room saying, “You are a bunch of fools.”[42]
The Respondent’s investigation
The Respondent submitted that after the toolbox meeting, Mr Nicholson spoke with HR and also his manager, Mr Wayne Staff. Mr Staff asked Ms Kamini Wijekulasuriya to investigate the incident. Ms Wijekulasuriya is the Manager of the Blast Furnace and also reports to Mr Staff.
The Respondent submitted that Ms Wijekulasuriya investigated the matter with the support of an employee from the Human Resources. Ms Nicole Lane with her witness statement attached copies of notes taken from each of the witness interviews.
The Respondent submitted that Ms Wijekulasuriya met with the Applicant on 8, 15, 20, 26 and 29 July 2021. The Respondent submitted that at the meeting on 8 July 2021, the Applicant was interviewed about what happened at the toolbox meeting. The Respondent submitted that in accordance with Mr Lane’s notes, the Applicant admitted to saying at the toolbox meeting:
a.“This is all bullshit. I have been swearing for 40 years. You bring a piece of paper in here and you think we are all going to stop swearing in 5 minutes because you brought a piece of paper here. That’s bullshit. If you don’t want to me swear, don’t ask me questions.”
b.In response to Mr Nicholson making a comment, the Applicant said “If you come here and talk bullshit to us, we’re going to f***ing talk bullshit. That’s just the way it is.”
c.“Something along the lines of ‘I used to hit dickheads for talking bullshit to me but I don’t do that now.’” In response, Mr Nicholson said “We’ll be having a different talk on a different thing”, which the Applicant said was Mr Nicholson’s “usual threatening thing”.
The Respondent submitted that the Applicant’s explanation for saying “I used to hit dickheads” was that it was in response to a previous issue he had; and the Applicant insisted it was not a threat though because he said, “I don’t do that anymore”. The Respondent noted that the Applicant said he was “little bit heated.”[43]
The Respondent submitted that after interviewing all witnesses who were in the room, Ms Wijekulasuriya found the Applicant had engaged in misconduct. The Respondent submitted that Ms Wijekulasuriya preferred Mr Nicholson’s account of what was said in the meeting.[44]
Respondent’s show cause process
Following the investigation, the Respondent submitted that Ms Wijekulasuriya considered the following matters in reaching her conclusion that dismissal was appropriate:
a.Ms Wijekulasuriya’s impression of the Applicant was that he lacked insight into his own behaviour. He still did not realise how he threatened his own manager;[45]
b.The Applicant had not taken accountability for his actions and tended to blame others;[46]
c.Ms Wijekulasuriya was not convinced that the Applicant’s behaviour would change;[47]
d.The Applicant would jeopardise the Respondent’s ability to provide a safe working environment to its workers;[48]
e.There was a possibility that the Applicant would engage in actual violence rather than threatened violence in future if returned to the workplace;[49]
f.The Applicant could not distinguish his previous behaviour from his behaviour in the toolbox meeting;[50]
g.The Applicant had a lengthy period of service and was well aware of the Respondent’s policies, including the Cardinal Rules;[51] and
h.That she could not trust that the Applicant would not engage in the same type of behaviour with other employees, and she was concerned about the potential harm to those employees.[52]
Section 387(a) – Whether there was a valid reason for the dismissal
The Respondent submitted that for the above reasons, there was a valid reason for the Applican’t dismissal. The Respondent submitted that a valid reason is one which is “…sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason… At the same time 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”.[53]
The Respondent submitted that the Applicant engaged in misconduct that was in breach of the applicable policies, including the Cardinal Rules and the Workplace Bullying Policy. Relevantly, the Cardinal Rules provide:
“…because we respect each other and the business we will:
…
• Not physically abuse or verbally threaten anyone with violence”.[54]
The Respondent submitted that the Cardinal Rules clearly state that they form part of the conditions of employment and breaches will result in disciplinary action up to and including dismissal.
Further, the Workplace Bullying Policy defines workplace bullying as “unreasonable conduct/behaviour that a reasonable person, having regard to the circumstances, would see as victimising, humiliating, undermining or threatening.”[55] The Respondent noted that the policy provides a list of examples of workplace bullying, one of which is “yelling and screaming abuse or using foul language.”[56]
The Respondent submitted that the Applicant’s team leader was trying to remind the Applicant and his teammates of the appropriate behavioural standards during the toolbox meeting, however, when Mr Agim reached to the dot point “unacceptable behaviour includes but is not limited to yelling and screaming abuse or using foul language” (which the Respondent noted had been lifted from the Workplace Bullying Policy), the Applicant interrupted him and said it was “bullshit”.[57] The Respondent submitted the Applicant had become visibly agitated, loud and was swearing frequently.[58] The Respondent submitted that the Applicant ignored his colleagues’ attempts to get him to calm down and spoke over people before pointing his finger towards Mr Nicholson and saying in a loud voice:
“If you want to threaten me, I’m going to threaten you. I’ve hit people before, I don’t give a f**k. If you’re going to speak shit to me, I’m going to speak shit to you.”
The Respondent submitted that this comment was clearly threatening, and Mr Nicholson reasonably inferred that the Applicant was threatening him with physical violence.
The Respondent submitted that for these reasons, there was clearly a valid reason for the dismissal.
As to the reasons provided by the Applicant why there was no valid reason for his dismissal, the Respondent submitted these should be rejected by the Commission. The Respondent submitted firstly, while the evidence discloses there is some degree of tolerance of swearing in the workplace, swearing at others is considered highly inappropriate and results in disciplinary action. The Respondent submitted the Applicant’s submission ignores that he had threatened his manager; and the Applicant was not simply dismissed for swearing.
Secondly, the Respondent submitted that while the Applicant says he did not nor did he intend, to, threaten Mr Nicholson, this should be rejected considering:
a.The content of his comments;
b.The context in which he made them; and
c.The manner in which he made the comments.
The Respondent submitted that the Applicant clearly threatened his manager.
Thirdly, the Respondent submitted that while the Applicant says that the conduct was not sufficiently serious to warrant his dismissal, this should also be rejected. The Respondent submitted that on its evidence, the Applicant’s comments were a very serious act and a breach of its policies. The Applicant lacked accountability and insight into his actions and he engaged in conduct which the policy says can result in termination. The Respondent submitted that in all the circumstances, there was a valid reason for the Applicant’s dismissal.
Section 387(b) – Whether the Applicant was notified of the reasons for his dismissal
The Respondent noted that the Applicant accepted he was notified of the reasons for his dismissal.
Section 387(c) – Whether the Applicant was given an opportunity to respond
The Respondent noted that the Applicant accepted he was afforded an opportunity to respond to the allegations.
Section 387(d) – Whether the Applicant was given an opportunity to have a support person
The Respondent noted that the Applicant accepted he was not refused a support person.
Section 387(e) – Unsatisfactory performance
The Respondent submitted the Applicant was not dismissed for unsatisfactory work performance.
Sections 387(f) and (g) – The size of the Respondent’s enterprise
The Respondent accepted that it is a large employer with well developed procedures in place and a dedicated and professional HR Team.
