Mr Kris Keller v Bluestar Print Group Pty Ltd trading as Webstar

[2013] FWC 2726

[2013] FWC 2726

FAIR WORK COMMISSION

DECISION

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

Mr Kris Keller
v
Bluestar Print Group Pty Ltd trading as Webstar
(U2012/16084)

COMMISSIONER CARGILL SYDNEY, 13 MAY 2013

Termination of employment.

[1] This decision arises from an application by Mr K Keller (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by Bluestar Print Group Pty Ltd trading as Webstar (the respondent or the company). The applicant’s dismissal occurred on 26 November 2012 and his application for relief was lodged on 29 November 2012.

[2] The matter was dealt with by a Conciliator on 20 December 2012 but did not settle. It was heard by me in Sydney on 12 April 2013. The applicant was represented by Ms L Saunders, Legal Officer with the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). The respondent was represented by Ms N Gao, Senior Advisor, Workplace Relations with the Printing Industries Association of Australia (PIAA).

[3] The applicant gave evidence. His statement dated 15 March 2013 was marked Exhibit Applicant 1 and his statement in reply dated 21 March 2013 was marked Exhibit Applicant 2. The applicant’s oral testimony is at PN 24-126 of Transcript.

[4] The following witnesses gave evidence on behalf of the respondent:

Mr A Prior Lead Printer with the respondent. His witness statement was marked Exhibit Respondent 1 and his oral testimony is at PN 137-348 of Transcript;

Mr Van Der Sloot Pressroom Manager with the respondent. His witness statement was marked Exhibit Respondent 2 and his oral testimony is at PN 378-680 of Transcript;

Mr I Sampson Manufacturing Manager with the respondent. His witness statement was marked Exhibit Respondent 3 and his oral testimony is at PN 709-866 of Transcript.

FACTS AND EVIDENCE

[5] The applicant commenced employment with the respondent in April 2006. He was employed as a general hand/pressroom offsider and his particular role was initially as a Stacker Hand and then for the last five years, a Reel Hand.

[6] The applicant’s evidence is that he always received positive feedback during the several performance reviews that he had in his period of employment. He also usually received a payrise.

[7] Mr Van Der Sloot’s evidence is that there had been general performance issues with the applicant during the last two years, in particular during the eight months prior to the dismissal. Mr Van Der Sloot says that the applicant made mistakes which caused down time on the presses. When he raised these matters with the applicant the applicant would intimidate him by standing very close to him, yelling and waving his arms around. Mr Van Der Sloot’s evidence is that, at times, it felt like the applicant might throw a punch. He would tell the applicant to move away, inform him that his behaviour was inappropriate and counsel him on how he should act.

[8] The applicant denies that his work performance had deteriorated. His evidence is that Mr Van Der Sloot reprimanded him on one occasion for being late for work. In his statement, Exhibit Applicant 2, the applicant says that he could not recall Mr Van Der Sloot speaking to him about his performance. Under cross-examination he testified that Mr Van Der Sloot warned or counselled him about his performance three or four times during his period of employment, mainly towards the end of that time.

[9] The applicant denies that he had ever been spoken to by Mr Van Der Sloot about any intimidating behaviour and denies that he had ever tried to intimidate Mr Van Der Sloot. Under cross-examination the applicant accepted that, even if he had not been attempting to intimidate others, nevertheless his actions could have caused those persons to feel intimidated.

[10] Mr Sampson’s evidence is that, on two occasions in 2012, the applicant invaded his personal space and spoke to him in a raised voice. His evidence is that he felt intimidated by the applicant’s actions. On each occasion he told the applicant to back off and stop raising his voice. Mr Sampson’s evidence is that the applicant apologised for his behaviour both times.

[11] The applicant agreed that, on the first of these occasions, he got close to Mr Sampson and spoke loudly. He says that this was because of the noise of the machines in the pressroom. The applicant’s evidence is that he had not realised that he was making Mr Sampson uncomfortable. The applicant denies raising his voice or acting aggressively towards Mr Sampson on the second of these occasions.

