Mr James Tolevsky v Linfox Australia Pty Ltd

[2015] FWC 4802

[2015] FWC 4802

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr James Tolevsky
v
Linfox Australia Pty Ltd
(U2015/2421)

COMMISSIONER WILSON MELBOURNE, 15 JULY 2015

Application for relief from unfair dismissal.

[1] Until his dismissal on 9 January 2015, James Tolevsky was employed by Linfox Australia Pty Ltd as a Distribution Facility Employee Level 1 at the Coles Regional Distribution Centre (RDC) in Truganina, Victoria. Mr Tolevsky was first employed by Linfox on 8 December 2008.

[2] Through an application for unfair dismissal remedy to the Fair Work Commission on 16 January 2015, Mr Tolevsky refers to having been told that the reasons for his dismissal were “inappropriate behaviour”. He claims that in all the circumstances his dismissal was harsh, unjust and unreasonable.

[3] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters to be considered before considering the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Mr Tolevsky’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[4] For the reasons set out in this decision, I find that Mr Tolevsky was not unfairly dismissed within the meaning of the Act and that accordingly his application must be dismissed.

BACKGROUND

[5] Linfox’s termination of employment letter to Mr Tolevsky, dated 9 January 2015, includes references to warnings and counselling which had been given over the course of 2013 and 2014 and in particular refers to a series of interactions between he and company representatives during December 2014 that led to his suspension, an investigation and ultimate dismissal. Having traversed earlier events in Mr Tolevsky’s employment, including two periods of counselling in December 2013 and July 2014 as well as written warnings being issued in January 2014 and December 2014, the letter of termination referred to Mr Tolevsky’s conduct on 19 December 2014 in the following way;

“On 19 December 2014 you attended a meeting with Brenden Milburn (Shift Manager) and Suzanna Kardos (RTW Team Manager) regarding your return to work (RTW) plan. During this discussion you became argumentative and leant across the table and in a loud and aggressive tone you told Brenden Milburn to "fucken look at me in the eye. Show me some fucken respect”. You were asked to calm down and stop being abusive.

The discussion continued and you became loud and aggressive again towards Brenden Milburn and stated: "Linfox doesn't give a fuck about its employees; What are you going to do about my complaint? If you don't do something I will; I'll go to my doctor and he'll put me off on stress leave or something; I'lI just sit at home and let my solicitor handle it; None of you are smart enough to take me on; Once I start something I don't stop until the end;" You were requested several times to cease speaking in this manner but continued with your loud and aggressive tirade. The meeting was ended as you refused to calm down.

As a result of your behaviour displayed you were suspended with pay, whilst Linfox
considered your on-going employment.” 1 (original emphasis)

[6] In conclusion, the letter of termination advised Mr Tolevsky the following;

“Linfox has reviewed all the evidence and has found that you did act inappropriately. In addition Linfox considers your interview responses to be both lacking in honesty and credibility. This incident is a breach of your obligations in accordance with Clause 22 of the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2014.

22. Employees Duties

22.1 Every Employee must at all times:

(c) not engage in inappropriate behaviour;

In addition, The Linfox Red Book Induction in section 5 Employee Commitments to Linfox in particular 5.9 Indecency and Bad Language page 42, states the following:

5.9 Indecency & Bad Language
Common and accepted rules of decency and language should always be observed.

Today, 9 January 2015, you were given a further opportunity to respond to the company's decision to terminate your employment for inappropriate behaviour and on the basis that Linfox no longer has trust and confidence in your character which goes to the heart of the employment relationship. No mitigating circumstances were provided by you to alter the company's decision with respect to this matter.

As such Linfox is terminating your employment effective immediately with notice, and in accordance with the termination checklist you are to return all property belonging to Linfox. All outstanding entitlements will be forwarded to your nominated bank account once the termination process has been finalised.” 2 (original emphasis)

[7] The evidence given in this matter on behalf of the Applicant came from Mr Tolevsky himself as well as Mr Ken Price, a delegate of the National Union of Workers (NUW) also employed by Linfox at the Truganina RDC.

[8] The evidence on behalf of the Respondent was given by three people; Mr Phillip McInerney, the Truganina RDC Distribution Centre Manager; Mr Brendan Milburn, a Shift Manager at the RDC at the time of Mr Tolevsky’s dismissal; and Suzanna Kardos, Return to Work Manager at the RDC.

[9] A review of the totality of the evidence shows that consideration of Mr Tolevsky’s dismissal arose principally as a result of the events that commenced on 9 December 2014. This is shown in the written part of a Record of Interview conducted with Mr Tolevsky on 24 December 2014 which sets out the following essential proposition to Mr Tolevsky regarding the concerns Linfox held about his conduct;

“Brenden Milburn claims that on 19 December 2014, at approximately 10.15am he was in a meeting with you, Suzanna Kardos (Return to Work Coordinator), and Ken Price (NUW delegate) to discuss James's RTW plan. During this meeting, Brenden alleges that:

I was trying to explain to James why it was important for him to carry his return to work plan as it will assist the floor managers to help with his recovery and not allocate him unsuitable duties.

