Mr Karl Froehlich v Nissan Motor Corporation (Australia) Pty Ltd

[2014] FWC 5622

[2014] FWC 5622

FAIR WORK COMMISSION

DECISION

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

Mr Karl Froehlich
v
Nissan Motor Corporation (Australia) Pty Ltd
(U2014/856)

VICE PRESIDENT WATSON MELBOURNE, 29 AUGUST 2014

Application for unfair dismissal remedy - whether termination of employment harsh, unjust or unreasonable - conduct amounted to misconduct - valid reason - fair investigation - application dismissed. Fair Work Act 2009 ss. 387, 394.

[1] This decision is an amended version of a decision given in transcript on 7 August 2014 in relation to an unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act) by Mr Karl Froehlich in relation to the termination of his employment with Nissan Motor Corporation (Australia) Pty Ltd (Nissan). The application was made on 19 March 2014. Mr Froehlich was dismissed from his employment on 3 March 2014.

[2] The application is made under section 394 of the Act. The questions that need to be determined in relation to the application is whether there was a dismissal and, relevantly in this case, whether that dismissal is harsh, unjust or unreasonable. That question in turn needs to be determined by reference to the criteria in section 387 of the Act and the overarching object of the provisions to ensure that a fair go all around is afforded to both the employer and the employee concerned.

[3] The criteria in section 387 of the Act are clearly intended by the legislature to guide the conclusion on the overall question of whether the dismissal was harsh, unjust or unreasonable. I propose to deal in turn with each of the criteria that are relevant to this matter.

[4] The first factor, and often the most important consideration, is whether there was a valid reason for the dismissal related to the person's capacity or conduct. The dismissal in this case occurred following the complaint by Ms Shelly West and Ms Roma Concepcion regarding conduct by Mr Froehlich on 26 and 27 February of this year. That conduct occurred when Mr Froehlich attended the company car division in order to swap a vehicle that he had leased for another vehicle.

[5] Detailed evidence relating to the circumstances on those two days has been given by Ms West, Ms Concepcion and Mr Froehlich. There was also evidence given by Mr Mark Jasper concerning his witnessing of the final episode on 27 February, where he witnessed Mr Froehlich address Ms West from his car in the course of driving away. I have considered that evidence in its totality. There is some conflict in the evidence. In my view the evidence of Ms West, Ms Concepcion and Mr Jasper is to be preferred to the inconsistent evidence of Mr Froehlich. Although Mr Froehlich admits to saying certain things, his evidence suggests that it is of a far less serious nature than the evidence of the other witnesses would indicate.

[6] I prefer the evidence of the other witnesses and I find that the evidence establishes that Mr Froehlich did engage in aggressive and intimidatory behaviour towards Ms West and Ms Concepcion. In my view, that behaviour was quite inappropriate. It occurred in the context where Ms West and Ms Concepcion were applying company policies regarding the requirements to change over vehicles. Mr Froehlich was obviously frustrated, as he said in evidence, but in my view that did not excuse the quite inappropriate conduct that he then engaged in.

[7] Mr Fluder, on behalf of Nissan, conducted an investigation as a result of the complaints made by Ms West and Ms Concepcion and he interviewed Mr Froehlich on two occasions. On Friday, 28 February 2014 and Monday, 3 March 2014. He formed views and made a recommendation to senior executives of Nissan. As a result of that investigation, the conclusions of Nissan are expressed in the letter of termination. It is obvious from Mr Fluder’s evidence, the notes of the meetings and the termination letter that he regarded the conduct as inappropriate. He also regarded the response from Mr Froehlich at the two meetings as insufficient in accepting responsibility for his conduct and providing a satisfactory assurance that further conduct of a similar nature would not occur.

[8] It is also clear from the evidence that Nissan was concerned to ensure that the health and safety of employees was protected by taking appropriate disciplinary action in relation to the conduct that had been brought to Nissan’s attention. In the circumstances, I am satisfied that there was a valid reason for the dismissal and it related to Mr Froehlich's conduct on those two days.

[9] There is clear authority of Full Benches of this Commission and its predecessors that a determination of that question is not the same as determining whether there were grounds for summary dismissal for serious misconduct. Whether the dismissal was proportionate and whether it amounted to grounds for summary dismissal is nevertheless an issue that needs to be taken into account, and I will take that into account when dealing with other matters that the Commission considers relevant. However, based on the evidence of the conduct on the two days and Mr Froehlich's responses during the interviews, I find that there was a valid reason for the dismissal in the sense that it was sound, defensible and well founded.

[10] The next issue is whether Mr Froehlich was notified of the reason for the termination, and this is related to the next factor of whether he was given an opportunity to respond to that reason. On the evidence, I find that he was so notified and he was given an opportunity to respond. The first opportunity was on Friday, 28 February. Mr Fluder summarised the allegations against him. I find, based on his evidence and his notes of that meeting, that the summary provided to him did encapsulate the behaviour that was subject to the complaints, it amounted to notification of the reason ultimately for the termination, and amounted to an opportunity to respond to that conduct. A further opportunity on the Monday not only related to those factors but also enabled Mr Froehlich to respond to the potential decision of Nissan to terminate his employment. At the outset of that meeting Mr Fluder notified Mr Froehlich that Nissan was considering termination of his employment based on its investigation and was providing him an opportunity to provide any further material he wished to provide in relation to that decision.

