Mr Kevin Gugliotta v Path Transit Pty Ltd
[2014] FWC 864
•3 APRIL 2014
| [2014] FWC 864 [Note: An appeal pursuant to s.604 (C2014/3843) was lodged against this decision - refer to Full Bench decision dated 16 July 2014 [[2014] FWCFB 3982] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISIONANDREASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Kevin Gugliotta
v
Path Transit Pty Ltd
(U2013/13072)
COMMISSIONER CLOGHAN | PERTH, 3 APRIL 2014 |
Unfair dismissal.
[1] This is an application by Mr Kevin Gugliotta, Bus Driver alleging that he was unfairly dismissed from his employment with Path Transit Pty Ltd.
[2] Mr Gugliotta was involved in an incident with another bus driver which led to him being dismissed. Mr Gugliotta alleges that the dismissal was harsh, unjust and unreasonable and that he was not provided with procedural fairness. Path Transit Pty Ltd submits that Mr Gugliotta’s dismissal was not unfair. Mr Gugliotta was terminated for a valid reason due to the incident with the other bus driver and that he had received a written Final Warning approximately three (3) weeks prior to the incident. Finally, Path Transit Pty Ltd submits that it carried out a proper investigation into the incident.
PROCEDURAL BACKGROUND
[3] On 30 August 2013, Mr Kevin Gugliotta (Mr Gugliotta or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his employment with Path Transit Pty Ltd (Path Transit or Employer).
[4] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[5] The application was not resolved at conciliation and was referred to me for arbitration on 23 October 2013.
[6] On 25 October 2013, I issued procedural directions for a hearing on 4 February 2014.
[7] At the hearing on 4 February 2014 the Applicant represented himself and gave evidence on his own behalf. Mr Gugliotta’s life partner, Ms Harris, also gave evidence on behalf of the Applicant.
[8] The Employer was represented by Mr I MacDonald, National Industrial Relations Manager, Australian Public Transport Industrial Association. Evidence was given on behalf of Path Transit by:
● Mr C Gildersleve, Area Manager, Kalamunda Contract;
● Mr R Wilkinson, Welshpool Depot Supervisor;
● Ms V Huckstep, Bus Driver;
● Mr B Perkovich, Bus Driver; and
● Mr A Malik, Refueller.
[9] At the conclusion of the hearing, I reserved my decision. Having considered the evidence provided as a result of procedural directions, submissions, oral evidence and the authorities cited, this is my decision and reasons for decision.
RELEVANT STATUTORY FRAMEWORK
[10] It is not in dispute that Mr Gugliotta’s application was made within the statutory timeframe pursuant to paragraph 394(2)(a) of the FW Act.
[11] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) ...
(d) ...”
[12] The criteria for whether a dismissal was harsh, unjust or unreasonable can be found at s.387 of the FW Act and 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.”
RELEVANT BACKGROUND
[13] On 17 September 2012, Mr Gugliotta commenced employment with Path Transit as a Bus Driver.
[14] On 26 September 2012, Mr Gugliotta and the Employer signed a Training Contract which would have led the Applicant to completing the nationally recognised qualification of Road Transport Level 3.
[15] In September 2012, Mr Gugliotta was provided with Path Transit’s Employment Manual which outlines its Bullying Policy.
[16] On 19 July 2013, Mr Gugliotta received correspondence from the Employer which refers to a discussion between Mr Gildersleve and Mr Gugliotta on 18 July 2013 regarding a complaint concerning Mr Gugliotta’s driving. The relevant parts of the correspondence are as follows:
“We discussed this issue in detail at the meeting and the fact that this is not an acceptable driving standard expected by Path Transit.
Please note I am issuing you with a Final Warning and further driver retraining will be organised for you. I wish to advise that any further incidents of general poor work performance may lead to your dismissal from this company.” 1
[17] On 8 August 2013, an incident occurred in the Drivers’ Staff Room (Drivers’ Room) between Mr Gugliotta and Ms Huckstep.