While doing this, James interrupted, lent across the table towards me, point his
finger at me and in a loud and aggressive manner said, "FUCKEN LOOK AT ME WHEN I'M TALKING TO YOU" "FUCKEN SHOW SOME RESPECT AND FUCKEN LISTEN WHEN I AM TALKING TO YOU"” 3 (original emphasis)

[10] Mr Tolevsky’s oral evidence confirmed these matters had been put to him in the meeting held on 24 December 2014. 4

[11] The evidence discloses that Mr Tolevsky’s duties included operating machinery in the RDC warehouse for the purposes of picking orders for transportation. He had been trained and assessed as competent in the operation of a Toyota loading tugger, which is also sometimes referred to as a pallet truck. He had also been trained and assessed as competent in the RDC traffic management plan. 5

[12] One of the duties required to be completed by warehouse employees at the Truganina RDC is participation in an Assessment Technique Review (ATR) process. This process requires an employee to be periodically scrutinised and assessed by a supervisor for their capacity to perform certain tasks competently and within prescribed times. The results of the ATR are recorded and collated along with other ATRs that have been undertaken. The ATR process had been introduced by Linfox in the course of 2014, and between July 2014 and 26 March 2015 2,290 ATRs had been conducted at the RDC. 6 The ATR assesses the employees along several dimensions including their productivity and pick-rates; their compliance with certain assembly and manual handling procedures; and their use of their assigned tugger.7

[13] At least for Mr Tolevsky the ATR process was controversial. In September 2014 he had complained that process amounted to bullying and harassment, a complaint which was not upheld upon investigation by the relevant safety regulator, Comcare. 8 Mr Tolevsky’s complaint indicated that he believed he was being bullied and harassed with the use of the ATR system and that he thought it was affecting his health.9 Mr Tolevsky’s complaint in this regard was made on 23 September 2014 and, on 29 September, Mr McInerney responded to the complaint with the following advice to Mr Tolevsky about the ATR system;

“The ATR process is a tool used by management to ensure that employees are working
safely in support of Vision Zero. In addition, ATR assists us to identify how Linfox can improve our performance in support of the campaign Sell More Lose Less, reduce waste and increase productivity overall.

Your selection to complete an ATR was based on data from the previous day, which showed that your performance was very low compared to the reasonable pick expectations. These pick expectations are based on the reasonable expectations study conducted by the workplace engineers S&V Operations and Logistics, on behalf of Linfox. These expectations were communicated in a Team Member Notice dated 7 August 2014.

I have taken into account your concerns regarding how participating in the ATR process is making you feel and your request to have a Health and Safety Representative (HSR) or union delegate accompany you during the ATR. There is no requirement for either a HSR or union delegate to be present whilst you complete an ATR.

The request for you to participate in the ATR process is a lawful and reasonable management request and therefore does not constitute bullying or harassment. Therefore you are required to complete the ATR process as initially requested.” 10

[14] A Linfox document containing an extract purporting to be from a Comcare inspector’s report was provided in evidence in these proceedings. The extract is dated 20 October 2014, and indicates the following under the heading “summary of commitments/outcomes”;

“Comcare inspectors attended the workplace to enquire about a complaint made by workers citing the possible breach of s70 [indecipherable] The worker involved also alleged bullying and harassment actions from Linfox management

Comcare inspectors were given a detailed version of what an Assessment Technique Review (ATR) consists of Although it has a component that focuses of [sic] safety outcomes, a large portion of the ATR is a performance management and business improvement tool Based on these findings Inspector [name] considers the PCBU 11 has not breached s70 of the Act as it would be deemed reasonable management action

The Bullying and Harassment claim has also been dismissed as the claim does not fit the definition All attempts were made by the PCBU to explain why the ATR’s are completed and what the expectations of the inspector was There may have been barriers/reasons as to why the worker reacted in the manner that they did and Inspector [name] encourages the PCBU to continue working at more effective communication methods for future conversations” 12

[15] The same document also includes this reference under a heading of “summary of inspectors actions and observations”;

“Inspectors were made aware of a Provisional Improvement Notice (PIN) issued by HSR Ken Price. This notice has been extended until 12 December 2014. The PIN refers to unreasonable demands on productivity (pick rates, let-downs and put-aways etc). It also states PCBU should engage an industrial engineer to establish appropriate pick rate figures taking into account all the warehouse variables.

The PCBU has already engaged and received a report from S and V Operations and Logistics regarding the above request” 13

[16] On the morning of 9 December 2014, Mr Tolevsky was in the course of being reviewed by a supervisor for an ATR. The supervisor who was undertaking the ATR was Mr Doug Knowles. The first of the RDC lunch breaks was scheduled for 11:15 AM and that lunch break would have been due to fall across the start and finish of the ATR. Mr McInerney’s evidence is that Mr Knowles, who did not give evidence in these proceedings, reported to him on 9 December that Mr Tolevsky had, in his opinion, left early for a lunch break. Mr McInerney puts this report as being a complaint by Mr Knowles “that Mr Tolevsky had refused his reasonable and lawful instruction to continue the ATR process and that he left the work area prior to the first bell which sounds three minutes before the first lunch break”. 14 That incident led to a written warning being issued to Mr Tolevsky about his conduct.15 The content of the warning includes the following;

“Inappropriate behaviour- time wasting:

Today, you were participating in an ATR with Doug Knowles (Team Manager) at approximately 8:10am. During this time, while returning from a toilet break, you were witnessed by Doug Knowles off task, in Aisle 22 talking to George Andrasik (across the aisle - George was in aisle 23). At this time you were asked by Doug Knowles (Team Manager) to stop talking and continue with the ATR, which was being conducted in the confectionary room. You then stated to Doug, words to the effect that Doug was not to engage with him during the ATR process. Doug informed you that if deemed necessary he would be engaging with you as a manager and again you said words to the effect that Doug was not to speak with you during the ATR process.

I am concerned by your inappropriate behaviour, particularly time wasting, when you were involved in an ATR process by [indecipherable] your time to return from a toilet break (ie. engaging in a conversation with George Andrasik), and a manager was [indecipherable] tor you to recommence the ATR process. I am also concerned that you refused a directive to recommence the ATR, and you were uncooperative, refusing to recommence the ATR process until after you had spoken to a union delegate.

