Mr Paul Boyes v R & G Langley Pty Ltd T/A R & G Langley
[2021] FWC 2180
•28 APRIL 2021
| [2021] FWC 2180 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Mr Paul Boyes
v
R & G Langley Pty Ltd T/A R & G Langley
(U2021/957)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 28 APRIL 2021 |
Application for an unfair dismissal remedy – handyman – workplace altercation – alleged serious misconduct – whether valid reason – whether harsh – dismissal harsh given no opportunity to explain – reinstatement inappropriate – compensation confined to period that would have cured procedural failing – order made
[1] On 7 February 2021 Paul Boyes (Mr Boyes or the Applicant) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by R & G Langley Pty Ltd (Langley, the Employer or the Respondent). He claims to have been unfairly dismissed on 27 January 2021.
[2] Mr Boyes was summarily dismissed. At the date of dismissal he was employed as a general hand and labourer.
[3] Mr Boyes claims his dismissal was harsh, unjust or unreasonable. He seeks an order for compensation, together with orders for a separation certificate and reference.
[4] Langley oppose the application. It says it terminated Mr Boyes on 28 January 2021 (not the 27th) on the ground of serious misconduct. It contends the dismissal was neither harsh, unjust or unreasonable, and no issue of remedy arises.
[5] Conciliation by a staff conciliator occurred on 27 February 2021.
[6] On 3 March 2021 I issued directions.
[7] On 6 April 2021, notwithstanding the objection of Mr Boyes, I granted permission under section 596 of the FW Act for Langley to be represented. 1
[8] I heard the matter (merits and remedy) in-person by determinative conference in Adelaide on 15 April 2021. Mr Boyes was represented by his brother. Langley were legally represented. I reserved my decision.
Evidence
[9] The evidence (oral and documentary) was relatively confined to events occurring in January 2021.
[10] Ten extracts of CCTV footage (footage only, not audio) from a camera in the workshop were brought into evidence by Mr Boyes; five of an altercation on 27 January 2021 2 and five of an altercation on 28 January 20213.
[11] I heard evidence from four persons:
• Paul Boyes (Applicant) 4;
• Richard Langley (co-owner and director) 5;
• Oriella Hunter (Personal Assistant to Mr Langley and Mr Bubner) 6; and
• Roy Bubner (Operations Manager) 7.
[12] All witnesses other than Mr Boyes were called by Langley. Mr Bubner is Mr Langley’s son-in-law.
[13] Though certain alleged conduct is in dispute, the evidentiary disputes are not as profound as appear on the face of witness statements. The CCTV footage provides partial vision, context and time lapse between events. Useful to fact finding as it is, its partial nature and the absence of audio limit its capacity to resolve disputed facts.
[14] Where factual matters require determination, I make findings having regard to plausibility, consistency and demeanour of witnesses, and whether corroborative documentary evidence exists (including from the CCTV footage) that informs content or context.
[15] I make findings on the balance of probabilities, noting that where allegations of a serious nature are made, the Briginshaw 8 standard of proof applies; that is, a reasonable degree of satisfaction needs to exist that conduct did, in fact, occur.
[16] Although the events of 27 and 28 January 2021 were relatively recent, I make some allowance that the lapse of eleven weeks between the events and the hearing may have dulled recall. I also make allowance that, as the CCTV footage shows, the altercations combusted at short notice and were not prolonged. The speed of events and the heat generated could have reasonably impacted recall or the sequencing between what happened and what was said.
[17] That notwithstanding, issues of credit are relevant.
[18] I approach the evidence of Mr Boyes with some caution. His rapid-fire denials of misconduct towards Ms Hunter are not plausible and substantially at odds with her evidence. His evidence that he ‘gave as good as he got’ in his altercation with Mr Bubner and then Mr Langley was premised on the basis that he was not the instigator of the altercations. For reasons set out in this decision, whilst I find that Mr Bubner’s conduct was unprofessional, I have not accepted Mr Boyes’s evidence that he was not the instigator or was provoked into confrontation. I have found that Mr Langley acted angrily, but not inappropriately.
[19] Ms Hunter was an impressive witness. Having been confronted with fierce altercations across two days, she witnessed most of what occurred and generally had good recall despite being shaken by the events. Her evidence was plausible, not coloured by opinion or defensiveness and was consistent with the CCTV footage. However, none of the incidents of alleged violent conduct towards her were captured by the workshop footage. On those, her oral evidence is plausible.
[20] Mr Langley’s evidence was broadly reliable.
[21] Mr Bubner’s evidence is to be approached with some caution. As a witness, he was defensive and argumentative. He down-played down his contribution to the events and placed a gloss on his conduct that causes me to reflect on the remainder of his evidence. That notwithstanding, his evidence as a whole is not to be rejected, simply approached with some caution.
[22] Where there is a difference between the evidence of Mr Boyes and that of Ms Hunter and Mr Langley, I prefer the evidence of Ms Hunter and Mr Langley.
[23] Where there is a difference between the evidence of Mr Boyes and Mr Bubner, I make specific findings in the body of this decision based on plausibility, the CCTV footage and, in some instances, the corroborative evidence of Ms Hunter.
Facts
[24] I make the following findings.
Background
[25] Langley is a small scale privately owned family business in the building renovation and maintenance industry operating in suburban Adelaide. It is owned by Mr and Mrs Langley.
[26] At the time of dismissal it employed 21 persons.