[18] Mr Gildersleve, as Area Manager, was advised of the incident on 9 August 2013.
[19] Mr Gildersleve requested written statements from Mr Gugliotta, Ms Huckstep and Mr Perkovich who was present for part of the incident. Mr Gildersleve received Incident Reports from Ms Huckstep and Mr Perkovich on or around 1:00 pm on 9 August 2013.
[20] Ms Huckstep’s Incident Report states that Mr Gugliotta, for a period of 15 minutes in the Drivers’ Room, threatened and abused her. Mr Perkovich’s Incident Report states that he witnessed Mr Gugliotta harassing Ms Huckstep, using a raised voice and offensive language.
[21] Mr D Taufa and Mr P Gumbo also provided the Employer with Incident Reports concerning contact they had with Ms Huckstep following the incident between her and Mr Gugliotta on 8 August 2013 2. In both cases the Incident Reports state that Ms Huckstep was crying and distressed.
[22] As Mr Gugliotta was on sick leave on Friday 9 August 2013, he did not provide an Incident Report. However, Mr Gildersleve arranged for the commencement of Mr Gugliotta’s next shift on Monday 12 August 2013 to be covered by another driver so he could meet with him.
[23] Mr Gugliotta telephoned Mr Gildersleve at his home on Sunday 11 August 2013 and enquired why his next shift was to be covered by another driver. Mr Gildersleve responded to him that he had to investigate the incident on Thursday 8 August 2013 in which it was alleged that Mr Gugliotta had threatened Ms Huckstep.
[24] Mr Gildersleve met with Mr Gugliotta on Monday 12 August 2013. Mr Gugliotta asserted that Ms Huckstep’s claims were a fabrication and that Mr Perkovich’s Incident Report was lies.
[25] Following his meeting with Mr Gugliotta, Mr Gildersleve again spoke to Ms Huckstep.
[26] A further meeting was arranged between Mr Gildersleve and Mr Gugliotta for 15 August 2013.
[27] Mr Gugliotta attended the meeting on 15 August 2013 with his partner, Ms Julie Harris.
[28] At the conclusion of the meeting on 15 August 2013, Mr Gugliotta was advised that, as he had already received a final warning, his employment would be terminated and that his traineeship would be cancelled. Mr Gugliotta’s work performance was also discussed at this meeting.
[29] On the same day, 15 August 2013, Mr Gildersleve provided Mr Gugliotta with a letter terminating his employment. The relevant parts of the dismissal letter are as follows:
“I reviewed the situation we discussed on Monday 12 August 2013 and again today in the meeting regarding the complaint from a female driver that you used threatening and abusive behaviour towards her on Thursday 8 August 2013 at Kalamunda Depot and also that this was supported by a witness. I have considered your response and I have no reason to disbelieve what the complaintant (sic) and witness have claimed, I also note you recently received a final warning which stated, “any further incidents of general poor work performance may lead to your dismissal from this company”. Therefore I have no option than to terminate your services with Path Transit.
As per your award requirement, in addition to any outstanding leave entitlements, you will receive the appropriate pay in lieu of notice from the date of this letter.” 3
[30] Mr Gugliotta was advised by the Employer on 23 August 2013 that it had made application [on 22 August 2013] to the Department of Training and Workforce Development (DOT) to terminate his training contract pursuant to Regulation 51(1) of the Vocational Education and Training (General) Regulations 2009 (Regulations).
[31] The relevant parts of the Employer’s correspondence to Mr Gugliotta read as follows:
“...We have now made application [22 August 2013] to the Chief Executive [of DOT] to approve our decision to terminate your employment...
