Mr James Paul Benson v Airlite Windows Pty Ltd
[2009] FWA 1850
•23 DECEMBER 2009
[2009] FWA 1850 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
Airlite Windows Pty Ltd
(U2009/12297)
SENIOR DEPUTY PRESIDENT CARTWRIGHT | SYDNEY, 23 DECEMBER 2009 |
Termination of Employment.
[1] Mr Paul Benson applied for a remedy under s.394 of the Fair Work Act 2009 following termination of his employment on 8 September 2009 with Airlite Windows Pty Limited (Airlite). This decision deals with whether the dismissal was harsh, unjust or unreasonable (ss.385 to 387).
[2] It was heard on 28 and 29 October and 13 and 16 November 2009 with Mr Walkaden representing Mr Benson, and Mr Brotherson, solicitor, appearing with permission for Airlite. Ten witnesses gave evidence, 5 for Mr Benson and 5 for Airlite.
[3] Mr Benson was summarily dismissed on 8 September 2009 for serious misconduct, stated on the termination notice as “Harrassment behaviour towards other fellow employees”. 1At the time of dismissal Mr Benson had been employed for less than nine months. The dismissal arose from incidents on 4 September 2009.
[4] The following brief account of the 4 September 2009 incidents states my findings of fact as a result of detailed analysis of the evidence and assessment of the credit of the witnesses.
[5] At approximately 6:10 am on Friday 4 September 2009 Mr Benson drove his car into the driveway beside the Airlite factory, did a U-turn at a speed greater than 5 km/hour and drove straight to park his car behind Ms Wendy Middleton’s car, already parked. Ms Evelyn Hodge was at that point standing or walking behind Ms Middleton’s car and Ms Middleton was on the driveway. Ms Hodge was startled to look up and see a car coming straight at her. Mr Benson stopped his car and glared at Ms Hodge; Ms Hodge walked past the car and, together with Ms Middleton, walked across to the factory entrance to bundy on for the morning shift. Ms Hodge gave evidence that she felt intimidated.
[6] Ms Middleton clocked on first. I accept Ms Hodge’s evidence of what happened next:
“I was searching for my card on the wall to the right of the bundy clock when Mr Benson arrived at the bundy clock. Mr Benson was searching for his card on the wall to the left of the bundy clock. I found my card and had lifted my arm to bundy on when Mr Benson said to me words to the effect of:
‘What’s going on here? - Move !’
Mr Benson’s tone when making the above comments was loud and aggressive.
I stopped my movement to bundy on. Mr Benson bundied himself on.” 2
Colloquially put, Mr Benson jumped the queue.
[7] None of this would have amounted to anything had not Mr Benson made derogatory comments about Ms Hodge later that morning to colleagues, which Mr Peter Pike reported back to Ms Hodge. 3 Ms Hodge then made a complaint about Mr Benson’s conduct and in the ensuing investigation, Mr Palamara, the General Manager of Airlite, became aware that Mr Pike had previously been offended by Mr Benson’s conduct and by comments attributed to him.
[8] While there is background and much more that could be said about all of these incidents, the net result is that, in a workplace of 74 full time employees on the one site, Ms Hodge was upset by Mr Benson’s behaviour towards her, Mr Pike wanted nothing more to do with him 4, Mr Benson had previously clashed with Mr Lovett 5 and Mr Singh 6, Ms Middleton now no longer drives Ms Hodge to work and, although being her leading hand, has nothing to say to her 7, and Ms Hodge has had “a pretty bad time at work” over this with certain employees.8
[9] In my view, when Ms Hodge made the complaint, Mr Palamara was obliged to investigate and found himself in the invidious position of having to deal with events taking on greater significance with friction in the workplace.
[10] S.387 of the Act applies to this case. It provides:
“In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
[11] In reaching the position summarised above I have had to resolve conflicts in evidence. Mr Benson, Ms Middleton, Ms Hodge and Ms Penfold gave accounts of the car park incident. Mr Benson and Mr Pike gave evidence on whether or not Mr Benson made derogatory comments to colleagues on 4 September about Ms Hodge. Only Ms Hodge had a recollection of the bundy clock incident.
[12] Ms Hodge was in my view an honest, straightforward witness, with a good recollection of events, unshaken under examination. Her evidence was consistent with the contemporaneous statement she gave Mr Palamara on 7 September 2009. 9 Mr Pike was a reluctant witness, not wishing to have been involved in the hearing, but confident and consistent in his recollection. His evidence was also unshaken under cross-examination and I am satisfied it was reliable. Similarly, there is no doubt in my mind that Ms Penfold gave her honest recollection of the events she witnessed and her evidence is to be accepted as such. It is not surprising that some details of her recollection had differences with other accounts which I also accept. Indeed, it would be noteworthy if different people related exactly the same recollection of events they experienced differently.
