Mr Patrick Glennon v Collins Food Group Pty Limited T/A Sizzler Cairns

[2011] FWA 6043

[2011] FWA 6043

FAIR WORK AUSTRALIA

DECISION

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

Mr Patrick Glennon
v
Collins Food Group Pty Limited T/A Sizzler Cairns
(U2011/6559)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 13 SEPTEMBER 2011

Summary: termination of employment - misconduct allegation - competing evidence - finding on credit

[1] This application is made under section 394 of the Fair Work Act 2009 (“the Act”), by Mr Patrick Glennon. The Respondent is Collins Food Group Pty Ltd trading as Sizzler, Cairns. The Applicant seeks relief in respect of his dismissal which occurred on 17 March 2011.

[2] I provided this decision in transcript in full at the conclusion of the hearing and undertook to publish it formally. There are a few passing qualifying comments and redactions, but other than that the decision is unamended. The decision was and is as follows.

[3] There were no jurisdictional objections to the application, and from my examination of the file and the known factual matrix, I have concluded that the application is jurisdictionally competent, as a consequence.

[4] Central to this application is an allegation of misconduct by the Applicant. More specifically, the Respondent claims that on 11 March 2011, the Applicant made inappropriate verbal threats to Ms Abby Earl, a co-worker, without provocation. These threats extended to a physical threat to the same worker; that being a gesture to cut Ms Earl's throat. This was communicated by the movement of the Applicant's finger under his throat.

[5] The Respondent further alleged that the Applicant was untruthful in accounting for his behaviour in his subsequent interview with the employer, and then was otherwise uncooperative with his employer during the investigation into the relevant incident.

[6] There is no issue arising from this application that concerns the Applicant's performance of his duties as a casual kitchen hand and cleaner. The matter concerns the Applicant's conduct exclusively. Given this, broadly the tribunal’s task is to determine objectively on the civil burden of proof what the Applicant's conduct consisted of, and whether that conduct as made out is such that it warranted the termination of his employment.

[7] I will firstly set out my findings in relation to the nature of the conduct, and then consider the conduct in the context of the specific requirements of sub sections 387(a) through to (h) of the Act. The wider context of the Applicant's conduct must be understood in respect of the mutual antagonism that characterised the relationship between himself, his partner Ms Rochelle Bonney, co-worker Ms Abby Earl and Ms Earl’s husband, referred to as “Josh”. This antagonism appears to have first arisen in 2008 from an innocuous social slight, which does not warrant my further exploration or comment.

[8] The antagonism manifested itself over the course of the next three years, and reached such intensity that it appears to have contributed significantly to Ms  Bonney's separation from the Respondent, where she had been employed, along with the Applicant, and Ms  Earl. It appears the relationship had spiralled into near dysfunction, which was evident in direct personal verbal confrontations, and a volume of distasteful texting and voice messaging, which was sometimes carried out late at night in moments of clouded judgment.

[9] This mutual antagonism was not restricted to private social interactions, and it was imported into the Respondent’s workplace. It therefore becomes relevant for the purposes of this application.

[10] It is not contested in this matter that the Applicant had been issued a formal written warning on 25 January 2011as a consequence of an unpleasant verbal interaction with Ms  Earl on 16 December 2010. The warning arose from a verbal threat made by the Applicant about which Ms  Earl had complained. The written warning, which formed attachment A to the statement of the Respondent’s HR Officer Mr Underhill, reads as follows:

You have breached workplace harassment-free workplace policy. You have made a vicious comment to a co-worker. This is not acceptable.

[11] This comment was said to comprise a threat to Ms Earl made by the Applicant to the effect that, "You're going to get your face smashed in." The Applicant did not substantively deny that he made this comment. He signed the written warning, and at the time the Applicant was informed that he must focus on his work, and if provoked again he should see a manager. The record of interview, which is not contested, indicated that the Applicant said, "Okay. I understand."

[12] The Applicant was given a clear indication by the Respondent as to how to manage his relationship with Ms Earl in the workplace as a consequence of this warning process. The Applicant was also informed that any such further conduct would result in the termination of his employment. The Applicant was therefore given a clear indication by the Respondent that any further uncontrolled confrontations with Ms Earl in the workplace may result in his dismissal.

