Mr Matthew Aiono-Yandall v Linfox Australia Pty Ltd T/A Linfox Australia

[2014] FWC 1649

[2014] FWC 1649

FAIR WORK COMMISSION

DECISION

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

Mr Matthew Aiono-Yandall
v
Linfox Australia Pty Ltd T/A Linfox Australia
(U2013/13049)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 18 MARCH 2014

Summary: unfair dismissal application - violent and aggressive conduct - damage to employer’s property - prior warning.

[1] This application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the Act”) has been made by Mr Matthew Lotufou Aiono-Yandall (“the Applicant”). The Applicant claims to have been unfairly dismissed by his then employer, Linfox Australia Pty Ltd T/A Linfox Australia (“the employer”).

[2] The employer is a national system employer for the Act’s purposes and there are no other jurisdictional impediments to the application. That is to say, the Applicant is a person who is protected from unfair dismissal, as the Act describes it.

[3] The application was subject to a conciliation conference before a Fair Work Commission conciliator. The conference was unsuccessful in its efforts to resolve the matter and the application was subsequently set down for arbitration in accordance with the centralised rostering system.

[4] The Applicant was employed from around mid 2005 until 9 August 2013.

[5] He performed duties as a store person on the night shift at the time at the Arnott’s Virginia site.

[6] On 11 June 2013, the Applicant was involved in a particular incident on site. Prior to this incident the Applicant had been issued a final written warning on 7 November 2012 for reasons that included swearing and acting in an aggressive manner towards a supervisor. I will discuss this matter further below.

[7] The employer contends that on or about 11 June 2013 the Applicant was witnessed operating a high reach forklift in a seated position when he had been directed (at a toolbox meeting some days prior) to operate the machine in a standing position. This direction arose because of concerns relating to the advice received from the manufacturer of the reach forklift that its operating specifications necessitated a person of the Applicant’s weight to stand when operating the machine. The weight specification shows that an operator of over 122.5 kg in weight must operate the reach forklift in a standing position only. The Applicant’s weight is a little under 180 kg (though this appears not to have been known with any precision by the employer).

[8] The employer alleges that the Applicant was invited to discuss his failure to comply with the employer’s direction. But that discussion did not progress far. This was because the Applicant was said to have become abusive, engaged in threatening behaviour, left the meeting room by slamming the door (which caused the wall to crack) and then threw a partly filled water cooler bottle at the wall, causing damage.

[9] The Applicant thereafter left the site and was certified unfit for work for a number of weeks subsequently.

[10] The Applicant returned to work in July 2013, at which time the employer sought to interview him in respect of his previous conduct. The interview eventually occurred on 5 August 2013. At that time the Applicant was assisted by a union co-delegate.

[11] It was said by the employer that the Applicant conceded he was aware of the directive regarding the operation of the forklift and admitted to operating a machine in a seated position. He also admitted to having become “upset” but had no recollection of throwing the water bottle (though during the hearing he gave quite a vivid reconstruction as to how the water bottle was flung from his hand inadvertently when he slammed the door upon his exit from the boardroom meeting).

[12] At a further meeting, on 9 August 2013, at which the Applicant was again assisted by a union co-delegate, a series of claims was put to the Applicant specifically. These included that he had:

• Failed to comply with a reasonable and lawful direction;



• Engaged in threatening and abusive behaviour towards site management; and



• Wilfully damaged the employer’s property.

[13] The Applicant was provided with an opportunity to respond to the claims and the meeting was adjourned for a time. When the meeting resumed the employer further claimed that the Applicant’s behaviour had been inappropriate and that he had been subject to a final warning in November 2012, which concerned inappropriate, threatening and abusive behaviour. The Applicant was provided a further opportunity to respond to these claims, and once he had so concluded, the meeting was further adjourned.

[14] At the resumption of the meeting the Applicant’s employment was terminated.