[12] The applicant worked on the afternoon shift which ran from 2pm to 10pm, Monday to Friday. Mr Prior who is employed as a Lead Printer, works 12 hour shifts, 6pm to 6am, Wednesday to Friday. Mr Prior and the applicant worked together during the periods that their shifts overlapped which at times also included weekend work. Mr Prior directed and generally supervised the applicant in his work but had no power to discipline him.

[13] Mr Prior’s evidence is that he had a good working relationship with the applicant until six to twelve months prior to the incident which led to the applicant’s dismissal. Mr Prior’s evidence is that, at times, the applicant would invade his personal space. Mr Prior believes the applicant did this to psychologically intimidate him. Mr Prior agreed that he had never informed the applicant that he felt intimidated by him.

[14] The applicant’s evidence is that he regarded Mr Prior as a “good mate” with whom he had a good “joking” relationship. He denies that he had acted in an aggressive or intimidating manner towards Mr Prior. His evidence is that, if he was too close to Mr Prior at times, it was in order to be heard over the noise of the presses. The employees wear earplugs when the machines are running.

[15] Mr Prior’s evidence is that the applicant’s performance had become very poor during the eight months before the dismissal. This included his failure to carry out certain duties and his absences from the work area. Mr Prior’s evidence is that he usually spoke to the applicant about his performance a couple of times a week. He says that he observed the applicant becoming annoyed about these discussions and, as a result, he felt uneasy around the applicant.

[16] The applicant’s evidence is that Mr Prior had not spoken to him on a weekly basis about his performance. He says that Mr Prior raised performance issues with him on only two occasions. The first of these concerned stripping extra paper from a reel and the second was in response to an incident on 15 November 2012.

[17] The applicant’s evidence is that, in August 2012, he had been involved in a plate mix up. He says that this was due to the pace of work at the time. The error resulted in the whole job having to be redone. The applicant was not disciplined about the incident.

[18] Towards the end of the applicant’s shift on 15 November 2012 he mixed up the plates for two separate jobs. He did not realise this until the following day. In the meantime Mr Prior discovered the error and the print run was saved. His evidence is that, if he hadn’t picked up the mistake, it could have cost the respondent thousands of dollars to redo the jobs.

[19] Mr Prior’s evidence is that the applicant’s mistake was a major problem especially as it had happened before. Consequently Mr Prior reported the event in the log book where it was seen by Mr Van Der Sloot the next day.

[20] Mr Van Der Sloot’s evidence is that he was concerned that the applicant had made the same mistake again in such a short period of time. His evidence is that the potential cost of such a mistake was not just doing the job again but the possible loss of a client. Mr Van Der Sloot’s evidence is that the applicant had been trained in the proper procedure and it was a task he would do many times a day.

[21] Mr Van Der Sloot met with the applicant on 16 November 2012 to discuss the plate mix up on the previous shift. The applicant was apologetic. Mr Van Der Sloot asked the applicant to write out a report of what had happened and the steps he would take to ensure the mistake didn’t occur again. This is Exhibit Applicant 3.

[22] The applicant’s evidence is that, towards the end of his shift on 16 November, another employee told him that Mr Prior had said that the applicant had probably mixed up the plates on purpose. The applicant’s evidence is that he was surprised to hear this and assumed that Mr Prior had been joking. Mr Prior’s evidence is that he did not say those words.

[23] Mr Van Der Sloot met again with the applicant on 19 November 2012. Before this meeting Mr Van Der Sloot had prepared a warning letter which set out a number of performance issues which he says had been raised with the applicant on previous occasions during the past two years. Mr Van Der Sloot’s evidence is that he went through each of these issues with the applicant referring to the respondent’s policy manual as he went. His evidence is that the applicant’s response was good and his attitude was positive. Mr Van Der Sloot says that the applicant had not been angry and did not seem to be surprised at the contents of the warning letter. Mr Van Der Sloot agreed that this was the first written warning that the applicant had received. He also agreed that some of the issues which were raised in the letter had previously been resolved.

[24] The applicant’s evidence is that Mr Van Der Sloot began the meeting by informing him that he didn’t want him working for the respondent anymore. Mr Van Der Sloot denies that he made any such remark. The applicant’s evidence is that he was scared that he was going to be dismissed and consequently remained silent even though he had major objections to the allegations in the warning letter. The applicant says that Mr Van Der Sloot did not provide details about any of the allegations.