You have also left your work area early (at 11:11am), prior to the bell which sounds three minutes prior to the break time commencing.” 16

[17] The warning advised Mr Tolevsky that the following corrections were expected in his behaviour;

“ You must comply with reasonable and lawful instructions of management

• You must participate in the ATR process when requested” 17

[18] Mr Tolevsky declined to sign the warning which, if he did so, would have indicated that he understood that a copy of the document would be retained on his personal file and that he understood the consequences of not correcting the performance or behaviour discussed within the warning. To that extent the warning communicated the following to Mr Tolevsky;

“This written warning (disciplinary record) formally advises you that your behaviour is below the standard expected by this organisation and will remain on your file. Any further incident may result in further disciplinary action up to and including termination of your employment.” 18

[19] Mr Knowles also made a complaint, but not until some later time, about another incident involving Mr Tolevsky proximate to the 11:15 AM lunch break. That incident was an allegation that Mr Tolevsky had been observed by Mr Knowles tailgating another employee through a rapid rise roller door, contrary to policy. The incident led to the issuing of a written warning to Mr Tolevsky on 18 December 2014, which communicated a warning in the same terms as those set out above, provided to Mr Tolevsky on 9 December 2014. Mr McInerney puts forward that the reason for the delay between the incident occurring on 9 December and the initial discussion with Mr Tolevsky about the matter on 17 December firstly that Mr Knowles wished to review video surveillance of the incident and secondly that Mr Tolevsky and another relevant employee had been unavailable for a period. 19

[20] On 15 December 2014 Mr Tolevsky hurt his back at work and consulted a company doctor who imposed some work restrictions for a period. 20 A return to work plan was agreed and entered into.21

[21] A few days later, on 18 December 2014, Mr Tolevsky and the RDC return to work coordinator, Ms Kardos, attended a further medical appointment in relation to Mr Tolevsky and his abilities. Mr Tolevsky’s evidence is that he explained to the doctor that he was stressed and anxious when he was at work at that point in time. 22 A certificate was issued by the practitioner which described Mr Tolevsky’s injury/disease as being “work related stress” with the diagnosis of “acute stress reaction”. The medical certificate referred to Mr Tolevsky being expected to be fit for normal duties on 18 December 2014, the same day as the appointment.23 Later that same day Mr Tolevsky was called to a meeting and provided with the written warning in relation to having tailgated another employee through a rapid rise roller door.24

[22] The next day, Friday, 19 December 2014, Mr Tolevsky was scheduled to work from 6 AM and, according to Mr McInerney’s evidence, arrived at the RDC premises at 5:52 AM. 25 Mr Tolevsky’s evidence is that he was experiencing back pain, with his witness statement recording the following on the subject;

“When I went in to work the next day my back was killing me so instead of going on to the floor I sat in the lunchroom for a bit because it is a lot warmer there than out on the floor. My back didn’t start to feel any better so I sat there for a few hours, until Suzanna came in and asked me to attend a meeting with her and another manager, Brenden Milburn. I asked NUW delegate Ken Price to attend this meeting with me.” 26

[23] That he was doing as described in the foregoing passage and what occurred in the hours following is contested between the parties.

[24] Mr Tolevsky’s contentions are firstly that he was in pain; that secondly it was acceptable for him in such circumstances not to progress to his work area or to a rehabilitation area but instead to undertake exercises in the lunch room partly for reason that it was warmer; and thirdly that his immediate supervisor, Mr Knowles, knew of his whereabouts. While the first of the contentions, that Mr Tolevsky was in pain, does not appear to be the subject of controversy, the second and third elements of his contentions are contested by Linfox.

[25] Linfox is adamant that Mr Tolevsky was not entitled to be in the lunchroom other than that at scheduled break times. 27 The company’s evidence is that if Mr Tolevsky was experiencing pain, then he should have been in another part of the premises, and in particular near a “hand out room” or the first aid room.28 Mr Tolevsky disagreed that he should restrict his exercises to the proximity of the handout room or the first aid room.29 Mr McInerney’s evidence was that “we don't allow people to sit in the cafeteria during a return to work plan”.30

[26] Mr Milburn, who at the time was employed by Linfox at the RDC as a shift manager, gave evidence that at about 9:55 AM Mr Knowles informed him that Mr Tolevsky was in the lunchroom outside of normal break times. He was informed by Mr Knowles that he was unsure what Mr Tolevsky was doing there. He and Mr Knowles spoke with Mr Tolevsky about that as well as his formal return to work plan. They agreed there would be a formal meeting shortly afterwards which would include Ms Kardos as well. 31 That meeting commenced at about 10:15 AM and comprised Mr Milburn, Ms Kardos and also Mr Price, the NUW delegate. The meeting commenced by discussing the reasons Mr Tolevsky had been in the lunchroom for an extended period. Mr Tolevsky’s witness statement records the meeting in this way;

“At the meeting Brenden and Suzanna talked about my back injury and my stress issues and said that I needed to get to work on the floor immediately. I tried to explain that my back was really sore and that I needed to rest in the lunchroom. Brenden was very dismissive of what I was saying. His body language was negative and his tone was very negative and he was defensive. After a while he became frustrated and aggressive and was quite intimidating. I was very firm with Brenden and told him that if he wanted to talk to me he needed to do it properly and if he continued to do it in the manner that he was then I wouldn’t talk to him anymore.

I was not aggressive towards Brenden or Suzanna in any way. Suzanna told me that I had to get back to work out on the floor. She also said that she would make changes to my return to work plan, which she did. Attached to this statement … is the original return to work plan of December 15 and the second one that included the changes made by Suzanna. I said I wasn’t prepared to go out on the floor because of my back so Suzanna told me to sit in another office.” 32

[27] In contrast, Ms Kardos & Mr Milburn’s evidence about the events in the meeting is critical of Mr Tolevsky. They say he swore and was aggressive and threatening, with Ms Kardos' witness statement recording the events as follows;

“9. I recall discussing with James the rest and stretch breaks that James needed to do throughout the day. James told me that he wanted to do them in the cafeteria. I made it clear to James that he couldn’t do his stretches in the cafeteria, which was consistent with how all RTW 33 team members are dealt with.