[27] Due to COVID-19 impacts and the ending of the JobKeeper wage subsidy, at the time of the hearing of this matter it employed 13 persons. As the size of a business for unfair dismissal purposes is to be assessed by reference to the number of persons in employment at the date of dismissal, Langley was not, for current purposes, a small business employer within the meaning of the FW Act 9.
Mr Boyes’s employment
[28] Mr Boyes commenced as a casual employee in March 2018 and was made a full time employee in July 2018 with a formal contract to this effect in October 2019 10.
[29] Although not holding a formal trade qualification, Mr Boyes was an excellent handyman. He worked as a labourer but was more than that; he was skilled in carpentry and maintenance work.
[30] One matter agreed on all sides is that Mr Boyes was a competent worker which the business valued and whom Mr Langley did not want to lose despite Mr Langley having a view that Mr Boyes was prone to outbursts. In Mr Langley’s words “Paul was a very good labourer with a strong work ethic” 11.
[31] Mr Boyes liked the job. Though his adult children were no longer dependants, his work remained a necessary income source for his household.
Work on Anglicare site week of 18 January 2021
[32] Mr Boyes, together with two other staff, worked on a residential Anglicare site in the week of 18 January 2021. It required uprooting of floorboards. On arrival at the site, belongings of the tenant had not been cleared, impeding delivery of new timber. Langley staff cleared a path by putting some belongings to one side and the remaining rubbish into a skip bin.
[33] Amongst the mess on site on 18 January 2021 was a dilapidated lounge suite. Mr Boyes noticed it in poor condition. Some five minutes later he noticed it in the skip bin. He thought nothing of it; he considered it part of the rubbish to be thrown out, and that it had been thrown out by the two other Langley staff he was working alongside. A Langley supervisor attended the site each day of that week to check progress. The three workers on site had been told they had done a good job even though on Thursday 21 January 2021 the tenant had wrongly complained that his toolbox had been thrown out. It had been put to one side, and Mr Boyes had retrieved it for him.
Workplace altercations 27 January 2021
[34] On the afternoon of Wednesday 27 January 2021, after completing work on the Anglicare site, Mr Boyes went to Langley’s base (which houses a handful of offices and a workshop).
[35] An altercation occurred between he and Mr Bubner.
[36] A later altercation occurred between he and Ms Hunter.
[37] Ms Hunter and Mr Bubner were in Ms Hunter’s office, which was very small. It fitted a desk, two chairs and little more. They were processing paperwork relevant to the Anglicare job.
[38] Unknown to Mr Boyes, an officer of Anglicare had phoned Mr Bubner that afternoon and was angry, on behalf of the tenant, that the tenant’s lounge suite had been thrown into the skip bin and disposed of.
[39] Mr Bubner, seated, turned to Mr Boyes as he walked past and an argument ensued:
“Mr Bubner: what happened to the tenant’s lounge suite?
Mr Boyes: what lounge suite?
Mr Bubner: the one you threw into the bin
Mr Boyes: you fucking told us to clear a path. The whole job was fucking disorganised. You fucking didn’t organise it properly.”
[40] By this stage Mr Boyes was shouting and swearing, standing over Mr Bubner, waving his arms and repeating, in aggressive terms, his accusation of mismanagement. Mr Bubner told Mr Boyes to calm down. Mr Boyes did not do so. Mr Bubner stood up and hands raised upright above his head in a defensive manner again told him to calm down, trying to explain that he simply needed an answer for the client. Mr Boyes didn’t cease. He repeated his accusation in loud and abusive terms. Mr Bubner again told him to calm down. Mr Boyes continued in loud and abusive terms. Both had moved across the corridor to a small room. Mr Bubner then angrily thumped a table with his fist and shouted words to Mr Boyes to the effect ‘fucking calm down and get out’.
[41] Mr Bubner attempted to usher Mr Boyes out of the corridor, into the workshop and towards the exit. In the process of doing so he placed his hand on Mr Boyes’s back and pushed him towards the workshop exit. Other employees nearby, hearing the incident came between Mr Boyes and Mr Bubner. Ms Hunter was nearby. Mr Boyes angrily left the workshop, still shouting and swearing and took some belongings.
[42] There are a number of issues of factual dispute concerning this incident.
[43] Firstly, who started swearing and shouting. Mr Boyes claims that Mr Bubner’s first and second questions were laced with swearing such as ‘what happened to the tenant’s fucking lounge suite’ and ‘the one you fucking threw into the bin’. Conversely, Mr Bubner says that it was Mr Boyes who first started shouting and swearing. On the basis of Ms Hunter’s evidence I prefer the evidence of Mr Bubner that Mr Bubner’s first two questions were firmly but professionally put in tone and content – and not laced with swearing. I find that it was Mr Boyes who first became angry, almost instantly so, and first shouted and swore.
[44] Secondly, I find that after asking Mr Boyes at least twice to ‘calm down’ and then ‘calm down and leave’ Mr Bubner became angry, lost his cool, thumped the table and swore back at Mr Boyes telling him ‘I’ve had enough, stop, fucking calm down and get out’ or words to that effect as he pushed him towards the exit. Once angry, I also find that Mr Bubner poked Mr Boyes in the chest when telling him to calm down.
[45] Thirdly, whether Mr Bubner said words at the end of the argument to the effect ‘calm down, leave and come back tomorrow’ (as he claims) or simply ‘get the fuck out and leave’ and ‘get your fucking shit together and get out’ as Mr Boyes claims. On this I prefer the evidence of Mr Boyes. I do not find on the balance of probabilities that Mr Bubner added the words ‘come back tomorrow’. His objective was to get Mr Boyes off-site to end the heated argument, not to project thoughts of the next day. By then Mr Bubner, like Mr Boyes had lost control, and each were swearing at the other.