Section 387(h) – Other matters
The Respondent denied that it selectively enforces its workplace conduct policies. The Respondent submitted that the Applicant relies on the witness statements of;
a.Christopher Newbold, who attaches four letters that relate to disciplinary outcomes for employees who engaged in inappropriate behaviour; and
b.Of Mr Joe Da Silva, who alleges that on 24 September 2020, Chris Brown called Mr Da Silva a “dumb f***er” twice.
As to Mr Newbold’s evidence, the Respondent submitted that on those occasions, dismissal was not considered to be the appropriate response.[59] The Respondent submitted that its evidence indicates there were mitigating circumstances and the conduct was less serious than that engaged in by the Applicant during the toolbox meeting on 8 July 2021.[60]
In relation to Mr Da Silva’s evidence, the Respondent submitted that Mr Brown denies calling Mr Da Silva a “dumb f***er” and says that he said “this is f***ing dumb”. Mr Brown describes the context of the meeting and admits he was frustrated. Mr Brown admits his behaviour was inappropriate. Mr Brown says his manager spoke to him about it afterwards and told him a file note would be kept of the discussion. The Respondent submitted that according to Mr Brown, a file note was required as a matter of treating staff and wages employees equally.[61] The Respondent submitted that the file note was a warning. Mr Brown says that he was apologetic and embarrassed and now leaves situations when he is feeling frustrated, which is what he did on 8 July 2021.[62]
The Respondent submitted that, according to Mr Nicholson, the disciplinary process for using foul language in anger or at somebody would be up to and including a written warning whereas an implied threat of physical violence is a Cardinal Rule breach and far more serious.[63] The Respondent submitted that Mr Nicholson has also disciplined staff employees in the slab yard for inappropriate swearing.[64]
The Respondent submitted that contrary to the Applicant’s submission, the previous warnings issued to other employees were not analogous, therefore, this is not a valid consideration towards harshness.
While the Applicant says that Mr Nicholson held ill-will against the Applicant because of a previous complaint against “Mr Nicholson’s conduct”, the Respondent submitted that the implication appears to be that this sense of ill-will somehow informed the decision to dismiss the Applicant. The Respondent submitted that this should be rejected completely, noting that Mr Nicholson did not investigate or make the decision to dismiss the Applicant. Further, the “acrimonious” feelings are denied by Mr Nicholson.
The Respondent accepted that the Applicant has a lengthy period of service, however, it cited the observation of Sams DP in Richard Steel v Hitachi Power Tools Australia Pty Ltd T/A Hitachi Power Tools[65] as follows:
“[201] It is sometimes said, correctly in my opinion, that long periods of service can be a ‘double edged sword’, in the sense that a lengthy period of service can work for, or against a finding of unfairness. This is particularly so in cases involving breaches of Company policies, where an employee’s long experience and familiarity with the business, (or just plain commonsense), should lead to better judgement in making perilous decisions, such as disclosing Company information to a third party, being a disgruntled former employee with an ‘axe to grind’. It may also aggravate the seriousness of the conduct where the employee had previously acted in management roles, and had been trusted to represent the Company overseas and should have known better than to have acted against the Company’s interests.”
(Respondent’s emphasis)
The Respondent submitted that in the present case, the Applicant’s detailed understanding of the applicable policies should have meant he was well aware of the ‘line’ before he crossed it on 8 July 2021. The Respondent submitted the Applicant’s lack of insight that he had acted inappropriately after the incident is concerning.
While the Applicant cited the decision in Grantham v NSW Trains, the Respondent distinguished the current matter as follows. The Respondent noted that in Grantham, the applicant was dismissed for saying to his manager “I’m trying hard not to punch you in the face, you need to step away from me.” The employer found this comment constituted a threat and dismissed the employee. In that case, the Deputy President considered this to be “completely wrong” and considered that the applicant made the comment to de-escalate the situation.[66] However, in the present case, the Respondent submitted the Applicant was loud, angry and swearing and made the threatening comment after several of his colleagues asked him to calm down. The Respondent submitted there is no evidence that the Applicant actually tried to deescalate the matter, rather the evidence shows that the Applicant was inflammatory and it was the other attendees who were trying to calm him.
Remedy
The Respondent submitted that if the Commission finds that the dismissal was unfair within the meaning of the Act, the following matters should be considered regarding remedy:
a.The primary remedy, reinstatement, is inappropriate in the circumstances as:
i.The Applicant’s managers hold a reasonable belief that the Applicant poses a threat to the safety of others and have lost trust and confidence in the Applicant’s ability to conduct himself in an appropriate manner with other employees;
ii.The Applicant has admitted that he is unlikely to change;
iii.The Applicant has referred to Commission proceedings in order to justify himself engaging in behaviour that is plainly inappropriate;
iv.The Applicant has a history of engaging in inappropriate behaviour, including:
1.on 13 June 2014 where he was hostile and inappropriate with his team leader. On that occasion, the Applicant refused to accept a copy of the letter of clarification regarding appropriate behaviour; and
2.on 28 January 2017, where he acted inappropriately towards a colleague and was issued a written warning. Notably, the Applicant responded that using a raised voice and swearing was normal for him and that he could not guarantee his behaviour would be any different if the same situation occurred,
v.The Applicant has not shown any insight into the inappropriateness of his behaviour and tends to blame others; and
vi.The evidence of several representatives of the Respondent’s management team, including the Applicant’s former manager Mr Nicholson, is that the Applicant’s conduct and his lack of appreciation of the gravity of that conduct, means that their capacity to trust the Applicant to faithfully and diligently discharge his obligations has been lost;
b.Therefore, in the circumstances, the Respondent submits that reinstatement is not the appropriate remedy in this matter.
As to compensation, the Respondent had regard to s.392(2) of the Act and the Sprigg formula. The Respondent submitted that regard must be had to the misconduct engaged in by the Applicant, and the fact that he has not applied for any other roles since his dismissal. The Respondent submitted that any award of compensation must be reduced to reflect these matters.
Consideration
I haven taken into account all of the submissions and evidence that has been provided by the parties. The fact that an issue is not repeated in this decision does not mean that it has not been taken into account.
When considering whether a termination of an employee was harsh, unjust or unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines (Byrne) (1995) 185 CLR 410 is of significance:
“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.”[67]
In analysing Byrne, a Full Bench of the Australian Industrial Relations Commission in Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 held:
“The above extract is authority for the proposition that a termination of employment may be:
· unjust, because the employee was not guilty of the misconduct on which the employer acted;
· unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or
· harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct”.[68]
I will now turn to consideration of the provisions of section 387 of the Act.