In the interim I give notice that your training contract...is suspended from this date (23 August 2013) on the grounds that you have engaged in serious misconduct on the 8th August 2013 in that you bullied, threatened and harassed, in breach of the Bullying Policies of the Company, another employee...” 4
[32] In its supporting documentation to the DOT on 22 August 2013, Mr Gildersleve states:
“Path Transit considers Kevin Gugliotta’s actions towards Vicki Huckstep on the evening of Thursday 8 August as a serious breach of our Workplace Bullying Policy...Due to the fact that Kevin Gugliotta has already received a final warning for poor performance Path Transit has no other option than to apply to have his training contract terminated.” 5
[33] Mr Gugliotta disagreed with the Employer’s request to terminate the training contract. By correspondence from DOT dated 3 September 2013, Mr Gugliotta was given the opportunity to respond to the Employer’s application to terminate the training contract. Specifically, Mr Gugliotta was asked to address the following:
“ allegations of serious misconduct (bullying in the workplace);
- ongoing issues related to poor work performance including a final warning letter dated 19 July 2013.” 6
[34] Mr Gugliotta responded, by email, to the DOT on 4, 5, 6, 9, 12 and 13 September 2013.
[35] For the purposes of this background, it is useful to set out the relevant legislative framework in relation to the suspension and termination of a training contract.
[36] Section 51 of the Vocational Education and Training Act 2009 (VET Act) enables the Employer to seek the Chief Executive of DOT’s approval to terminate a training contract. This is what the Employer did on 22 August 2013.
[37] On 23 August 2013, the Employer suspended the training contract in accordance with s.60E(4) of the VET Act and Regulation 49(4)(a) of the Regulations. The suspension of the training contract related to the incident on 8 August 2013.
[38] On 20 September 2013, the DOT advised Mr Gugliotta as follows:
“...You [Mr Gugliotta] dispute Path Transit’s allegations of serious misconduct and poor work performance. You have advised us that your employment contract has been terminated and that you have lodged an unfair dismissal claim with Fair Work Australia (sic). Path Transit has provided evidence to support the employer’s application for termination on the basis of serious misconduct and poor work performance. The Employer has also stated that your current employment status is suspended on full pay pending the chief executive’s decision on the application to terminate the training contract.
Given these circumstances the training contract will be cancelled with effect from close of business on Friday 20 September 2013 under s.60F(5) of the Vocational Educational and Training Act 1996 (the VET Act) and Regulation 44(b). This section of the VET Act provides for the chief executive of the department to cancel the registration of the training contract if the employer is not able to train the trainee adequately. In this case the chief executive is satisfied that the relationship has deteriorated to the extent that the employer would not be able to train the trainee adequately. The department will advise Path Transit of the decision to cancel the registration of your training contract.” 7
[39] On 20 September 2013, DOT advised the Employer in similar correspondence to that in paragraph [38] above. 8
[40] Mr Gugliotta was paid by the Employer until 20 September 2013. It should be noted that both parties cite 15 August 2013 as the date Mr Gugliotta’s employment ceased.
MR GUGLIOTTA’S SUBMISSION
[41] Mr Gugliotta submits that:
● the dismissal was harsh, unjust and unreasonable;
● he was not provided with procedural fairness;
● he was not provided with substantive fairness;
● no adequate investigation procedures were followed;
● no meeting was scheduled where all the parties were present to discuss the events in details;
● five weeks prior to the incident on 8 August 2013 he was made a permanent employee. If he had such a poor performance record as alleged by the Employer, why was he made a permanent employee; and
● inconsistencies in the evidence of Ms Huckstep and Mr Perkovich.
EMPLOYER’S SUBMISSION
[42] Path Transit submits that:
● Mr Gugliotta’s dismissal was not unfair;
● Mr Gugliotta was terminated for a valid reason as a consequence of his behaviour towards Ms Huckstep on 8 August 2013 which amounted to a breach of the Employer’s Workplace Bullying Policy and Procedures;
● the Applicant acknowledged that he has received a copy of the Employer’s Workplace Bullying Policy and Procedures;
● the evidence of Ms Huckstep supports the fact that Mr Gugliotta was aggressive and threatening towards her;
● Mr Perkovich witnessed part of the confrontation between Mr Gugliotta and Ms Huckstep;
● the Applicant’s behaviour towards others after the confrontation with Mr Huckstep is further evidence of his predisposition to aggressive behaviour;
● the Employer carried out a proper investigation into the incident on 8 August 2013;
● Mr Gugliotta was provided with the opportunity to respond to the allegations about the incident on 8 August 2013; and
● the performance record of Mr Gugliotta is relevant to the determination of fairness and further supports the decision to dismiss the Applicant.