[46] A second workplace altercation then occurred between Mr Boyes and Ms Hunter.
[47] A short period later, as Mr Boyes was preparing to leave, Ms Hunter approached Mr Boyes. Mr Boyes was winding up an extension cord around his elbow. Ms Hunter had had a good relationship with Mr Boyes over the years and though shocked at what had happened wanted to tell him that he should leave otherwise she feared he could be sacked. An exchange to the following effect occurred:
“Ms Hunter: Paul do you want a glass of water?
Mr Boyes: you can go fuck yourself as well
Ms Hunter: just go home Paul, calm down or they will end up firing you
Mr Boyes: (swinging the extension cord in a circular motion towards Ms Hunter’s face causing her to reel back in evasive action to avoid being struck) I will see you in fucking court”
[48] Ms Hunter was shocked at nearly being struck by the cord. She felt threatened by the escalation. She immediately left the scene.
[49] Upon further urging by Mr Bubner and another employee, Mr Boyes then left.
Investigation
[50] Late afternoon Mr Bubner phoned Mr Langley to report the incident. Mr Langley had not been at work that day. Mr Bubner reported that ‘Paul had lost control and become aggressive and abusive’ or words to that effect. Mr Langley told Mr Bubner that he would deal with it the next day. Though Mr Langley did not verbalise this to Mr Bubner, his immediate thoughts were twofold. Firstly, that what he was being told sounded plausible because he believed Mr Boyes had a temper and had previously had outbursts causing him (Mr Langley) concern (but for which he had not been warned as Mr Langley had tolerated them). Secondly, that Mr Langley did not want to and could not afford to lose Mr Boyes from the business despite another outburst.
[51] On the morning of 28 January 2021 Mr Langley conducted an investigation. He personally spoke to each of the staff who witnessed or heard the incident including Mr Bubner, Ms Hunter and two other employees.
[52] All four persons told Mr Langley that Mr Boyes had become aggressive, abusive, had been threatening in tone and demeanour, failed to leave when first told to do so and that this was an outburst on a scale they had not witnessed before. Ms Hunter also told Mr Langley about the incident with the electric cord. She told Mr Langley that she no longer felt safe at work if there were to be times when only she and Mr Boyes were in the premises (which, according to Ms Hunter, occurred from time to time).
Termination
[53] Mr Langley considered his position. He formed the view that the versions of the four employees were consistent, and that Mr Boyes had misconducted himself in a serious manner, had been abusive and insubordinate to a manager, and had been violent towards Ms Hunter. Though he valued Mr Boyes as an employee, he did not consider that the issue could be overlooked, as he had with lesser incidents on previous occasions. He decided he would dismiss Mr Boyes.
[54] Mr Langley did not consider it necessary to speak to Mr Boyes. He believed that the word of four employees was sufficiently persuasive as to what occurred, and that he would believe them over Mr Boyes given the consistency of what they had told him.
[55] Mr Langley handwrote a letter of dismissal. He then gave the handwritten letter to Ms Hunter to type up. Once typed, it was signed by Mr Langley.
[56] At 10.36am that morning Ms Hunter emailed the termination letter to Mr Boyes 12.
[57] The letter of termination read 13:
“Dear Paul Boyes,
I am writing to you about the termination of your employment with R&G Langley. I refer to the confrontation between yourself and the owner Roy Bubner on 27th January 2021. Roy asked a question regarding a property you and other employees are working on when the tenant's furniture (Lounge) was thrown in the bin on site. Roy has been questioned by the contractor R&G Langley work for as to why this happened, and you started getting overly aggressive and in his face in front of two other employees. Roy had asked you multiple times to lower your voice and speak more respectfully and you disregarded this and continued to get louder, to the point you were in Roy's face and had another employee had to step between you and Roy. Once asked to leave the premises you continued your violence outside in the warehouse with another three employees witness. Then proceeding to threaten the employer and telling employees to tell him what you are saying. This behavior is not tolerated by R&G Langley.
There have been numerous times in situations with different employees and contractors that you have shown this violence and when told to calm down or remove yourself from the situation and are asked to leave the premises you have not done so. You have come back into the yard and started the argument again.
R&G Langley have investigated the incident thoroughly and we are convinced that you are not working within the best interest of R&G Langley and making this workplace an unsafe environment for all employees. R&G Langley need to think of the safety and concerns of the employees and this situation has caused a lot of tension on the employees and directors.
We fully expect you to return any company property that is in your possession at the time of this letter, including your employee badges, your company issued cell phone, and any company credit or debit cards e.g. Bunnings card, fuel card etc. You will be given and list of other company items, compiled by your manager, that you will need to return within 3 business days.
We consider that your actions constitute serious misconduct warranting immediate dismissal. Your employment with R&G Langley will cease on 27th January 2021.”
(… …)
Yours sincerely,
Richard Langley
Director
[58] The covering email from Ms Hunter read:
“Good Morning Paul,
Please find enclosed letter of termination with R&G Langley. I have posted you a hard copy of this letter for your reference.
Due to numerous verbal outbursts you have displayed over the time of your employment to not only Roy but other employees, any correspondence needs to be Via phone, Email or Letter.
Thank you
Oriella Hunter
PA to Operations Manager / Director”
[59] The dismissal was applied summarily. Mr Boyes received no payment in lieu of notice. His accrued entitlements were paid out to that day, 28 January 2021.