[11] Mr Fluder concluded from both of those meetings that Mr Froehlich was dishonest in his answers to an extent and showed little remorse for the conduct that he considered had clearly been engaged in. Those factors go ultimately to the reasons for the dismissal rather than the process but I think it also demonstrates that the process was a genuine one and there was a genuine opportunity to give Mr Froehlich an opportunity to respond to the allegations.

[12] The next relevant factor is whether there was an unreasonable refusal by the employer to allow Mr Froehlich to have a support person present to assist at any discussions relating to the dismissal. There were two meetings and two opportunities. At the first meeting the employer suggested a representative that was not Mr Froehlich's first choice. Mr Froehlich, for the second meeting, arranged for Mr Fairchild, who was his first choice, to be present and be his support person on that occasion. On the evidence, I find that Mr Froehlich did not object to Mr Di Sisto being present at the first meeting and that in all of the circumstances there was no unreasonable refusal by the employer to allow Mr Froehlich to have a support person present to assist him in discussions relating to his dismissal.

[13] As the dismissal related to conduct of a repeated nature but over a confined period of the two days, I do not think that paragraph (e) of section 387 is relevant in this case. It is not a matter of unsatisfactory performance and whether there were warnings, given in relation to that performance. Rather, the conduct concerned alleged inappropriate behaviour or conduct. This is of a different nature to the circumstances to which paragraph (e) are directed.

[14] The other factors relating to the size of the enterprise are relevant in the sense that the employer is a significant employer and there is no reason why it would not be expected to follow appropriate procedures in carrying out a proper investigation into a termination of employment.

[15] There are a number of factors other than those that are mentioned which I believe are relevant in this case and they include the matters that are dealt with in the submission made on behalf of Mr Froehlich. I have regard to those factors. In my view it is significant that Mr Froehlich had 20 years' employment and was not warned or counselled, as far as the evidence establishes, during that period of employment. His age and his intention to continue to work and his general personal circumstances I consider are relevant factors and I take those factors into account.

[16] It is contended also that I should take into account alleged breaches of the investigation procedure of the company. On balance, I do not consider that the investigation involved any significant breaches of that procedure. Certainly there were decisions made and perhaps omissions in the steps involved in a comprehensive investigation. To an extent I consider that this is often going to be the case and is inevitable in a matter like this. However I consider that it was reasonable for the employer to act on the direct representations of the two employees, the representation of Mr Jasper and the responses to those allegations by Mr Froehlich.

[17] I also consider the question of proportionality in relation to other factors and in my view this is a significant question in the light of all of the circumstances, including the length of service and the work record. It could have been the case that the company decided to issue a final warning in relation to this matter and the question ultimately that needs to be determined in terms of proportionality I think bears partly in relation to the criterion of reasonableness but more specifically in relation to the criterion of harshness. I will consider it further in relation to those issues.

[18] In terms of whether the termination was unjust, I do not consider that it can be so described. Nissan provided justice to Mr Froehlich in the sense of investigating his behaviour and it reached conclusions which in my view were consistent with the evidence that was led in the Commission. Mr Froehlich’s behaviour was clearly inappropriate and in my view it was of a serious nature because it was not a single slip of the tongue or an offhand comment. It was repeated, loud and aggressive comments to staff who did not deserve that sort of behaviour being directed towards them or those comments being made in their presence.

[19] It could be said that the behaviour was not a form of abuse as such, and I think that is correct but it was clearly aggressive and intimidatory behaviour addressing the application of the company's procedures by Ms Concepcion and Ms West. It was clearly intended to be heard by them and to be communicated to them. In my view, the nature of the conduct, its repeated instances, and the level of aggression that I find existed, leads to the conclusion that the conduct was serious and that it justified termination on the basis of the totality of the conduct on those two days alone.

[20] The question of reasonableness of the termination does relate to the question of the appropriate penalty. It might be that an employer faced with certain circumstances might take one form of disciplinary action and another in the same circumstances, quite reasonably, might take quite a different form of disciplinary action. It is only if the action that Nissan took can be described as unreasonable, outside of the bounds of reasonableness, can an applicant succeed on that ground. It is not the task of this Commission to determine what it would have done in the circumstances but really it is necessary to determine whether it is appropriate to describe the decision to terminate, the findings that were made, as well as the ultimate decision to dismiss as unreasonable. In my view it cannot be described as such. As I say, that is not to say that it was appropriate for every employer in that situation to terminate employment but I do not believe termination was an unreasonable reaction in the circumstances.

[21] The final criterion is harshness, and I think that is the one that presents the most difficulty because it brings into play the circumstances of the 20 years of satisfactory service of Mr Froehlich and the personal impact on him. I have had regard to all those circumstances, including the responses that he made during the interviews, the employer's finding that he had been dishonest and less than remorseful, and his evidence in this Commission which in my view did involve a playing down of his behaviour rather than a full acceptance of the conduct. I am not of the view that the decision of the employer to terminate employment was harsh in all of the circumstances.

[22] Having made those findings and reached those conclusions, it follows that the application by Mr Froehlich must be dismissed. An order to that effect is issued in conjunction with this decision (PR554481)

VICE PRESIDENT

Appearances:

Ms A Moussa and Mr G Oram of the AMWU appearing for the Applicant.

Mr A Maher of counsel and with him Mr P Fluder appearing for Nissan Motor Corporation (Australia) Pty Ltd

Hearing details:

2014

Melbourne

6 & 7 August 2014.

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