[13] The Respondent did not leave the management of the relationship between the Applicant and Ms Earl to themselves alone. Such were the difficulties in the relationship that the Respondent acted to ensure that the Applicant and Ms  Earl were put on separate rosters, and the Respondent sought to regulate their interactions as far as practicable. This brings me to the critical incident of 11 March 2011.

[14] It is alleged that in the afternoon of Friday, 11 March 2011, the Applicant walked to the back of the restaurant to discard some boxes. In doing so, this had brought him into close proximity (some 10 metres or so according to Ms Earl) to a group of female co-workers which included Ms  Earl, who were seated in a designated smoking area.

[15] The fact that the two parties were in relatively close proximity was the result of an unusual set of circumstances that day that does not require further elaboration, bar to observe that it had been reasonably presumed by the Respondent that Ms  Earl would have left the premises by the time the Applicant was required to perform his duties.

[16] It is alleged that the Applicant instigated an aggressive and expletive-rich exchange between himself and Ms Earl. The Applicant conceded under cross-examination that he had said, "What have you got to say?" and "What the f... is your problem?" However he denies the allegation that he instigated the exchange.

[17] Critically, what happened next according to the evidence of Ms Earl and the three other persons with whom she was in the smoking area with at that time, was that the Applicant made a threatening gesture by passing his fingers under his throat. The Respondent contends that this gesture was a violent threat made by the Applicant, directed at Ms  Earl, and demonstrated that he had again, as he had on 16 December 2010, acted with great intemperance and an absence of self-control in relation to his co-worker.

[18] As I said earlier, this is a critical action by the Applicant on which the outcome of this matter hinges. If the Applicant gestured violently to Ms  Earl in this way, it would go some very considerable way in demonstrating, in either a provoked or unprovoked situation, that the Applicant was not capable of demonstrating the self-discipline necessary to avoid workplace conflict and that he had therefore failed to respond to the direction of the Respondent to seek the assistance of management in such situations.

[19] The evidence relied upon by the Respondent was essentially that of Ms  Earl and the three persons with whom she was with in the smoking area on 11 March. This evidence was to the effect that all four of the individuals claimed that the Applicant had instigated what became a mutually abusive exchange, and that the Applicant had said words to the effect of, "You know what's next," and then executed the gesture by moving his fingers under his throat.

[20] To be sure, Ms  Earl reacted as if there had been a direct threat made to her. She notified her husband and made a police statement to the same effect.

[21] The Applicant's evidence, however, puts the alleged threatening gesture and its context in a fundamentally different light. The Applicant contends that he did not say, "You know what's next," but said, "You know, what's this?" and then made the subsequent gesture.

[22] The Respondent's evidence is that the Applicant directed a violent threat towards a co-worker, and the Applicant's evidence is that he was making a rhetorical inquiry of Ms Earl. His reason for making such a rhetorical inquiry of Ms Earl was that he was referring to an incident that occurred some weeks earlier, when Ms  Earl allegedly had pulled up alongside the Applicant's partner, Ms  Bonney, at an intersection in her vehicle and upon recognising Ms Bonney, had made a throat-cutting gesture to her from her vehicle before driving off.

[23] Ms  Earl in her evidence denied such an incident ever took place. She was adamant in this respect.

[24] That may be the case but the evidence of Ms Earl having made the gesture can be constructed from cross-examination of the witnesses, particularly that of the Applicant, Ms  Bonney and that of Ms Bonney’s father, Mr Bonney.

[25] Ms  Bonney described the incident which she said had occurred sometime earlier at a precise location in the local area. Mr Bonney gave evidence that Ms Bonney had telephoned him one evening shortly after the incident, and in a distraught manner, set out the incident as a further example of the deteriorating relationship between herself, Ms  Earl and her partner.

[26] Mr Bonney's evidence was that at the time he responded by imploring his daughter to put it behind her, at least initially. The Applicant, for his part, says that he only discovered that the gesture had been made by Ms  Earl a few days immediately prior to the 11 March incident when the matter arose during discussions between himself and Ms Bonney concerning their continuing difficulties with Ms Earl and her husband, Josh.