Workplace altercation 28 January 2021
[60] Mr Bubner’s evidence 14 was that he expected Mr Boyes to attend work the following day (28 January 2021) and apologise for his conduct. Mr Boyes evidence15 was that he believed that he had been dismissed the previous afternoon. I make findings on this question in the body of this decision.
[61] Mr Boyes did not attend work at the regular time on 28 January 2021, either at the office or on-site.
[62] Approximately an hour after having received (and read) the letter of termination mid-morning, Mr Boyes travelled to the office. His evidence was that he was intending to return company property, and no more. He carried an old company shirt. He denied he was also carrying a copy of the letter of termination. I do not accept this evidence. I prefer the evidence of Ms Hunter that Mr Boyes had the letter of termination in his possession.
[63] Mr Boyes walked through the workshop and straight into Ms Hunter’s (small) office. Ms Hunter was seated. Mr Boyes was angry and loud. Mr Boyes stood over Ms Hunter, produced the letter of termination, and waved it aggressively in her face repeatedly shouting words to the effect:
“who the fuck wrote this letter, who the fuck wrote these lies?”
[64] Amidst the outburst Ms Hunter told Mr Boyes that he needed to speak to Mr Langley about it and pointed towards Mr Langley but Mr Boyes was shouting, not listening.
[65] Mr Langley heard the commotion and immediately walked into the room and stood just inside the doorway behind Mr Boyes. Mr Boyes turned towards Mr Langley who, given the small space available, was up against the wall. Mr Boyes was centimetres from Mr Langley’s body and face and vice versa. Mr Boyes raised the termination letter towards Mr Langley’s face and was angrily yelling at Mr Langley.
[66] Mrs Langley (and other staff) heard the shouting. Mrs Langley entered the room and tried to get between Mr Boyes and Mr Langley. Mr Boyes said words to the effect “and I’ll show you what your son-in-law did to me yesterday”. He proceeded to jab his fingers into Mr Langley’s chest on at least a couple of occasions. Mr Langley quicky raised his arms in the air in a defensive posture fearing he would be further assaulted. As he did so, and as the two were so close, his fingers connected with a necklace worn by Mr Boyes, breaking it as it fell to the floor. Mrs Langley and other staff managed to intervene. Mr Langley was shouting back at Mr Boyes ordering him to leave. Other staff, including Mr Bubner came between them as the incident moved into the workshop.
[67] In the workshop the shouting continued. Both Mr Langley and Mr Boyes, now distant from each other, were aggressively pointing and yelling. Mr Langley was ordering him to leave, Mr Boyes was shouting that he would call the police, report the business to the authorities and sue them. Mr Boyes, as seen on CCTV, moved towards the workshop exit then, as Mr Langley continued to shout and point, Mr Boyes moved back into the body of the workshop, continued the argument, before then being ushered out by others and left.
[68] Ms Hunter, who had followed the incident into the workshop, rang the police.
[69] Mr Boyes, from the footpath and his car parked outside the premises, also called the police.
[70] The police attended and spoke to the parties concerned. The incident by then had settled and, having been told by the police not to go onto the company property, Mr Boyes departed.
Post-dismissal circumstances
[71] Mr Boyes made good his threat during the altercation on 28 January 2021 that he would ‘see you in court, my brother is a lawyer’. He lodged these proceedings on 7 February 2021.
[72] Mr Boyes has assets that make him ineligible for an unemployment benefit from Centrelink. However he seeks an Employment Separation Certificate from Langley plus a reference to help him obtain work. Through this application, he has made that request of his former employer. He has not received either.
[73] However, in response to a post-dismissal request for a copy of his employment contract and past payslips, on 9 February 2021 Ms Hunter provided Mr Boyes that information 16.
[74] On about 21 February 2021 Mr Boyes registered the business name ‘Paul’s Custom Handrails’ and secured an ABN for the business 17. He hopes to secure some income through that business, relying on his trade skills. The business is yet to trade.
[75] In the eleven weeks following dismissal, Mr Boyes looked at the seek.com website for jobs and applied for one job – approximately one week before the hearing.
Consideration
[76] The issue for determination is simply put: was Mr Boyes’s dismissal harsh, unjust or unreasonable having regard to the considerations in section 387 of the FW Act and, if so, is it appropriate to order a remedy by way of reinstatement or compensation?
[77] No jurisdictional issues arise. Mr Boyes was protected from unfair dismissal within the meaning of section 382 of the FW Act. He served the statutorily required minimum employment period (section 382(2)(a)). His annual rate of earnings did not exceed the high income threshold (section 382(2)(b)(iii)). His employer was a “national system employer” within the meaning of section 14 of the FW Act. His application was filed within the statutorily required 21 days after dismissal took effect.
[78] I am under a duty to consider each of the criteria in section 387 of the FW Act 18, and now do so.
[79] Section 387 of the FW Act provides 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.”
The dismissal
[80] A preliminary matter for consideration is whether Mr Boyes was dismissed on 27 January 2021 (as he claims) or 28 January 2021 (as claimed by Langley).
[81] I conclude that Mr Boyes was dismissed by decision of Mr Langley on the morning of 28 January 2021. I do not conclude that Mr Boyes was dismissed by Mr Bubner on 27 January 2021 when Mr Bubner ordered him to “fucking calm down and get out” or words to that effect.
