[2017] FWC 2680

FAIR WORK COMMISSION

DECISION

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

Mr Paul Braughton
v
Coca-Cola Amatil Limited T/A Coca-Cola Amatil
(U2017/1573)

COMMISSIONER SIMPSON

DARWIN, 10 JULY 2017

Application for an unfair dismissal remedy – dismissal for misconduct – Evidence supports employer’s conclusions – dismissal not harsh, unjust or unreasonable – application dismissed

[1] This matter concerns an application pursuant to s.394 of the Fair Work Act 2009 (the Act) by Mr Paul Braughton who alleges that the termination of his employment from Coca-Cola Amatil Limited T/A Coca-Cola Amatil (CCA) was unfair.

[2] Mr Braughton commenced employment with CCA in November 1998 and was dismissed on 30 January 2017. At the time of his dismissal he was engaged as a Level 5 under the Coca-Cola Amatil (Aust) Pty Ltd Richlands Business Enterprise Agreement 2017 in the Supply Chain Salary Structure. 1 CCA alleges that Mr Braughton engaged in misconduct in respect of two incidents that occurred on 15 December 2016 (the First Incident) and 12 or 13 December 2016 (the Second Incident).

[3] CCA alleges that on 15 December 2016, that Mr Braughton and another employee, Mr Frank Naicker had a verbal confrontation, in which Mr Braughton threatened Mr Naicker by stating “lets go to the carpark and sort this out”. The application itself described the alleged comment as a euphemism that indicates an intention to escalate the matter to a physical altercation. 2 Mr Braughton accepts that a verbal confrontation occurred but denies using words to this effect.3

[4] In regards to the Second Incident, alleged to have occurred in the preceding week, CCA alleges that Mr Braughton made an inappropriate gesture towards Mr Naicker. The gesture, as described by CCA, involves using a thumb and finger to make a gesture “intended to resemble a sphincter” and made inappropriate comments to Mr Naicker. 4 Mr Braughton submits that he did not attend work that day and, at no time previous, did he make the gesture described.5

[5] Mr Braughton submits that there were procedural defects in CCA’s investigation of the incidents; and that having regard to Mr Braughton’s length of service, personal and economic situation, and the seriousness of the allegations, the dismissal was harsh, unjust and unreasonable. 6

[6] The matter was heard in Brisbane on 31 May 2017 and 1 June 2017. At the hearing, Mr Braughton was represented by Mr Simon Ongof United Voice and CCA was represented by Mr John Dwyer of Counsel instructed by Australian Business Lawyers & Advisors.

[7] Three witness statements were filed in support of Mr Braughton’s case, one from himself 7, and statements from Mr Greg Davey, 8 an Organiser employed by United Voice and Mr David Pullen,9 who was employed as a Member Assist Organiser by United Voice. CCA advised at the commencement of the hearing that Mr Davey and Mr Pullen would not be required for cross examination and their statements were admitted into evidence.10

[8] CCA filed statements and called evidence from six witnesses, Mr Frank Naicker, a Production Team Member, 11 Mr Ray Bradnam, a casual contract Production Team Member employed by Programmed Integrated,12 Mr Ken Kunde, a Production Co-ordinator,13 Mr Atiliano Barrio, the interim Production Manager,14 Mr Keith Ford, a Production Manager15 and Mr Michael Van Beest, the Human Resources Business Partner at CCA.16

BACKGROUND

[9] On 16 December 2016, Mr Braughton was stood down from his employment. He said he was rostered to work the afternoon shift commencing at 2.00pm and on arriving for work was informed that he had to report to Human Resources. 17 CCA commenced an investigation into the two alleged incidents. Mr Braughton was issued with the following letter dated 22 December 2016 that set out the allegations:

“Dear Paul,

Issues Requiring Your Response

It is important that relevant standards of performance, conduct and behaviour are maintained in order for the business to operate effectively, and to ensure the safety and wellbeing of our people. When issues arise, CCA strives to investigate those issues thoroughly, fairly and respectfully. In line with the Formal Disciplinary Procedure outlined in section 2.5.2 of the Coca-Cola Amatil (Aust) Pty Ltd Richlands Enterprise Agreement (2011), we have undertaken preliminary investigations in relation to issues that have arisen involving you that require your response. This letter sets out the specific issues that require your consideration, truthful response and are referred to as 'allegations'. The relevant supporting information is also set out below.