[27] The proper characterisation of the Applicant's conduct during the confrontation on 11 March 2011 is critical to the Applicant's success or failure. If the Applicant made a threatening gesture in isolation, his position with the Respondent, given the previous warning, would be in jeopardy. However, if the throat-cutting gesture was a mere referral to an earlier incident - that is, it was a rhetorical inquiry premised on the question, "What's this?" and was intended to reflect on Ms  Earl's prior questionable behaviour - his circumstances would be very different.

[28] One of the two parties before me is being untruthful. Either one party, that being Ms  Earl, has been at best, subject to a considerable memory lapse or else the Applicant, Ms Bonney and her father have contrived an elaborate evidentiary diversion in order to support the Applicant's position. On the evidence before me I am of the view that the evidence of the Applicant, on the balance of probabilities, is more compelling. I conclude this for the following reasons.

[29] The evidence regarding the communication of the incident between Ms Bonney and Ms Earl appears to me to arise naturally and without evidence of contrivance. In the immediate period following the incident, Ms Bonney informed her father by telephone of Ms Earl's gesture. Her father, Mr Bonney, revealed the telephone call in his evidence and the emotional state of his daughter at the time. Mr Bonney’s response at the time did not appear at all exaggerated and was designed only to encourage his daughter to put the episode behind her and to re-gather her composure.

[30] A contrived recollection might have exaggerated the impact of the incident at the time in order to afford the incident increased gravity. That is, at the time Ms Bonney informed Mr Bonney of Ms Earl's conduct, Mr Bonney merely told her to put it behind her, demonstrating an interest in his daughter's state of mind at the time, more so than an interest in Ms Earl as such.

[31] Evidence of this kind is described as being naturalistic. That is, it does not attempt to relate the incident to some prospective event, but is properly constructed in relation to the circumstances at the time, which was Mr Bonney's concern for his daughter's state of mind.

[32] In all, Mr Bonney's evidence is not “over-cooked” and its significance at the time was not overstated. That is, it had the appropriate degree of significance it should have had in the context and circumstances at the time, and nothing more.

[33] Ms  Bonney did not inform the Applicant (her partner) of Ms Earl’s conduct at the time of the incident for fear of his reaction in the workplace, where he worked to some measure alongside Ms  Earl.

[34] This, too, is evidence that was given without equivocation and sat well in the context of the Applicant's workplace relationship with Ms Earl as it had been manifested in the weeks immediately prior to the incident of the 11 March 2011.

[35] That is, it is reasonable in the context of the written warning that Ms  Bonney might have concern for the Applicant's conduct in the workplace if he was informed of the incident. As it was, Ms  Bonney did come to inform the Applicant of the gesture but only some days before 11 March 2011. At that time they were discussing the difficulties surrounding their relationship with Ms  Earl and her husband, Josh.

[36] It follows then that it is entirely explicable that the Applicant would, consistent with his evidence, state, "You know, what's this then?" and mimic Ms  Earl's gesture of passing her finger under her throat. This comment was subsequently interpreted by Ms  Earl and the friends gathered in the smoking area as a direct threat construed in the form of, "You know, what's next?"

[37] As I said earlier, generally the manner in which the evidence arises from Ms Bonney through her father and through the Applicant himself provides an authentic and interlocking naturalistic evidentiary context. That is, the evidence was disclosed in a manner which gave no suggestion of concoction, contrivance or an intention to align for the purposes of discrediting Ms  Earl alone.

[38] The Applicant's evidence about the time at which he became aware of Ms Earl's gesture to his partner is important.

[39] If Ms Bonney had informed him some weeks earlier at the time of the incident, it is probable that the incident might have figured in texting exchanges between the parties, or else the matter would have been less likely to have been on the Applicant's mind in the confrontation of 11 March 2011.

[40] This chain of reasoning, as I have set it out, leads me to reject the asserted evidence of Ms Earl that she did not make a throat-cutting gesture to Ms Bonney.

[41] In reaching this conclusion, I have had to deal with potentially contrary evidence.