[82] Mr Bubner’s direction on 27 January 2021 was said in an effort to end the incident that had combusted. Irrespective of whether Mr Bubner added the words (“and come back tomorrow”, which I have found improbable), the words Mr Bubner used were not words of dismissal. They were said in a heated situation and could not reasonably have been taken as a dismissal despite Mr Boyes packing up some of his belongings. When approaching Mr Boyes, Ms Hunter clearly expressed concern to Mr Boyes that he may be dismissed if he did not leave. Had Mr Boyes been listening above his anger he would have understood that Ms Hunter did not believe that he had been dismissed.
[83] Moreover, I accept Mr Bubner and Mr Langley’s evidence that Mr Bubner did not have the authority to dismiss staff. That Mr Bubner spoke to Mr Langley after the incident to report the outburst and discuss it is also evidence that no dismissal had then occurred. So too is the evidence that the next morning Mr Langley conducted his own inquiries and formed his own view on the matter.
Valid reason (section 387(a))
[84] An employer must have a valid reason for dismissal of an employee. It is the Commission’s task to determine if a valid reason exists. The reason(s) should be “sound, defensible and well founded” 19 and should not be “capricious, fanciful, spiteful or prejudiced”20.
[85] In a conduct-based dismissal 21 the test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the alleged misconduct. The Commission must itself make findings as to whether the conduct occurred based on the evidence before it22.
[86] Where an employee is dismissed for misconduct, as in this case, an evidentiary onus rests on an employer to establish that on the balance of probabilities the misconduct occurred 23.
Mr Boyes’s duties
[87] An employee does not simply hold a duty to perform work in a competent manner. An employee’s duties include a duty not to misconduct themselves. The categories of misconduct are not closed. Misconduct includes abusive or threatening conduct, insubordination and assault. These duties to act appropriately are implied by common law. In Mr Boyes’s case a number are specified in his employment contract: 24
“5.2 You also have general duties to:
(a) comply with reasonable directions given to you by the Employer;
(b) at all times act faithfully, honestly and diligently;
(c) ensure you are performing solely work related activities in work time;
(d) exhibit a professional and courteous attitude when dealing with the Employer, its customers, employees, suppliers and other members of the public; and
(e) act in the Employer's best interests at all times.”
[88] Whilst Langley dismissed Mr Boyes for serious misconduct, the Commission is required by section 387(a) of the FW Act to consider whether a valid reason for dismissal existed, not whether serious misconduct is made out. Serious misconduct may be relevant to whether the summary nature of the dismissal was harsh. In any event, the statutory definition of serious misconduct relied upon by Langley in its closing submission exists for other purposes of the FW Act (NES compliance). It is not the proper basis on which to determine whether Langley had a valid reason 25.
[89] I now consider whether, on the evidence before me, the alleged misconduct occurred to the standard of proof required and, if so, whether it collectively or individually constituted a valid reason for dismissal.
Abusive and insubordinate conduct towards Mr Bubner 27 January 2021
[90] Mr Boyes’s conduct towards Mr Bubner on 27 January 2021 was abusive and insubordinate. It was Mr Boyes who first started shouting and swearing in response to Mr Bubner’s first two questions that were firmly but professionally put. After being asked to calm down and not doing so, only then did Mr Bubner lose his composure and respond in type.
[91] Mr Boyes became loud and angry in the office, in the presence of Ms Hunter. Whilst I readily accept that swearing amongst Langley’s building workers, especially on-site or amongst themselves in the workshop was commonplace, this was uncontrolled aggressive swearing in an office environment and directed at a manager.
[92] I am satisfied that Mr Boyes reasonably interpreted Mr Bubner’s second comment (“the one you threw into the bin”) as an accusation that Mr Boyes personally did so. Given that Mr Boyes had not done so, it was right for Mr Boyes to deny having done so. However, in the moment, Mr Boyes denied knowledge of the lounge suite (“what lounge suite”) despite knowing of it, and despite believing that it had been thrown out by the two other workers. He withheld that information from Mr Bubner, not wanting to ‘dob them in’. More seriously, his reaction was a dramatic overreaction. The accusation spontaneously ignited anger. He swore and abused his manger and when asked on at least two occasions to calm down, he refused.
[93] Whilst an incorrect accusation levelled towards and employee properly warrants response and is likely to cause offence, the question was asked in an orderly way and in the course of business. It did not warrant the abusive reaction. The abuse and refusal to calm down was a breach of Mr Boyes’s obligation as an employee to not act aggressively and to follow lawful instructions.
[94] Mr Bubner’s conduct was far from exemplary. Whilst initially being in control, he lost composure, became angry and abusive in return, and in an attempt to make a point and usher Mr Boyes out of the premises, poked and pushed him on more than one occasion.
[95] Mr Bubner’s conduct does not, however, excuse Mr Boyes’s conduct given that Mr Boyes misconducted himself before Mr Bubner lost control.
[96] However, given that Mr Boyes was responding to an incorrect accusation of having disposed of the lounge suite, were this a single and momentary incident of misconduct I would conclude that it justified a warning but not dismissal. However that is not the situation.
Abusive and threatening conduct towards Ms Hunter 27 January 2021
[97] I have not accepted Mr Boyes’s denials that he was not abusive and threatening towards Ms Hunter as she sought to pacify him after the incident with Mr Bubner. I have accepted Ms Hunter’s evidence that Mr Boyes was abusive towards her. I have also found that Mr Boyes swung an extension cord towards her, causing her to take evasive action to avoid being struck in the upper body.
[98] This conduct by Mr Boyes was unprovoked. Whilst he was entitled to be angry at having been poked and pushed by Mr Bubner, his encounter with Ms Hunter was contextually different. Whatever anger he felt, there was no provocation nor excuse for recklessly (if not intentionally) swinging the cord towards Ms Hunter. He did so in a physical manifestation of what he had just said to her – “you can go fuck yourself as well”.