CONSIDERATION
s.387 (a) - was there a valid reason for the Applicant’s dismissal?
[43] I have adopted the definition of a valid reason stated by North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 in the following terms:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.”
[44] On 9 August 2013, Ms Huckstep, who is also a bus driver at the Kalamunda depot, lodged an Incident Report with the Employer concerning an incident between herself and Mr Gugliotta. The relevant parts of the Incident Report are as follows:
“Came into depot I said “BACK AGAIN” then Kevin [Mr Gugliotta] started threatening and abusing me [Ms Huckstep] he said “You have been onto me from the start, you and your filthy f....g mouth talking with your cronnees behind my back so just shut your f....g mouth. This went on for about 15 minutes. Kevin [Mr Gugliotta] keep (sic) saying you know what i’m f....g talking. He said you are messing with the wrong f....g bloke”. 9
[45] In her witness statement, Ms Huckstep states that she had never spoken to Mr Gugliotta before but had seen him around the depot. Ms Huckstep claims that she used the words “back again” to “break the ice” and create a friendly conversation 10.
[46] Ms Huckstep’s evidence is that Mr Gugliotta’s words and gestures made her fearful that he “might become physically violent” towards her. Ms Huckstep gave evidence that she “became very distressed...as it was unexpected I started to cry uncontrollably” 11.
[47] Mr Gugliotta in his witness statement gives evidence that he did not threaten Ms Huckstep or abuse her. Specifically, Mr Gugliotta states:
“all I said to Mrs Huckstep was “keep it up” she replied, “what are you talking about?” I said, “bad mouthing people” she replies, “what have I said?” I say, “you know” she says, “no I don’t, tell me”. I reply, “you know” [ repeat, repeat, repeat]. There is no threats by me, there is no abuse by me, there is no violence by me directed at Mrs Huckstep. In fact, there is also no bad language it is not I”. 12
[48] Clearly, there is a disagreement between what Mr Gugliotta claims occurred during the exchange in the Drivers’ Room and what Ms Huckstep put in her Incident Report.
[49] There is no dispute that Mr Gugliotta and Ms Huckstep were in the Drivers’ Room for a period of time. Both were counting monies. There is a dispute between both persons as to how far each was from the other but that is not directly material for the purposes of the verbal exchange that occurred.
[50] Contrary to Ms Huckstep’s Incident Report, I find that the actual verbal exchange was approximately four (4) minutes but in fairness to Ms Huckstep it may have seemed longer given the nature of the exchange.
[51] Mr Gugliotta does not recall who started the conversation but concedes if Ms Huckstep’s evidence is that she said “back again” 13, then Ms Huckstep obviously started the conversation.
[52] Mr Gugliotta agrees that he put it to Ms Huckstep that she “keeps badmouthing people” 14. Mr Gugliotta makes it plain that he was not accusing Ms Huckstep of “badmouthing” him, but “badmouthing people”15. When asked in cross examination why he took it upon himself to castigate Ms Huckstep for bad mouthing other people, Mr Gugliotta states:
“Saying the words, "Keep it up, stop badmouthing people." Why did you say that? Why did you take it upon yourself to do that?---Why? Well, I've been thinking about that. Why did I make a comment? In retrospect I probably shouldn't have said anything. But I mean at the end of the day if you can't make comment to the effect that someone shouldn't be doing something that they're doing - I don't know, I was tired. It was late in the day. I mean subconsciously someone put a prostitute's number on my board, not they were subconsciously because I never spoke to her about it. So I don't know. I just - - -
But it wasn't anything Ms Huckstep did though, was it?---No, of course not.
But you still took it upon yourself, you still took it upon yourself on this day - - -?---Yes.