[42] Firstly, Ms  Earl and her three friends all gave evidence that the Applicant had definitively said that, "You know what's next," and signalled a throat-cutting gesture. I make four points about this evidence. Firstly, there is only a slight modification required of the words that the Applicant is purported to have used to bring them into conformity with the words the Applicant said he used; that is, "You know, what's this?" as compared to, "You know what’s next."

[43] The second related point I make is that on Ms Earl's evidence these words were spoken about 10 metres from where the Applicant had made the gesture, although I note that some of the other witnesses claimed that distance to be of a varying nature, somewhere around six to 10 metres. There is considerable scope, therefore, for the parties to have misheard the words over such a distance, and particularly in such a fraught and emotional context.

[44] Thirdly, I make the point that the four witnesses (Ms Earl and the three other co-workers) had all discussed the incident with one another at various times, and were not required to give separate contemporaneous statements as such. There was scope for their evidence to have morphed into a collective belief as to the construction of the incident. I have some trepidation in reaching this conclusion. It does not flow directly from the evidence, and it requires me to surmise that this might be the case.

[45] In any event, I make the general point that the evidence of the four witnesses was not so distant from that of the Applicant's to have been totally incompatible with what he was claiming to have been the content of his comment.

[46] I should say that some of the witnesses’ evidence did lead me to question the veracity of it. This was particularly so in relation to Ms Craig's evidence. I found it troubling that Ms Craig's evidence was that she had no discussions with anyone whatsoever about any matters relating to the incident, after she provided her written statement (virtually at the time) or shortly after the incident had occurred. However, the other witnesses gave evidence that they had discussions with her about those same matters. This does bring into question her veracity.

[47] I am also troubled by Ms Earl having sought to rearrange her statement as given to the police (for the purposes of these proceedings), such that her telephone conversation with her husband came later in the incident. This meant that it could not be construed as being a provocation to the Applicant.

[48] These are just some of the disturbing matters about the evidence to which I have had some measure of regard. I should say though that the weight of my findings in relation to the credit of the parties about the construction of the incident is drawn principally from my prior observations about the matter in which the evidence was adduced from the Applicant’s witnesses.

[49] Fourthly, there appears to me to be a disjunction of some measure between the Respondent's evidence in relation to how the alleged throat-cutting gesture emerged in the exchange between Ms  Earl and the Applicant.

[50] If I accept Ms Earl's construction of the exchange, the Applicant was in the process of having an exchange with Ms Earl about why she would not communicate with Ms Bonney, and then the Applicant introduced the notion of, "You know what's next," and made the threatening throat-cutting gesture. There appears to me to be little continuity in the narrative. The prospect of Ms Earl having her throat cut simply emerges randomly from the narrative as it were, and does not flow directly from the context of the exchange that occurred at the time.

[51] The evidence of the Applicant for his part, however, provides a more natural manner for the gesture to have occurred in the context of Ms Earl's inability to communicate with Ms  Bonney; that is, the failure of Ms Earl and Ms Bonney to communicate as evidenced by Ms Earl's unsavoury gesture at the traffic lights, and about which the Applicant had been recently informed.

[52] The Applicant's evidence therefore emerges from the context of the communication difficulties between the parties, and does not emerge, on his construction, randomly from the narrative as the construction does from the Respondent's evidence.

[53] I should add for reasons of clarity that there are, in my view, two other potential valid reasons for the dismissal of the Applicant, other than the threatening gesture which I have referred to above. These two reasons are implicit in what I've said to date.

[54] The first of these is the Applicant's conduct in the interview of 17 March 2011. His behaviour in that interview was inappropriate but it was born of frustration. In that interview, as it was, the Applicant spoke in very disparaging terms about the Respondent. Such behaviour might ordinarily provide a valid reason itself for dismissal, but not so in this case, where I have contextualised the basis for that frustration in my prior reasoning.

[55] Absent the display of frustration born of the complex history of the dysfunctional relationship between the parties, I may have been able to reach a finding that the Applicant's conduct was impulsive and without any reasonable context. That would be more damaging indeed for the Applicant's case. However, properly construed in all of the circumstances, whilst I indicated before that it might be a near thing, that conduct alone in the interview was not, in my view, sufficient to provide a valid reason for the dismissal (though it will have weight in relation to my future comments in relation to this application).