If you have any questions in relation to this document, please contact me.

Allegation 1

It is alleged that on 15 December 2016 at approximately 10.00pm you engaged in inappropriate workplace behaviour, inconsistent with CCA's Code of Business Conduct and Working Together policies through the demonstration of threatening or aggressive conduct as well as the use of unsuitable and inappropriate language.

Specifically;

You approached Frank Naicker while he was working at Line 5 in the area where shift changeovers occur and he was talking to Ken Kunde regarding the shift handover.

You moved close to Franks face and made statements to the effect of "don't fuck with my blowmolder". Frank explained that he was training a casual on both the labeller and blowmolder.

You yelled at him that he had taken the key out of the blowmolder (you were referring to the transponder key, which Frank admitted to taking out in order to trouble shoot the machinery).

You then moved closer pointing your finger In Franks face while yelling "don't touch my key", "don't you fuck with my blowmolder".

Following a response that it was not your blowmolder but the companies you went on the yell "don't fucking touch it, because l get blamed for it".

Frank told you to "just go home" which you responded "lets [sic] go to the carpark and sort this out".

Frank responded "Just fuck off' and start walking away and you followed as he made his way to the production office.

You stated "I thought we were going to the carpark" Franks responded "I'm going to the office to talk to Ati (Team Manager) so that we can sort this out with a manager.

You then stated "no, don't be a girl" before restating "let's go out to the carpark". Frank then walked away from you to locate Ati.

If substantiated this allegation is considered a serious breach of the following:

Working Together policy- Responsibilities- Not getting engaged in any form of inappropriate behaviour or conduct or using an inappropriate tone or words. Specific examples of inappropriate behaviour which would reasonably be considered harassment [sic], threat of violence, unsuitable or offensive language and aggressive conduct.

Code of Business Conduct - Performing your duties - Failing to comply with the Code, CCA's policies, procedures and the law, behaving Inconsistently with CCA Values, failing to be fair and show respect to your colleagues

Coca-Cola Amatil Richlands Business Enterprise Agreement (2011)- S2.3 Working Together

Information supporting the above allegation is as follows:

Code of Business Conduct 4.3 - Performance of Duties

Working Together Policy- Section 3 Responsibilities, Seetin 4.2 Unacceptable Behaviour Examples

Coca-Cola Amatil Richlands Business Enterprise Agreement - S2.3 Working Together

Training Record for attendance at Supply Chain Safety Festival 20/07/2015 incorporating core policy refresher including Working Together Policy

Witness Statements x 2

Allegation 2

It is alleged that on 10 December 2016 at approximately 10.00pm you engaged in inappropriate workplace behaviour, inconsistent with CCAs Code of Business Conduct and Working Together policies and that would be reasonably considered harassment of a sexual nature, i.e. unwelcomed conduct of a sexual nature which makes another person feel offended, humiliated or intimidated.

Specifically;

You approached Frank Naiker [sic] while he was working on the labeller at approximately 10.00pm you did not engage in any greeting or say anything. Using your thumb and finger you made a gesture intended to resemble a sphincter in Franks direction and while moving you finger and thumb slightly and made a statement to the effect of "your ass is this tight" repeating this a number of times but suggesting to Frank that he should bend over a bit more for the company.

If substantiated this allegation represents breach of the following:

Working Together policy- 3. Responsibilities- Not getting engaged in any form of inappropriate behaviour or conduct or using an inappropriate tone or words. 4.1 Harassment/Discrimination/Workplace Bullying (Definition) and 4.2 Unacceptable Behaviour Examples- examples of inappropriate behaviour which would reasonably be considered harassment, insults or taunts based on sex, unsuitable or offensive language and offensive hand or body gestures.