Section 387(a) Valid reason
The meaning of the phrase “valid reason” has been universally drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371:
“In broad terms, the right is limited to cases where the employer is able to satisfy the Court of a valid reason or valid reasons for terminating the employment connected with the employee’s capacity or performance or based on the operational requirements of the employer. …
In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time 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. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that” the employer and employee are each treated fairly…”[69]
In Rode v Burwood Mitsubishi Print R4471, a Full Bench of the Australian Industrial Relations Commission held:
“… the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”[70]
In Qantas Airways Ltd v Cornwall (1998) 84 FCR 483 (Cornwall), the Full Court of the Federal Court of Australia said:
“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”[71]
The only contemporaneous account of what transpired during the meeting are the notes of Mr Nicholson. Mr Nicholson claims that his notes were all written during the meeting. There is no dispute that Mr Nicholson was taking notes during the meeting. Whether they were completed during the meeting or immediately after the meeting is of little consequence. There is no doubt that the notes were not written in a flowing sequence nor do they capture the order in which the events occurred. The Applicant was not sure what he had said when responding to a comment from Mr Nicholson. All of the other witnesses had different recollections to what Mr Hughes said to Mr Nicholson. Despite the inconsistences, I am prepared to accept the notes of Mr Nicholson as being the most accurate recollection of the comments.
I find that the Applicant said to Mr Nicholson:
“If you want to threaten me, I’m going to threaten you. I’ve hit people before, I don’t give a f**k. If you’re going to speak shit to me, I’m going to speak shit to you.”
It is not in dispute that Mr Nicholson advised the Applicant that he had a problem with the way the Applicant had spoken to him during the course of the meeting. The words said by the Applicant when talking to Mr Nicholson were inappropriate. I am not overly concerned about the use of foul or colourful language in this scenario on the basis that the Applicant did not direct his colourful language directly at Mr Nicholson. The Respondent operates a steel mill. To borrow a saying from former Senior Deputy President Drake, the Applicant was not working in the ‘haberdashery department of David Jones’.[72] The Respondent has condoned the use of colourful language for decades without recourse from both management and its wages employees. The manager who dropped the ‘f bomb’ in front of me and my young female Associate during an on-site inspection some years ago has been promoted on numerous occasions since.
It is important to look at the actual words that the Applicant used in this discussion. The reference by the Applicant to his previous behaviour of hitting people in the past, even if he did say the words “I don’t do that anymore”, was an arrogant attempt to show Mr Nicholson that he is tough. In my view the most concerning aspect of this comment, which is not in dispute, involved the future behaviour of the Applicant, namely, “If you’re going to speak shit to me, I’m going to speak shit to you”.
When the Commission is called upon to arbitrate a matter involving interpretation of words, whether that be the spoken or written word, the basic principle is to give the words used their plain and ordinary meaning.
The Applicant was dismissed for breaching one of the Respondent’s Cardinal Rules, namely:
“And because we respect each other and the business we will:
·Not physically abuse or verbally threaten anyone with violence”.
The Collins English Dictionary defines the term “threat” to mean:
“1) a declaration of the intention to inflict harm, pain or misery
2) an indication of imminent harm, danger or pain”.
For the Applicant to be in breach of this Cardinal Rule he would have needed to have actually hit Mr Nicholson or declared his intention to hit Mr Nicholson. The Applicant did neither. The Applicant expressed his intention to talk “shit” to Mr Nicholson if Mr Nicholson talked “shit” to him. There was no threat of violence or intimidation, even though the comments were inappropriate. This is why no other witness to the discussion agreed that the Applicant had threatened Mr Nicholson with physical violence.
I find that the Applicant talking about his past behaviour is not a physical threat or a breach of the Respondent’s Cardinal Rules. I have taken this into account.
Every employee is entitled to be treated with respect and dignity. Mr Nicholson is the manager of the Department. Mr Nicholson’s title does not mean that he deserves any special treatment or accolade, but it does mean that he is entitled to be treated not just with respect and dignity but also courtesy. Telling your manager that you are going to speak “shit to them” is highly inappropriate.
However, as held by the Full Court of the Federal Court in Cornwall, conduct is not committed in a vacuum. The Applicant was participating in a toolbox meeting, the subject matter of which, according to Mr Nicholson’s notes, the Applicant believed was targeted at him personally. The evidence shows that the Applicant was speaking in his normal loud voice and not listening to the views or interjections of others in the meeting. Mr Leake said to Mr Nicholson that this behaviour was “just Frank being Frank”. His workmates, apart from Mr Agim, noted nothing unusual about the Applicant’s conduct during the meeting. Relevantly, Mr Brown in his interview with Ms White, said that the Department had put up with this type of unacceptable behaviour from the Applicant for some time.
Based on the obiter in Cornwall, I am satisfied that the Respondent did not have a valid reason to terminate the Applicant. Without a valid reason, the termination of the Applicant was harsh and unjust.
If I am wrong and the Respondent did have a valid reason to terminate the Applicant, then it is important to deal with the remaining provisions in section 387 of the Act.
Section 387(b) Notified of the reason
The Applicant agreed that he was notified of the reasons for his dismissal. This is a neutral consideration.
Section 387(c) Opportunity to respond
The Applicant agreed that he was afforded an opportunity to respond to the reasons for his dismissal. This is a neutral consideration.
Section 387(d) Refusal of support person
The Applicant did not submit that he was refused a support person; and the Respondent submitted that there was no refusal. This is therefore a neutral consideration.
Section 387(e) Warning about unsatisfactory performance
The Applicant was not dismissed for unsatisfactory performance. This is therefore a neutral consideration.
Section 387(f) & (g) Size of enterprise & HR staff – procedures followed
The parties agreed that the Respondent is a large employer, and the Respondent noted it has well developed procedures in place and a dedicated and professional HR team.
I consider this issue to be a neutral factor.
Section 387(h) Any other matter
I am satisfied that Ms Lane is a witness of credit. I do not accept the allegation that Ms Lane deliberately manipulated her notes to portray a particular point of view or line of enquiry. Whether the Applicant continued to say in his interview the phrase “but I don’t do that anymore” is of little consequence or relevance to the outcome of this proceeding.
Relevantly, the only person in attendance for the relevant section of the meeting that did not provide a witness statement or give evidence was the Respondent’s Team Leader, Mr Mick Agim. Ms Lane’s notes of Mr Agim’s interview with Ms Wijekulasuriya on 8 July 2021, confirms that the Applicant said the word “hit” to Mr Nicholson. However, Mr Agim said that this type of behaviour was out of character for the Applicant and that he did not believe that the Applicant was threatening Mr Nicholson. Ms Doumit suggests that I should draw a negative inference as to why Mr Agim was not called by the Respondent to give evidence in this matter. The Respondent submitted that no negative inference should be drawn and Mr Agim’s recollection should be taken as accurate.
I do not accept the submission that there is no relevance to the situation with the Applicant compared to that of Mr Brown. Clearly, the level of investigation that was conducted into Mr Browns’ incident is in direct contrast to that of Mr Hughes and a breach of the Respondent’s EEO Policy. In relation to Mr Brown’s incident, Mr Nicholson appointed himself as the investigator, even though he was a witness to the event. None of the participants in the meeting, including Mr Brown, were interviewed individually in relation to their recollection. The evidence suggests that what transpired was that Mr Brown had called Mr Da Silva a “dumb f**ker” or a “dumb f**k” or that he was “f**king dumb” and had vigorously slammed down a ring folder full of paper on the table in front of Mr Da Silva. Mr Nicholson agreed that Mr Brown had acted inappropriately, that Mr Brown’s conduct has breached the Respondent’s Bond, that Mr Brown had breached the Bullying Policy, that Mr Brown had raised his voice towards Mr Da Silva and that Mr Brown’s behaviour was intimidating.
