Mr John Guidera v Svitzer Australia Pty Ltd
[2011] FWA 8046
•24 NOVEMBER 2011
[2011] FWA 8046 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr John Guidera
v
Svitzer Australia Pty Ltd
(U2011/9932)
COMMISSIONER STEEL | ADELAIDE, 24 NOVEMBER 2011 |
Termination of employment - Misconduct - Fighting or brawling.
Introduction
[1] This matter relates to an application by Mr John Guidera (the applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief in respect to the alleged unfair dismissal from his employment by Svitzer Australia Pty Ltd (the respondent).
[2] The applicant has had continuous employment with the respondent since March 2007 (4 ½ years) and was a marine engineer operating on tugs at Whyalla in South Australia. The respondent sub-contracts its tugs to CSL the client and its tugs are engaged in a continuous loading operation of self discharging barges containing iron ore to a floating offshore facility for loading onto ships. The tugs have a crew of four (master, engineer and two deckhands) and they work 12-hour shifts.
[3] The respondent provides for its tug crews accommodation in three houses including two houses referred to colloquially as the Wooree and Marimba houses. The applicant was assigned to the Marimba house. The houses have individual bedrooms and common areas including a kitchen, dining room, lounge room etc.
[4] The crews work a roster of one week of night shift followed by one week of day shift followed by one week off, then one week of night shift followed by one week of day shift and then three weeks off.
[5] The applicant was terminated for misconduct set out in the letter of termination as follows:
“The reason for the termination of your employment is that you engaged in a physical altercation with Mr Bowley, a fellow employee, which led to Mr Bowley sustaining a leg injury and requiring hospitalisation.” 1
Summary of submissions
[6] The applicant asserts that he was unfairly dismissed as his dismissal was harsh, unjust or unreasonable in that he was not involved in misconduct but acted in self defence when confronted with an attack on his person. He did not hit or strike or kick the other employee but attempted to subdue the person. He did not intend to inflict an injury on the other employee and that any injury was accidental and unintentional.
[7] That he was off duty at the time in the changeover of shifts and the incident took place not in the workplace but in the assigned accommodation and the respondent cannot rely on their indicated workplace policies in that circumstance. That there are no current applicable policies in relation to the accommodation houses. That the applicant is not responsible for any disruption to the premises or relationships recognised by the respondent or damage to accommodation as a result of the incident. That the circumstances of the incident support that the decision was harsh, unjust or unreasonable. The applicant seeks reinstatement of his employment and associated judgements.
[8] The respondent asserts that they had a valid reason for the dismissal of the applicant pursuant to s.387 of the Act in that the applicant admits having acted to confront an inebriated employee, and having engaged in a physical altercation with that employee. Such actions resulted in a broken leg to that employee. The respondent considers such actions as defined “fighting and brawling”, and has a clear prohibition of fighting or brawling within its “Conduct and Discipline Policy”. Such policy was acknowledged by the applicant in evidence. The applicant also has acknowledged the conduct policy of the respondent as applicable to him. The applicant was not off duty but was in changeover within a work cycle of shifts and was located within company accommodation. Requirements as to the applicant’s conduct extend to the use of such accommodation provided.
[9] The applicant has affected the relationship with his employer, damaged the respondent’s interests in retaining such accommodation assets in Whyalla and exposed the respondent to material risk by his actions. The respondent has satisfied the onus of proof in respect to proof of misconduct and the application should be dismissed.
Evidence
[10] The tribunal heard from the applicant who provided direct evidence. He was careful in his replies as to the event in question and was earnest in putting his case. The tribunal found the applicant generally a reliable witness.
[11] The respondent provided two witnesses, Mr Albert Umansky and Mr Luke Bettesworth who are company officers who carried out the investigation of the events in question and who were involved in the dismissal. The tribunal found those witnesses generally reliable.
[12] The tribunal has had regard to all documentation provided by the parties, the witness statements and evidence and has considered the material with due regard to the requirements of ss.577 and 578 of the Act.
The relevant facts giving rise to the dismissal of the applicant
[13] It is not contentious in this matter that the termination of the applicant’s employment arose out of an incident, a physical altercation between the applicant and Mr Kallan Bowley which took place in the pm of 29 June 2011 within the Merimba property.