Code of Business Conduct- Performing your duties- Failing to comply with the Code, CCA's policies, procedures and the law, behaving inconsistently with CCA Values, failing to be fair and show respect to your colleagues

Coca-Cola Amatil Richlands Business Enterprise Agreement (2011)- 82.3 Working Together

Information supporting the above allegation is as follows:

Code of Business Conduct 4.3 - Performance of Duties

Working Together Policy- Section 3 Responsibilities, Section 4.0 Harrassment [sic] /Discrimination/Workplace Bullying and 4.2 Unacceptable Behaviour Examples

Coca-Cola Amatil Richlands Business Enterprise Agreement- 52.3 Working Together

Training Record for attendance at Supply Chain Safety Festival 20/07/2015 incorporating core policy refresher including Working Together Policy

Together the above allegations are considered serious misconduct due to the breaches of core CCA policies intended to protect the health safety and well being [sic] of our employees and maintain a harmonious working environment.

You are required to attend a meeting to respond to the above Allegation(s) which will be held at HR Meeting Room on 04 January 2017, commencing at 14:00.

The following people will be attending the meeting on behalf of CCA:

Keith Ford - Production Manager

Jhana Clarke - State HR Business Partner

Support Person

You are welcome to have a support person present with you at the above scheduled meeting. A support person can be anyone of your choosing, including a representative or family member. However, a support person may be refused where that support person may be involved, directly or indirectly, in the issue at hand. In those circumstances you may choose another support person.

If you intend to have a support person present, we ask that you notify us prior to the meeting who that person will be.

Potential Outcomes

In the event the above allegation(s) are, on the balance of probabilities, substantiated, this investigation may, subject to your responses, result in disciplinary action up to and Including termination of employment.

Compliance Requirements

During this investigation it is important that you adhere to the following directions:

1. The above issues must remain confidential and must not be discussed with other persons (other than your support person), until this matter is resolved;

2. You must not interfere, directly or indirectly, with this investigation in any way; and

3. You must respond honestly in this investigation.

Failure to adhere to these directions or other interference with the investigation may result in disciplinary action, and in serious cases, termination of employment.

Further support

We understand that receiving a letter of this nature can be difficult. Should you require additional support during this time, the Employee Assistance Program offers free and confidential counselling and other support. This is at no cost to you or your immediate family. For an appointment or further advice, please contact Assure on [redacted].

Yours sincerely,

Keith Ford

Production Manager”

[10] On 4 January 2016, Mr Braughton met with Mr Keith Ford, Production Manager of CCA and Jhana Clarke, State HR Business Partner of CCA. At the meeting, Mr Braughton tendered a brief written account of his recollection of the events:

“15 December 2016 approx 21.50

Shift change

Blowmoulder screen:

Kieran arrived at work station for start of shift

Told Kieran." that the blowmoulder was operating well, but I've have noticed the manual key was stiff in the lock, if you're not careful it feels like it's going to snap off in the lock."

I then asked him. "if the blowmoulder door had came [sic] back and hit the key", he replied" no," not that he was aware, he then told me that Frank had taken the blowmoulder key out and tried it in the filler key lock because the filler key I transponder key wasn't working. End of Discussion with Kieran.

On my way out I approached Frank and asked him if he was aware of the blowmoulder key was stiff in the lock and did you remove the key he replied " no. I replied well Kieran told me that you took the key out of the blowmoulder. Frank then admitted to taking out the key because the filler key I transponder key weren't working. . This is when I stated don't start switching fucking keys, you may have put the key back upside down. I 'am sick of my blowmoulder being fucking damaged and nobodies reporting the damage.

Frank: Fuck off, Go fuck yourself I haven't damaged fucking anything .and you can't talk to me like that.

(Frank was pointing his finger at me angrily).

Paul: You fuck off, stop swapping the keys around you'll end up fucking my blowmoulder, and you stop speaking to me like that.

(I was doing the same finger pointing back angrily).

Frank: it's not your Fucking blowmoulder, it's the companies.

Paul: I know it's not my fucking blowmoulder but I 'am responsible for it and I don't what to get the fucking blame for the damage.

Ken : Hey stop it, Paul go home.

I turned away to walk out as asked to by ken, and as I did Frank said

Frank: Yeh just fuck off and go home

I then turned back and said

Paul : ok let's go and get this sorted out- (let's go and see Ati)

Frank then walk passed me saying

Frank: Came on then let's go.

