Mr Palesetina Milovale Masoe v MMA Vessel Operations Pty Ltd

[2016] FWC 1178

[2016] FWC 1178

FAIR WORK COMMISSION

DECISION

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

Mr Palesetina Milovale Masoe
v
MMA Vessel Operations Pty Ltd
(U2015/2732)

COMMISSIONER CLOGHAN PERTH, 6 MAY 2016

Application for relief from unfair dismissal – substantive issue of fairness of Applicant’s termination of employment.

[1] This is an application by Mr Palestina Masoe (Mr Masoe or Applicant) seeking a remedy for alleged unfair dismissal from his former employer, MMA Vessel Operations Pty Ltd (MMA or Employer).

[2] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] The application has been the subject of two previous Decisions; [2015] FWC 5454 and [2015] FWC 7805.

[4] This Decision deals with the substantive issue of the fairness of Mr Masoe’s termination of employment.

[5] At the hearing, Mr Masoe was represented by Ms E Palmer, Industrial Officer, Maritime Union of Australia. Mr Masoe gave evidence on his own behalf.

[6] The Employer was represented by Mr R Wade, Consultant, Ashurst Australia. Evidence was given on behalf of the Employer by:

• Mr M Fulham, General Manager, Land Logistics;



• Mr C Cork, Manager, Supply Base;



• Mr S McAllister, Supervisor, Production Operations, CUX Projects;



• Mr W Harrower, Human Resources Manager, Offshore Operations; and



• Mr J Patterson, General Service Operator.

[7] This is my decision and reasons for decision with respect to Mr Masoe’s application that he was unfairly dismissed.

RELEVANT BACKGROUND

[8] Mr Masoe commenced employment as a permanent employee on 15 September 2009.

[9] On 9 July 2014, Mr Masoe received a written warning for engaging in aggressive behaviour, swearing and disrespectful behaviour towards his supervisors inconsistent with the Employer’s Code of Conduct (Code).

[10] At the time of the written warning, Mr Masoe admitted to the alleged behaviour and acknowledged that his behaviour was unacceptable. Further, “the Applicant requested assistance in obtaining counselling in relation to this behaviour and the Respondent provided him with a phone number of a counselling service”. 1

[11] Mr Masoe was dismissed following interviews on 8 and 9 July 2014, a Letter of Concern from the Employer dated 22 January 2015 and Mr Masoe’s response of 23 January 2015.

[12] Mr Masoe was dismissed on 27 January 2015 with immediate effect. Mr Masoe received four weeks’ pay in lieu of notice.

[13] In his letter of termination of employment, the Employer referred to two particular issues:

• Event Statement Form (ESF); and



• Threatening behaviour towards a fellow employee. 2

[14] With respect to the ESF incident, the Employer submits that Mr Masoe’s explanation regarding his conduct was “implausible at best and that…it is clear to me [Mr Fulham] from your actions that you do not understand what constitutes appropriate workplace behaviour”. 3

[15] Mr Masoe denies that his conduct was a flippant disregard of a fellow employee’s concerns regarding bullying and harassment in the workplace. Further, his response to the ESF needs to be considered in a broader context. 4

[16] With respect to the second reason for his dismissal, Mr Masoe denies he threatened Mr Patterson or that his comments were “offensive or inappropriate”. 5

RELEVANT LEGISLATIVE FRAMEWORK

[17] There is no dispute between the parties that Mr Masoe has properly made the application in accordance with s.382 of the FW Act. Accordingly, the relevant statutory framework is ss.385 and 387 of the FW Act.

[18] 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) ...”

[19] 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.”

CONSIDERATION

[20] Section 387 of the FW Act sets out the matters which the Commission must take into account in determining whether a dismissal was “harsh, unjust or unreasonable”. In seriatim, they are as follows.

s.387 (a) - was there a valid reason for the Applicant’s dismissal?

[21] A valid reason for dismissal is one that is “sound, defensible or well founded and not capricious, fanciful or spiteful”. The authority for this approach is found in the often cited case of Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at page 373, which reads as follows:

“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’.”

[22] A valid reason for dismissal attempts to balance, in a practical way, the needs of employees and employers.