[15] The Applicant for his part claimed that he was discriminated against. The Applicant claimed generally that there had been confusion for some time about the nature of the direction and whether it was intended to apply to the counterbalance forklift or the high reach forklift and whether he required a clearance of some kind to operate the forklifts at all (before being directed to do so). The Applicant admitted he was directed not to use the high reach forklift in a seated position.

[16] The Applicant further claimed in his defence that he had not - at the meeting of 11 June 2013 - conducted himself in a manner that was either threatening or abusive. He conceded that he was angry at the time of the interview referred to above and did indeed swear and that his conduct had been exaggerated for effect by his supervisors. The Applicant claims also to have reassured the supervisors that his display of temper was not directed towards them personally but had been an expression of general frustration.

[17] The Applicant also accused his employer of being vindictive for reason that he had reported his supervisor for carrying out unsafe acts.

[18] The Applicant also appears to make a claim that his employer fabricated evidence in order to facilitate his dismissal. He claims an individual by the name of Mr Louis Harris had overheard Mr Litchfield, the day shift supervisor who is referred to below, telling a colleague that “if we get our stories straight (pointing at [the Applicant] while he was on the forklift) we shouldn’t have a problem with the situation at hand.” Mr Harris was said to have told the Applicant that when Mr Litchfield and his colleagues saw him (Mr Harris) they went “quiet very quickly”. Mr Harris did not give evidence in this matter and the precise context and date of his claims was not revealed in the evidence.

[19] The Applicant also claimed that the written warning that he received on 7 November 2012 was improperly founded. He claims that the duty he was required to carry out was not able to be performed for reasons that were subject to investigation and that he had explained this to his supervisor at the time. The Applicant stated that he had at that time requested an alternative duty, given the circumstances.

The evidence

[20] The evidentiary case for the employer was provided by the following individuals: Mr James Pallentine, who was the night shift supervisor; Mr Ryan Litchfield, the afternoon shift supervisor; Mr Lawrence Kishore, the operations manager; and Mr Jeffrey Brown, the distribution centre manager.

[21] Mr Pallentine’s evidence was that there had been two prior occasions on which the Applicant had used abusive and aggressive language in exchanges with him. One of these incidents was on 31 October 2012.

[22] On this occasion, employees were required to stack product by hand owing to an equipment failure. Shortly after that incident was dealt with Mr Pallentine claimed that the Applicant, in front of another employee, began yelling and swearing at him and the following exchange was said to have taken place:

The Applicant: This is bullshit. This is fucking crap. Paul did not have his break. You should be thankful that Paul stayed back.

Mr Pallentine: Matthew, I don’t understand. What do you want me to do?

[23] The Applicant was said to have then driven off on a forklift.

[24] Mr Pallentine also recalled an incident in October 2011. On this occasion Mr Pallentine stated that he had cause to indicate to the Applicant that some 30 pallets had not been completed correctly. At that time the Applicant was said (by Mr Pallentine) to have become “very angry and yelled at me”. The Applicant was said to have spoken as follows to Mr Pallentine:

You’re a fucking cunt. You fucking set me up you dog. This is bullshit.

[25] It was also claimed that the Applicant was seen (by another employee) to have thrown a helmet and was observed kicking gates. But this later claim remained hearsay (though the Applicant did not deny it, by intention or oversight).

[26] Mr Ryan Litchfield was the afternoon shift supervisor. Mr Litchfield recalled the circumstances of the warning given to the Applicant in November 2012. Mr Litchfield claimed that he gave a reasonable and lawful direction to the Applicant to perform work in another area of the workplace. He claimed that the Applicant refused to perform the duties and was subsequently reported to Mr Jeffrey Brown, the distribution centre manager for the employer.

[27] The Applicant was placed on a final warning as a result of the incidents of October and November 2012, referred to above.

The forklift incident

[28] There is some relevant context for the Applicant’s conduct. The issue of the weight specifications for the forklift seats had been subject of safety-related discussions in the workplace since May 2013, which involved the Applicant. A tool box meeting had been conducted about the issue in general terms. The Applicant raised concerns as to the implication of the weight limits on the high reach forklifts for him, given presumably his body weight.