[25] The applicant’s evidence is that he was concerned that there might be hard feelings between Mr Prior and himself and that he needed to “clear the air”. A discussion took place between them during the shift on 21 November 2012. There are some differences as to what was said by each. There were no other witnesses to the event.

[26] The applicant’s version is that Mr Prior agreed that he had said that the applicant had mixed up the plates on purpose but that he had been joking. The applicant then said, “Mate, if you think I laid the plates out wrong on purpose, I might as well punch you in the head and walk out the door!” The applicant says that he said this is a joking tone of voice while smiling and had not been aggressive towards Mr Prior. The applicant’s evidence is that he did not mean that he would actually punch Mr Prior. His evidence is that Mr Prior did not appear to be upset or intimidated. They laughed, shook hands and continued to work as usual.

[27] Mr Prior’s version is that the applicant asked him if he had told management that the plates had been mixed up on purpose. Mr Prior denied that he had done so. His evidence is that the applicant then said, “If you told them in there that I’d done it on purpose, I will punch you in the head and walk out of here”. Mr Prior agreed that he was wearing earplugs at the time but denied that he could have misheard the applicant. He says that the applicant had spoken “pretty loud”.

[28] Mr Prior’s evidence is that he felt threatened by the applicant’s words and what he might do. Mr Prior denied that the applicant was smiling or joking when he made the comments. He also denied that he and the applicant laughed about it and shook hands. Mr Prior agreed that he and the applicant both continued working until the end of the shift however Mr Prior’s evidence is that he felt “shook up” and stayed clear of the applicant. There was no further conversation between them.

[29] It is agreed that there was no physical contact between the applicant and Mr Prior. It is also agreed that the applicant has not been physically violent at the workplace.

[30] Later during this shift Mr Prior wrote a note about the incident. His evidence is that he did this because he wanted to be taken seriously, he had felt threatened by the applicant and didn’t want to work with him any more as he could not trust him. His note is Attachment AP3 to Exhibit Respondent 1 and is also attached to the statements of the other respondent witnesses. Mr Prior was cross-examined about his use of the word “would” rather than “will” in his report of what the applicant had said to him. Ultimately his evidence was that it could have been either. Mr Prior gave his note to Mr Van Der Sloot. This shift was the last occasion on which Mr Prior and the applicant worked together.

[31] Although Mr Van Der Sloot wanted to speak to the applicant on 23 November about the incident, Mr Sampson’s evidence is that he felt uncomfortable about acting so quickly. He spoke to the company’s Commercial Manager about the issue and then, on 26 November, he and Mr Van Der Sloot met with the applicant.

[32] In that meeting the applicant was asked several times whether he had made any threats of violence during the previous week. He stated that he didn’t know what Mr Sampson was talking about. The applicant’s evidence is that he asked if he could go and get a witness. Mr Sampson agreed that the applicant had made such a request, nevertheless Mr Sampson continued with the meeting.

[33] The applicant asked if the meeting had anything to do with his performance to which Mr Sampson responded that it did not.

[34] Mr Sampson’s evidence is that he didn’t provide details of the allegations about the alleged conduct to the applicant as he wanted the applicant to “open up” about the incident himself. He was also mindful of putting Mr Prior in a precarious position for “ratting” on the applicant.

[35] After a period of time including a break when the applicant was asked to leave the room, the applicant recalled his conversation with Mr Prior on 21 November. He informed the company representatives that he had been joking and that Mr Prior had also treated the comment as a joke. There was no discussion about the exact words that the applicant had said to Mr Prior.

[36] The applicant was apologetic. The evidence of both Mr Sampson and Mr Van Der Sloot is that they believed that the applicant was remorseful for being in trouble rather than for what he had done. The applicant was asked to leave the meeting room again. Mr Sampson and Mr Van Der Sloot discussed the matter with the company’s Commercial Manager. A decision was made to terminate the applicant’s employment.

[37] Mr Sampson’s evidence is that his immediate concern was for Mr Prior. His next concern was the message which would be sent to employees if the applicant remained employed. He also recalled the applicant’s aggressive behaviour that he had experienced first hand. Mr Sampson’s evidence is that he took his occupational health and safety responsibilities seriously and, although the decision was hard, the decision to dismiss the applicant had to be made.