[23] When the reason for the dismissal relates to the employee’s conduct, it is necessary for the Commission to determine, on the balance of probabilities, whether the alleged conduct occurred, and if so, whether it was a sufficient reason for termination 6. Further,

“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed on reasonable grounds after sufficient enquiry that the employee was guilty of the conduct which resulted in the termination”. 7

[24] In my view, to properly understand the circumstances which led to Mr Masoe’s dismissal, it is necessary to appreciate the context in which his conduct occurred and the Employer’s assessment of that conduct.

[25] Prior to the issuance of the Employer’s Code of Conduct, Mr Masoe agreed that management at the Dampier Supply Base (DSB) wanted to eliminate a “culture of intolerance”, “lack of respect for employee dignity” and “bullying”. 8

[26] The introduction of the Code was accompanied by training sessions that set out types of behaviour which MMA considered inappropriate. 9

[27] The Code took effect towards the end of 2013. Mr Masoe conceded that he read the Code, including the introductory message. 10

[28] On 9 July 2014, Mr Masoe received a written warning. Mr Masoe conceded that his behaviour was inappropriate “at every level”. 11 A summary of Mr Masoe’s behaviour is as follows:

• approaching a Health and Safety Advisor “visibly agitated and swearing”;



• “yelling aggressively at a vessel crew member”;



• when asked by a Wharf Supervisor what was going on, replied, “this is bullshit and you don’t give a fuck about safety”;



• told the Wharf Supervisor to “fuck off and leave me alone”;



• throwing his hard hat aggressively into a shade hut, and kicking the smokers bin over;



• disregarded the Wharf Supervisor’s instruction to remain on the wharf;



• returned to the wharf and entered the Wharf Supervisors’ office and after a discussion “started swearing and your physical demeanour was observed to be aggressive and intimidating. You were seen and heard aggressively yelling ‘you are a bunch of cunts”;



• on 4 July 2014 left the work group without permission; and



• on the same day, breached the Employer’s PPE Standard by not wearing eye protection.

[29] An incident on 15 December 2013 was also referred to in the letter of 9 July 2014 in which Mr Masoe had written “try a 2 x 4” with reference towards another Wharf Supervisor. In a discussion with Mr Lucas, Mr Masoe agreed that he had overstepped the line with respect to this written comment towards Mr Archer.

[30] Mr Masoe explained his written comment as a Pacific Islander’s “wicked humour”. Notwithstanding his attempt at humour, Mr Masoe agreed that Mr Archer would read the comment that he was going to be hit with a piece of 4 x 2 inch wood. 12

[31] With respect to the incidents on 15 December 2013 and 4 July 2014, Mr Masoe’s evidence was, “it was just one of those things where, you know, it happens and everybody loses control and that’s all it was.” 13

[32] Mr Masoe denied he had an “anger management problem”. 14

[33] While Mr Masoe denies he has an “anger management problem”, the Employer’s correspondence of 9 July 2014 states, “in the meeting yesterday you explained that you need help with controlling your emotions and have asked the company for assistance which has been arranged”. 15 Mr Masoe attempted to portray this situation as the Employer, “trying to show that they have tried to show me some help or trying to help me”.16 Such evidence is not credible. This was not a case of the Employer trying to demonstrate anything except Mr Masoe requesting assistance and MMA responding. Perversely, if the Employer had not responded to Mr Masoe’s behavioural problem, it may have been accused of being indifferent to his conduct, acting contrary to its Code and the provisions relating to the Employee Assistance Program (EAP).

[34] I now turn to the incident on 30 December 2014.

Event Statement Form (ESF)

[35] There is no dispute that somebody had drawn, on an unloaded sea container, a two (2) metre high picture of a penis with the initials “ET” next to it. “ET” is a reference to an employee – Mr Ujvari.

[36] The Employer determined this to be an “event” worthy of consideration and Mr Masoe and his crew were required to fill out an ESF.

[37] Mr Masoe, who was operating the unloading crane, was approached by Mr McAllister to complete an ESF.

[38] Mr McAllister gave evidence that he approached the crew individually. Mr McAllister’s evidence is that, on being informed of the drawing of the penis, Mr Masoe stated, “what are you talking about?” and “I don’t know anything about it”. In response to these statements, Mr McAllister stated, “then write down that you don’t know anything about it”. 17

[39] Mr Masoe proceeded to complete the ESF as follows:

• on the covering page, he wrote, “I don’t know anything” and the drew a “stick figure” with tears falling down the face of the stick figure; and



• on the reverse side, drew a penis with a face on the “helmet” and another stick figure looking at the drawing.