Frank then swung the safety gate along the walkway near the syrup room door that hard it hit the P.P.E boxes, entrance to syrup room.

Paul : I sung out that's what I'm talking about frank, that's how things are getting broken.

Frank and I walked in toilet side of production office, but it was locked and empty.

Frank: Ati isn't in there.

Paul : well sort this out tomorrow then.

I walked out grabbed a drink stopped for a second to check for any sign of a manager thru entrance of the production office door opposite the canteen doors and then clocked off, Frank walked back towards the production line.

Allegation 2

I have no recollection of this allegation, for one I wasn't working on the 10th of December, I had finished my shift on Friday the 9th of December at 6 am, with Frank starting at that time. As for the thumb and finger gesture I have no recollection of either, this so called gesture is not something I would ever use in my professional or personal life.

I actually have no idea what this allegation is about, as it has the wrong date the wrong time so to me it seems as this is a false allegation just to get me into more trouble.

How I can be suspended (at Christmas) when no one has actually heard my side of these allegations has caused me great angst and anxiety, not knowing whether I have a job to come back to or not, has not made for a happy Christmas for myself or my family.”

[11] Following this meeting, on 9 January 2017 CCA sent a further email to Mr Braughton requesting more information regarding the Second Incident:

“Hi Paul,

Following the response meeting last week with Jhana Clarke and Keith Ford, we would like to provide you with an opportunity to review to your response regarding allegation 2 should you need, based on additional information around when the event occurred.

To clarify, the incident referred to in allegation 2 regarding the inappropriate gesture occurred in the week immediately prior to the incident that occurred on the 15 December 2016 as outlined in Allegation 1. In your response to a question from Jhana Clarke asking if you had made any gestures to Frank or others, even in jest, that may have been intercepted by Frank in last shift, to which you responded no. To ensure that we are clear, have you made any such gesture towards Frank or others in the week preceding the 15 December 2016 or any other time?

Please advise if you would like to add anything further to your response based on the above information.

Regards

Michael Van Beest

HR Business Partner - QLD”

[12] On 10 January 2017, Mr Braughton provided the following response:

“Hi Michael,

I feel that I have proven this allegation to be false and answered no.

Your questions really need to be directed to the person that made this allegation statement. I have made my comments in the meeting with Jhana Clarke and Keith Ford "I do not use this form of gesture and again reiterate I did not make a gesture to Frank". Now it's not just Frank, but others. Has the allegation changed or has "others" made a complaint on any other date referred to in your email or the allegation letter". My response again is no. I did not make a gesture to others.

Thank you

Kind Regards

Paul Braughton”

[13] On 16 January 2017, following the conclusion of its investigation, CCA issued a show cause letter to Mr Braughton:

“Dear Paul,

Your employment - Serious Misconduct

I refer to our letter dated 22 December 2016 which set out a number of serious allegations against you, and your subsequent .response to those allegations both in writing and in person on 4 January 2017. I also refer to the clarifying allegation email of 9 January 2017 and your email response of 10 January 2017.

Outcome of investigation

CCA has given due consideration to your responses, and to the extent that you deny the allegations against you, CCA considers your responses to be unsatisfactory as they are inconsistent with witness accounts. Based on the extensive investigation that has been undertaken; CCA finds on the balance of probabilities, the allegations are substantiated. It is found that you have failed to comply with CCA Policies, namely:

Working Together policy- not engaging in any form of inappropriate behaviour or conduct or using an inappropriate tone or words;

Code of Business Conduct -failing to be fair and show respect to your colleagues; and

Coca-Cola Amatil Richlands Business Enterprise Agreement (2011)- S2.3 Working Together.

CCA considers that your conduct towards your colleague Frank Naicker on 15 December 2016, including but not limited to moving close to Frank's face and saying words to the effect of "don't fuck with my blowmolder" and the implied threat of violence by suggesting to Frank that you take the conversation to the carpark, is unacceptable. This behaviour demonstrates a disregard for the wellbeing of your colleagues, the best interests of CCA, CCA's Working Together Policy, Code of Business Conduct and your general conditions of employment under the Richlands Coca-Cola Amatil (Aust) Pty Ltd Richlands Business Agreement (2011 ).