[56] Secondly, the Applicant's behaviour in involving himself in a confrontation with Ms  Earl was inappropriate, given the warning he received on 25 January 2011. But while I consider that the language used in the confrontation was inappropriate and was in conflict with the prior warning, I need to examine that language and the nature of the exchange in the proper context adduced over the proceedings.

[57] Where I might consider that language to be intemperate, hostile and aggressive, it would appear to me, based on what I know of the exchanges between the parties, that the language employed was not unusual. The language of the Applicant and Ms Earl appears to have been characteristically expletive laden and implicitly aggressive.

[58] I have examined, therefore, the other potential grounds for the dismissal and dismissed each of those. I now turn to a further claim to which I have made some passing reference and that is to whether or not the Applicant was untruthful during the interview with the Respondent of 17 March 2011. I have already made comment that I consider that the Applicant's behaviour in that meeting was born of frustration. I do not see that a ground for dismissal based on untruthfulness can be made out.

[59] Having dealt with section 387(a) of the Act and any valid reasons for the dismissal, I now turn to sections 387(b) and 387(c) of the Act. It appears to me on the evidence of Mr Underhill and Mr Steemson that the Applicant was not expressly informed that his employment was in jeopardy in the phone call of 14 March 2011, or at the commencement of the meeting of 17 March 2011, or at any time in advance of that meeting.

[60] Indeed, the evidence of Mr Steemson for the Respondent was confusing in both its chronology and content. That said, it appears from Mr Steemson’s evidence that the Applicant had reached his own view at the start of the meeting on 17 March 2011 that he might be subject to dismissal for reasons of the 11 March 2011 interaction with Ms Earl.

[61] Further, it must be reasonably inferred, given the Applicant’s previous warning in relation to Ms  Earl and the fact that Mr Underhill had contacted him about the incident and he was being required to have a discussion with Mr Steemson on 17 March 2011, that the Applicant was in a position to align the circumstances and draw an obvious conclusion.

[62] In essence, the Applicant must have reasonably recognised that his employment security was at risk at the time. In my view it would be breathtakingly naive to conclude that the Applicant believed there was a disconnect between the explicit terms of the warning of 25 January 2011 and the interview in relation to the incident of 11 March 2011. As surrounding evidence of that I also note that on 14 March 2011, the Applicant, had also considered approaching a union for the purpose of membership. That too may provide the basis, in the context of founding an inference, that the Applicant was aware that his employment was in jeopardy at or around that time.

[63] Putting aside what the Applicant might have reasonably known about his circumstances, it appears to me that the Respondent did make an effort to notify the Applicant and provide him with an opportunity to respond to the allegations by way of the meeting of 17 March 2011. This opportunity was not taken up by the Applicant and his frustration and subsequent conduct caused Mr Steemson to invite him to leave the premises. That is, had the meeting on 17 March been given its intended effect and not been compromised by the Applicant's conduct, the Applicant would have been provided with notice of a reason for his dismissal (had that been a decision to be reached) and been given an opportunity to provide reasons in relation to that decision, or the reasons for the prospective decision.

[64] I draw no conclusion from the creation of draft documents in relation to the incident about which much has been said in this matter.  Employers will often take steps in advance to deal with potential scenarios or options that will arise.  In the end, only the decision maker in respect of the decision to dismiss the Applicant is responsible in relation to these matters. Little can be drawn from the existence alone of prior documents indicating an intention to reach a desired outcome.  As it was, the Respondent did provide an opportunity to respond on 17 March 2011 and that opportunity was not taken up by the Applicant.

[65] The representative for the Applicant made something of the requirements of section 387(d) of the Act in relation to a support person. The Applicant did not seek to have a support person present or in attendance at the interview of 17 March 2011, therefore it cannot be concluded that the Respondent denied a nominated person a representative role in the meeting.

[66] Equally, however, it might be noted that the Respondent's process whereby it called the Applicant into a meeting without notice on 17 March 2011 frustrated the Applicant's capacity to enlist support.