[40] If Mr Masoe had completed the form with the words, “I don’t know anything”, this would be consistent with the request from Mr McAllister and his state of knowledge. However, he took his response one step further.

[41] Mr Masoe, in his written witness statement, gives evidence that:

“…if I had understood that the drawing was potentially an incident of bullying or harassment and that I was being asked to give a statement as part of an investigation into such an incident, I would have taken the matter much more seriously.” 18

[42] In my view, this evidence is an attempt by Mr Masoe to shift the focus of his conduct when filling out the ESF, to the Employer’s process of investigation. In short, Mr Masoe’s evidence is that because the Employer did not tell him, and he did not understand, that the drawing of a 2 metre high penis with a name next to it, was potentially bullying and harassment, and to be investigated – his actions were excusable. I find such an explanation implausible.

[43] When Mr Masoe was asked that if the drawing of a penis with a name next to it was not bullying, harassment, humiliation or degrading, what was it, he replied, “I don’t know. Graffiti”. 19

[44] In my view, Mr Masoe’s indifference to the incident is best reflected in an answer given by him in cross-examination:

“MR WADE:  Do you recognise now that what you did, when handed this form and how you completed it is inappropriate?---No.” 20

[45] This evidence contrasts with further evidence by Mr Masoe that that he “believe[s] with [the] company's policies and procedures and the culture that they're trying to introduce very highly.” 21

“You do value it highly?---Yes.” 22

[46] I have difficulty reconciling Mr Masoe’s positions of highly regarding the Employer’s bullying policies/procedures, and his response of being asked to complete the ESF.

[47] In contrast, Mr Masoe’s other evidence is that:

• the drawing of the penis, with a name next to it, means that the person is a “dick”, “cock” or “prick” 23;



• a person can be offended by the implication that they are a “dick”, “cock”, or “prick” 24;



• describing a person in such offensive terms is classic bullying behaviour 25;



• he would not find it appropriate behaviour 26; and



• if he saw somebody drawing a penis and putting somebody’s name next to it, he probably would say to that person, “you are putting your job in jeopardy and you are potentially exposing somebody else to harm”. 27

[48] However, at the same time as giving this evidence, Mr Masoe gave evidence that if he saw a work colleague drawing a penis with a name on it, he probably would have “laughed” 28.

[49] It cannot be said that Mr Masoe’s evidence was given “on the spur of the moment”. Mr Masoe had been the subject of a disciplinary process, dismissed and had made this application to the Commission and prepared a witness statement when he gave his evidence. While Mr Masoe says that he understands the seriousness of the incident and indicated high regard for the Employer’s policies, aspects of his evidence portray an impression of contempt, triviality and insignificance for what had happened, the Employer’s actions and his role in the Inquiry.

[50] The ESF is a Health and Safety document and employees are required to “describe” fully how the event happened and to provide a sketch of where the incident occurred, where possible. The fact that it is a health and safety document indicates the seriousness with which the Employer treated the particular incident.

[51] Mr Masoe fully admits that the drawings were meant to be humorous. 29 Mr Masoe states if he had been told filling out the ESF was part of an investigation into bullying or harassment, he would have conducted himself differently. However, his written evidence is:

“He [Mr McAllister] told me words to the effect of, “someone has drawn a picture of a penis and written someone’s name on it and someone has made a complaint about it” (my emphasis).

[52] The gravity of the incident should have been immediately apparent to Mr Masoe – someone has made a complaint –and the Employer required him to complete an ESF as part of the inquiry into the complaint.

[53] In my view, the “test” is not the extent to which Mr McAllister briefed Mr Masoe about the gravity of the incident, but whether, if Mr Masoe had put to Mr McAllister, “I intend to draw a sketch of a penis with a face on it and stick figures (one with tears of laughter) will that assist in the inquiry into the complaint?” The obvious answer is “no”.

[54] In summary, I find that Mr Masoe did not take the Employer’s request to complete the ESF seriously. Further, I am satisfied that Mr Masoe considered the issue of a fellow employee being called a “prick” or “dick”, which he describes as classic bullying conduct – humorously, and inconsistent with MMA’s standards of appropriate behaviour expected of an employee in the workplace as set out in the Code.

[55] I now turn to the allegation that Mr Masoe engaged in threatening behaviour towards Mr Patterson on 27 December 2014.