- - - to tell her to stop badmouthing people?---But that was in regards to what? It wasn't in regards to me.
The question I asked you was you still took it upon yourself to do that?---So I made a comment. Maybe I shouldn't have made a comment but I mean I didn't say anything offensive or anything unjust or anything that relates to bullying or serious misconduct or anything to that effect.” 16
...
“- - - I put it to you that would be something that would be pretty concerning to the person you were doing it to?---Well, I put it to you I gestured with my hands but politicians gesture with their hands. I'm Italian. It's not offensive. There's nothing in that. We all at times gesture with our hands. I mean it wasn't offensive. It wasn't loud. It wasn't - there was nothing in it. It was a simple conversation.” 17
...
“You had no evidence at all that she was badmouthing people?---Okay.
Do you agree with that?---I agree with that a hundred per cent.
You had no evidence whatsoever?---I had no evidence, none.” 18
...
“You were going to have a go of it?---That's not me. It wasn't premeditated. As I say I don't get involved with the politics. It was just that it happened that night. Maybe there was something in my back of the head about the prostitute which I never brought up. I don't know. And I was listening to that rhetoric all day and not subconsciously. I just made a comment and that's all it is.
So you do agree with me that you probably acted unreasonably on that day?---No, not at all. That's not unreasonable.
It's not unreasonable for you - - -?---That's not - - -
- - - to accuse somebody of badmouthing you?---Is that serious misconduct? I'll put it to you, Mr MacDonald.” 19
“- - - you know, occurring in your life, and I put it to you that that was quite unreasonable to make those unfounded allegations against Ms Huckstep?---Not at all. I made a comment. It wasn't like I'd said something derogatory or something offensive to her. That would have been unreasonable. But to make a comment in jest why would that be unreasonable.
So if I said to you you were badmouthing somebody - - -?---Yes.
- - - you wouldn't be offended?---Would I be offended?
Yes, would you be offended?---Would I be offended? Well, maybe not. I wouldn't be happy about it. I don't know if I'd be offended about it. I mean depending on whether I've said it or not. I mean that's the issue, whether I'd take it, you know, a little bit personal.” 20
[53] I am unable to agree with Mr Gugliotta it was a simple conversation or as he put elsewhere in his evidence “small talk”. 21 This was the first time, Mr Gugliotta and Ms Huckstep talked to each other. In that conversation, Mr Gugliotta accuses Ms Huckstep of “bad mouthing” other people - not himself. He had no evidence that Ms Huckstep was bad mouthing other people. Mr Gugliotta denies in his evidence that his actions were unreasonable, offensive or derogatory. While on the day of the incident, it may have been late, he was tired and subconsciously thinking about the incident involving the prostitute’s number, that was not the case when giving his evidence. In my view Mr Gugliotta’s conduct was unreasonable, offensive and derogatory. I find the only compatible evidence Mr Gugliotta gave regarding his discussion with Ms Huckstep was that “he shouldn’t have said anything”.
[54] Mr Gugliotta claims he was not agitated, “it was merely a conversation between two people that was turned into a serious misconduct allegation” 22.
[55] In summary, Mr Gugliotta claims he is the victim of “mobbing” 23 - that is bullying by his co-workers, including Mr Gildersleve. I find no evidence to substantiate such a claim.
[56] Having had the opportunity of observing and listening to the cross examination of Ms Huckstep by Mr Gugliotta, I am satisfied that the exchange between both bus drivers was far more robust and animated than appeared at first instance from the written reports and witness statements.
[57] Both parties agree that Mr Perkovich entered the Drivers’ Room during the incident.
[58] Mr Perkovich’s written evidence is that on approaching the Drivers’ Room he heard a male voice in what appeared to be shouting. On entering the room, the shouting dissipated. Mr Perkovich’s evidence was that he observed Ms Huckstep crying as tears were streaming down her face. Her face was very red at the time”. 24
[59] Mr Perkovich recalled Ms Huckstep saying words to the effect, “what am I supposed to have done?” with Mr Gugliotta replying, ”you know” 25.