Mr Nicholson claimed that there was no dispute between the 4 witnesses as to the phrase or conduct that was used by Mr Brown that was directed at Mr Da Silva. On the basis that both Mr Da Silva and Mr Newbold clearly remembered the phrase used by Mr Brown, whereas Mr Nicholson had no precise recollection, I am satisfied and find that Mr Brown called Mr Da Silva ‘a dumb f**ker’.
Mr Nicholson did not provide an accurate report of his investigation to Mr Brown’s supervisor, Mr Zuzek. He did not report accurately the words that Mr Brown used nor did he report on the aggressive slamming of the folder directly in front of Mr Da Silva.
At the Hearing, Mr Alex Zuzek, Mr Brown’s Manager, appeared and gave evidence at short notice at my request. Mr Zuzek gave his evidence in a confident and precise manner with no issues in relation to his recollection.
I put a series of questions to him, including as to his recollection of the incident which resulted in Mr Brown receiving a warning in September 2020. Mr Zuzek confirmed that he recalled the incident and gave evidence as follows:
“I understand that you would have received some correspondence on that particular day from Mr Nicholson basically advising you of an exchange which took place at a meeting that Mr Nicholson attended. I'm wondering what was the extent of your investigation after you received that correspondence from Mr Nicholson?‑‑‑Well, two things. Firstly, shortly after the communication with Mr Nicholson I got a phone call from Chris Brown telling me what had happened on the day; then I sat down in my office with both Mr Nicholson and Frankie White just to concur what Chris' story was.
Right, so you actually had a meeting with Mr Nicholson?‑‑‑And Ms Frankie White, just to ‑ ‑ ‑
And Ms White?‑‑‑ - - - just to confirm what - yes.
All right. Apologies for the language, but Mr Nicholson testified this morning to suggest that Mr Brown had called a fellow BlueScope employee a dumb f**ker, or words to that effect. Did you accept that Mr Nicholson was telling the truth?‑‑‑No, that wasn't my recollection of events, it was, 'This is f**king dumb', pardon the language, in relation to some disagreement around a warning tag and BlueScope rules around warning tags and danger flags.
Yes, all right. So you're telling me that Mr Nicholson told you that the wording that Mr Brown used was that this was f**king dumb?‑‑‑Yes, that's what Chris Brown, when he rang me to tell me what happened, and he said the same thing, 'this is f**king dumb'.”[73]
Mr Zuzek’s evidence was that he did not interview any of the witnesses or attendees at the meeting, as the version of events relayed to him by Mr Brown was supported by Ms White and Mr Nicholson.
As to issuing Mr Brown with a warning, Mr Zuzek gave evidence as follows:
“Okay. So when you came to the decision to issue Mr Brown with a warning, what was the process you went through?‑‑‑As I said, I confirmed what happened, so I had all parties saying the same thing, so I called Chris into my office, we discussed the incident again; at the end of that I issued him with an official warning for inappropriate and unacceptable behaviour, conduct that's not aligned with our bond, and the expectation that we treat everybody at BlueScope with respect; and sort of then went on to say if it happens again there will be further disciplinary action up to and including dismissal, and I think I documented that and put it on his record.
Thank you. Just in relation to the bond, did Mr Brown challenge you when you said that you believed that he had been in breach of the bond?‑‑‑I don't think we discussed the bond, it was just more about the behaviour and the language that's not appropriate at any meeting, HSR-type safety meeting.
I only mentioned the bond because you mentioned it to me, that's all. So do you believe he breached the bond?‑‑‑No, I don't think he breached the bond.”[74]
Mr Zuzek further stated:
“…I think from my discussion with Chris, it was out of a sense of frustration that that discussion was going nowhere, so he made that inappropriate comment. And I sort of directed him to go: if you get frustrated next time, what you should do is excuse yourself, get up and leave the meeting, rather than say anything that's inappropriate.”[75]
Mr Zuzek gave evidence that he did not receive any complaint from Mr Da Silva or speak with Mr Da Silva, and his decisions were only based on his discussions with Mr Brown, Mr Nicholson and Ms White. As to what was determined to have been said in the meeting, Mr Zuzek stated:
“The story was 'this is f**king dumb' on all occasions”.[76]
Mr Zuzek was questioned about the application of the cardinal rules, to which he gave the following evidence:
“Would you consider what was relayed to you to be a breach of the cardinal rules?‑‑‑In respect to the way we behave in a meeting, that's not appropriate. I think the cardinal rules are more about, you know, that we will follow the rules and, you know, we will treat each other with respect, and that sort of stuff.
…
If I said to you that the cardinal rules say:
And because we respect each other and the business we will not physically abuse or verbally threaten anyone with violence.
Would you accept that is a cardinal rule?‑‑‑Yes.
…Mr Zuzek, what I'm about to ask you questions is if - what I'm saying is if Mr Brown had said, 'This is f**king dumb', okay. So assume Mr Brown said to Mr Da Silva, 'This is f**king dumb', okay?‑‑‑Yes.
Continuing:
And because we respect each other and the business we will not physically abuse or verbally threaten anyone with violence.Would you consider that to be a breach of that rule?‑‑‑Sorry, can you repeat that question?
Yes. So the rule is:
Not physically abuse or verbally threaten anyone with violence.?‑‑‑Yes, all right, so verbally threaten. I didn't see that as a threat directed at Joe, I saw that as a comment that was out of frustration that people weren't listening and the conversation was going nowhere.
I see. But do you think that if I - and excuse the language - if I said to you, 'You're f**king dumb', would you see that as physical abuse?‑‑‑If you directed that at me, yes.
You would see that as physical abuse?‑‑‑Well, I would see it as verbal abuse.
Verbal abuse, okay. And would you see it as me threatening - verbally threatening you with violence?‑‑‑Well, only if you included a comment that you wanted to punch me in the face, otherwise I would just see it as verbal abuse.”[77]
As to what Mr Zuzek would consider as a physical threat, he gave the following evidence:
“…You would see me slamming a folder in front of you as me verbally threatening you with violence?‑‑‑Well, because you're taking an action and you're directing it at me, you're slamming it at the front of me, I would personally think that now you're directing that at me.
But am I verbally threatening you with violence?‑‑‑I don't think you're verbally threatening me, you're just trying to intimidate me by slamming something in front of me, in my opinion.”[78]
I agree with Mr Zuzek who testified that he regarded Mr Brown’s misdemeanour to be far more serious to what he was told by Mr Nicholson. Mr Zuzek agreed that the personalisation of the inappropriate language and the slamming down of the folder could be seen as some sort of physical threat which would constitute intimidating behaviour.
It is not in dispute that Mr Brown received a warning on his file for his actions towards Mr Da Silva. I note that there was no evidence of Mr Zuzek taking into account the possibility of Mr Brown repeating this behaviour or actually being violent in the future nor the consequences of this type of behaviour if it occurred to a female colleague in the future. I also not that Ms Frankie White, a member of the Respondent’s Human Resources team who was present in the meeting where Mr Brown’s indiscretion occurred, was not called by the Respondent to refute the evidence of Mr Da Silva or Mr Newbold.