[14] 29 June was “crew change day” where the respective crews move from night to day shifts. Following completion of a night shift the applicant left work at 6.00 am and then consumed some alcohol in company of Mr Bowley, a fellow crew member, at a hotel. He then slept at the Merimba accommodation from 11.30 am to approximately 4.00 pm and then attended a barbeque at the Worree house. Mr Bowley was in attendance at this barbeque and the applicant at sometime considered Mr Bowley’s behaviour to be abusive an obnoxious to some female guests and belligerent and aggressive towards himself. 2 .The applicant shortly thereafter returned to his accommodation and went to bed at approximately 8.00 pm and slept.
[15] At about 10.00 pm the applicant was awoken by Mr Bowley speaking in a loud voice and banging on his door. The applicant describes this event as follows:
“I was awoken at about 10.00 pm by an intoxicated, erratic and aggressive Mr Bowley.” 3
The applicant says Mr Bowley was unintelligible to the applicant and proceeded to then open the applicant’s bedroom door and take a position near the applicant’s bed and screamed abuse at the applicant while he was in bed. 4
[16] In his interview noted on 5 July 2011 by Mr Bettesworth the applicant is recorded to have described this incident in words to the effect.
“I woke up as there was someone bashing on my door, then Kallan came in and was standing at the foot of my bed saying something about a tape recording. I couldn’t understand him very well. I told him to go to bed, he went into the lounge room. I then heard him start up again in the lounge room. I decided I shouldn’t stay in bed as it wasn’t the best place to be with Kallan in that mood...” 5
[17] Having been told by the applicant to go to bed, Mr Bowley had left the room and went back into the lounge room. The applicant is not sure as to who shut his door at this time.
[18] In his evidence the applicant says he stayed in bed and could hear people talking but could not make out the conversation. 6 He continued to do so for about fifteen minutes at which time he heard Mr Bowley raising his voice again.
[19] The applicant, in evidence, said he was at this time anxiousabout his own welfare by remaining in bed. 7 He then got out of bed. He further states:
“Sometime later I opted to get up and get myself dressed so as not to be caught out if things - if Mr Bowley were to come back.” 8
[20] In his statement the applicant states:
“When I went out to the family room after deciding that the bedroom was unsafefor me...” 9
[21] In his record of interview with Mr Bettesworth on 5 July 2011 the applicant stated:
“I decided bed was not the best place for me with Kallan carrying on in the living room...” 10
[22] The applicant entered the lounge room where Mr Bowley was present and apparently alone. In his evidence the applicant stated:
“Eventually I went into the lounge room and as soon as Mr Bowley saw me, he picked up a chair and started to swing it at me, at which time I thought it best to stop the nonsense and I grabbed him in a bear hug and took him to the ground, and sat on him until he calmed down a little bit, at which time a work colleague appeared and between the three of us we ascertained that Mr Bowley’s leg was hurting him...” 11
[23] Mr Bowley’s leg was, in fact, broken.
[24] In his interview of 5 July 2011 the applicant asserts:
“As soon as Kallan saw me he picked up a chair over his head and it looked like he was going to swing it at me.
Trying to avoid an injury I put Kallan on the ground and held him down with my knee on his torso.” 12
[25] In answer to the question “Were you threatened physically by Mr Bowley or did you feel physically threatened by him beforehand?” The applicant replied, “No” 13
[26] In the same interview noted by Mr Bettesworth, the applicant refers to Mr Bowley as follows:
“...he swung at me, well kind of a swung it he was too drunk to lift it properly.” 14
[27] Mr Ray Dixon, who was not presented as a witness by either party, was interviewed by the respondent. In that record of interview, contained in the statements of Mr Betttesworth and Mr Umansky, Mr Dixon indicates he was in the Merimba house talking to Mr Bowley for 30 minutes before the altercation but makes no mention of screaming, banging on doors etc. He was outside relieving himself when he saw the applicant walk into the lounge room. He states he did not witness the altercation but saw the applicant on top of Mr Bowley when he re-entered the room. 15
[28] The applicant in his evidence has claimed he was endeavouring to diffuse a volatile situation and attempting to look after a crew member. 16 The applicant stated:
“...I grabbed him and assisted him to the ground. Once he was down, I sat on him with my knees on his chest.” 17
[29] The applicant acknowledges that he more correctly should have attempted to avoid confrontation and that an alternative to such confrontation could have been a referral to the police. 18 The applicant states however he was attempting to look after Mr Bowley and in attempting to do so Mr Bowley’s leg was broken.19
[30] The applicant under examination from the tribunal indicated that he was concerned as to being in his bedroom as it had no room to manoeuvre had he needed to do so but was not physically threatened by Mr Bowley. He stated he would have no trouble in looking after the young man who was far too drunk, in any physical encounter. 20
Was the applicant acting in self defence of an attack by Mr Bowley?