10. I told James that he could do the stretches near the hand out room, or he could do them in the first aid room and that a manager could open it for him. James was not happy with this and was talking loudly.

11. Whilst I was trying to explain the above to James he became very agitated towards Brenden and stated how he was feeling unhappy about the way he was being treated by the company. James started swearing and said fuck a number of times.

12. He said words to the effect of: “Fucking look at me in the eye, show me some fucking respect”. I can also recall that James said “You didn’t resolve my issues regarding my stress, I’ve got a sore back and I’m stressed. If I don’t go to your doctor, I’ll go to my doctor

13. His (James) mannerisms were aggressive. Brenden asked him numerous times to please not speak to him in that manner and to be respectful.

14. James then began threatening to take legal action making statements such as, “I’m sick of being bullied on the floor. I’m going to my doctor, I’m going to take you down (I took this to mean Linfox and Brenden).

15. James was speaking in an aggressive tone, he was mocking and sarcastic. He was leaning across the table at Brenden and pointing his finger at him and had come up off his chair to do so.

16. I felt extremely concerned about the situation and contemplated calling security. At one point Ken Price tried to calm James down and said very clearly, “Calm down mate”. Ken also stated that I should back down with respect to James not being allowed to do his stretches in the cafeteria.

17. I tried to bring the meeting back to what it was meant to be about which was the RTW plan that James had signed up to, however James continued his aggressive abuse towards Brenden. Brenden then called the meeting to an end.” 34 (original emphasis)

[28] Shortly after the meeting concluded, at about 11:00 AM Mr Milburn and Ms Kardos reported the meeting to Mr McInerney, who asked the Linfox People Development Manager, Mr John Girardi, to stand Mr Tolevsky down on full pay, which was done. 35

[29] Subsequently an investigation was undertaken into Mr Tolevsky’s behaviour, with him being interviewed on both 24 and 31 December 2014. By early New Year, Linfox had formed the view that because of the circumstances of the matter the continuation of Mr Tolevsky’s employment was to be called into question. He was asked to attend a meeting to discuss his employment future, which was held on 9 January 2015. The only person present at that meeting who gave evidence in these proceedings was Mr Tolevsky. Mr McInerney was on leave, and neither Mr Milburn nor Ms Kardos on the part of the Respondent, nor Mr Price on the part of the Applicant, were in attendance. Instead the meeting comprised Mr Tolevsky and a representative from the NUW, Mr Bailey, Mr Girardi and Mr Kane Sorbello, the RDC Operations Manager. Mr Tolevsky’s witness statement does not address the subject of the meeting, however his oral evidence is that in the meeting on 9 January 2015, none of the management representatives made mention of the prior events leading up to the event of 19 December. 36

[30] Mr McInerney’s evidence is that despite not being in the meeting on 9 January, he was consulted by Mr Girardi, one of the people who was at the meeting. In the course of a break in the meeting the management representatives rang Mr McInerney, who recollects the following about what they told him;

“55. Mr Girardi informed me during a break in the meeting that in attendance with Mr Tolevsky was Mel Bailey (NUW Union Representative) Mr Girardi and Mr Sorbello.

56. Mr Girardi also informed me that he had outlined the numerous events and warnings that had been provided to Mr Tolevsky over the preceding months, including his breaches of the Site TMP, the roller door SWP, the Red Book (inappropriate behaviour on two separate occasions) and failure to follow reasonable/lawful instruction. Mr Girardi then provided Mr Tolevsky with an opportunity to provide his view as to why his employment should not be terminated.

…

57. Prior to this meeting I had formed the view that, unless Mr Tolevsky was able to provide any reasonable explanation for his behaviour, his employment at the Site could not continue. I formed this view based on the fact that, overall, Mr Tolevsky’s conduct to date had not been in keeping with the standard required of all employees at the Site.

58. Mr Girardi and Mr Sorbello informed me during the break in the meeting that, Mr Tolevsky did not provide any compelling reasons as to why his employment should not be terminated. He also did not demonstrate any contrition for his behaviour or show any indication that he was prepared to change his behaviour or his uncooperative attitude.

59. George Katsifolis (Workplace Relations Advisor) was also included in this discussion via the telephone. We agreed that Mr Tolevsky had not provided any compelling reasons as to why his employment should not be terminated.” 37

[31] There are significant differences in the evidence about Mr Tolevsky’s conduct between the Applicant’s witnesses, being Mr Tolevsky and Mr Price, and the Respondent’s witnesses, being Mr McInerney, Mr Milburn and Ms Kardos. Accordingly I turn to consider those differences.

[32] The termination letter of 9 January 2015 refers to a number of prior incidents involving Mr Tolevsky.

[33] The first of those was a counselling letter sent on 10 December 2013 regarding an alleged failure by Mr Tolevsky to keep a safe distance between himself and another vehicle. 38 The response given by Mr Tolevsky and contained within Mr McInerney’s statement shows that Linfox took the view that Mr Tolevsky was at fault, whereas Mr Tolevsky did not. The material provided in these proceedings about the allegation includes an investigation report and a video recording of the relevant incident upon which Mr McInerney relies upon for his judgement that Mr Tolevsky was at fault, and which judgement I accept. I take into account that Mr McInerney chose to take this up with Mr Tolevsky as counselling, rather than a warning. The evidence allows that this was a reasonable judgement for Mr McInerney to have made.