[60] On 9 August 2013, Mr Perkovich’s Incident Report reads in part:
“...I witnessed Kevin Gugliotta harassing Vicki Huckstep. Obviously this had gone on for some time before I entered the room. Kevin was using offensive language and a raised voice towards Vicki...Had I not entered the drivers’ room when I did the situation would have escalated beyond verbal abuse...” 26.
[61] Despite Mr Gugliotta putting to Mr Perkovich what he could or should have done on entering the Drivers’ Room, the essential elements of his evidence were undisturbed. Mr Perkovich did not attempt to embellish his evidence and his responses in cross examination were reasonable and credible.
[62] Mr Malik provided an Incident Report of his interaction with Ms Huckstep following the incident some two (2) weeks later when asked to do so by his Employer. 27
[63] Mr Malik gave evidence of his interaction with Ms Huckstep shortly after the incident with Mr Gugliotta. Mr Maik’s witness statement states that Ms Huckstep was crying and that she said words to the effect of, “Kevin [Mr Gugliotta] has just threatened me” 28. Mr Malik’s evidence was that Ms Huckstep “had been crying from the tears in her eyes. She appeared to be very upset”29. Mr Malik states that he tried to calm Ms Huckstep and advised her to report the incident to management in the morning.
[64] Similar to Mr Perkovich, Mr Gugliotta spent some time cross examining Mr Malik on what he should or could have done following his interaction with Ms Huckstep. I found Mr Malik’s answers honest, to the point, credible and without hesitation. I find nothing untoward in Mr Malik being asked to provide the Incident Report two (2) weeks after the incident. In some respects, Mr Malik’s answers in cross examination gave a more detailed picture of Ms Huckstep’s physical and emotional state following the incident between her and Mr Gugliotta, than his written witness statement.
[65] Mr Wilkinson’s evidence relates to the meeting on 15 August 2013 attended by the Applicant, Ms Huckstep and Mr Gildersleve.
[66] The nature of Mr Wilkinson’s evidence relates to the meeting on 15 August 2013 and a verbal exchange at the end of the meeting. Mr Wilkinson was cross examined on his evidence that Mr Gugliotta became loud and aggressive towards Mr Gildersleve and “threatening” to take legal action against the Employer.
[67] Mr Gugliotta denies he was intimidating or threatening in the 15 August 2013 meeting and relies on his partner’s witness statement. Mr Gugliotta concedes that, at the end of the meeting, he asked Mr Gildersleve whether he considered him as threatening or intimidating 30. Mr Gugliotta suggests the test concerning the incident with Ms Huckstep is whether or not Mr Wilkinson was intimidated or threatened by him at the meeting; this is not the test. Secondly, this is also not the test as to whether the actual words used at the meeting were threatening or not. Mr Gugliotta appears to put the proposition that, because he made statements at the meeting, which Mr Gildersleve did not hear, then what Mr Gildersleve did hear, must be wrong31. I do not accept this proposition.
[68] Having observed the cross examination and for the reasons outlined above, I am satisfied that the tenor of the discussions on 15 August 2013 are generally that described by Mr Wilkinson 32. Although the Employer has submitted that I should consider the behaviour of Mr Gugliotta as evidence of his predisposition to aggressive behaviour, I prefer to give greater weight to the direct written and oral evidence that was provided by Ms Huckstep and Mr Perkovich who were inside the Drivers’ Room and by Mr Malik who was outside the Drivers’ Room.
[69] The central question, it seems to me, is whether the conduct which led to Mr Gugliotta’s dismissal occurred was “sound, defensible or well founded”. There is no dispute that an incident occurred in the Drivers’ room. The two main characters in the incident have different views of what occurred.
[70] The objective facts before the Employer and at the hearing are that Ms Huckstep provided an Incident Report dated 9 August 2013 in which she stated she was threatened and abused by Mr Gugliotta on 8 August 2013. Further, on 13 September and 29 October 2013 a medical practitioner certified that she had examined Ms Huckstep who presented as “suffering severe stress as a result of being verbally abused and threatened in the workplace” on 8 August 2013 33.