As such, your conduct and involvement in this matter and your subsequent denial of the incident, despite it being witnessed by other employees, has substantially damaged our employment relationship and CCA considers that it has no other option but to terminate the employment.

Show cause meeting

While CCA believes it has a valid reason to terminate your employment, a final decision has yet to be made. Accordingly, you are being provided with an opportunity to show cause as to why your employment should not be terminated. You should take this opportunity to show cause very seriously and be prepared to raise all matters that you wish CCA to take into account before a final decision is made.

A meeting for this purpose has been scheduled as follows:

HR Meeting Room, 260 Orchard Rd Richlands on 20 January 2017, commencing at 13:00.

This meeting will give you the opportunity to show cause, (provide reasons), as to why your employment should not be terminated. You are welcome to bring a support person of your choice with you to the meeting.

If you do not attend the meeting, without reasonable cause, and we do not hear from you by the timeframe outlined above, CCA will proceed to make a decision based on the information currently available.

The above issues must remain confidential and must not be discussed with others (other than your support person), until this matter is resolved.

We are mindful that this may be a difficult time for you and we again encourage you to take advantage of our Employee Assistance Program (EAP). For an appointment or further advice, please contact Assure on [redacted].

If you have any questions, please call me.

Yours sincerely,

Keith Ford

Production Manager”

[14] Mr Braughton attended the meeting on 20 January 2017 and provided the following written response:

“To Whom it may concern

My name is Paul Braughton; I am a father of two school age girls and the primary provider of income in my household.

Firstly I would like to start this letter with another apology regarding the allegations. I know the way in which I handled the situation by yelling and swearing was not appropriate behavior [sic] and will never happen again. The only reason this argument started was because I was concerned that CCA machines were not being looked after properly, which I believed by addressing it was in the best interest of the company, if something like this happens in the future I will address it with management only.

As for disregard for the wellbeing of my colleagues, the person who made these allegations, Frank fell quite ill at work a few months ago and I was the only person from our area that rang him twice while he was off work just to see if he was ok.

I have worked at CCA for 19 years and have always believed it to be a great company to work for and to be a part of. I have worked in most areas of CCA from the warehouse, syrup room, production lines and inventory therefore I feel I have a great understanding of how the company works as a whole.

I challenge myself to make a difference everyday in my job by targeting syrup yields, volume control and OEE; I can also operate multiple machinery over dual lines.

If you terminate my position at CCA the effect on my family would be devastating financially and emotionally. I have a mortgage to pay, two girls aged 10 and 13 to support and my partner who solely relies and depends on me. We also have elderly parents who between them have been suffering with their health and we try to help them out as much as we can. The loss of my job would not only affect me but would also cause much stress for the entire family unit.

I have no ill feeling towards any party or person involved in the incident, ~~all I need to do is return to work and do my job~~ [sic].

Kind Regards

Paul Braughton”

[15] On 30 January 2017, Mr Braughton attended a meeting with CCA and was issued with the following termination letter:

“Dear Paul,

Termination of Employment

I refer to our meeting on 20 January 2017 in which you had the opportunity to show cause as to why your employment should not be terminated as a result of the substantiated allegations of misconduct relating to your conduct towards another CCA employee. These allegations were put to you in writing on 22 December 2016 and 9 January 2017 which you responded to both in writing and in person on 4 January 2017 and 10 January 2017.

CCA has considered the responses you provided in the show cause meeting and any relevant mitigating circumstances offered by you, along with your employment history with CCA.

After considering the allegations put to you, your responses to the allegations and the information you provided in response to the show cause opportunity and in the circumstances, CCA has made a decision to terminate your employment, with notice. In making this decision we have taken into account your responses to the show cause meeting where you:

Outlined your responsibilities as the primary provider of income for your household and the financial impact termination would have;

Acknowledged and apologised for acting inappropriately and used inappropriate language/tone (yelling/swearing);

Highlighted your 19 years of service and the capability and understanding of the operation that you have developed over that time; and

Stated your willingness to attend training or counselling to address appropriate communication in the workplace

Despite these responses, the seriousness of your conduct in behaving inappropriately towards another CCA employee is unacceptable and demonstrates disregard for the wellbeing of your colleague, your obligations under Work Health and Safety legislation, CCA's Working Together Policy, Code of Business Conduct Policy and your general conditions of employment under the Coca-Cola Amatil (Aust) Pty Ltd Richlands Business Enterprise Agreement 2011.