[67] The evidence of the Applicant himself, as I said before, was that he was seeking to join the relevant union on 14 March 2011. He was obviously not taking this course of action as an idle consideration disassociated from his perception of vulnerability arising from the circumstances he faced on and after 11 March 2011. That is, on a reasonable inference, the Applicant knew very well that his employment was exposed as a consequence of his prior conduct and was in the process of taking some initial steps to seek representation.

[68] But that said, the circumstances in which s.387(d) of the Act are given effect were not evidenced in the factual matrix relevant to these proceedings.

[69] In respect of the requirements of s.387(f) and s.387(g) of the Act, neither the Respondent’s size nor the extent to which it had access to human resources is relevant in these proceedings. The Respondent is a large employer and it possesses dedicated human resources.

[70] Section 387(h) of the Act invites me to consider any other relevant matters.

[71] It is uncontested in this matter that the Applicant is currently suffering from a depressive condition which appears to have been in existence before the incident of 11 March 2011. There has not been, however, a great deal of focus on this matter. The medical evidence in this regard is slight, and has not been directly related to an explanation for the Applicant's conduct.

[72] Had I found for the purpose of section 387(a) of the Act that a valid reason for the dismissal of the Applicant had existed as a consequence of intemperate conduct on 11 March 2011 and/or intemperate conduct in the meeting of 17 March 2011, I might have been required nonetheless to consider whether the Applicant’s psychological condition had been a relevant consideration. However, as I said, the weight of the evidence did not put those matters squarely before me.

[73] I note also that the Applicant has given no evidence of remorse or contrition. But given what I have found above, it may be asking a great deal of an individual to be contrite about conduct with which he did not agree, and which he believed did not occur or was wrongly characterised.

[74] Other issues have been brought to my attention by way of the evidence, including that the Applicant is 22 years old. He appears to be a carer of three children - a new-born, a three year-old and a 10-year-old Down syndrome child.

[75] I think these later factors are important in the context of remedy, but I very much doubt that an employee's private familial circumstances can always condition unrelated workplace conduct otherwise relevant to a finding that a dismissal was harsh, unjust or unreasonable. That is, an employer cannot at all times reasonably be expected to be the guardian for its employee’s private life for which it holds little responsibility, no matter how compelling these issues might be at a personal or empathetic level. If a decision to dismiss an employee could be harsh for reason of the employee’s unrelated private circumstances, issues concerning the scope for individuals to be treated equitably under the statute would arise.

[76] I should also say that this was not a case in which the Respondent was simply blind to the circumstances and the private basis of the chronic and dysfunctional confrontation into which two of its employees had fallen. In this particular case, efforts were made by the Respondent to stabilise the private relationship between the Applicant and Ms Earl, and I have set those efforts out above. These, in my view, were steps that should not go without recognition.

[77] All these matters considered, I find in all the circumstances that the Applicant's dismissal was harsh, unjust and unreasonable.

[78] I now turn to the issue of remedy under section 390 of the Act.

[79] The circumstances of this matter, do not persuade me that I should make an order that the Applicant be reinstated to his original position or to an alternative position on commensurate terms.

[80] The reason for this is abundantly clear on the evidence. The Applicant was subject to a written warning issued in January 2011, in very explicit and express terms. The Applicant, despite the warning, had not acted in accordance with his employer's directions in the event of a further confrontation with Ms Earl. At the meeting of 17 March 2011, the Applicant had also disparaged his employer's management in strong and expressive terms. The Applicant gave evidence that he used strong language in his exchange with Ms Earl, and the Applicant also did not display any remorse or regret in relation to any of his conduct in respect of his former employer, and particularly in relation to his conduct in respect of the meeting of 17 March 2011. Whilst I have not seen fit in the circumstances to find that this behaviour provided a valid reason for the Applicant's dismissal, the conduct is enough, nonetheless, to demonstrate that reinstatement would not be appropriate.

[81] Accordingly, I will turn to consider the scope for me to make an order that the employer pay an amount of money to the Applicant by way of compensation.