[38] Mr Van Der Sloot’s evidence is that he understood the personal impact of dismissal upon an employee whose employment is terminated and the difficulty for them in finding another job. His evidence is that, nevertheless, managers are required to look after the safety of their employees. Mr Van Der Sloot’s evidence is that, in view of the applicant’s misconduct, he had to be dismissed.

[39] The meeting was reconvened, the applicant was informed of his dismissal. A letter of termination was posted to the applicant sometime later. In that letter Mr Sampson states that the applicant agreed “that the physical threats of assault to another individual were true and correct”. He concludes that the applicant’s threats amounted to serious misconduct and noted that the dismissal was to be without notice.

[40] The applicant’s evidence is that the dismissal has had a significant economic and emotional impact on him. He has applied for a number of jobs but has only been able to secure brief casual employment. The applicant’s evidence is that he is unable to pay his bills and is in debt to his family and his girlfriend. He has also been extremely stressed and depressed which has put pressure on his relationships.

SUBMISSIONS ON BEHALF OF THE APPLICANT

[41] A written outline of submissions on behalf of the applicant was provided prior to the hearing. Ms Saunders also made oral submissions and provided a folder of authorities in support.

[42] It is submitted that the applicant’s dismissal was harsh, unjust and unreasonable and consequently, unfair. The primary submission is that the applicant’s conduct did not give rise to a valid reason for termination. There were also procedural failings in the decision making process.

[43] It is submitted that the respondent bears the onus of establishing that the alleged misconduct took place and that it amounted to a valid reason for the dismissal: Culpepper v Intercontinental Ship Management Pty Ltd [2004] AIRC 261 @ [19] and Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201. Other cases relevant to this consideration include: Edwards v Giudice and others [1999] FCA 1836 and Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 @ 373 (Selvachandran).

[44] The applicant submits that the central task is to make a finding as to what actually occurred between himself and Mr Prior on 21 November 2012 and then consider whether the applicant’s actions amounted to misconduct in the particular circumstances: King v Freshmore (Vic) Pty Ltd [Print S4213] @ [24] (Freshmore) and Qantas Airways Ltd v Cornwall [1998] FCA 865.

[45] The applicant denies that he threatened Mr Prior. It is submitted that, although there is no allegation of a physical fight in this matter, regard should be had to the usual approach taken by industrial tribunals to instances of misconduct which involve fighting: Tenix Defence Systems Pty Ltd v Fearnly [Print S6238].

[46] The applicant submits that his version of events should be preferred to that of Mr Prior: his comment was made in a joking and non-threatening manner; it was not meant to be taken literally; the comment was not intended to intimidate Mr Prior; and, the applicant did not perceive that it had upset Mr Prior. It is noted that the applicant continued to work as usual between 21 and 26 November, including during the intervening weekend.

[47] It is submitted that the next task is to determine on an objective basis whether the applicant’s conduct was serious enough to warrant dismissal: Hudson v Woolworths Limited [PR979615] @ [81]. The applicant submits that, viewed objectively, there are no reasonable grounds on which it could be found that his behaviour was so threatening as to amount to serious misconduct. He also submits that his conduct was not so serious as to amount to a breach of his employment contract: North v Television Corporation Ltd (1976) 11 ALR 599 @ 608/9.

[48] Further it is submitted that an examination of the applicant’s mental processes does not reveal any intention to threaten, intimidate or physically assault Mr Prior: Gooley v Westpac Banking Corporation (1995) 59 IR 262 @ 269. This is relevant to the question of whether the applicant was guilty of serious misconduct.

[49] The applicant submits that his actions in themselves do not amount to an actual threat of violence. Neither do they so amount in the light of the surrounding circumstances. At worst he made a joking comment to which Mr Prior responded in a fashion which was not in keeping with its nature, the relationship between them or the workplace culture. Further, the applicant’s actions were provoked by Mr Prior’s comments about the applicant’s motivation for the plate mix up.

[50] It is submitted that little weight should be given to the evidence from the respondent’s witnesses that the applicant made a habit of engaging in intimidatory behaviour. Ms Saunders noted that it had been agreed that the applicant had not been aggressive when told of his dismissal.