Threatening behaviour towards a fellow employee

[56] Mr Masoe’s evidence was that his exchange with Mr Patterson was calm, measured with no hint of aggression or intimidation on his behalf. 30

[57] Mr Masoe’s evidence was that he just wanted to speak to Mr Patterson 31, he wasn’t angry32 and he just wanted to hear Mr Patterson’s “side of the story”33.

[58] Mr Patterson’s evidence is that Mr Masoe was trying to provoke him. That Mr Patterson was “scared” to say what he allegedly had said about Mr Masoe to his face, and that Mr Masoe would sit him and Mr Marrs down, to “get to the bottom of this shit”. For Mr Patterson, Mr Masoe was speaking in an “aggressive” and “confrontational manner”. 34

[59] In a discussion with an investigator from Ernst and Young (EY), Mr Masoe states that he confronted Mr Patterson. 35 Notwithstanding this statement to the investigator, Mr Masoe denied, in oral evidence, that he wanted to “confront” Mr Patterson.36

[60] However, in view of:

• the statement to the EY investigator;



• labelling Mr Patterson a liar; 37



• stating to Mr Patterson that he was speaking “shit”; 38



• stating to Mr Patterson that “every dog has its day”; 39



• alleging that Mr Patterson was “talking some stuff about me behind my back to Mr Marrs; 40 and



• anybody would find it offensive if somebody was talking behind your back, and that Mr Patterson had engaged in “scurrilous rumour and false accusations”, 41

a reasonable inference is that these facts demonstrate that Mr Masoe wanted to do more than just speak or communicate with Mr Patterson – he wanted to confront, challenge and threaten Mr Patterson.

[61] Mr Masoe gave oral evidence:

“But he gave you his side and you told him he's speaking shit.  What made you reach that conclusion?---Because I believe Matty Marrs wouldn't approach me and wouldn't make up stories like that.  I know Matty Marrs, I know these boys.” 42

[62] Mr Masoe proceeded, in cross examination, to deny that he was never going to believe Mr Patterson’s explanation, but without hesitation, gave evidence that he believed what Mr Marrs had told him 43.

[63] In brief:

“…You [Mr Masoe] called him [Mr Patterson] a liar and you said he is speaking shit; correct?  You felt he backstabbed you, is that correct?  Is that a fair summary of how you felt?---Yes.” 44

[64] With respect to the remark in the discussion by Mr Masoe that, “every dog has its day”, the Applicant agreed that it could be perceived as a threatening remark. 45

[65] For Mr Masoe, the expression, “every dog has its day” was meant to convey that “what goes around comes around” 46.

[66] In other words, the harm allegedly done by Mr Patterson to Mr Masoe, would come back to harm Mr Patterson 47.

[67] While Mr Masoe did not explicitly state that he would be the cause of any harm to Mr Patterson, the circumstances and sequencing of the discussion, reasonably construed, exhibits that harm would come to Mr Patterson.

[68] I consider it fair to say that although Mr Masoe cannot recollect everything that was said in Mr Patterson’s statement written on 27 December 2014, most of it was generally agreed, with the exception of the Applicant stating to Mr Patterson, “Karratha is a small town”.

[69] Despite Mr Masoe’s attempt to portray his relationship with Mr Patterson as friendly, I have some disquiet about such evidence. Further, I consider Mr Masoe’s remark that this application has not revealed what was going on in the work group, curious, but not relevant. If Mr Masoe is looking for why “he [Mr Patterson] had done this [reporting incident to MMA]”, it can be found in Mr Patterson’s covering page of 5 January 2015 to his statement of 27 December 2014, which reads, that he is submitting this, “because I now don’t feel safe at work anymore. I wasn’t going to submit this but I feel it (sic) not getting any better and it has to stop”. 48

[70] Mr Masoe, in his written witness statement, states that “he decided to speak to Mr Paterson privately to resolve the issue between us rather than go to management as a first step”. 49 There were no other persons in the crib room.50 Unlike the incident of 4 July 2014 involving Mr Masoe, this incident of threatening behaviour was not impulsive conduct but one in which Mr Masoe had thought about, and determined, a particular course of action. It was a course of action in which he determined to take the initiative. I do not accept his evidence that he chose not to take the issue to management as a grievance; in my view, he deliberately chose to confront Mr Patterson. I find comfort in reaching this conclusion because it is consistent with his conduct on 4 July 2014.