[31] From all the evidence considered the tribunal is not persuaded that the applicant was under attack by Mr Bowley and was defending himself. His actions of leaving the barbeque and going to bed in face of perceived aggression by Mr Bowley are commendable as is his reaction when Mr Bowley entered his room. However, he was not under attack or threat when he decided to dress and re-engage with Mr Bowley in the lounge room in full apparent knowledge that Mr Bowley was drunk and was no physical threat to him. His own evidence is inconsistent on the issue of Mr Bowley being a threat to his person and the nature of any abuse or screaming in this incident. In terms of provocation by Mr Bowley to the applicant which may explain or mitigate his decision and actions, the tribunal does not identify any significant level of provocation by Mr Bowley that should have instigated the physical altercation that occurred. Mr Bowley was in fact in the company of another person, Mr Dixon. The tribunal finds that the applicant did not intend to physically harm Mr Bowley but concludes the applicant was intending to resolve the situation. Further there was no instant provocation on the applicant from Mr Bowley. He was in the house, apparently in the company of someone else (Mr Dixon). Such an action by the applicant involved a conscious premeditated approach of physical contact and restraint of Mr Bowley of a not insubstantial nature, e.g. grappling him to the ground and sitting on his chest.
[32] If the applicant had stayed in this own room such following events would, out of all probability and the presence of Mr Dixon, not have occurred. The applicant had decided, in his own way, to “look after Mr Bowley” by resolving the perceived behaviour. That approach included a considered and applied physical restraint of Mr Bowley. The tribunal does not find this an act of self defence by the applicant.
Did the event occur in the workplace and can the company rely on their quoted policies?
[33] The applicant at the time of the events in question was on a rest break between work shifts during a period of rostered duty on what is known as the shift change-over day when tug boat crews change from night shift to day shift. He was accommodated in company provided accommodation and victualling in Whyalla during a period of duty which replaced the hard lying arrangements that existed formerly. That accommodation is an integral part of the duty rostering system of the tug workforce.
[34] The respondent has sought to rely on its Conduct and Discipline Policy in terms of the conduct of the applicant and has found that the applicant has been involved in “fighting and/or brawling”; acts defined as wilful and serious misbehaviour in the above policy. 21
[35] This policy covers various performance issues which usually relate to the workplace however it does specifically go further within the requirements to “...behave honestly, courteously and ethically at all times” to standards of conduct outside the workplace.
[36] The policy further in regard to Disciplinary Measures, refers to Workplace Conduct and Standards requirements and provides a range of examples of serious actions which justify summary dismissal, notably fighting or brawling. The tribunal considers that the accommodation provided is so intrinsically linked to the workplace and work and the rostering and swing system that it can be substantiated to be considered as the workplace for consideration of the applicable policies. The tribunal recognises that the employees are, it seems, free to consume alcohol products during their time between shifts but they recognise they are to present at their work in conformity with the company’s and client’s drug and alcohol policies. That is a specific consideration here as the standards required of the workforce discipline must apply.
[37] In his evidence the applicant recognised the various policies of the respondent and gave support that such policies applied in the company provided accommodation though he would seem to have not identified his actions as fighting and brawling. 22
[38] The tribunal, taking into account the above matters, finds that the respondent can seek to rely on the applicability of their workplace policies at the company supplied accommodation and hence such fighting and brawling as identified may be recognised as a specific breach of the policy.
Consideration
[39] The approach by tribunals to matters such as this where alleged fighting or brawling has taken place and resulted in a dismissal has been considered by various full benches in the past. It was considered by an Australian Industrial Relations Commission full bench review of the authorities in the matter of Tenix Defence Systems Pty Ltd & Fearnley. 23 This decision was recently cited by Harrison C in the matter of Rodgers v Hunter Valley Earthmoving Company Pty Ltd.24 The full bench decision states as follows:
“In AWU-FIME Amalgamated Union v Queensland Alumina Limited Moore J summarised the relevant decisions in the following passage:
“What emerges from these decisions is that whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self defence.”