[51] Ms Saunders submitted that the cases relied on by the respondent which deal with threats of violence are clearly distinguishable from the circumstances of this matter because of the difference in the gravity of the relevant behaviour. Each of those other cases involved serious threats of violence and occurred in very aggressive circumstances.

[52] It is noted that the issue of valid reason is only one of the factors to be considered under section 387: Coal and Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 @ [7]. The applicant submits that paragraphs (b), (c) and (d) of the section are also particularly relevant in this case.

[53] The applicant submits that he was denied procedural fairness. He was not adequately notified of the reasons for his dismissal, denied a proper opportunity to respond and was unreasonably refused a support person in the discussion on 26 November 2012: Korten v Serco Sodexho Defence Services [2003] AIRC 1798; Thomas v Ralph Lynch trading as Bellingen Grocery (1996) 71 IR 307 @ 312; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 @ [70] - [73]; and Crozier v Australian Industrial Relations Commission [2001] FCA 1031.

[54] The applicant submits that the respondent had already decided to dismiss him before hearing from him. This is supported by paragraph 64 of the respondent’s outline of submissions which indicates that there was nothing the applicant could have put which would have caused the respondent to have reconsidered its decision. There was no proper investigation and the allegations against the applicant were never properly put to him. The respondent was only interested in hearing the applicant confess to the misconduct before dismissing him.

[55] It is also submitted that procedural fairness required that the applicant should have been heard in relation to penalty, which he was not: Sciberras v Nissan Motor Company (Australia) Pty Ltd [2009] AIRC 612 @ [34].

[56] Further, the applicant’s dismissal was manifestly disproportionate to his conduct: Selak v Woolworths Limited [2008] AIRCFB 81 @ [17] and National Union of Workers v AB Oxford Cold Storage Co. Pty Ltd [Print S4389] (Oxford Cold Storage). It is submitted that a comparison between the facts in that latter case and the present and the factors set out at paragraph [23] thereof strongly support a finding in favour of the applicant here.

[57] Ms Saunders noted that Mr Sampson’s evidence was that the dismissal was not related to the applicant’s performance. Further, the applicant had shown a genuine willingness to improve when performance issues had been raised with him at the meeting with Mr Van Der Sloot.

[58] It is submitted that significant weight should be given to the applicant’s period of employment. His good work record is also relevant. Both of these factors support a finding that the applicant’s dismissal was harsh: Rail Corporation of New South Wales v El Hawat [PR974345] (El Hawat).

[59] The applicant submits that the impact of his dismissal on his personal and economic circumstances is also relevant: El Hawat; and Byrne and Frew v Australian Airlines Limited (1995) 185 CLR 410. Considerable weight should be given to the applicant’s unchallenged evidence as to the harsh impact of the dismissal upon him and the difficulties which he has experienced in finding other employment.

[60] The applicant seeks reinstatement, compensation and continuity of employment. Reinstatement is the primary remedy. In deciding whether such a remedy is appropriate guidance should be taken from Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 @ 191/2. The applicant submits that reinstatement is entirely appropriate.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

[61] A written outline of submissions on behalf of the respondent was provided prior to the hearing. Ms Gao also made oral submissions and provided a folder of authorities in support.

[62] The respondent submits that there was a valid reason for the applicant’s dismissal arising from his serious misconduct on 21 November 2012. It submits that the question of whether there is a valid reason is to be decided in a practical manner to ensure that both employer and employee have been treated fairly: Selvachandran. It is not for the tribunal to substitute its own view for that of the employer but to assess whether the employer had a valid reason: Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 @685. The respondent also notes that the relevant standard of proof is the balance of probabilities: Brinks Australia Pty Ltd v Transport Workers’ Union of Australia [PR922612].

[63] The respondent refers to the definition of “serious misconduct” in Regulation 1.07 of the Fair Work Regulations (2009) (the Regulations) and notes that the definition does not specifically relate to section 387. It submits that the definition should not be seen as restricting the concept of “serious misconduct” but nevertheless provides a relevant foundation for a valid reason in this case.