[29] It is enough to say there was no resolution of the issue at this juncture and the Applicant’s supervisors left the matter for subsequent resolution. They merely instructed the Applicant to continue with his duties as they were until further notice and the issue would be more thoroughly investigated.

[30] On or about 3 June 2013, Mr Litchfield attended a meeting with Mr Brown and other members of the site management team. At that meeting Mr Brown indicated to the site management team that the high reach forklifts were weight rated to a maximum of 120 kg for operation in a seated position and up 180 kg operated in a standing position. Mr Brown’s evidence corroborated Mr Litchfield’s evidence.

[31] Mr Litchfield recalled that Mr Brown directed him and other members of the site management team to conduct toolbox meetings in relation to this matter.

[32] Mr Litchfield and Mr Pallentine claim to have conducted the relevant toolbox meetings in the afternoon shift later that same day – 3 June 2013. A flyer was handed out at the same time which dealt with the issues. This flyer included the correspondence that had been received from the manufacturer about the weight specifications.

[33] Mr Pallentine recalls that the Applicant attended the toolbox meeting he conducted. The toolbox signoff sheet records that the Applicant was in attendance at that meeting. The signoff sheet also records that the Applicant did not sign the signoff record as he ordinarily would.

[34] Following the toolbox meeting, Mr Pallentine recalls that the Applicant approached him to query an aspect of the weight specifications issue, and in so doing indicated that “120 covers me, but I wonder why the 180 is in the toolbox”.

[35] Mr Pallentine understood the Applicant to be referring to his body weight being over 120 kg.

[36] At the commencement of the shift on 6 June 2013 (or thereabouts), Mr Pallentine asked the Applicant to use the high reach forklift. Mr Pallentine reconstructed the conversation in the following manner:

Mr Pallentine: I need you to use the high reach tonight.

Applicant: you know my stance on this.

Mr Pallentine: I am aware of your stance but you need to operate the high reach forklift night.

Applicant: well we are going to have a problem.

Mr Pallentine: I'm giving you a lawful directive to operate the high reach fork tonight.

Applicant: who is coming from?

Mr Pallentine: I'm just doing my job.

Applicant: I'm going home.

[37] The Applicant walked off and ignored Mr Pallentine’s request to return. The Applicant was invited to consider the consequences of not following a lawful and reasonable direction. It appears the Applicant left the site for some 20 min before returning. Upon his return he indicated he would perform the duties but stated:

This is not finished, I want to talk to your superiors.

[38] Later in the shift that night Mr Pallentine observed the Applicant performing duties on the forklift whilst in a seated position.

[39] The next shift, Mr Pallentine approached the Applicant when he was in the lunch room and invited him to attend a meeting (with a representative) in the boardroom (which was to be attended by Mr Litchfield as well). Mr Pallentine and Mr Litchfield record the ensuing conversation in broadly the same terms. Mr Litchfield’s recollection of the conversation is as follows:

Mr Pallentine: Are you aware of what is in the Toolbox dated 3 June?

The Applicant: What is this about? [Reading the flyer] Yep. What is this about?

Mr Pallentine: I need you to continue your normal duties on the reach fork in the stand position, until further advised.

The Applicant: Ryan, I want you to write this down, this is fucking pathetic.

[40] Mr Litchfield claimed that the Applicant’s voice was raised and he was becoming increasingly agitated over the course of the exchange.

[41] The Applicant thereafter stood up and yelled words to the effect:

“Fuck you.”

[42] Mr Litchfield claimed the Applicant became increasingly agitated and started to yell:

The Applicant: Fuck you.

Mr Litchfield: Calm down.

The Applicant: Nah, nah, fuck you.

Mr Pallentine: Sit down.

The Applicant: Nah, fuck you.