[13] Ms Middleton’s evidence, however, was more difficult to accept. In my view, her recollection was not reliable. For example, her oral evidence at the hearing contradicted the contemporaneous statement she gave Mr Palamara 10, her evidence that she had picked up Ms Hodge from Windsor Station almost every morning since Ms Hodge started at Airlite (5½ years) was wrong 11, as was her statement that she had supervised Mr Benson from the day he started 12, she first gave evidence that “It wasn’t” light when she parked 13 then retracted it 14 and was not consistent in her recollection about Mr Benson and performance issues.15 Where there is conflict, I have not preferred Ms Middleton’s account.
[14] I give no weight to the evidence of Mr Duffy, who agreed that he lied under his affirmation. 16 Mr Bandara’s evidence was peripheral to matters I have to decide and Mr Slee’s evidence was of limited scope. In my view, Mr Dos Santos and Mr Palamara were reliable witnesses whose evidence is to be accepted. In particular, Mr Palamara gave thoughtful, considered answers in his oral evidence and was quick to acknowledge where he might be wrong.
[15] Mr Benson also made some concessions, but I did not find all his evidence convincing. For example, in cross-examination he first could not recall Ms Hodge being at the bundy clock at the same time as he was. 17 He conceded that could have been the case 18, but then asserted that he did not say “What’s going on here? Move.” and that it never happened.19 Similarly, in the context of all his evidence, his answers to questions about whether he made derogatory comments about Ms Hodge on 4 September were, in my view, too good to be true.20 Nor, in the light of evidence from Ms Hodge21, Ms Penfold 22 and Ms Middleton 23, do I accept Mr Benson’s evidence that his car was not travelling faster than five kilometres an hour.24 I pause here to observe that 5 kilometres an hour is equivalent to a fraction over 3 miles per hour, the old military metric of marching speed. I have no difficulty accepting that Ms Hodge and Ms Penfold could reliably give evidence that Mr Benson’s car was going faster than walking speed.
[16] Consequently, in determining factual issues central to the case, I have preferred Ms Hodge’s evidence of the bundy clock meeting and Mr Pike’s evidence that he heard Mr Benson call Ms Hodge a “silly old bitch” 25 while talking to fellow workmates during the morning coffee break.26 Though Mr Duffy was apparently also present on this occasion, he gave no evidence on this conversation.
[17] As to the car park incident, while there is much commonality in the evidence, I have generally preferred the accounts of Ms Hodge and Penfold, though at some points I have accepted the inherent likelihood of some of Mr Benson’s evidence.
[18] Being satisfied as to the events, what assessment is to be made of Mr Benson’s conduct? These questions are always a matter of degree and in this case I find myself unable to share the employer’s view of the seriousness of the incidents.
[19] It must be accepted that Mr Benson’s conduct was a problem in the workplace that had to be dealt with. The background was that his work was adequate, but not great 27, and in less than 9 months employment in a plant of 74 employees he had had run-ins with Mr Lovett and Mr Singh, had offended Mr Pike, and Ms Hodge, an employee of 18 years and “an excellent operator” 28 who worked next to Mr Benson, had now complained of intimidation by Mr Benson, the substance of which was supported by Ms Penfold, “very well regarded at Airlite as a hard working employee who works well with her colleagues”.29 During the investigation, Mr Pike also complained about Mr Benson’s conduct.30
[20] In considering under s.387 whether there was a valid reason for the dismissal related to the employee’s conduct, the Tribunal is also to take account of the effect of the conduct “on the safety and welfare of other employees”. That is certainly a consideration here, because Mr Benson’s conduct on 4 September potentially affected Ms Hodge’s safety and welfare. But her evidence was that she would not have pursued the car park and bundy clock incidents had not Mr Benson’s derogatory comment been reported to her. 31
[21] In my view, Mr Benson’s conduct in the incidents at issue in this case did not warrant summary termination or termination of his employment. The better course, in my view, would have been to apply Airlite’s policy on disciplinary matters short of serious misconduct justifying summary dismissal, and to issue a written warning. Consequently, I am of the view that the conduct complained of and the totality of the conduct did not constitute valid reason for dismissal.
[22] I have also taken account of the elements in sub-paragraphs (b) to (g) in s.387. None is a determinative factor in this case. Since “that reason” in s.387(b) refers back to “a valid reason for the dismissal” in s.387(a), the factors in sub-paragraphs (b) and (c) have no operation where I have found that there was not a valid reason for dismissal. Sub-paragraph (e) is not relevant here and sub-paragraph (d) was not at issue. Nor were the factors in sub-paragraphs (f) and (g) argued to be significant in this case.
[23] As to other relevant matters, Mr Benson’s period of employment was short at less than 9 months, and the evidence and submissions on swearing in the workplace and the significance of union issues do not in my view affect the matter one way or the other.
[24] Taking everything into account, and considering the Object of Part 3-2 of the Act (s.381), I am satisfied that Mr Benson’s dismissal was harsh, unjust or unreasonable and that he was unfairly dismissed as set out in s.385.