[64] It is submitted that there is ample case law which establishes that fighting and assault amount to a valid reason for summary dismissal: Fearnley v Tenix Defence Systems Pty Ltd (Print S3557) @ [27] (Tenix); Oxford Cold Storage @ [15]; AWU-FIME Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385 @ 393; Rogerson v Unilever Australia [PR933761] @ [50] - [52]; Galante v Majestic Plumbing Pty Ltd [PR932230] @ [42] - [45]; and Brotherton v Australian Postal Corporation [PR953975] @ [34].

[65] The respondent notes that the cases do not restrict the notion of fighting and submits that it covers a wide range of conduct including physical violence, threat of physical violence and intentionally or recklessly causing another to apprehend violence.

[66] The respondent submits that, in this case, the applicant’s conduct was even more serious because it was directed towards a supervisor: Todd v Mainfreight Distribution Pty Limited [2001] NSW IR Comm 1022. The respondent submits that assault against a supervisor amounts to the repudiation of the contract of employment.

[67] The respondent notes that the Full Bench decision in Tenix establishes that fights must be considered in their particular circumstances. It submits that it is for the applicant to establish any extenuating circumstances: Qantas Airways Limited v Kearney [Print P9657] and Oxford Cold Storage.

[68] The respondent agrees that where there is a disputed issue as to whether particular conduct took place FWC must determine the question on the basis of the evidence before it: Freshmore and other cases cited therein.

[69] The respondent submits that there are three issues to be determined concerning valid reason: did the applicant assault Mr Prior; are there any extenuating circumstances; and, was the applicant’s conduct proportionate. It submits that the first question should be answered in the affirmative. Further it submits that there is no evidence of self defence or provocation and no other extenuating circumstances. The applicant’s version of events is not plausible. The respondent also submits that the applicant’s actions were not proportionate even if any extenuating circumstances are found.

[70] It is submitted that it is also relevant to consider that the respondent has a need to establish and maintain discipline in its workforce and a duty of care to its employees under the relevant occupational health and safety legislation. Further, the applicant had a chequered history of employment especially during the eight to 12 months prior to the dismissal. He was warned about several performance and conduct issues shortly before the termination.

[71] The respondent submits that the applicant was fully aware of the reasons for his dismissal. He was notified of these at the meeting on 26 November and they were confirmed in writing. He was also provided with an opportunity to respond. The respondent submits that, in view of the severity of the applicant’s actions, there was no response which would have caused the respondent to have reconsidered its decision.

[72] The respondent submits that it did not unreasonably refuse a request by the applicant for a support person to be present at the interview on 26 November. It notes that the legislation does not impose a positive obligation on an employer to offer a support person: Biggs-Venz v Ozcare[2010] FWA 4797 @ [168] - [173].

[73] It is submitted that the applicant had been provided with numerous performance warnings and counselling.

[74] The respondent states that it has 175 employees. It has no human resource management specialists.

[75] The respondent submits that there are four other factors which are relevant to consider in deciding whether the dismissal was harsh, unjust or unreasonable. It never condoned the applicant’s misconduct on 21 November 2012. It has been good and considerate to the applicant at all times. It is a good corporate citizen without a high turnover of employees. Further, if there were any deficiencies in the procedure which led to the applicant’s dismissal they did not render it unfair: Tenix.

[76] The respondent notes the terms of section 381 of the Act and the need to provide a fair go all round to both employer and employee. It submits that, in the circumstances, the dismissal was proportionate to the applicant’s conduct.

[77] The respondent submits that the application should be dismissed. If a contrary finding is made, it submits that, in view of the severity of the applicant’s actions, reinstatement would be inappropriate. Alternatively, there should be no remedy awarded or, a nominal amount in compensation only. Any such amount should be reduced by other income received by the applicant since the dismissal as well as discounted for contingencies: Sprigg v Paul’s Licensed Festival Supermarket [Print R0235]. The applicant’s conduct should also lead to further reduction in any amount awarded.

CONCLUSIONS

[78] Section 396 of the Act sets out four matters which must be decided in applications of this type before the merits of a claim are considered. Those matters are:

“(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[79] As will have been apparent from paragraph 1 of this decision the application was made within the period required in subsection 394(2). There is no dispute that the applicant is a person protected from unfair dismissal. Paragraphs (c) and (d) of subsection 396 have no relevance in the present matter.