[43] Mr Litchfield claimed to have felt intimidated by the Applicant’s conduct particularly when he was standing up and swearing at him. Mr Litchfield claimed that he and Mr Pallentine persisted in their efforts to calm the Applicant down and have them sit down and focus on the issue:

Mr Pallentine: I need you to resume your normal duties operating the reach lift in the standing position. Can you do this?

The Applicant: what is this about?

Mr Pallentine: it's a safety issue.

[44] Mr Litchfield then claimed the Applicant requested that he deal with more senior management in relation to this matter. Mr Pallentine was said to have continued as follows:

Mr Pallentine: Matthew, I need you to resume your normal duties operating the reach lift fork in the standing position. Can you do this?

The Applicant: No.

Mr Pallentine: Are you refusing a lawful direction?

The Applicant: yes, I can stand up but my foot will get sore.

Mr Pallentine: Matthew, are you fit for duties?

The Applicant: yes I am fit, but when my foot gets sore I'll have to get off and rest it.

Mr Litchfield: Matthew, do you want to read my notes of this meeting to this point?

[45] The Applicant then claimed, according to Mr Pallentine, that he was “stressed” and was going home because of the circumstances and it had been the anniversary of his mother’s death and he kept repeating that, “I don’t need this.”

[46] According to Mr Pallentine, the Applicant slammed the door back past the doorstop causing a crack in the wall and then threw a water bottle at the wall causing damage. Mr Litchfield and Mr Pallentine did not see the Applicant throw the water bottle at the wall but said they saw evidence of the act as they walked out after the Applicant following hearing a loud bang on the wall.

[47] Mr Litchfield and Mr Pallentine then claimed they heard the Applicant scream as he left the premises.

[48] Mr Litchfield claimed to have been “quite shaken up and [had been] concerned for [his] safety as well as [that of] others on the site.”

[49] Mr Litchfield and Mr Pallentine went on to give evidence that about 10 minutes after this incident the Applicant returned to site and was again yelling and swearing.

[50] There is some confusion in the evidence about the precise sequence of events.

[51] It appears, when the Applicant re-entered the board room Mr Pallentine claimed the Applicant was “still agitated, swearing and yelling [and said]:

This is fucking bullshit. This is fucking crap. Fuck you. I can't believe this is happening. Fuck you.

[52] Mr Litchfield’s evidence about the Applicant’s conduct was to the same effect.

[53] The Applicant appears to have eventually calmed down and taken a seat (seemingly) in what is called the break or lunch room. The Applicant was given advice about the availability of the employee assistance scheme.

[54] The following conversation took place according to Mr Litchfield:

Mr Pallentine: Matthew, do you understand that you are required to operate the forklift in a standing position?

The Applicant: I am frustrated because this issue has been going on six months.

Mr Litchfield: If you feel that way, you should use the disputes procedure in the EBA.

[55] Mr Litchfield shortly thereafter returned to the office area, along with Mr Pallentine. After about 5 minutes the Applicant attended the office and the following exchange was said to have occurred (according to Mr Litchfield):

The Applicant: I’m sorry for the way I behaved. I'm stressed, I'm going home. I’m going to talk to Comcare.

Mr Litchfield: this situation would not change when you come back to work. Will you or will you not stand up when you operate the RF?

The Applicant: yes, I will stand.

[56] Mr Pallentine corroborated much of this exchange (though not all).

[57] The Applicant thereafter left the site at around 11 PM. He did not return to work for a month; until 8 July 2013.

Final written warning of 7 November 2012

[58] As mentioned above, on 7 November 2012 the Applicant had received a final written warning from the employer, under the hand of Mr Brown, the distribution centre manager.

[59] The Applicant had signed the written warning confirming his personal receipt of the same.

[60] That written warning read relevantly as follows:

I refer to the incident on 31 October 2012 where you used obscene language to your shift supervisor [...] And acted in an aggressive manner. You also failed to take a directive from the afternoon shift supervisor [...] When you were asked to perform duties over at the Arnott’s factory, you refused this directive.