[71] In addition, I have the Incident Report of Mr Perkovich who observed Mr Gugliotta threatening Ms Huckstep. Mr Perkovich formed the view that “this had gone on for some time before I [Mr Perkovich] entered the room as Vicki [Ms Huckstep] was visibly upset and frightened. Kevin [Mr Gugliotta] was using offensive language and a raised voice towards Vicki.” 34
[72] In addition, the Employer had access to CCTV of the Drivers’ room. The CCTV has the disadvantage of no audio but clearly indicates Mr Gugliotta on screen and periodically moving out of vision and the direction of Ms Huckstep. For obvious reasons, the CCTV cannot be relied upon for what was said between Mr Gugliotta and Ms Huckstep but it can be inferred from the vision that Mr Gugliotta, on occasions, moved towards Ms Huckstep as if to make a point during their discussion.
[73] Mr Gildersleve’s file notes of the investigation and disciplinary action detail that in his conversation with Mr Gugliotta on 11 August 2013, the Applicant became very “loud and excited” 35 when advised on the need to discuss the incident on the following day. Mr Gugliotta concedes he was “emotional”36.
[74] At the meeting on 12 August 2013, Mr Gugliotta asserted that he was not threatening Ms Huckstep and that Mr Perkovich’s Incident Report was lies. Later on the same day, Mr Gildersleve and Mr Gugliotta had another telephone conversation in which Mr Gildersleve was “quite shocked” 37 at Mr Gugliotta’s outburst. Following that telephone conversation, Mr Gildersleve communicated by email to arrange the logistics of the further meeting on 15 August 2013, who would be attending and what Mr Gugliotta could access relating to the incident.
[75] At the meeting on 15 August 2013, Ms Harris’ evidence is that “Kevin [Mr Gugliotta] denied these accusations and claimed Ms Huckstep and Mr Perkovich were lying” 38. It is common evidence that Mr Gildersleve made a statement to the effect “that the CCTV is inconclusive" and “why would they [Ms Huckstep and Mr Perkovich] lie” and put the question to Mr Gugliotta “why should I disbelieve that they [Ms Huckstep and Mr Perkovich] are saying”39.
[76] It is also common ground that at the meeting on 15 August 2013, Mr Gildersleve raised the issue of Mr Gugliotta’s previous final warning. Mr Gildersleve submits that, separately, he raised the issue of performance.
[77] The Employer, in coming to the decision to dismiss the employment, took into account the written final warning which was issued less than three weeks before the incident on 8 August 2013. I consider the Employer’s actions in taking into account the final warning appropriate. Further, given the nature of the Applicant’s employment and the relatively short duration of his employment, it was appropriate for the Employer to consider the entirety of Mr Gugliotta’s performance for his period of employment. 40 While there can be differences of view about what happened in the Drivers’ Room, the final written warning and Mr Gugliotta’s performance record were of objective assistance to the Employer when reaching the conclusion to bring the Applicant’s employment to an end. I am satisfied that the reasons for Mr Gugliotta’s dismissal were sound, defensible and well founded.
s.387(b) - notification of the reasons for termination of employment
[78] It is not disputed that Mr Gugliotta was informed, in his termination of employment letter of 15 August 2013, that he was dismissed regarding the incident with Ms Huckstep on 8 August 2013. This incident was considered in light of Mr Gugliotta receiving a Final Warning on 19 July 2013.
[79] Mr Gugliotta became aware of the incident involving Ms Huckstep on 11 August 2013 and formally on 12 August 2013. The reasons leading to Mr Gugliotta’s dismissal were also discussed with him on 15 August 2013; at that time, Ms Harris was also present.