[82] Section 392 of the Act sets out the criteria for the payment of compensation. Firstly, for the purposes of s.392(2)(a) of the Act, it appears to me to be unlikely that any order I will make will affect the viability of the Respondent’s enterprise. Section 392(2)(b) requires me to assess or to have consideration of the Applicant’s length of service. It has been stated in the evidence that the Applicant was a casual employee over a two to three year period. That is not a long period of service.

[83] Section 392(2)(c) of the Act requires me to determine the remuneration the Applicant would have received if he had not been dismissed. This by necessity requires me to exercise a judgment as to how long the Applicant would have remained in the employment of the Respondent. In my view, the evidence in this matter suggests that the Applicant would not have been able to sustain a durable employment relationship with the Respondent, given the fractious nature of the private relationship between himself and Ms Earl.

[84] It seems to me that the parties could not have been physically separated on an indefinite basis by the Respondent, and this was demonstrated in the circumstances in which the incident of 11 March 2011 arose. At some point the parties were bound to come into conflict with one another, or to come into proximity with one another, or to come into one another's orbit in the workplace, just as they had on 11 March 2011. When they did come into close proximity on 11 March 2011, the Applicant was not able to control his impulses as the Respondent had directed him to in its warning of 25 January 2011. This was only a little over a month following that written warning having been provided.

[85] It seems a reasonable inference to me that regardless of the incident of 11 March 2011, the Applicant would not have been able to conduct himself at all times in the future in a way that kept him from coming into direct conflict with his co-worker.

[86] One of the central obligations of an employee is to support civil relations in the workplace, and to be truthful, cooperative and productive. These are central obligations which, on the basis of the evidence before me, it appears the Applicant would not have been able to give effect to over any sustained period of time. Despite the Respondent's warnings in January 2011, the Applicant nonetheless demonstrated on his own evidence that he spoke aggressively and strongly in confrontational terms with Ms  Earl on 11 March 2011. He made no effort to seek the assistance of a manager, as he had been encouraged to do in express terms in the warning of 25 January 2011. Whilst the task is inherently speculative, the maximum period that I can envisage the Applicant being employed with the Respondent is a further 10 weeks.

[87] Section 392(2)(e), (f) and (g) require various considerations to which I will now turn. The Applicant faces numerous personal and family circumstances. I have set these out earlier. He has no income. He has made little effort to mitigate his losses, but I do not believe that these are matters that should diminish any order for compensation in the context. The Applicant's familial and personal circumstances are challenging, and give weight to my conclusion in that regard.

[88] However, s.392(3) of the Act requires me to consider the conduct of the employee, and the extent to which he contributed to the decision on the part of the employer to dismiss him from its employment.

[89] The Applicant's conduct at the meeting of 17 March 2011 is responsible for his dismissal. If he had been able to exercise a higher degree of self-control than he did at the time, he may have been able to excite his employer's curiosity about the wider contextual circumstances framing his conduct of 11 March 2011. But his conduct in walking out of the meeting and denigrating his employer's reputation gave the employer no reason to look more deeply into the immediate evidence that was before it at the time (all of which was hostile to the Applicant's case).

[90] Further, the Applicant should not have fallen into conflict with Ms Earl, given the very particularised warning of 25 January 2011, and the direction that he had been given by the Respondent as to how to manage conflict issues with Ms Earl. That is, the Applicant did not seek to engage the Respondent to assist in mediating that relationship at all. He was a willing party to the strong exchanges that occurred, if not an instigator.

[91] The Applicant's conduct therefore contributed to the Respondent’s decision to dismiss him from his employment. The conduct was a significant factor contributing to the employer's decision-making. It warrants me deducting from the amount I would otherwise have required the Respondent to pay to the Applicant.

[92] The amount that I would otherwise have required the Respondent to pay is 10 weeks’ salary. Because of the Applicant’s contribution to his dismissal, the amount that I will now order the Respondent to pay to the Applicant is an amount equal to five weeks’ salary, subject to the usual taxation. I order this amount to be paid within 10 working days of the issuance of the order to the parties.

[93] No order for purposes of s.392(5) or s.392(6) of the Act arises for current purposes.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr L. Weston for the Applicant

Mr J. Franken for the Respondent

Hearing details:

2011.
Cairns Supreme and District Court Complex.
7 and 8 July; 18 and 19 August.

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