As a result, CCA considers it has no other option but to terminate the employment. Accordingly, the employment will terminate effective Monday 30th January 2017. You will be paid 5 weeks in lieu of notice in accordance with your entitlements under the Coca-Cola Amatil (Aust) Pty Ltd Richlands Business Enterprise Agreement. You will also be paid any accrued but untaken annual leave or long service leave (if applicable). A final payslip will be sent to you in due course.

You are required to immediately return remaining company property in your possession or arrange suitable return no later 12 pm Friday 3rd February 201 [sic].

Finally, we would like to remind you of your ongoing obligation (even after your employment ends) to keep confidential any confidential information you have obtained knowledge of during the course of your employment with CCA. You must not. At any time, use or disclose, either directly or indirectly, any confidential information. This does not apply to any information already in the public domain. If CCA becomes aware of a breach of this obligation, appropriate action will be taken.

Yours sincerely,

Keith Ford

Production Manager”

RELEVANT PROVISION

[16] Pursuant to s.385 of the Act:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

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

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

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[17] Section 387 of the Act relevantly provides:

“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.”

HARSH UNJUST OR UNREASONABLE

[18] There are a number of factual disputes to be resolved in that matter surrounding the two incidents that led to the decision to dismiss. I will address the various factual disputes in the course of considering the elements of s.387.

Valid Reason for Dismissal – s.387(a)

[19] CCA relies on the conduct of Mr Braughton in respect of the First and Second Incidents to provide a valid reason for the dismissal. Mr Braughton submits that the reasons provided for the termination are “not defensible or justifiable on an objective analysis of the facts”. 18 He concedes that his conduct in respect of the First Incident “leaves something to be desired”,19 however submits that it was not sufficiently serious to provide grounds for dismissal, having regard to the relevant circumstances surrounding the incident.

[20] CCA submits, taking into account the First Incident and the Second Incident occurring the week previous, Mr Braughton’s conduct gives rise to a valid reason for dismissal. 20 In relation to the First Incident, CCA submits that Mr Braughton used words intended to escalate the matter to a physical altercation. It was said no particular issue was taken around the swearing, it was the threat of violence that is the most serious behaviour that attracted the sanction of dismissal.21

First Incident 15 December

[21] CCA submits that it was not in dispute that Mr Braughton was verbally abusive toward Mr Naicker on 15 December, or that he initiated the abuse as Mr Braughton conceded this in his own statement and the course of his oral evidence. 22 It was accepted that Mr Naicker reciprocated.

[22] CCA asserts that Mr Braughton became abusive on forming the view that Mr Naicker had been untruthful to him about removing a key from the blow moulder, and Mr Naicker only reciprocated in respect of language used after Mr Braughton initiated it. CCA asserted Mr Naicker was provoked to the behaviour by a threat to take the matter to the car park.

[23] Mr Braughton approached Mr Naicker and submits that the following conversation occurred:

“Mr Braughton: Did you know the blow moulder key was stiff in the lock? Did you remove the key?

Mr Naicker: No.

Mr Braughton: Well Kieran told me that you took the key out of the blow moulder.

Mr Naicker: Well yes, I took it out because the filler transponder key wasn't working.

Mr Braughton: Don't start switching fucking keys, you might have put it back upside down. I'm sick of my blow moulder being fucking damaged and nobody reporting the damage.

Mr Naicker: Fuck off, go fuck yourself. I haven't damaged fucking anything, and

you can't talk to me like that [Mr Naicker pointing his finger at Mr Braughton].

Mr Braughton: You fuck off, stop swapping the keys around or you'll end up fucking

my blow moulder, and you stop speaking to me like that [Mr Braughton pointing my finger at Mr Naicker].

Mr Naicker: It's not your fucking blow moulder, it's the company's.