[80] Section 385 provides that a person has been unfairly dismissed if FWC is satisfied that:

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[81] Paragraph (a) is clearly met in relation to the applicant. Paragraphs (c) and (d) have no relevance.

[82] In order to decide whether the dismissal of the applicant was harsh, unjust or unreasonable it is necessary to turn to section 387 which sets out the factors which must be taken into account by FWC. Those factors are as follows:

“(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 FWC considers relevant.”

[83] The first matter which must be taken into account is whether there was a valid reason for the dismissal. The meaning of valid reason has been the subject of much consideration by the Courts as well as by this Tribunal and its predecessors. There seems to be general acceptance of the often quoted words of Northrop J in Selvachandran which are referred to in the submissions of both parties.

[84] The reason relied upon for the termination in this matter relates to the alleged misconduct of the applicant. It is agreed that in this regard I have to determine for myself whether the alleged misconduct, or any part of it that is contested, took place and, if so, whether it amounted to a valid reason for the termination: Freshmore.

[85] It is alleged that the applicant made a “verbal threat of violence” or a “physical threat of assault” against Mr Prior. I have earlier set out the evidence of both the applicant and Mr Prior as to what was said by the applicant during the incident which is said to comprise the relevant threat. The exact words are different in each version however it is clear that the applicant’s comment that he “might as well”, or “will”, or “would” punch Mr Prior in the head was conditional upon Mr Prior having told others that the applicant had mixed up the plates on purpose. In light of the fact that, even on Mr Prior’s version of events, he had just denied making any such accusation, in my view, any threat in the applicant’s comment was somewhat diluted. Nevertheless, the comment was ill considered and uncalled for and certainly warranted some form of disciplinary action.

[86] I accept that the applicant did not intend to cause any actual physical harm to Mr Prior. However I also accept that Mr Prior is genuine in his evidence that he felt threatened by the applicant’s comments and what the applicant might do. I note that Mr Prior’s evidence in this regard is supported by his contemporaneous note of the incident.

[87] I have noted the respondent’s submissions as to the aggravated serious nature of the applicant’s threat because of Mr Prior’s supervisory role.

[88] I do not consider that the applicant’s behaviour amounts to serious misconduct within the meaning of Regulation 1.07 of the Regulations or indeed more generally. In my view the applicant’s behaviour did amount to misconduct but did not give rise to a valid reason for his dismissal.

[89] The next three paragraphs of section 387 deal with what may be characterised as procedural fairness issues. I am satisfied that the applicant was informed of the reason for his dismissal and provided with an opportunity to respond. Although the contents of Mr Prior’s note were not put to the applicant in the meeting on 26 November 2012, nevertheless, he was able to, and did, put his side of the story.

[90] It is true that paragraph (d) of section 387 does not impose a positive obligation on an employer to offer an employee the right to a support person in discussions which might lead to a dismissal. However, in this case, Mr Sampson agreed that the applicant asked if he could go and get a witness. Despite this request Mr Sampson continued with the meeting. He provided no reason for such a course of action. There is nothing before me to suggest that allowing the applicant to obtain a witness would have caused any undue delay in the process. In the circumstances I consider that there was an unreasonable refusal by the respondent to allow the applicant to have a support person at the meeting on 26 November 2012.

[91] The evidence of Mr Sampson was that the applicant’s dismissal was not due to the performance issues which had been raised with him previously. Consequently paragraph (e) is not relevant in this case. For the sake of completeness I note that the applicant had received some performance related warnings although there is conflicting evidence as to the number and nature of some of those warnings.

[92] The respondent has 175 employees. It does not have any dedicated human resource management specialists or expertise in its enterprise. It may be that the absence of such persons may have had an impact on the procedure followed in effecting the dismissal, in particular the refusal to allow a support person to be present following the applicant’s request at the meeting on 26 November 2012.

[93] I have noted the submissions of the parties as to other relevant factors. I also consider that the applicant’s work record is relevant. There were differences between the evidence of the applicant and the respondent’s witnesses as to the nature and number of warnings received by the applicant. However, the applicant agreed that he had been warned by Mr Van Der Sloot three or four times towards the end of his period of employment. He also agreed that Mr Sampson had spoken to him on at least one occasion about invading his personal space and speaking in a raised voice. The applicant acknowledged that Mr Prior had raised performance issues with him on two occasions.