I have taken into account the significantly different disciplinary outcomes handed out by the Respondent to the Applicant and Mr Brown.
It is not in dispute that the toolbox meeting rolled into a meeting of the Work Health and Safety Committee. The Safety Committee meeting was convened due to issues with the contradictory alarms of a crane, which had caused concern amongst the operators as to which alarm they should take notice of when conducting a lift of a steel slab. It is not in dispute that, during their meeting, Mr Nicholson made the following comment in response to a position put forward by Mr Leake and the Applicant that they wouldn’t undertake the lift if the crane alarm warned them not to lift the slab;
“Well, if you don’t, we will be having a different conversation”.
Further, Mr Nicholson testified:
“Do you think they would have taken that as a threat?‑‑‑No. They might take it as a threat, and I think some of their evidence has said that's a threat. The reason I do that, Commissioner, is because in conversations that I have with my people I try and be very open, transparent around the conversations.”[79]
…
“So what you basically said to them is that you're the manager of the department and 'you'll work the way that I deem you to work'?‑‑‑They're not my words, but yes, I have said previously that at the end of the day I am the manager and I have to make decisions. I make decisions every day on things, so you know. And if someone raises a safety issue and then we have that conversation, then that's - at the end of the day I end up making the decision, you're right, but I don't - you know, I don't see that as being anything that I'm not paid to do.”[80]
It is not in dispute that both the Applicant and Mr Leake took this comment as a threat by Mr Nicholson that if they didn’t follow his instructions and ignore the crane’s alarm that warns that it is unsafe to pick up the steel slab that they would be sacked for refusing to follow a lawful direction. Mr Nicholson claimed that his comment had been misinterpreted.
I note the Applicant claimed that his comment to Mr Nicholson had also been misinterpreted.
As stated by the Full Bench in CFMMEU, Mr Howard v Mt Arthur Coal Pty Ltd:[81]
“[68] It is uncontentious that a lawful direction is one which falls within the scope of the employee’s employment. There is no obligation to obey a direction which goes beyond the nature of the work the employee has contracted to perform,though an employee is expected to obey instructions which are incidental to that work.
[69] Further, employer directions which endanger the employee’s life or health, or which the employee reasonably believes endanger his or her life or health, are not lawful orders;unless the nature of the work itself is inherently dangerous, in which case the employee has contracted to undertake the risk.
[70] The order or direction must also be ‘lawful’ in the sense that an employee cannot be instructed to do something that would be unlawful; such as a direction to drive an unregistered and unroadworthy vehicle.”
(My emphasis)
I find that Mr Nicholson’s comment was inappropriate and at odds with the Respondent’s steadfast position on safety. I note that the Respondent’s safety beliefs state: “working safely is a condition of employment”. I have taken this into account.
Mr Nicholson claims that he is a very calm person[82] and that he is not easily frustrated. Mr Nicholson testified that he had no problem or issue with the Applicant going over his head to make a complaint about the way in which Mr Nicholson appeared to leniently treat a staff employee when they appeared to break a cardinal rule. The Applicant’s actions resulted in Mr Nicholson losing his managerial prerogative when it came to disciplining staff employees in the future. This task is now carried out by Mr Nicholson’s superior.
The Applicant claimed that he was “set up” by Mr Nicholson. It is not in dispute that Mr Nicholson was present in the toolbox meeting for approximately 15 minutes.
Mr Nicholson testified that his comments clearly aggravated the Applicant:
“And in your view, your comments were aggravating Frank?‑‑‑Yes.
And you could see him become visibly upset in response to what you were saying?‑‑‑Yes. Everything that I said seemed to upset Frank more. Yes.”[83]
And you thought at that point, that Frank's behaviour was inappropriate?‑‑‑Yes.
So you decided to take some notes?‑‑‑I'd actually started taking notes before that – only briefly before that. So, Glen had made a comment before that, that I was interested in and I noted that comment down. But, yes, certainly comments as I could – as I recognised that Frank was – his behaviour was becoming inappropriate – yes, I was taking notes. I was writing things down.
Right. But you did not seek to stop the meeting at that point?‑‑‑No.
Which is something as a supervisor, you could have done?‑‑‑Yes. I could have stopped the meeting, yes.
You did not suggest that everyone should take a break?‑‑‑No, I didn't.
You did not suggest that the conversation be resumed another time?‑‑‑No.”[84]
Mr Nicholson also admitted that he could have stopped the meeting.[85] Ms Doumit submitted that Mr Nicholson had an obligation to “de-escalate” the meeting:
“Do you accept that that's the second page of the key message board?‑‑‑Yes, it is.
And you can see the second dot point on that page?‑‑‑Yes.
It says, 'People have different viewpoints and disagreements can occur. However, they should not be allowed to develop into an argument. Everybody is personally responsible for ensuring a disagreement does not escalate into an argument that oversteps the mark of a healthy difference of opinion'?‑‑‑Yes, that's correct.
Do you agree with that statement?‑‑‑I do.
Do you agree that what that statement says is that if you find yourself in a situation where an argument is developing you should stop that argument?‑‑‑Yes, everyone has that same responsibility, yes.
And would you agree that you took no action at the meeting on the 8 July 2021 to de-escalate the situation?‑‑‑No, I don't agree with that. I did take action with my comments to try and calm Frank down. But can I just maybe add to that point that I don't think that it's necessarily anybody else's responsibility to make sure that people act appropriately. So it is everybody's responsibility and that's why that point is in the key message board, to say to everybody we all have a responsibility. We can all have disagreements about things but we can't allow that to escalate into an argument and everyone has that responsibility.”[86]
Whilst I am satisfied that Mr Nicholson did not deliberately antagonise the Applicant in an attempt or hope that the Applicant would react, I am satisfied that Mr Nicholson did not appropriately attempt to diffuse the situation. I have taken this into account.
Whilst I have accepted the contemporaneous notes of Mr Nicholson in relation to the comments of the Applicant, I find that other elements of Mr Nicholson’s evidence and behaviour to be contradictory and concerning.
I do not accept that Mr Nicholson’s notes of the meeting[87] were necessarily completed in the 15-minute period of the meeting. The size of the handwriting changes, words and sentences are squashed onto lines, words which relate to the sentence on the line above appear at the end of the line below rather than at the start, Mr Nicholson repeats his concern about the way the Applicant spoke to him and Mr Nicholson indicates that Mr Brown left the meeting after the incident between Mr Nicholson and the Applicant whereas it is not in dispute that Mr Brown left the meeting before the incident. In response to a number of questions from me, Mr Nicholson testified:
“…Yes. So, sorry, it happened in the meeting, so I can assure you of that. If the order is incorrect, then that is only because I've been writing things down and I've had to go back. But all my comments from that meeting are in that one page.”