[71] In my view, a fair inference from the circumstances and evidence, is that Mr Masoe was resentful that Mr Patterson had allegedly “back stabbed” and insulted him with the words, “why are you guys [Mr Marrs and others] scared of him [Mr Masoe] you know and stuff like that…” Mr Masoe, in my view, intended to put the record right as to who was scared of whom.

[72] When confronting Mr Patterson in the crib room alone, Mr Masoe had made the choice not to go to management with a grievance. Mr Masoe confronted Mr Patterson at work (allegedly) about an incident outside of work. This confrontation was totally disconnected from any work Mr Masoe was employed to perform.

[73] Mr Masoe’s written evidence is that he believes his “physical appearance may have affected the way in which MMA responded to Mr Patterson’s allegation against me”. 51 Mr Masoe is a 6 foot 2 inch Pacific Islander, who weighs 130 kg. Mr Masoe’s physical appearance is what it is, but the fact remains that he felt a work colleague was “back stabbing” him. He confronted that individual. That individual denied what was being alleged. In such circumstances, Mr Masoe puts to the Commission that the exchange was “calm, measured with no hint of aggression or intimidation”.52 In the circumstances, I prefer the evidence of Mr Patterson that Mr Masoe was aggressive, confrontational and threatened him. Mr Masoe might very well think he was calm and measured, but the evidence points elsewhere.

[74] While denying that he made the comment, Mr Masoe agreed that, “Karratha is a small town”, is meant to convey that the person it is directed to, “cannot escape you”. 53

[75] The evidence relating to the conversation which took place in the Karratha Magistrate’s Court before the hearing on 23 February 2015, was vigorously contested. However, Mr Masoe agreed that Mr Patterson sought a promise from him that he would not harm Mr Patterson or his family. 54 Mr Masoe gave Mr Patterson that assurance.

[76] As a consequence, Mr Patterson withdrew the application for the violence restraining order (VRO).

[77] Following the withdrawal of the application for the VRO, a further discussion took place after the hearing. The contents of that discussion are also disputed between the parties.

[78] It is generally acknowledged that a person’s behaviour is directed towards a goal. During and after the crib room conversation, Mr Patterson felt “scared at work”. 55 I am satisfied, notwithstanding any brief period when they worked together after 27 December 2014, that the outcome was another employee feeling genuinely threatened and scared at work.

[79] With respect to the two (2) main protagonists in this application, Mr Masoe clearly had some discomfort when confronted with oral evidence contrary to documentary evidence or at odds with his overall case. Mr Patterson was obviously very visibly nervous about the incident in the crib room. However, despite this nervousness, his evidence was not shaken that he feared that Mr Masoe would hurt him and felt threatened by the conversation in the crib room. Finally, I have no reason to disbelieve Mr Patterson that he did not pursue the VRO for the reason that Mr Masoe had given a promise not to harm him, his family or their animals. 56

[80] The ESF incident, of itself, may not have been sufficient to reach a finding of the Employer having a valid reason to dismiss Mr Masoe from his employment. However, less than six (6) months earlier, Mr Masoe had been advised, in writing, of the need to comply with the Employer’s Code of Conduct. In the written warning of 9 July 2014, it refers to Mr Masoe’s reference to “try a 2 x 4” as a joke. I am satisfied that on 30 December 2014, he treated the Employer’s request to complete an ESF also as a joke.

[81] Similarly, less than six (6) months later, after being informed that bullying, aggressive and threatening behaviour is not acceptable in the workplace, I find that Mr Masoe deliberately engaged in aggressive and threatening behaviour towards Mr Patterson. Behaviour completely at odds with the Employer’s Code of Conduct.

[82] When both incidents, which occurred in a relatively short period of time, are taken into consideration and the previous written warning to Mr Masoe about his behaviour, I find that the misconduct asserted by MMA to have taken place, did take place, and this conduct constituted a valid reason for the termination of Mr Masoe’s employment.

s.387(b) and (c) – notification of reasons for termination of employment and opportunity to respond

[83] The Applicant accepts, and I so find, that he was notified of the reasons for his dismissal and given the opportunity to respond to those reasons.

s.387(d) – support person

[84] The Applicant accepts, and I so find, that the Employer did not unreasonably refuse a support person. Mr Masoe had a support person.

s.387(e) – unsatisfactory performance

[85] The reasons relating to Mr Masoe’s termination of employment did not relate to unsatisfactory performance in its narrow sense, but to his conduct as an employee.

s.387(f) and (g) – size of employer and access to human resource specialists or expertise

[86] MMA is relatively large and had access to, and utilised, dedicated human resource personnel.

s.387(h) – other matters

[87] Having found that MMA had a valid reason to terminate his employment, it is necessary to consider whether there are any mitigating circumstances to reach the conclusion that, notwithstanding MMA having a valid reason to terminate Mr Masoe’s employment, the dismissal can still be characterised as harsh, unjust or unreasonable.