[94] Although the applicant’s evidence is that he disputed many of the issues referred to in the warning letter of 19 November and Mr Van Der Sloot agreed that some of these had been dealt with, nevertheless I accept that the letter was a reflection of Mr Van Der Sloot’s concerns.

[95] In all of the circumstances of this case and having taken account of each of the factors in section 387 and my findings thereon I have determined, on balance, that the termination of the applicant’s employment was harsh, unjust and unreasonable. It follows from this and other matters addressed in paragraphs 80 and 81 above, that the applicant’s dismissal was unfair.

[96] Sections 390, 391 and 392 of the Act deal with remedies for unfair dismissals. I am satisfied that the provisions of section 390(1) and (2) have been met in this case. Subsection (3) provides that an order for compensation must not be made unless FWC is satisfied that reinstatement is inappropriate.

[97] I have considered all of the evidence and submissions which were put on the question of remedy, and in particular, whether reinstatement is appropriate. I have decided, on balance that reinstatement is inappropriate in this case.

[98] In arriving at this conclusion I have paid particular regard to the difficulties which the applicant has experienced in finding other employment and the economic and personal impact of the dismissal upon him. However, my observation of the witnesses leads me to the view that the necessary relationship of trust and confidence could not be restored, especially between the applicant and Mr Prior. I am also mindful of the applicant’s work record as dealt with earlier.

[99] Pursuant to section 390(3)(b) I consider that, in all of the circumstances of this case, it is appropriate to make an order for the payment of compensation. Section 392(2) requires that, in determining an amount for the purposes of such an order, FWC must take into account all the circumstances of the case including:

“(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that FWC considers relevant.”

[100] There was nothing before me as to the effect of any order for compensation on the viability of the respondent’s business. I am satisfied that the order which I propose to make would not have an adverse effect on such viability and consequently does not militate against an order.

[101] The length of the applicant’s service with the respondent was about six years. It is a period which supports the making of an order.

[102] There is always a speculative element involved in assessing the remuneration that a person would have or would have been likely to have received had it not been for the dismissal. In this case I consider that any likely period of continued employment would not have been extensive. In arriving at this conclusion I have taken account of the fact that the applicant had made a number of recent fundamental mistakes which potentially could have resulted in a considerable cost to the respondent. The applicant had also received a formal warning in relation to the most recent of those mistakes as well as several other issues, some of which were disputed. It is also relevant that I have found that the respondent would have been justified in taking some disciplinary action against the applicant for his comment to Mr Prior. That could have been a final warning.

[103] The applicant’s unchallenged evidence is that he had applied for approximately 20 positions but had only been able to secure one week’s casual work. There was no evidence as to the amount earned in that work.

[104] There is no evidence on which I could make any finding in relation to paragraph (f) of section 392(2). There is no other matter which I consider to be relevant under paragraph (g).

[105] Having taken all of these matters into account as well as all of the circumstances of the case, I would have determined that I should make an order for eight weeks’ compensation. Section 392(3) requires that, if I am satisfied that the applicant’s misconduct contributed to the decision to dismiss, then I must reduce the amount to be ordered by an appropriate amount. In this case I consider that the appropriate reduction is one week. That leaves a period of seven weeks’ compensation.

[106] The relevant amount is to be further reduced by the amount of remuneration earned by the applicant since the dismissal. I do not propose to further discount this remaining amount for contingencies.

[107] Although I was provided with the applicant’s final pay slip, his actual rate of earnings is unclear. As a result, the order for compensation which accompanies this decision does not contain an exact monetary amount. If the parties are unable to agree on the amount they are at liberty to apply.

[108] Finally, I indicate that, in deciding this matter, I have given consideration to the need to ensure that a “fair go all round” has been accorded to both the applicant and the respondent as provided in section 381(2) of the Act.

COMMISSIONER

Appearances:

Ms L. Saunders from the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) for the applicant.

Ms N. Gao from the Printing Industries Association of Australia for the respondent

Hearing details:

Sydney.

2013.

April 12

Printed by authority of the Commonwealth Government Printer

<Price code C, PR536244>