Linfox will not tolerate this behaviour. You are expected to adhere to the Linfox Values, in particular the bullying, harassment policy.

This letter formally advises you that your behaviour is below the standards expected by the company. Failure to comply with this warning may result in further disciplinary action up to and including the termination of your employment [...].

Attached is a copy of Linfox Values as recorded in the Linfox Red Book. You should read [it to] gain a better understanding of the behaviours expected [...] of employees.

I hope you will take every opportunity to respond adequately to this serious situation.

[61] Irrespective of the facts that make out this warning, the terms of the warning itself put the Applicant on notice that his employer expected him to conform to its policies in relation to behaviour, and treating co-workers, including supervisors, with reasonable respect.

Interview of 5 August 2013

[62] Upon resumption of work the Applicant was invited to attend an interview on 8 July 2013. The Applicant was invited to attend this interview following correspondence that had been directed to him on 4 July 2013. The Applicant did not attend the interview of 8 July 2013 for reasons that he had “prior commitments”.

[63] It was not until 5 August 2013 that the parties were able to find an appropriate time at which to meet. When they did meet the Applicant was accompanied by the TWU co- delegate.

[64] Mr Brown gave evidence that at that meeting the Applicant was asked about the events of 11 June 2013, specifically with reference to his failure to obey a reasonable and lawful directive in respect of the safe operation of the high reach forklift and engaging in threatening in abusive conduct and causing damage to the employer’s property.

[65] Mr Brown stated that the Applicant had admitted that he swore at Mr Pallentine and Mr Litchfield. Mr Brown said the Applicant also admitted to slamming the door causing damage to the wall. The Applicant stated, according to Mr Brown, that he could not remember whether he had thrown a water bottle at all outside the meeting room. The Applicant claimed that his behaviour had been result of frustration arising from Mr Pallentine’s “handling the situation.”

[66] Mr Brown states that the Applicant was advised that his behaviour was inappropriate, and following that the meeting was adjourned.

Interview of 9 August 2013 and termination

[67] A further meeting was convened on 9 August 2013. At that meeting the Applicant was accompanied again by the union co-delegate.

[68] The central allegations were again put to the Applicant and he was asked to respond.

[69] The Applicant claimed that he was the victim of a “plot” organised by other persons. According to Mr Brown, the Applicant admitted however that he was aware of the direction and had been operating the high reach forklift in a seated position but denied that he had disobeyed the directive. When questioned on this matter Mr Brown claimed the Applicant responded by saying that he was being “discriminated against”.

[70] The Applicant also admitted, so Mr Brown claimed, that he had yelled, sworn and become offensive during the interview with his supervisors but claimed that this behaviour was not inappropriate as swearing was common in the workplace.

[71] The Applicant also admitted, according to Mr Brown, that he slammed the door but claimed that he did this out of frustration with Mr Pallentine’s “lack of competence”.

[72] Mr Brown claims the meeting was then adjourned as the employer considered the Applicant’s responses.

[73] The employer did not find the Applicant’s responses convincing or persuasive, particularly given the admissions and the existence of the prior warning some nine months prior. The Applicant was advised that the employer was contemplating the termination of his employment. The Applicant was said to have again advised that he was the victim of “a plot”.

[74] The meeting was again adjourned and following consultation with the employer’s employee relations staff the Applicant was informed that his employment would be terminated. The letter of termination, dated 9 August 2013, was forwarded to the Applicant. That correspondence concluded that the termination was warranted for reasons that the investigation had led to the conclusions that:

• The Applicant had worked in breach of the direction issued to all staff on 3 June 2013;



• During the meeting conducted subsequently the Applicant had engaged in threatening and abusive behaviour;



• Upon leaving the meeting the Applicant had damaged the wall by slamming the door; and



• Further, that the Applicant threw his water bottle at the wall of the meeting room again causing damage to that wall.

[75] The letter of termination also cited the existence of the final warning given on 7 November 2012, and concluded:

Based on the above, Linfox has taken the decision to terminate your employment.