Not dissimilar views, albeit in a different statutory context, have been expressed by a Full Bench of the Industrial Commission of South Australia in Torbet v Commissioner for Public Employment as follows:
“In considering what was the appropriate remedy for the misconduct a strong push on the chest where both participants were screaming at each other, the employer seems to have regarded dismissal as the only remedy. The evidence of Mr. Keeley strongly suggests that the committee of enquiry, having reached the conclusion that an assault had taken place, thought it had no alternative than to dismiss the employee. But what this employer needed to consider was whether, upon weighing up the seriousness of the assault against the mitigating or extenuating circumstances, dismissal should occur, or whether some other and less serious punishment was appropriate. In reaching that decision the employer would also need to take into account the competing necessity to establish and retain discipline amongst its employees.”
The above passages were cited with approval by a Full Bench of the Commission in Mobil Oil v Giuffrida. We also note the following observation by the Federal Court – in another fighting case - Qantas Airways Limited v Cornwall:
“We accept that in this case … it is necessary to examine the circumstances surrounding the conduct relied on, which constitute the "relevant factual matrix", to decide whether the termination was supported, in the words of the statute, by "a valid reason ... connected with the employee's ... conduct". As was said in Cosco Holdings and in Allied Express Transport, a valid reason is one which is "sound, defensible, or well-founded". But it is important to remember that the governing words are those of the statute, and that attempts at judicial explanation should not be substituted for the statutory provision. The question remains whether, the employer having terminated the employee's employment, there was a valid reason connected with the employee's conduct.
We have already stated that the respondent, in the present case, struck his supervisor. That is not now in dispute. Nor is it in dispute that Qantas acted on this conduct as a reason when it terminated the respondent's employment. 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.”
We think these authorities support the view that in determining whether there is a valid a reason for a termination of employment arising from a fight in the workplace the Commission should have regard to all of the circumstances in which the fight occurred including, but not limited to:
- whether the terminated employee was provoked and whether he or she was acting in self defence;
- the employer’s need to establish and retain discipline amongst its employees; and
- the service and work record of the employee concerned.” (footnotes omitted)
[40] In this matter there is little evidence of provocation of the applicant. In regard to the employers need to establish and retain discipline, the employer has such policies and they are well known to the applicant and he has accepted they apply in the accommodation in question.
[41] The service and work record of the applicant over the period of employment was considered by the employer. The employer decided, and the tribunal concurs, that they did not outweigh the seriousness of the misconduct identified by the applicant.
[42] The physical altercation initiated by the applicant gave rise to a serious injury to a person and various legal ramifications for the respondent. It was not self defence by the applicant.
[43] The tribunal considers there was a valid reason for dismissal being the identified misconduct of the applicant.
[44] The evidence before the tribunal indicates that the applicant received due procedural fairness in the respondent’s investigation and administration of the events in question and as such received appropriate procedural fairness.
[45] Because of the findings of the tribunal in this matter the tribunal has saw fit to not give regard to the various documents that have arisen from the South Australia Police involvement in this matter. Those documents originate from parties not available to the tribunal and are untested.
Decision
[46] For the above reasons the tribunal considers that the termination of the applicant was not harsh, unjust or unreasonable and his application is dismissed.
COMMISSIONER
Appearances:
Mr M Byrne for the applicant
Mr B Cross for the respondent
Hearing details:
Adelaide
2011:
October 10
1 Exhibit R1, Annexure AU8
2 PN 120
3 Exhibit A1, para 8
4 PN 124
5 Exhibit R2, para 24
6 PN 619, 623, 630
7 PN 652
8 PN 124
9 Exhibit A1, para 9
10 Exhibit R1, para 15.3
11 PN 125
12 Exhibit R1, para 15.3
13 Exhibit R1, para 15.4
14 Exhibit R2, para 24
15 Exhibit R1, para 18, Exhibit R2, para 26
16 PN 314
17 PN 335
18 PN 392-393
19 PN 426
20 PN 693-695
21 Exhibit R2, Attachment 4
22 PN 450, 460
23 Unreported AIRC Print S6238, 22 May 2000 at para 13
24 [2009] FWA 877
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