[99] The conduct towards Ms Hunter was aggressive, threatening and a serious breach of duty.
Conclusion on valid reason
[100] Was Mr Boyes’s conduct on 27 January 2021 a valid reason for dismissal?
[101] I conclude it was, in combination and, with respect to the conduct towards Ms Hunter, a valid reason in its own right.
[102] It was conduct which was aggressive, initially unprovoked, and, with respect to Ms Hunter, reckless and threatening. Mr Hunter had good reason to inform Mr Langley the following day that she thereafter felt unsafe being on the premises alone with Mr Boyes. Ms Hunter was entitled to work in a safe and non-threatening environment. The employer had an obligation to provide its employees, including Ms Hunter, with a safe workplace.
[103] There was a valid reason for the dismissal notified at 10.36am 28 January 2021.
[104] Though I have found that Mr Boyes was abusive and threatening towards both Ms Hunter and Mr Langley on 28 January 2021, in coming to this conclusion about valid reason, I do not take into account Mr Boyes’s conduct on 28 January 2021 when returning to the workplace. That was conduct post-dismissal albeit a matter of a mere hour post-dismissal.
[105] The conclusion that a valid reason for dismissal existed weighs against a finding of unfair dismissal.
Notification of the reason for dismissal (section 387(b))
[106] Mr Boyes was notified of the reason for dismissal in the dismissal letter written and signed by Mr Langley and sent on the morning of 28 January 2021. Though he clearly disagreed with the reasons, he was notified of them.
[107] This is a neutral consideration.
Opportunity to respond (section 387(c))
[108] Mr Boyes was not provided the opportunity to respond to the allegations of misconduct that constituted the reasons for dismissal.
[109] As noted, Mr Langley did not consider it necessary to speak to Mr Boyes prior to making his decision to dismiss. He had conducted what he considered a sufficient investigation. He believed that Mr Boyes was prone to outbursts of temper based on earlier experience, and considered that the word of four employees was sufficiently persuasive as to what occurred. He chose to believe them over whatever Mr Boyes might have said given the consistency of what they had told him.
[110] However, none of these factors mitigate the seriousness of the employer failing to give an employee charged with misconduct and at risk of dismissal, an opportunity to respond to the allegations of misconduct.
[111] If Mr Langley was concerned at Mr Boyes being physically present in the workplace (a concern at odds with Mr Bubner’s evidence that he expected Mr Boyes to turn up for work the next day), Mr Langley could have applied work-arounds to obtain his explanation (a phone call if not a meeting in a neutral location).
[112] I accept that it was most unlikely that Mr Langley would have come to a different conclusion had he spoken to Mr Boyes. However, that is not a reason to deprive an employee of an opportunity explain. It does not make a failure to provide the opportunity reasonable.
[113] In this matter, there was much Mr Boyes would have likely said (had he been given a chance) that would have placed some context around the events – especially the incident with Mr Bubner. Mr Bubner had not reported to Mr Langley that he (Mr Bubner) had lost his cool, and poked and pushed Mr Boyes. That would have been a relevant consideration in Mr Langley’s assessment of the misconduct, at least the altercation with Mr Bubner.
[114] This denial of procedural fairness weighs in favour of a finding of unfair dismissal.
Opportunity for support person (section 387(d))
[115] Even though Mr Boyes was not refused a support person, as Mr Boyes was not provided an opportunity to explain, he was not given the opportunity to ask for a support person.
[116] In isolation, this is a neutral consideration.
Warnings concerning performance (section 387(e))
[117] There was no warning or formal counselling concerning Mr Boyes performance or conduct.
[118] Whilst I accept Mr Langley’s evidence that he had some past experience of Mr Boyes being prone to outbursts of temper (and had on one occasion appeased a third party after an outburst), he did not take those issues up in any formal way with Mr Boyes either by warning or counselling. At its highest, Mr Boyes had been casually chatted to but not warned. Mr Langley let it pass, according to his evidence, on the basis that he valued Mr Boyes as worker and considered that some outbursts by men in the building trades cannot always be disciplinary matters.
[119] However, I do not find that the employer condoned previous outbursts such that the misconduct on 27 January 2021 could be mitigated or excused. Nonetheless, the absence of warnings is a neutral consideration.
Size of employer’s enterprise (section 387(f)) and human resource capability (section 387(g))
[120] Langley was not, at the time of dismissal, a small business within the meaning of the FW Act. It was however a family business of relatively small scale and with no dedicated human resource capacity.
[121] I take this into account.
[122] However it does not mitigate the failure to have given Mr Boyes an opportunity to explain. It was entirely within the capacity of Mr Langley to do so.
[123] The size of the business and its lack of human resource capacity is a neutral consideration.
Other matters (section 387(h))
[124] There are no other matters not otherwise dealt with that need to be considered.
Conclusion
[125] This matter concerns summary dismissal for alleged serious misconduct.
[126] As noted, my role is not to review whether the employer had a reasonable basis for its decision but to consider whether, on the evidence before me, the dismissal of Mr Boyes was harsh, unjust or unreasonable.
[127] The onus of proof in establishing that the dismissal was harsh, unjust or unreasonable rests on Mr Boyes, being the applicant.
[128] Unfair dismissal matters are multifactorial 26. I take into account all matters in section 387 of the FW Act, as relevant to this application and as considered above. In arriving at an overall assessment, the statutory considerations must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly27. The Commission will not stand in the shoes of an employer and assess what the Commission would have done had it been in the position of the employer28 but has a statutory obligation to objectively determine fairness given the relevant circumstances.