CONSIDERATION

[76] Section 387 of the Act reads 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.

(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)

[77] It may be the case that the Applicant in this matter had been frustrated by the manner in which the company had dealt with the information that had come to hand about the weight specifications relevant to the manual handling machinery and the forklifts. Though it is not expressly stated, it may be the case the Applicant was also embarrassed by the implication of those specifications for his own body mass, and he may have perceived that he was singled out for attention.

[78] But even if these reasons were to be true and made out, they do not excuse the conduct which the Applicant manifested on 11 June 2013. The evidence of Mr Pallentine and Mr Litchfield was compelling. Their evidence largely overlapped but did not show slavish duplication which may be a hallmark of fabrication. The evidence was given genuinely and in very considerable detail. At its core, the evidence of Mr Pallentine and Mr Litchfield showed that the Applicant demonstrated very low impulse controls and a high level of aggression marked by abusive language and aggressive physical gestures (which caused physical damage to the employer’s premises). Mr Litchfield rightly felt threatened, as did Mr Pallentine.

[79] The Applicant claimed (as I will further discuss below) that the claims made about his conduct were exaggerated. But, on the balance of probability, I very much doubt they were. The Applicant accepted he has a temper, and that it was displayed at the meeting. He also recalled forcefully opening the door. But he said he has no recollection of throwing a water bottle, and that strong expletive-based language is common in the workplace.

[80] The Applicant’s recollection as to how the water bottle he was carrying came to cause damage to a wall external to the boardroom lacked any authenticity. The Applicant claimed the water bottle in some manner was knocked from his hand as he opened the door inwardly (with the same hand). In this motion, he claimed the bottle flew forwards to a distance some few metres to strike the wall opposite. Both Mr Litchfield and Mr Pallentine claimed the water bottle struck the wall in a separate action, as a short time passed before they heard the noise after the Applicant departed the board room. This was not part of their pre-prepared evidence, but was their response to questions put to them separately over the course of their evidence. I accept their evidence, on balance.

[81] I also do not accept that the workforce commonly communicated in the tone and manner in which the Applicant interacted with his supervisors at the meeting in the boardroom. This was never made out. The facts as I have found them to be are that the Applicant’s conduct was his personal responsibility and did not arise from or reflect any collective standards.

[82] In all, the Applicant’s conduct was of a serious kind. It was conduct about which he had been warned some nine months earlier. In November 2012 the Applicant had been informed in very clear terms that the employer would not tolerate abusive language or threatening conduct. That warning was not so long in the Applicant’s past for it to have lost its currency or for the Applicant to have to have forgotten its potency as a warning. When he was given the prior warning, the Applicant had been given an unambiguous communication by his employer that certain conduct if again manifested may result in the termination of his employment. He did not heed that warning or restrain his impulses as reasonably required.

[83] The Applicant’s conduct was such that it warranted his dismissal. It was insubordinate, disrespectful and threatening. It also posed a potential safety risk to him and others in the environment in which the Applicant worked.

(b) whether the person was notified of that reason

[84] The Applicant was notified of the reasons for his termination in advance of the decision to terminate his employment being communicated to him.

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

[85] The Applicant was dealt with in a procedurally rich manner. He was interviewed on a number of occasions following the incident and was at all times provided an opportunity to respond to the allegations that had been expressly put to him.

[86] Mr Brown’s evidence in this regard was confidently recalled in detail, and without hesitation. The employer took very deliberate steps in ensuring that the Applicant was afforded procedural fairness over the course of the interview/investigation process.

(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

[87] There were two meetings in which the Applicant was interviewed in relation to his conduct. At both those meetings the Applicant was provided the assistance of the union co-delegate.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[88] The Applicant’s dismissal did not relate to unsatisfactory performance. The Applicant’s dismissal arose from his conduct.

(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

[89] No issue arises that is relevant regarding the degree to which the size of the employer’s enterprise impacted on the procedures effecting the dismissal. This is not a relevant consideration in this matter. The employer is a large employer.