[34] On 29 January 2014 Mr Tolevsky was issued with a written warning following an incident in the lunchroom with a union official from another union. 39 The substance of the allegation was that he had been abusive to the official. When the matter was discussed with Mr Tolevsky he denied any inappropriate behaviour or culpability and declined to sign the warning letter.40 In oral evidence, he agreed the meeting was heated and that the two were having a heated discussion, but that there was no swearing on his part or others.41 Despite putting forward the characterisation that the meeting was heated but not such as to involve swearing, Mr Tolevsky did not put forward an alternative characterisation to that put in the Respondent’s material. That characterisation, very clearly, is of an abusive, potentially even out-of-control meeting.

[35] Mr Price, who gave evidence on behalf of Mr Tolevsky, put forward that the meeting was aggressive and that Mr Tolevsky was aggressive to the union official, but denied that there was swearing and that “there was no threats or physical pointing or anything like that”. 42 For his part, while Mr Price recalls the meeting as being “definitely heated” he cannot remember placing his hand on Mr Tolevsky’s chest, which is a matter referred to in the investigation report referred to below, or hearing Mr Tolevsky swearing or becoming aggressive.43 His evidence was also that Mr Tolevsky would ordinarily swear and become heated, but not aggressive, when he is upset or arguing.44 Notwithstanding that the meeting itself was aggressive and that Mr Tolevsky might swear and become heated himself, Mr Price’s evidence was that he could not remember Mr Tolevsky swearing or becoming aggressive or heated in the meeting. The evidence of Mr Price was not that Mr Tolevsky did not do these things, but rather that Mr Price could not remember.

[36] The investigation undertaken by Mr Girardi, the People Development Manager, and his findings about Mr Tolevsky’s conduct are referred to in the warning letter given to Mr Tolevsky in the following terms;

“I have investigated this matter, including receiving statements from three witnesses, and have concluded that your behaviour was inappropriate towards Luke McCrone. This included swearing at Luke, including using words to the affect of "f*#cken liar", and "f*#cken dog". During this exchange, Ken Price stood up and put his hand on your chest.

In my meeting with you on 16 January 2014, where Ken Price (union delegate) and Garry Hill (acting Shift Manager) were also present you said that Luke had accused you of lying and that this made you very angry as you felt your character was being attacked.” 45

[37] Contemporaneous employee statements apparently relied upon by Mr Girardi in his investigation corroborate this finding and in some respects are in more graphic terms about Mr Tolevsky’s conduct. 46 Despite Mr Tolevsky denying the allegations and putting forward that he was not at fault and that the union official in any event did not take offence at what he did, the evidence in these proceedings would indicate that it was reasonable for Linfox to issue a written warning to Mr Tolevsky over that incident.

[38] On 2 July 2014 Mr Tolevsky was issued with a further counselling letter relating to allegations that he had failed to stop at a marked line in a warehouse aisle, in contravention of the site traffic management plan. Mr Tolevsky denied all allegations and declined to sign the disciplinary record. 47 Furthermore, Mr Tolevsky does not recall the incident or even receiving counselling about the matter, but concedes that it may well have happened.48 In the context of the overall evidence given by Mr Tolevsky and his demeanour as a witness, together with the documentation provided by Linfox, it seems improbable that he has no recollection of the incident. The management record, tabled in these proceedings, is that Mr Tolevsky declined to sign the warning, having said to the managers, one of whom was Mr Milburn, that he denied all allegations. Mr Milburn was not cross-examined about whether this document was inaccurate and so I accept it as accurate. In context then, Mr Tolevsky is putting forward that he has no recollection of an incident about which, at the time, he effectively believed he was falsely accused. It is implausible in that context to advance that he has no recollection of the situation. The evidence in these proceedings allows a conclusion that it was reasonable for Linfox to take the action against Mr Tolevsky that it did,

[39] The last two incidents referred to in the termination letter were written warnings issued out of the two events on 9 December 2014 which have been referred to in detail earlier. The first of those incidents was a failure to follow Mr Knowles instructions regarding the continuation of the ATR and the second related to tailgating another employee through a rapid rise roller door. The tailgating incident was recorded by surveillance video cameras, the product of which was made available to the Commission in these proceedings. The context of the driver’s body shape, time of the incident and vehicle combine to allow a finding that the video shows Mr Tolevsky tailgating another employee through the rapid rise roller door as alleged by Linfox. Mr Tolevsky declined to sign or otherwise acknowledge either of these warnings. The circumstances of both these matters and the evidence which is before me leads me to accept that it was reasonable for Linfox to issue each of the written warnings which it did.

[40] The core of the issues to be determined in this matter is whether or not Mr Tolevsky swore at and was otherwise abusive to Mr Milburn and Ms Kardos in the meeting on 19 December 2014. The case advanced by Mr Tolevsky and to an extent supported by Mr Price’s evidence is that there was no inappropriate conduct on Mr Tolevsky’s part. He neither swore at the two management representatives nor otherwise became aggressive towards them. It is to be noted that while this evidence is put forward, Mr Price concedes that language of the type alleged by management representatives is in frequent use within the workplace;

“Did James point his finger at Brendan?---I can’t remember that.  I don’t think so otherwise it would be in my statement.

Sure.  Suzanna then says at the end of the meeting when she walked out of the room you said to her when you were alone that James is going to explode?---No, because at the end of the meeting, me and Jimmy, when went off to have like a debrief on the meeting because that’s when I said to Jimmy about, “I thought you did really well in the meeting, controlling yourself.”

Is there a fair bit of swearing at your workplace?---Yes, every second word - probably I’m one of the worst ones for language but I don’t mean nothing by it.  It’s just the conversation that everybody has there.

When we say swearing, what do we mean by that?---Am I allowed to say it?  The F word, and that kind of stuff, constantly.

Okay, that’s fine.  I think that’s a reasonable description.  You say it happens all the time;  does it happen between workers and managers?---Yes, yes.  We have heated meetings with them as union delegates.  Sometimes when I was safety rep it was a heated discussion where language was said.