…
“All I can say to you is that if you can understand that I'm doing a lot of the talking and I'm also trying to take notes. I feel that I have - and I've probably said it before, stop me if you want to stop me, but I have written down those notes to the best of my ability of what was being said, and I was more concerned about capturing the inappropriate behaviour comments, the threatening comments, than I was about - and hence the arrows, and hence probably what you've just pointed out to me, that the order isn't 100 per cent in alignment with my witness statement. But I can assure you that all those comments in that were written down in the meeting.”[88]
In relation to the conflicting evidence between Mr Nicholson and Mr Zuzek, I prefer the evidence of Mr Zuzek. I find that Mr Nicholson provided Mr Zuzek with an inaccurate report in relation to what transpired in the meeting with Mr Brown. Significantly, Mr Nicholson did not pass on an accurate depiction of the direct verbal personal attack by Mr Brown on Mr Da Silva, whilst failing to even mention the intimidatory behaviour of Mr Brown by slamming a folder down on the table directly in front of Mr Da Silva. Mr Brown clearly breached the Respondent’s Bond. I find that there is a significant difference in someone making a comment in a meeting that is impersonal, such as, “this is f**king dumb” compared to comments such as “you’re f**king dumb”, “you’re a dumb f**k” or “you’re a dumb f**ker”. As a result, Mr Brown did not receive a penalty for breaching the Bond or perhaps even the Cardinal Rules because of the actions of Mr Nicholson in conducting an investigation, which was incomplete and in breach of the Respondent’s policies. I have taken this into account.
In previous unfair dismissal applications that I have determined involving the Respondent, the Respondent has submitted its unwavering commitment to its Cardinal Rules and its focus on safety. I am aware that the principles apply equally to both staff and wages employees. There is insufficient evidence before the Commission to make an informed decision in relation to the incident that involved Mr White, but in his evidence (if the Applicant’s recollection of this event is accurate) that prima facie Mr Brown may have breached the Cardinal Rules.
In relation to the WHS meeting about the confusing alarm in the crane, I am concerned about the advice given by Mr Nicholson to the Applicant and Mr Leake. Mr Nicholson is not qualified to give legal advice. The fact that he did so whilst threatening the Applicant and Mr Leake with their ongoing employment is disturbing and inappropriate. If the crane is malfunctioning, then it should be repaired. Employees should not be put in a position where they have to choose between following the inbuilt safety mechanisms of the plant that they are operating or their job. History has shown that the Respondent has dismissed employees for dropping steel from cranes, for creating an unsafe situation even though they were abiding by the internal safety operating rules of the Respondent in relation to line of sight etc and by working in a manner that they believe their Supervisor had witnessed thousands of times without caution or complaint. No critical safe work procedures have been provided to the Commission in relation to this process, but I doubt that it would permit the Operator ignoring the crane’s safety mechanisms.
Mr Nicholson also claimed that he would take responsibility at law for any issues associated with employees following his verbal direction. Based on my finding earlier in relation to Mr Brown’s comments and the report given to Mr Zuzek, it is evident that Mr Nicholson’s memory is far from exact in its recollection. I note that Mr Nicholson did not write down his commitment in his notes from the 8 July 2021 meeting. There is no evidence before the Commission that he provided this commitment to all employees in writing after the meeting.
The WHS meeting which occurred after the toolbox meeting helps to explain the relationship between the Applicant and Mr Nicholson. The fact that Mr Nicholson was happy to have the Applicant participate in the WHS meeting, when he was not a member of the Committee or invited to the meeting, shows that the perceived threat felt by Mr Nicholson dissipated almost immediately. Further, Mr Nicholson clearly threatened the Applicant in relation to his ongoing employment if he was not prepared to work in accordance with Mr Nicholson’s direction, even though the Applicant and Mr Leake had raised a bona fide safety concern. This interaction identifies the robust nature of the relationship between Mr Nicholson and his employees. Another example of the unique relationship that Mr Nicholson has with his employees is when he adopted the unusual practice of climbing up to the crane to stand down the Applicant rather than have the Applicant meet him in his office. I have taken this into account.
I note the unchallenged evidence of the Applicant that Mr Nicholson threatens employees on a regular basis:
“and that’s when he said his “we’ll be having a talk on a different thing” or whatever he says. His normal threatening thing. He does that all the time. I’m the manager and we will be talking in a different light.”[89]
I have taken this into account.
I agree with the Respondent that there is nothing wrong or inappropriate about the relationship between Mr Nicholson and the Applicant. A manager and his employees do not have to love each other or even like each other. They simply have to work together. They do not need to support the same footy team, have a common view on politics or even attend the same church. They simply need to fulfil the role for which they have been employed and are remunerated for by the Respondent. I have taken this into account.
Ms Wijekulasuriya conducted the investigation. The Respondent’s EEO Policy states:
“treat all complaints of discrimination and harassment seriously and ensure they are thoroughly investigated”.[90]
Ms Wijekulasuriya testified that she asked Mr Nicholson questions about his written statement. Ms Wijekulasuriya claimed that Ms White was present during this discussion. Ms Wijekulasuriya stated that she was unaware if Ms White took notes of this discussion / interview but that she did take notes. Ms Wijekulasuriya did not mention this discussion in her witness statement. Ms Wijekulasuriya did not produce her notes of this discussion in her evidence. It is unusual for information pertaining to a complainant to not be produced in evidence in a proceeding, especially when the notes of every other interview have been produced, even for those individuals who were present at the meeting but were not asked to be witnesses in the proceeding. I have taken this into account.
Ms Wijekulasuriya undertook a degree of crystal ball gazing in reaching her recommendation that the Applicant be terminated. Her concern was that it was only a matter of time before the Applicant repeated his behaviour and that next time ‘it could be actual violence’. There is no evidentiary basis for Ms Wijekulasuriya to hold this view. There is no history of the Applicant fighting with anyone in the workplace. There is no history of the Applicant being aggressive with any employee in the workplace. Ms Wijekulasuriya had no evidentiary basis for her ‘opinion’. I have taken this into account.
Ms Wijekulasuriya formed the view that the Applicant threatened Mr Nicholson. This view was not supported by any witness to the discussion, including the Respondent’s Team Leader, Mr Agim. I have taken this into account.
Ms Wijekulasuriya testified that a further consideration for her now is the move by the Respondent to diversify its workplace. This issue was not a consideration at the time of the Applicant’s termination and is therefore irrelevant in determining whether the Applicant’s termination was harsh, unjust or unreasonable.
Ms Wijekulasuriya testified that the ‘clincher’ issue for her in relation to her recommendation to dismiss the Applicant was her opinion that she did not trust that the Applicant will change his behaviour. I have a great deal of respect for Ms Wijekulasuriya, however, her opinion is of little relevance about the Applicant’s future behaviour. The Applicant is entitled to have his behaviour regulated by the Respondent’s disciplinary process. A written warning or final written warning puts an employee on notice that if they do not change their behaviour then further disciplinary action, including termination, may occur. I note the evidence of Mr Zuzek in this regard where Mr Brown was advised that a repeat of his behaviour towards Mr Da Silva would result in disciplinary action, up to and including termination. The Applicant was not afforded this procedural right or opportunity based on Ms Wijekulasuriya’s opinion.