(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

[90] No issue arises that is relevant regarding the degree to which the absence of dedicated human resource management specialists or expertise impacted on the procedures effecting the dismissal. This is not a relevant consideration in this matter. The employer is a large employer that possesses such expertise.

(h) any other matters that the FWC considers relevant

[91] The Applicant was a long term employee. But equally, the Applicant’s conduct on 11 June 2013 must be framed in the context of his final written warning provided in November 2012. I have referred to this context above.

[92] I note that when the Applicant returned to the meeting room following his abrupt exit he indicated (at least to Mr Litchfield) that he did intend to comply with his employer’s direction in future. He indicated this by stating that he would “stand” in the forklift henceforth. The Applicant showed remorse for his conduct. These are matters which need to be taken into account.

[93] It is similarly relevant that the actual damage to the employer’s property was slight, it appears, and this should be properly characterised and not exaggerated.

[94] There are matters that may have become relevant in these proceedings. I note that the Applicant was absent from the workplace for a month following the incident on 11 June 2013. That fact invited a suspicion that the Applicant may have had mental health or anxiety issues (possibly relating to his mother’s passing the previous year). But such claims never came into evidence in any defined or material way, and my allusion to them is speculative only.

[95] The Applicant made passing reference to his manner of communicating as being typical of the workplace in which he performed his duties. This was not a matter that was ultimately made out or pressed in any meaningful way.

[96] The Applicant also claimed in mitigation that he was being discriminated against in so far as he believed that he was singled out for attention by his employer because of his body mass. But the evidence does not show this to be true. The toolbox meeting conducted demonstrably was directed at all employees and it arose from the specifications of the Crown forklift manufacturer. The employer’s concern was not a fabrication crafted to damage the Applicant in some way and for some reason.

[97] The Applicant also sought to build a case against the employer that he had been a victim of a conspiracy to damage him for reason that he had made safety complaints in the past (such as against Mr Pallentine, to which I have made reference above). But the Applicant was the victim, in the end, largely of his own personal misconduct, not because he was entrapped by the employer or its agents.

[98] In any event, the safety issue that that did come into question itself cannot be said to have been fabricated. That issue arose out of the Crown forklift manufacturer’s specifications. And it was only the Applicant’s conduct in responding to that matter that in the end created the context for his dismissal.

[99] I add finally that having heard Mr Pallentine’s evidence, he appears to have taken the safety incident that arose from the Applicant’s complaint in his stride. His evidence and demeanour did not strike me as being of such a kind as to concoct an elaborate safety issue in which to ensnare the Applicant. As I have said above, the safety issue that arose was a bona fide safety issue and not one that was fabricated.

Conclusion

[100] The Applicant’s conduct on 11 June 2013 was of a serious kind. The Applicant had been previously warned about his conduct and the manner of his communications within the workplace, particularly to supervisors. The Applicant’s conduct warranted dismissal because it undermined the principles of cooperation and mutual respect necessary for a productive workplace. It was also conduct that posed a potential safety risk, to the Applicant personally as well as to others.

[101] The Applicant eventually came to show remorse (to Mr Lichfield) for his misconduct (as even he had found it to be). But two factors weigh against this conduct mitigating the prior misconduct. The first factor is that the Applicant’s misconduct as evidenced was serious. The second factor is that the Applicant had previously been warned about his conduct and his manner of communication. That is, the employer had clearly set out its reasonable standards of anticipated workplace behaviour, and the Applicant had failed to conform.

[102] Considering all the circumstances, I do not consider that the Applicant was harshly, unjustly or unreasonably dismissed.

[103] The Applicant’s application for a remedy under section 394 of the Act is dismissed as a consequence.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr M. Aiono-Yandall, Applicant

Mr N. Leon, of the Company

Hearing details:

Brisbane

2014

10 and 11 March

Printed by authority of the Commonwealth Government Printer

<Price code C, PR548507>