Sure?---But nothing was meant by it;  there’s nothing meant by it.  It’s just a quick way of explaining yourself, you know what I mean;  that you’re not happy with something.  Does that explain it?  I don’t know.

So you’re a union delegate.  Would you have these heated meetings often?---Yes, yes;  every day.

Okay?---Every day.

What about other employees who are not delegates?  So James is not a delegate of the union?---Yes, yes;  it’s just a common - just a common language in the warehouse.” 49

[41] My consideration of the evidence as a totality is that I consider the evidence of Mr Tolevsky and Mr Price to contain significant weaknesses which causes me to prefer that of the Respondent’s witnesses. Much of Mr Tolevsky’s evidence was self-serving and featured by selective recall together with an inability to acknowledge any circumstances which might be unfavourable to him. The weight of the evidence indicates that by 19 December, Mr Tolevsky was under significant criticism for his conduct and performance, however he was simply unable to concede there might be any problems for which he needed to be taken to account. The failure to have this insight by the time of the hearing calls into question the credit that can be given to his evidence.

[42] Mr Price’s evidence was more reliable, however it too was featured by a significant and unhelpful lack of recall about important events that were put to him. His lack of recall about the circumstances of the argument in the lunchroom in January 2014, when taken together with his precise recollection that there had been no swearing or inappropriate conduct on the part of Mr Tolevsky in the meeting on 19 December, appears convenient and disingenuous.

[43] The evidence given in these proceedings by Mr McInerney was as a person who was directly involved in some, but not all, of the important events. To the extent that he had direct knowledge of matters in dispute, I prefer his evidence to that of either Mr Tolevsky or Mr Price.

[44] The evidence of Mr Milburn, the Truganina RDC Shift Manager during the relevant period of Mr Tolevsky’s employment, is also to be preferred to that of Mr Tolevsky or Mr Price. His recollection of key events was precise and was not disturbed significantly in cross examination.

[45] I also prefer Ms Kardos’ evidence to that of Mr Tolevsky and Mr Price. Generally, in respect of the matters discussed within the meeting held on 19 December 2014, I consider Ms Kardos’ evidence to be the most objective and independent of the versions given and to that extent her version is the one upon which I rely. I do this because I accept that Ms Kardos, as the Truganina RDC Return to Work Manager, was working from an objective direction in respect to her desire to have an employee return to work and that, of the management representatives, she had the least personally or managerially at stake in respect of what occurred. Because of this, her evidence is capable of acceptance as the preferred version of the discourse in the meeting on 19 December 2014.

[46] In forming my views on these matters, I have taken into account other material brought into the evidence in this matter, and which is in dispute between the parties, but which I do not consider necessary for me to resolve for the reason that they do not ultimately disturb my findings about the credit of the witnesses or the findings that should be made from the overall evidence. These include allegations about Mr Tolevsky’s conduct in relation to both Mr Knowles and another manager in early December 2014, but which apparently came to the attention of Linfox after Mr Tolevsky’s termination, together with related interviews conducted with Mr Price about Mr Tolevsky after his termination;  50 and a contention on Mr Tolevsky’s part that Ms Kardos had amended his return to work plan without his consent, in the meeting on 19 December 2014.51

[47] As a result, the evidence leads to the following findings;

• It was reasonable for Linfox to take up with Mr Tolevsky the two matters that arose on 9 December 2014, namely that he tailgated another employee in moving through a rapid rise roller door; and his refusal to follow Mr Knowles’ direction that he continue the morning ATR.



• While Mr Tolevsky was on restricted duties at the time of 18 December 2014, he had been cleared to undertake work in accordance with his signed return to work plan. 52



• The return to work plan signed by Mr Tolevsky and dated 16 December 2014 committed the parties to mutual obligations. They included that Mr Tolevsky avoid lifting amounts greater than 8kg; and that he avoid repetitive bending and twisting of his back and forceful pushing and pulling. In addition he was to avoid prolonged sitting of periods greater than 45 minutes; and five-minute breaks, in addition to his normal break, were specified when required in order for Mr Tolevsky to stretch. The obligations on Mr Tolevsky under the return to work plan were to cooperate with the processes and “make all reasonable efforts to return to work as soon as possible” as well as to “notify your supervisor/manager of any problems”. The obligations on Linfox included that they ensure that Mr Tolevsky performed only the duties referred to in the plan, and that they should monitor his ability to perform those duties. 53



• It was reasonable for the Linfox managers, Mr Milburn and Ms Kardos, to take up with Mr Tolevsky why he was in the lunchroom for an extended period on 19 December 2014. Within the meeting that Mr Milburn and Ms Kardos had with Mr Tolevsky on that day, he was as described in Ms Kardos evidence, which I accept, as being loud and aggressive, swearing, mocking and sarcastic, leaving Ms Kardos extremely concerned and with the impression that he was likely to explode. In particular, I accept Ms Kardos evidence that Mr Tolevsky said to Mr Milburn words to the effect of “fucking look at me in the eye, show me some fucking respect” and “I’m sick of being bullied on the floor. I’m going to my doctor, I’m going to take you down” which she took to be threats directed at Mr Milburn and Linfox. 54

LEGISLATION

[48] The legislative provisions which are relevant to this matter are set out in s.387 of the Act, which is as follows;

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.

CONSIDERATION

[49] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account the legislative factors set out earlier.

(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)

[50] Having been dismissed for misconduct, the Commission is first required to find whether on the balance of probabilities the alleged misconduct actually occurred. 55 In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities.56 The Commission will also take into account the need for honesty on the part of the Applicant during the course of an investigation.57 The matter of cooperation and honesty by an employee in the course of an investigation into their conduct is important for the reason that such honesty enables their employer to determine what should be done about any established conduct, with the Full Bench, in majority, making the following observations in the matter of Streeter v Telstra;

“14 Ms Streeter was unco-operative and dishonest with Telstra during the investigation. In response to questions asked of her, she denied activities she knew had occurred or stated that she had “no comment”. She also claimed a lack of memory with respect to certain activities. As Senior Deputy President Hamberger points out, Ms Streeter concedes she lied to Telstra during the investigation.