It is not in dispute that this instance was the first time that the Applicant has been accused of breaching a Cardinal Rule. I note that a breach of a Cardinal Rule does not automatically result in termination. The Respondent did not lead evidence to counter the allegation that Mr White breached a Cardinal Rule. From a previous matter which I determined (Knowles v BlueScope [2020] FWC 1015), I am aware that Mr Knowles received a final warning for allegedly breaching a Cardinal Rule when he performed work under a suspended load. In that matter, Mr Knowles was also an employee of 40 years’ service with a fairly clean disciplinary record – but not one as good as the Applicant. According to Mr Knowles’ manager, his good record and lengthy service saved him from being terminated for that incident. I have taken this into account.
Conclusion
It is not in dispute that the Applicant was involved in a heated discussion. It is not in dispute that Mr Brown attempted to interrupt the Applicant a number of times whilst the Applicant was speaking. It is not in dispute that Mr Brown got frustrated and walked out of the meeting. It is not in dispute that the Applicant was talking loudly. The Applicant and his colleagues say this was his normal behaviour and the normal volume of his speech. It is not in dispute that the Applicant became increasingly agitated every time Mr Nicholson made a comment during the meeting. It is not in dispute that Mr Nicholson did not take control of the meeting by either shutting it down, de-escalating the situation in a genuine way or simply leaving the meeting. It is not in dispute that Mr Nicholson said that he felt threatened by the Applicant’s comments. It is not in dispute that the Applicant responded to Mr Nicholson with the words “what did I say?”.
There is no doubt that the Applicant was frustrated during the key message board presentation. There is no doubt that the Applicant was agitated. There is no evidence to suggest that this incident was nothing more than a one-off event. The Applicant had received two written warnings over his 40-year career, which both expired as per the sunset agreement between the Respondent and the AWU, but no final written warnings. The Applicant had received numerous commendations throughout his career. Even if the Applicant threatened Mr Nicholson, I find that terminating an employee with 40 years’ service for that chain of events is harsh.
I am satisfied that the Applicant probably said the words “I used to hit people, I don’t give a f**k”. Whether the Applicant said that phrase or “I don’t do that anymore” is of little consequence on the basis that the words used are in the past tense. For a threat to be a threat, it must identify future conduct. The Applicant’s future conduct was that he would talk shit to Mr Nicholson, if Mr Nicholson talked shit to him. I have found earlier that this threat by the Applicant was inappropriate and is a breach of the Respondent’s Code but does not provide a valid reason for the Applicant’s termination.
I do not regard this threat as breaching the Respondent’s Cardinal Rules because the Applicant has not “physically abused or verbally threatened” Mr Nicholson with violence. In this regard, I agree with the Respondent’s submission identified at paragraph [85] above, in that using foul language in anger or at somebody would result in the perpetrator receiving a written warning because it is not a breach of the Respondent’s Cardinal Rules.
Many of us could talk about our previous successes or failures in aggressive activity, the degree of which will be over inflated over time, but the fact that someone threw a punch on a football field 30 years ago does not mean that they will repeat that behaviour in the workplace now. To draw such a conclusion is unjust and unreasonable.
The Commission has cautioned on numerous occasions against the comparison of events and outcomes of unfair dismissal cases and the need to compare like with like. I am satisfied and find that the actions of the Applicant are similar in nature but lower in severity than those of Mr Brown. In the Applicant’s case, there was no personal verbal attack questioning Mr Nicholson’s intellectual capacity, nor was there any attempt to use the term ‘f**k’ as a noun. Further, there was no behaviour undertaken to intimidate or threaten Mr Nicholson. As a result, it would be unfair to terminate the Applicant where Mr Brown simply received a warning note on his file.
Following the reasoning in Australian Meat Holdings at paragraph [95] above, I am satisfied and find that the Applicant’s termination was:
a) unjust because the Applicant did not threaten anybody with violence. If I am wrong and the Applicant did threaten Mr Nicholson with violence, then the Applicant’s termination was:
b) unreasonable because it was decided on inferences and opinions where there was no evidence of the likely future conduct of the Applicant based on his long employment history; and
c) harsh on the basis that the Applicant lives in the Illawarra Region of NSW which has a high unemployment rate compared to the rest of NSW, is close to 60 years of age and is likely to spend the rest of his normal working life unemployed. Further, as I have found above, termination for the actual or perceived inappropriate conduct of the Applicant is disproportionate as a penalty on the basis that the robust relationship that Mr Nicholson has with his employees is one where Mr Nicholson makes threats to the employees about their ongoing employment on a regular basis.
For all of the reasons identified above, I find that the Applicant’s termination was harsh, unjust and unreasonable.
I find that the Applicant has been unfairly dismissed.
Remedy
Having found that the Applicant has been unfairly dismissed, I now turn to the issue of an appropriate remedy.
The Applicant seeks to be reinstated. The Respondent submitted that reinstatement was impracticable because it had lost trust and confidence in the Applicant.
The relevant provisions of the Act in relation to a remedy for an unfair dismissal are:
Section 390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”
391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
In Perkins v Grace Worldwide (Aust) Pty Ltd[91] (Perkins), the Full Court of the Industrial Court said:
“Trust and confidence is a necessary ingredient in any employment relationship. … So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.
At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Di 3 of Pt VIA of the Act.
If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.
… It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.
It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee’s employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.” [92]
(My emphasis)
In Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[93] (Nguyen), a Full Bench of the Commission conveniently summarised this issue:
“The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:
• Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
• Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
• An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
• The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.
• The fact that it may be difficult or embarrassing for an employer to be required to reemploy an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate. Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.” [94]
I have taken into account the views of Ms Wijekulasuriya in relation to the gender diversification of the Respondent’s workplace. The Respondent is no longer the domain of a male only workplace. This diversification should be supported and encouraged by all parties.
However, I do not see how the issue of swearing in front of any new female employee only applies to the Applicant. The Gender diversification has resulted in better workplace behaviour in all industries. I note the evidence of Mr Newbold in what he has witnessed in meetings with the Respondent where females are present. There are no complaints before the Commission from any current female employee of the Respondent against the Applicant. I assume that the Applicant modifies his behaviour in these circumstances or that his behaviour is tolerated. I have taken this into account.
The behaviour of all employees, including the senior manager identified earlier and the Applicant, is subject to review and reform to ensure the workplace is appropriate. I find that the opinion of Ms Wijekulasuriya about the possible future behaviour of the Applicant does not extinguish the Applicant’s claim for reinstatement. I have taken this into account.
It is not in dispute that reinstatement is the primary remedy in the Act. In my view the Commission must, where possible, comply with the preference of the Parliament in determining an appropriate remedy.
It is not in dispute that the evidentiary burden to sustain an argument that the Respondent has lost trust and confidence with the Applicant falls to the Respondent.
The Respondent submitted that trust and confidence could not be re-established between the Applicant and Mr Nicholson on the basis that the Applicant testified that he believes the Respondent tried to set him up. I do not accept this submission. The Applicant and Mr Nicholson have a robust but, what Mr Nicholson described as a, reasonable relationship. This is not uncommon between a manager and a union delegate. During the Hearing, the Respondent submitted that any relationship issues raised by the Applicant were simply a red herring. I agree. The Applicant could not sustain that argument. So whilst an accusation has been made by the Applicant, it was unsubstantiated. The employment relationship has not been irretrievably damaged simply because the Applicant made an unsubstantiated claim. I have taken this into account.