[80] I am satisfied that Mr Gugliotta was aware of the reasons for his dismissal.
s.387(c) - opportunity to respond
[81] Mr Gugliotta was given the opportunity to respond to Ms Huckstep’s complaint on 12 and 15 August 2013.
s.387(d) - support person
[82] Ms Harris was present at the final discussion between the Employer and Mr Gugliotta on 15 August 2013. It was shortly after this meeting that Mr Gugliotta was informed that his employment had been terminated both verbally and in writing.
[83] I am satisfied that the Employer did not unreasonably refuse to have a support person present to assist at any discussions relating to Mr Gugliotta’s dismissal.
s.387(e) - unsatisfactory performance
[84] Mr Gugliotta’s dismissal was primarily related to his conduct on 8 August 2013 and not his performance as a bus driver. However, in overall terms, Mr Gugliotta’s dismissal related to his performance as an employee, and in that respect, he had recently received a written Final Warning. Further, Mr Gugliotta’s staff performance record and Assessment Reports (one of which is a “mystery shopper”) are not flattering to the Applicant and led to the conclusion, which the Employer adopted, that the incident was a deliberate wrong doing and one too many.
s.387(f) - size of enterprise
s.387(g) - Human Resources
[85] I am satisfied, on the evidence, that the Employer treated the incident between Mr Gugliotta and Ms Huckstep seriously and investigated it promptly. Ms Huckstep made a complaint about the conduct of Mr Gugliotta. Mr Gugliotta was advised of the complaint and that he was required to account for his behaviour. On the following day, Mr Gugliotta met with Mr Gildersleve. Mr Gugliotta denied the alleged behaviour. Mr Gildersleve advised Mr Gugliotta of the necessity of a further meeting to discuss the complaint.
[86] A further meeting was held where Mr Gugliotta was given an opportunity to respond to the complaint. Present at the meeting was Mr Gugliotta’s support person, Ms Harris. Mr Gildersleve was not involved in the incident and had the opportunity to observe the behaviour and credibility of both parties. At the end of the process, Mr Gildersleve was faced with two conflicting views about what happened. Mr Gildersleve came to the view that he preferred the statements of Ms Huckstep and Mr Perkovich and made a decision to terminate Mr Gugliotta.
[87] The investigation and disciplinary process was carried out by Mr Gildersleve’s line managers and the size of the Employer’s enterprise or absence of dedicated human resource management specialist did not impact on the procedures in effecting the dismissal.
s.387(h) - other matters
[88] I have not taken any other matters into consideration.
CONCLUSION
[89] In conclusion, for the reasons set out above, I am satisfied that Mr Gugliotta’s dismissal from his employment was not unfair pursuant to s.387 of the FW Act. Accordingly, the application must be dismissed and an order to this effect is issued conjointly with this Decision and Reasons for Decision.
COMMISSIONER
Appearances:
K Gugliotta, the Applicant on his own behalf.
I MacDonald with C Gildersleve on behalf of the Respondent.
Hearing details:
2014:
Perth,
4 February.
1 Exhibit R5(8)
2 Exhibit R5
3 Exhibit A5(7)
4 Exhibit R5
5 Exhibit R5(1)
6 Exhibit R5
7 Exhibit A5(14)
8 Exhibit R5(2)
9 Exhibit R9
10 Exhibit R9
11 Exhibit R9
12 Exhibit A7
13 Transcript PN362
14 Transcript PN362
15 Transcript PN404
16 Transcript PN411 to PN415
17 Transcript PN420
18 Transcript PN450 to PN452
19 Trasncript PN455 to PN458
20 Transcript PN463 to PN466
21 Transcript PN818
22 Transcript PN620
23 Transcript PN622
24 Exhibit R10
25 Exhibit R10
26 Exhibit R10(A)
27 Exhibit R11(A)
28 Exhibit R11
29 Exhibit R11
30 Transcript PN2089
31 Transcript PN2102 to PN2109
32 Exhibit R12
33 Exhibit R9
34 Exhibit R5(3)
35 Exhibit R8
36 Transcript PN693
37 Exhibit R5(F)
38 Exhibit A6
39 Exhibit A6
40 Exhibit R5(11)
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