15 Ms Streeter’s dishonesty would have been of little relevance to Telstra if her activities had had no effect at her work and were not likely to have any effect at her work. However, it appeared her activities had caused difficulties at her work and were likely to cause difficulties at her work in the future. In the circumstances, we think Telstra’s questions of Ms Streeter during its investigation were reasonable. Ms Streeter needed to be honest with Telstra about her activities, notwithstanding their inherently personal nature, so that Telstra could determine and take appropriate action to deal with the difficulties.” 58

[51] On the basis my finding set out above I am satisfied that the conduct of Mr Tolevsky complained of by Linfox actually occurred, with that conduct being the abusive words and tone he used in the meeting on 19 December 2014 with Mr Milburn and Ms Kardos.

[52] The context of Mr Tolevsky’s dismissal include not only the events of 19 December 2014, but also the recent history of his employment, referred to in detail above, which included two written warnings issued in relation to matters that occurred on 9 December 2014.

[53] The first of those warnings had been given to Mr Tolevsky the same day and related to the complaint by Mr Knowles that Mr Tolevsky had refused his instructions to continue the ATR process proximate to the lunch break time. The second of the warnings related to Mr Tolevsky tailgating another employee through a rapid rise roller door, but that warning was not provided to Mr Tolevsky until some days later, on 18 December 2014. The first warning unambiguously advised Mr Tolevsky that his behaviour was below the standard expected by Linfox and that he needed to comply with reasonable and lawful instructions of management. While the second warning did not go to corrective behavioural actions, but rather to his driving capabilities, it reiterated that his behaviour was below that expected by Linfox.

[54] The wider context of what occurred in the meeting with Mr Milburn and Ms Kardos on 19 December includes not only these two written warnings, but also the injury that Mr Tolevsky had sustained and the anxiety he was apparently suffering as a result. Taken together, by the time of 19 December 2014, Mr Tolevsky was no doubt agitated as a result of the introduction of the ATR process and from being regularly checked against the company’s requirements in that regard; in some measure of pain because of the work injury that had occurred when he hurt his back at work on 15 December 2014; as well as being no doubt annoyed at having two further written warnings provided to him relating to the circumstances of 9 December. However, the actions by him in unilaterally deciding to be in the lunch room for an extended period on the morning of 19 December 2014 were unreasonable. In addition his conduct in the meeting with Mr Milburn and Ms Kardos was well beyond what could be expected, even taking into account that he had been experiencing pain and anxiety and that he believed the actions by the company to date were unreasonable.

[55] The question in this matter is whether or not those matters collectively were a valid reason for the termination of Mr Tolevsky by Linfox.

[56] Were this matter a circumstance where an employee with an unblemished employment record had been subject to a work-related injury and then become abusive in a meeting of the type that took place on 19 December, it may well be that the collective circumstances do not amount to a sufficient or valid reason for termination of the employee. However in this case Mr Tolevsky had been subjected to written warnings about his conduct on two occasions during December 2014. This is far from an unblemished employment record. At the very least, by the start of 19 December 2014, Mr Tolevsky could reasonably have been expected to be aware that his employment future was uncertain if there were to be repetitions of the behavioural and capability issues for which he had been warned and that if nothing else he should be alert to a repetition of the things that Linfox considered were to be below their expectations. Reasonably Mr Tolevsky could have expected that had there been such a repetition serious consequences for him would likely arise.

[57] The findings made above confirm that Mr Tolevsky’s behaviour in the meeting on 19 December was abusive of the management representatives, Mr Milburn and Ms Kardos.

[58] When Mr Tolevsky’s conduct in the meeting on 19 December is taken collectively with the two warnings in December, it is reasonable that Linfox took the action they did, to stand him down and to investigate what had occurred, with further consideration to be given to his future employment with Linfox.

[59] The actions taken by Linfox after standing down Mr Tolevsky include holding meetings with him and his union representatives on 24 and 31 December 2014. Those interviews were conducted on behalf of Linfox by Mr Girardi and Mr Sorbello and records of the interviews, at least as completed by Mr Girardi, are attached to Mr Tolevsky’s witness statement. Those records of interview set out the proposition on the part of Mr Tolevsky that he did not swear or become loud and aggressive and instead puts forward that it was Mr Milburn who was intimidating and aggressive. In the context of my findings about the evidence, those views are not to be accepted.

[60] The context in which Mr Tolevsky is reported in the records of interview is that he denies the accusations against him, but does not advance a compelling or otherwise acceptable version of his own conduct or things that he said. Because Mr Tolevsky denied the allegations about his behaviour in the 19 December meeting, it was reasonable for Linfox to take into account his history of similar denials or lack of cooperation in other inquiries and investigations the company had cause to undertake, and to form the view that it meant the Applicant likely intended to be uncooperative and dishonest on this occasion. Having taken Mr Tolevsky’s past and current actions into account, it was reasonable for Linfox to find that Mr Tolevsky had failed, on this occasion, to be honest with the company in the course of its investigation. Because Mr Tolevsky did not cooperate with or assist the investigation undertaken by Linfox, it was open to the Respondent to find this to be a factor against Mr Tolevsky in their consideration about his future employment.

[61] Similarly the background of Mr Tolevsky’s overall employment history with the company is a factor that Linfox was entitled to take into account in its decision about the continuation of his employment.

[62] Overall, I am satisfied that at the time it made the decision to dismiss Mr Tolevsky Linfox had a valid reason for doing so.