Further, the Respondent argued that the Applicant cannot control his temper when he disagrees with people and raised concerns about the possibility of future episodes, particularly with new employees. I do not regard the Applicant to be a recalcitrant. The Respondent has undergone substantial changes over the last 30 years. The Applicant has no history of not adopting to new systems of work or the introduction of new safety policies. The Applicant has two prior warnings which are now ancient history and irrelevant based on the agreed policy between the parties that warnings have a shelf life of just 12 months. I have taken this into account.
Based on the obiter in Perkins and Nguyen, I find that the necessary trust and confidence can be re-established between the Applicant and the Respondent to allow for the Applicant to be reinstated. At the Hearing, Mr Nicholson said that he had a reasonable relationship with the Applicant. If that is the case, Mr Nicholson and the Applicant will have no trouble re-establishing their working relationship. However, the Applicant is on notice that his previous behaviour is inappropriate, unacceptable and must change.
I Order that the Applicant is to be reinstated to his former role.
I Order that the Applicant maintain his continuity of employment.
I Order that the Applicant be backpaid for his lost time, less any money earnt by the Applicant in the intervening period.
I so Order.
COMMISSIONER
[1] Witness Statement of Jimmy Konstandaras dated 15 October 2021 at [10]; Witness Statement of Glenn Leake dated 15 October 2021 at [21]; Witness Statement of Frank Hughes dated 15 October 2021 at [47].
[2] Witness Statement of Frank Hughes dated 15 October 2021 at [11].
[3] Witness Statement of Glenn Leake dated 15 October 2021 at [7]; Witness Statement of Jimmy Konstandaras dated 15 October 2021 at [6], [7].
[4] Unsigned Witness Statement of Nicole Lane at p 42 and p 55.
[5] Witness Statement of Jimmy Konstandaras dated 15 October 2021 at [10]; Witness Statement of Glenn Leake dated 15 October 2021 at [21]; Witness Statement of Frank Hughes dated 15 October 2021 at [47].
[6] Unsigned Witness Statement of Nicole Lane at p 18.
[7] Witness Statement of Glenn Leake dated 15 October 2021 at [11].
[8] Witness Statement in reply of Christopher Newbold dated 11 November 2021 at [6]; Witness Statement in reply of Francis Hughes dated 12 November 2021 at [24] – [26].
[9] Witness Statement of Frank Hughes dated 15 October 2021 at [33].
[10] Unsigned Witness Statement of Nicole Lane at p 30.
[11] Ibid at p 26.
[12] Ibid at p 20
[13] Ibid at p 18.
[14] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.
[15] Witness Statement of Jimmy Konstandaras dated 15 October 2021 at [11].
[16] Unsigned Witness Statement of Nicole Lane at p 40, p 41, p 43, p 48, p 54 and p 55.
[17] Ibid at p 41.
[18] Woolworths Ltd v Brown (2005) 145 IR 285.
[19] [2021] FWC 5995.
[20] Grantham v NSW Trains [2021] FWC 5995, [92].
[21] Fagan v Department of Human Services[2012] FWA 3043 at [69]-[71].
[22] Zielke v National Hearing Centres Pty Ltd[2011] FWA 1335 at [92], [97] and [104].
[23] Respodnent’s Ouline of Submissions at [38].
[24] Stephen Grantham v NSW Trains[2021] FWC 5995, [94].
[25] Ibid at [92].
[26] (1995) 185 CLR 410, [128].
[27] Grantham v NSW Trains[2021] FWC 5995.
[28] Symes v Linfox Armaguard Pty Ltd[2021] FWA 4789 at [59].
[29] Cf Elmazovski v Fletcher Insulation[2021] FWC 5990 at [42]-[43].
[30] Witness Statement of Frank Hughes dated 15 October 2021 at [60].
[31] Witness Statement of Christopher Nicholson at [5].
[32] Ibid at [9].
[33] Ibid at [12].
[34] Ibid at [12]-[13].
[35] Witness Statement of Chris Brown at [9].
[36] Ibid.
[37] Ibid at [10].
[38] Witness Statement of Christopher Nicholson at [15].
[39] Ibid at [16].
[40] Ibid at [17].
[41] Ibid at [18]-[19].
[42] Ibid at [21].
[43] Annexure D to Witness Statement of Nicole Lane.
[44] Witness Statement of Kamini Wijekulasuriya at [19].
[45] Ibid at [31](a).
[46] Ibid at [26], [31](a) and (e).
[47] Ibid at [31](a).
[48] Ibid at [31](b).
[49] Ibid at [31](b).
[50] Ibid at [31](c).
[51] Ibid at [31](e).
[52] Ibid at [31](f).
[53] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
[54] Annexure S to Witness Statement of Nicole Lane.
[55] Annexure T to Witness Statement of Nicole Lane.
[56] Ibid.
[57] Witness Statement of Francis Hughes dated 15 October 2021 at [11].
[58] Witness Statement of Chris Brown at [8].
[59] Witness Statement of Nicole Lane at [23] - [29].
[60] Witness Statement of Nicole Lane at [23] - [29]; Witness Statement of Christopher Nicholson at [43].
[61] Witness Statement of Chris Brown at [22].
[62] Witness Statement of Chris Brown at [16] - [24].
[63] Witness Statement of Christopher Nicholson at [23].
[64] Witness Statement of Christopher Nicholson at [31].
[65] [2019] FWC 1195.
[66] Stephen Grantham v NSW Trains [2021] FWC 5995, [8].
[67] (1995) 185 CLR 410, 465-7.
[68] (1998) 84 IR 1, 10.
[69] (1995) 62 IR 371.
[70] Rode v Burwood Mitsubishi Print R4471.
[71] Qantas Airways Ltd v Cornwall (1998) 84 FCR 483.
[72] Kane and McMillan v Goodyear and Dunlop Tyres (Australia) Pty Ltd[2010] FWA 4858.
[73] Transcript at PN2541-2545.
[74] Transcript at PN2549-2551.
[75] Transcript at PN2552.
[76] Transcript at PN2562.
[77] Transcript at PN2564-2582.
[78] Transcript at PN2585-2586.
[79] Transcript at PN2165.
[80] Transcript at PN2167.
[81] [2021] FWCFB 6059.
[82] Transcript at PN2137.
[83] Transcript at PN1928-1929.
[84] Transcript at PN1930-1935.
[85] Transcript at PN1933.
[86] Transcript at PN1958-1963.
[87] Annexure CH-1 to Witness Statement of Christopher Nicholson.
[88] Transcript at PN2135 and 2136.
[89] Annexure D to Witness Statement of Ms Lane.
[90] Annexure I to Witness Statement of Mr Hughes.
[91] (1997) 72 IR 186.
[92] Ibid at 191-2.
[93] [2014] FWCFB 7198.
[94] Ibid at [27]-[28].
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