[88] The objective of Part 3-2 Unfair Dismissals of the FW Act is to establish a framework that balances the needs of employers and employees.

[89] An employer has the statutory obligation to provide a safe working environment. In meeting this obligation, employers, especially relatively large employers, have policies or a code of conduct. These documents set out standards of behaviour expected in the workplace. In MMA’s Code of Conduct, employees have an individual responsibility to refrain from harassing and bullying behaviour, and to act with decency at all times. The Code of Conduct gives examples of such inappropriate behaviour including threats to safety and personal attacks. The purpose of inappropriate behaviour is to avoid causing others in the workplace distress, discomfort, fear or harm. Acting decently is not treating another employee’s complaint as a joke.

[90] Employers, having established such policies for the benefit of all in the workplace, are required to ensure compliance with such policies; if that did not occur, what would be the purpose of such policies? Compliance occurs in a number of ways, however, one such way is disciplinary procedures, where compliance with the requisite standards has not been met.

[91] Mr Masoe’s employment with MMA is relatively short, however, with the exception of filling out the ESF, all inappropriate behaviour, on any fair reading, involved threats, swearing, aggression, intimidation and a concern by other employees of potential physical harm. Mr Masoe’s inappropriate conduct was not about disparaging looks, gossip, sarcasm or abuse of authority – they are at the upper end of repeated unacceptable conduct.

[92] While Mr Masoe has set out his personal and economic circumstances following his dismissal, I am unable to conclude that the dismissal was disproportionate to the gravity of his conduct, especially after being put on notice in July 2014, that any further inappropriate behaviour would result in further disciplinary action.

CONCLUSION

[93] In conclusion, for the reasons set out above, I am satisfied that Mr Masoe’s dismissal from his employment was not unfair, pursuant to s.387 of the FW Act. Accordingly, the application must be dismissed. An Order to this effect is issued jointly with this Decision.

COMMISSIONER

Appearances:

Ms E Palmer of the Maritime Workers’ Union for the Applicant.

Mr R Wade, of counsel for the Respondent.

Hearing details:

2016

Perth,

23 February.

Final written submissions:

Applicant: 5 and 18 March 2016.

Respondent: 11 March 2016.

 1   Exhibit R4 (1)

 2   Exhibit R4 (5)

 3   Exhibit R4 (5)

 4   Exhibit R4 (4)

 5   Exhibit R4 (4)

 6   Brink v TWU PR922612 at paragraph [7]

 7   King v Freshmore (Vic) Pty Ltd S4213 at paragraph [24]

 8   Transcript PN459

 9   Transcript PN461

 10   Transcript PN475 and PN477

 11   Transcript PN490

 12   Transcript PN493

 13   Transcript PN515

 14   Transcript PN505

 15   Exhibit R4 (2)

 16   Transcript PN512

 17   Exhibit R7 (20) and (21)

 18   Transcript PN644

 19   Transcript PN762

 20   Transcript PN780

 21   Transcript PN786

 22   Transcript PN787

 23   Transcript PN650

 24   Transcript PN648

 25   Transcript PN651

 26   Transcript PN653

 27   Transcript PN654

 28   Transcript PN658

 29   Exhibit A1 (31)

 30   Transcript PN523

 31   Transcript PN539

 32   Transcript PN542

 33   Transcript PN543

 34   Exhibit R8

 35   Exhibit R4 (33)

 36   Transcript PN531, 532 and 535

 37   Transcript PN540

 38   Transcript PN541

 39   Transcript PN520

 40   Exhibit R4 (9) and Transcript PN537

 41   Transcript PN561

 42   Transcript PN544

 43   Transcript PN547

 44   Transcript PN570

 45   Transcript PN573

 46   Transcript PN551

 47   Transcript PN552

 48   Exhibit R4 (50)

 49   Exhibit A3 (33)

 50   Exhibit R4 (37)

 51   Exhibit A3 (55)

 52   Transcript PN523

 53   Transcript PN599

 54   Transcript PN623

 55   Exhibit R4 (10)

 56   Transcript PN12082

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