(b) whether the person was notified of that reason

[63] The evidence discloses that Mr Tolevsky was informed of the reasons for his termination.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[64] It has been held that consideration of the criterion of whether an employee has been given an opportunity to respond to the reason for dismissal, is one that is consequential to a finding there is a valid reason for dismissal. 59 In Wadey v YMCA Canberra60 Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer:

“[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend. 61

[65] In this particular instance, Mr Tolevsky was stood down from employment on 19 December 2014 and it was put to him in two separate meetings with Mr Girardi and Mr Sorbello on 24 December and 31 December 2014 that Linfox considered he had been aggressive and threatening towards Mr Milburn. The terms of what was said to Mr Tolevsky are set out in Mr Tolevsky’s witness statement in the form of a written record of interview with him. 62 The allegations are sufficiently particularised for Mr Tolevsky to understand what he was being accused of. While he refused to sign the notes on the record of interview, which record him saying that he denied the allegations entirely, I am satisfied that the matters being considered by Linfox had been put to Mr Tolevsky for his response and that any response he wished to put to Linfox was able to be put by him. There is no evidence that would lead to a conclusion that any matters put to Linfox by Mr Tolevsky, or by those acting on his behalf, were not, or would not be, taken into account by Linfox.

(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;

[66] The evidence records that Mr Tolevsky was given an opportunity at all stages of discussions relating to his performance or potential dismissal to have a support person in attendance and that he availed himself of that opportunity.

(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

[67] The circumstances of this matter are that Mr Tolevsky was dismissed for his conduct in the meeting with Mr Milburn and Ms Kardos on 19 December 2014. Those issues go to the things he said and how he said them. In addition, Linfox took into account certain warnings and formal counselling which had been given to Mr Tolevsky in recent years. My analysis in respect of those warnings and formal counselling is set out above.

(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;

[68] The evidence records that Linfox is a large employer with sophisticated procedures to consider the performance of its employees and potential dismissal and that the company has available to them dedicated human resource management specialists and expertise that can and did assist in the decision to dismiss Mr Tolevsky. Accordingly no further consideration is required to be given to these criteria.

(h) any other matters that the FWC considers relevant.

[69] I do not find any other matters that are relevant and which require being taken into account.

[70] Having considered in detail all of the criteria within s.387 of the Act I find that there are no matters that would cause me to find that irrespective of there being a valid reason for the dismissal of Mr Tolevsky his dismissal was otherwise harsh, unjust or unreasonable.

CONCLUSION AND ORDER

[71] After consideration of the foregoing issues, I find that Mr Tolevsky was not unfairly dismissed within the meaning of the Act.

[72]
As a result, I must now dismiss his application and an order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

Mr D Mujkic (NUW), Mr J Tolevsky and Mr K Price for the Applicant

Mr D Jones, Mr P McInerney, Mr B Milburn and Ms S Kardos for the Respondent

Hearing details:

2015.

Melbourne

7 and 8 May

 1   Exhibit R1, Attachment PM-18

 2   Ibid

 3   Exhibit A2, Attachment VII

 4   Transcript, PN 991 – 1008

 5   Exhibit R1, paras 19 – 21

 6   Ibid, para 35

 7   Exhibit A2, Attachment V

 8   Exhibit R1, paras 32 – 33

 9   Exhibit R1, Attachment PM 11

 10   Ibid

 11   “Person Conducting the Business or Undertaking”, Transcript PN 659

 12   Exhibit R1, Attachment PM 12

 13   Ibid

 14   Ibid, para 36

 15   Ibid, para 37

 16   Ibid, Attachment PM 13

 17   Ibid

 18   Ibid

 19   Ibid, paras 41 – 42, Attachment PM 16

 20   Exhibit A2, para 5

 21   Ibid, para 10 and Attachment VI

 22   Ibid, para 6

 23   Ibid, Attachment III

 24   Ibid, para 7

 25   Exhibit R1, para 64

 26   Exhibit A2, para 8

 27   Transcript, PN 1400

 28   Exhibit R4, para 10

 29   Transcript, PN 354

 30   Transcript, PN 1401

 31   Transcript, PN 1910 - 1918

 32   Exhibit A2, paras 9 - 10

 33   “Return to Work”

 34   Exhibit R4, paras 9 - 17

 35   Exhibit R1, paras 48 – 50

 36   Transcript, PN 1139

 37   Exhibit R1, paras 55 – 59

 38   Ibid, Attachment PM 6

 39   Ibid, Attachment PM 9

 40   Transcript, PN 596

 41   Transcript, PN 376 – 406; 569 - 579

 42   Transcript, PN 109

 43   Transcript, PN 245 – 251

 44   Transcript, PN 133 - 135

 45   Exhibit R1, Attachment PM 9

 46   Exhibit R1, Attachment PM 8

 47   Exhibit R1, Attachment PM 10

 48   Transcript, PN 610 – 623

 49   Transcript, PN 92 – 100

 50   Exhibit R1, paras 70 – 79; Exhibit A1, paras 11 – 13

 51   Exhibit A2, para 10 and Attachment VI

 52   Exhibit A2, Attachment VI and Exhibit R1, Attachment PM 19

 53   Ibid

 54   Exhibit A4, paras 11 - 18

 55   Edwards v Giudice (1999) 94 FCR 561 [6]‒[7]

 56   Budd v Dampier Salt Ltd (2007) 166 IR 407, at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171

 57   Streeter v TelstraCorp Ltd (2008) 170 IR 1

 58   Ibid, at [14] – [15]

 59   Chubb Security Australia Pty Ltd v Thomas (2000), Print S2679, at [41].

 60 [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty (2010) 204 IR 399 [85].

 61   Ibid

 62   Exhibit A2, Attachment VII

Printed by authority of the Commonwealth Government Printer

<Price code C, PR569434>