[129] The ambit of the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 29 as follows:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[130] In reaching my conclusion, I adopt the approach set out by a Full Bench of this Commission in B, C and D v Australian Postal Corporation T/A Australia Post: 30
“[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;
against
(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.
[59] It is in that weighing that the Commission gives effect to a ‘fair go all round’.”
[131] I have concluded that there were valid reasons for dismissal based on misconduct on 27 January 2021 directed towards Ms Hunter. The earlier insubordination by Mr Boyes towards Mr Bubner, whilst not a valid reason in its own right, was a breach of duty relevant to the fairness of the dismissal.
[132] The misconduct was serious and whilst Mr Boyes’s conduct towards Ms Hunter occurred in the shadow of the heated exchange with Mr Bubner moments earlier, Ms Hunter neither acted provocatively nor unprofessionally.
[133] I take into account the observations of a Full Bench of the Commission in Parmalat Food Products Pty Ltd v Wililo: 31
“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”
[134] In this passage both the importance of a valid reason and procedural fairness are emphasised.
[135] Mr Boyes was denied procedural fairness. He was given no opportunity to explain.
[136] A material denial of procedural fairness must be weighed against other relevant factors. As noted, this denial of procedural fairness weighs in favour of a finding of unfairness. However it does not follow that it necessarily renders a dismissal unfair. As observed by a full bench of this Commission in Federation Training v Sheehan: 32
“It is trite to observe that any issue/s of procedural unfairness may not be of such significance as to outweigh the substantive reason/s for an employee’s dismissal, particularly in cases of misconduct where the proven misconduct is of such gravity as to outweigh any other considerations in respect to ‘harshness’, such as age, length of service, employment record, contrition or personal and family circumstances.”
[137] In this matter, I conclude, on balance, that the denial of procedural fairness was so material to the dismissal that it does not outweigh the seriousness of the misconduct. Mr Langley had only half the story of the incident with Mr Bubner and Mr Boyes had his version, albeit coloured by his perspective. Whilst Mr Langley would have been left with the need to decide who started the abusive and heated incident with Mr Bubner, that is the burden of a decision-maker. The materiality of the Bubner incident to Mr Langley’s decision is self-evident from the letter of dismissal. Mr Langley’s evidence that prior to his investigation he had an instinct to try to keep Mr Boyes in employment and not dismiss makes the failure to secure his explanation all the more unfair.
[138] The failure to provide Mr Boyes an opportunity to explain, in these circumstances, is sufficient to render the dismissal harsh.
[139] I conclude that although the employer had good reason to dismiss Mr Boyes for misconduct (particularly having regard to his conduct towards Ms Hunter, which Mr Boyes was also entitled to explain), the dismissal was harsh because the employer failed to offer Mr Boyes an opportunity to explain his conduct.
Remedy
[140] I now turn to the question of remedy.
[141] Remedies available to the Commission under section 390 of the FW Act are reinstatement (in the same or other position) or (but only if reinstatement is inappropriate) compensation (within statutory limits).
[142] Whether to order a remedy is a discretionary matter.
[143] I consider it appropriate to order a remedy but only on the terms outlined below.
Reinstatement
[144] Mr Boyes is not seeking reinstatement.
[145] However, the FW Act requires consideration of whether reinstatement is appropriate.
[146] I consider reinstatement inappropriate. The misconduct was not a singular act, was serious and resulted in an objectively found loss of trust and confidence in Mr Boyes.
[147] In these circumstances, together with the fact that the employer is a privately owned family business, Mr Boyes, if reinstated, would be working alongside those he threatened (including Ms Hunter). It is inappropriate to order reinstatement. Such an order would also be disproportionate to the basis on which I found the dismissal harsh.
Compensation
[148] I turn to the issue of compensation. Section 392 of the FW Act provides:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
[149] I now consider each of the criteria in section 392 of the FW Act.
Viability: section 392(2)(a)
[150] There is no evidence before me to suggest that a compensation order in the quantum determined will adversely affect the viability of Langley.
Length of service: section (section 392(2)(b))
[151] Mr Boyes had nearly three years of service. His work over this period was valued. He had a good work ethic. I take these matters into account though length of service and a good work ethic does not insulate an employee from dismissal, including summary dismissal, for misconduct.
Remuneration that would have been received: section 392(2)(c)
[152] I do not consider that Mr Boyes would have been employed for more than a few days had he not been dismissed on the morning of 28 January 2021.
[153] Had Mr Langley conducted an investigation in which he had obtained Mr Boyes’s version of events, that would have taken no more than one day. To complete a thorough investigation in circumstances where Mr Boyes would in all probability have informed the owner that his manager (Mr Bubner) had himself lost control and acted inappropriately, Mr Langley may well have needed to speak again to Mr Bubner and to those that witnessed the incident. At most, a further day may have been required for Mr Langley to make a decision whether to dismiss.
[154] I take into account some contingency that Mr Langley may not have decided to dismiss once he had a more complete picture of what had happened on 27 January 2021, especially given that he did not particularly want to lose Mr Boyes from the business. However, the incident of concern was not that with Mr Bubner alone. The incident with Ms Hunter on 27 January 2021 would in all probability have led to dismissal irrespective of any matters concerning Mr Bubner. I accept Mr Langley’s evidence that he was very disturbed at being told by Ms Hunter that she felt uncomfortable continuing to work with potential exposure to Mr Boyes.