[25] Mr Walkaden applied for an order for Mr Benson’s reinstatement, arguing that the Fair Work Act places emphasis on reinstatement as the primary remedy (see ss.381(1)(c) and 390(3)). That is undoubtedly correct, but I am satisfied in this case that reinstatement of Mr Benson is inappropriate.
[26] Airlite has 74 employees at the South Windsor site, 43 of whom work in the aluminium production operation where Mr Benson was employed. 32 Mr Benson has already had to be moved once within the factory in his short time of employment because he clashed with and could not get on with his Leading Hand, Mr Lovett.33 He has clashed with Mr Singh 34, offended Mr Pike who wants nothing more to do with him and Mr Palamara’s evidence is that there is no possibility of a working relationship between Mr Benson and Ms Hodge 35, beside whom Mr Benson previously worked. Ms Hodge’s evidence supports this. Mr Benson agreed there was no way he could avoid Ms Hodge in the workplace.36 Ms Middleton and Mr Palamara both gave evidence that most employees have to interact on operational issues 37 and Ms Middleton agreed that inefficiencies could creep in if Mr Benson returned.38 Ms Middleton and Mr Dos Santos gave evidence that there would be tension for a long time 39 or clashes.40 Mr Dos Santos would not know where to place Mr Benson in the workforce of 74 41, and Mr Palamara had a concern about the risk to safety in this workplace from a lack of co-operation or cohesiveness 42, something which Mr Benson accepted.43
[27] Given the above, I do not accept Mr Benson’s assertion that he can still work together with the people in question. Moreover, in his evidence Mr Benson denied wrongdoing and for the most part did not acknowledge shortcomings. Indeed, Mr Palamara was concerned about Mr Benson’s contempt for the investigation process and his role. 44
[28] The broader context is that Ms Hodge, Ms Penfold and Mr Pike, employees whom the managers were concerned about in the event of Mr Benson’s reinstatement, are all valued employees, as references above have indicated, whereas Mr Benson’s work was adequate but not great.
[29] All things considered, I am in no doubt that reinstating Mr Benson would be inappropriate, and I refuse to do so.
[30] I am however, satisfied that in light of findings above, it is appropriate in all the circumstances to order payment of compensation and, accordingly, have considered the matters in s.392 of the Act.
[31] Mr Benson’s length of service is short at less than nine months, he has mitigated his loss by getting a higher paid job just under six weeks after his termination and I am satisfied that Mr Benson’s misconduct contributed to Airlite’s decision to dismiss him, such that the amount I would otherwise order considering the matters in s.392(1) is to be reduced. It is also relevant that Mr Benson was summarily dismissed, without the one week’s notice that would otherwise be due under s.117 of the Act.
[32] Mr Brotherson did not submit that an order for compensation would effect the viability of Airlite’s business. On the evidence before me, considering ss.392(2)(c), (d), (e) and (f), Mr Benson’s loss appears to be limited to just under six weeks after the termination. I am required by operation of s.392(3) to reduce the amount that would otherwise be ordered.
[33] Balancing all the relevant considerations, I have decided to order that Airlite pay compensation of four weeks wages to Mr Benson in lieu of reinstatement.
SENIOR DEPUTY PRESIDENT
Appearances:
A Walkaden, for the Applicant
K Brotherson, solicitor, for the Respondent
Hearing details:
2009
Sydney
October 28 and 29
November 13 and 16
1 Exhibit A-1
2 Exhibit R-6, paras 23-25
3 I do not think anything turns on whether the comment was “silly old bitch” or “silly old cow” (Exhibit R10, para 45).
4 Transcript, PN 3924
5 Transcript, PN 166
6 Transcript, PN167
7 Transcript PN 1671 and 3104
8 Transcript PN 3120
9 Exhibit R10, Attachment N
10 Transcript PN 2132
11 Exhibit A-5, para 8
12 Transcript PN 1823
13 Transcript PN 1679
14 Transcript PN 1925
15 Transcript PN 1842-1853
16 Transcript PN 1424
17 Transcript PN 215-217 and 1022
18 Transcript PN 1023, 1032
19 Transcript PN 1038
20 Transcript PN 1051-1089
21 Transcript PN 3255
22 Transcript PN 3382, 3581-83
23 Transcript PN 1755
24 Transcript PN 878-884
25 Transcript PN 3762-3787
26 Transcript PN 3820-8
27 Exhibit R9, para 13 and Transcript PN 4068
28 Exhibit R9, para 26
29 Exhibit R10, para 42
30 Transcript, PN 3948
31 Transcript, PN 2924
32 Exhibit R9, para 4.
33 Exhibit R10, para 89.
34 Transcript PN 1854
35 Exhibit R10, para 87
36 Transcript PN 719
37 Transcript, PN 1884-93, Exhibit R10, para 88
38 Transcript, PN 1899-1902
39 Transcript PN 1884-93 and 4219
40 Exhibit R9, para 33
41 Transcript, PN 4236
42 Exhibit R10, para 83
43 Transcript, PN 526
44 Exhibit R10, para 79
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