[155] In these circumstances I conclude that Mr Boyes would only have remained in employment for a further two days until a fair investigation had been completed and a considered decision made.
[156] I do not need to take into account, and do not do so, the post-dismissal altercation in the workplace on 28 January 2021. Whilst, on that basis, Mr Langley in all probability would have dismissed Mr Boyes summarily (and with cause) for his further aggressive and inappropriate behaviour towards Ms Hunter and himself, this incident only arose by virtue of the earlier dismissal. As I am determining an amount of compensation appropriate to the dismissal, and whilst post-dismissal conduct is not necessarily irrelevant to an order for compensation, in this matter I consider it unnecessary to take post-dismissal conduct into account.
Mitigating efforts: section 392(2)(d)
[157] In the eleven weeks since dismissal, Mr Boyes made only limited attempts to mitigate the economic losses arising from his dismissal. He applied for one job, and registered a business name.
[158] The absence of mitigation may ordinarily warrant discount of a compensation order. However as the amount of compensation I consider appropriate to equate only to a period that would have provided for a fair investigation of his conduct, I do not consider it appropriate to discount the compensation order on this account. To do so would render an appropriate amount of compensation less than an appropriate sum.
Remuneration earned: section 392(2)(e)
[159] Mr Boyes earned no income in the compensation period as he was not seeking work nor did he obtain work.
Income likely to be earned: section 392(2)(f)
[160] The period for which I will order compensation (two days) does not extend to a period of projected future work. I will make no deduction on this account.
Other matters: section 392(2)(g)
[161] There are no other matters or contingencies that need be provided for.
Misconduct: section 392(3)
[162] I have found that Mr Boyes materially contributed to the dismissal by misconduct of a serious nature.
[163] This factor would ordinarily warrant some discount of a compensation order. However, as with my consideration of mitigation issues, as the amount of compensation I consider appropriate equates is no more than a period that would have provided for a fair investigation of his conduct, I do not consider it appropriate to discount the compensation order on this account. To do so would render an appropriate amount of compensation less than an appropriate sum.
Shock, Distress: section 392(4)
[164] Mr Boyes was upset by his dismissal.
[165] However, compensation allowable by the FW Act does not include a component for hurt feelings. The compensation order will make no provision for such matters.
Compensation cap: section 392(5)
[166] The amount of compensation I will order does not exceed the six-month compensation cap.
Conclusion on compensation
[167] Whilst an orderly process of quantification of compensation is to be conducted in accordance with established authority, the quantum (if any) ordered ultimately needs to be a sum that reflects the overall exercise of discretionary considerations 33.
[168] I consider it appropriate in all the circumstances to make a compensation order. The compensation amount I consider appropriate is an amount equivalent to two days’ pay.
[169] I consider a compensation order in that sum to be reasonable as it broadly reflects the basis, no more and no less, on which I have found the dismissal to be harsh.
Conclusion
[170] I find that Mr Paul Boyes, a person protected from unfair dismissal, was dismissed by R & G Langley Pty Ltd on 28 January 2021 and that his dismissal was harsh on the ground that he was denied an opportunity to explain his alleged misconduct.
[171] The amount of compensation payable by R & G Langley Pty Ltd under section 392 of the FW Act will be two day’s pay at the ordinary gross weekly rate of pay applicable to Mr Boyes at the date of dismissal.
[172] On the materials before me 34 this equates to $280 (gross) plus 9.5% superannuation ($26.60).
[173] In conjunction with the publication of this decision I issue an order to this effect. 35
[174] As a concluding observation, I note that Mr Boyes is seeking an order that Langley provide a reference and a separation certificate. The Commission has no power to make such orders consequential upon a compensation order. Whilst it is a matter for Langley as to how it deals with these requests, there would appear no impediment to the provision of a separation certificate given that the relevant government form for that purpose deals with both voluntary and involuntary terminations of employment.
DEPUTY PRESIDENT
Appearances:
Mr F Boyes, on behalf of, Mr P Boyes
Mr J Napier, with permission on behalf of, R & G Langley Pty Ltd
Hearing details:
2021
Adelaide
15 April
Printed by authority of the Commonwealth Government Printer
<PR728811>
1 Decision at directions hearing 6 April 2021 confirmed by email ‘Chambers – Anderson DP’ 6 April 2021 1.38pm
2 A12 to A16
3 A17 to A21
4 Statement A1; Further Statement A2
5 Statement R3
6 Statement R1
7 Statement R2
8 Briginshaw v Briginshaw (1938) 60 CLR 336
9 Section 23 FW Act – fewer than 15 employees
10 A4; RL1
11 R3 paragraph 5
12 RL2
13 A3; RL2
14 Mr Bubner 3:02pm
15 Mr Boyes 11:47am
16 A8
17 A9 and A10
18 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
19 ibid
20 ibid
21 except where the Small Business Fair Dismissal Code applies
22 King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 [24]
23 Edwards v Giudice (1999) 94 FCR 561 [6] to [7]
24 A4 clause 5.2
25 Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [33] – [34]
26 Jones v Brite Services[2013] FWC 4280 at [24]
27 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at [36]
28 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685
29 [1995] HCA 24; (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ
30 [2013] FWCFB 6191
31 [2011] FWAFB 1166 at 24
32 [2018] FWCFB 1679 at 55
33 Ellawala v Australian Postal Corporation [2000] AIRC 1151, Print S5109; Sprigg v Paul’s Licensed Festival Supermarket [1998] AIRC 989, Print R0235
34 A8 payslip 25/1/2021: 2 x 8 hours per day @ $35 per hour
35 PR728812
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12
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