Mr Braughton: I know it's not my fucking blow moulder, but I am responsible for it and I don't want to get the fucking blame for the damage.” 23

[24] Mr Braughton denies attempting to provoke or instigate a physical altercation. However, he submits that if the conduct could be seen to be a “threat”, there is no evidence to suggest that the conduct is indicative of his conduct in the future. 24

[25] Mr Braughton accepted that he used a raised voice, was swearing and displayed a degree of aggression. Mr Braughton evidence was to the effect that both he and Mr Naicker were yelling and finger pointing. 25 He said they were close to each other.26

[26] Mr Braughton denied that he lost his temper. It was accepted Mr Naicker responded with swearing as well and a raised voice. 27

Did Mr Braughton say to Mr Naicker words to the effect of “Let’s go sort this out in the carpark”, and if so did that constitute a threat to Mr Naicker?

[27] Mr Braughton claimed that he could not recall saying the words “Let’s take this to the car park.” 28 His version of events at this point of the exchange was as follows:

“42. Both Mr Kunde and I were angry and loud at (sic) in this conversation.

43. At this time, Mr Kunde intervened in the discussion, and said words to the effect of “Hey stop it. Paul, go home.”

44. I said nothing but turned to leave and walked away.

45. When I was about 4 or 5 meters from Mr Naicker, he said words to the effect of, “Yeah, just fuck off and go home.”

46. I stopped, turned back to Mr Naicker and said words to the effect of, “Ok, let’s go and get this sorted out.”

47. At the time, by saying “let’s sort this out” I meant, “Let’s go see Production Team Manager, Arti to sort this out”.

48. I don’t recall saying the words, “Let’s take this to the car park.”

49. Mr Naicker walked past me and said, “Come on then, let’s go.”

50. Mr Naicker and I left the production area together.

51. I recall Mr Naicker aggressively swung open the safety gates along the walkway near the syrup room door, hard enough that it hit the PPE boxes behind the gate.

52. After Mr Naicker swung the gate I said words to the effect of, “That’s what I’m talking about Frank, that’s how things get broken.”

53. Mr Naicker and I continued together to Arti’s office but on arrival discovered it locked and unattended.

54. Mr Naicker said “Arti’s not here.”

55. I responded “Well we’ll sort this out tomorrow then.”

56. As it was the end of my shift, I went to leave, and stopped to grab a drink from the canteen.

57. Before exiting the canteen, I looked through the canteen doors towards to (sic) production team manager’s office to see if Arti had returned, but the office still looked unattended.

58. I noticed that Mr Naicker had returned to the production line.

59. I clocked off and proceeded home.”

[28] In his oral evidence Mr Braughton continued to maintain he could not recall saying “Let’s sort this out in the carpark.” 29 In his oral evidence he said machines were being damaged and he was trying to get his point across.30 He claimed he did not want to fight anybody.31 He accepted that if a person had said “Let’s go out in the carpark and fight about this” then that is the sort of thing a person would lose their job over.32 Mr Braughton accepted that in the course of the show cause process he denied having made the statement alleged which is different to saying, as he now did, that he couldn’t recall saying it.

[29] Mr Naicker’s version of the conversation as set out in his witness statement was as follows:

5. Paul (Braughton) approaches me and comes up close to my face and says words to the following effect:

Paul: “Did you take the key out of my blow moulder?”

Me: “Yes.”

Paul: “Don’t fuck with my blow moulder”

Me: “What are you talking about? I’m training 2 contractors on labeller and blow moulder.”

Paul: (Yelling at me) “You took the key out of the blow moulder.”

6. Paul was referring to the transponder key which I had taken out because the filler wasn’t working and I couldn’t reset it. Part of the normal trouble shooting process is to take the key out and put it back in to see if that would get the line going.

7. Paul was continuing to yell at me. At this point he was up close and pointing his finger in my face and said words to the following effect:

Paul: “Don’t touch my key”, “don’t you fuck with my blow moulder” and “You could have put the key in upside down”.

8. This is not possible due to the shape of the key. I replied with words to the following effect:

Me: “It’s not your blow moulder, it’s not mine, it’s the company’s blow moulder.”

Paul: (yelling) “Don’t fucking touch it, and don’t fuck with my blow moulder because I get blamed for it.”

9. Paul was still up in my face. I felt that he was becoming really abusive so I then raised my voice as well. I said words to the following effect:

Me: “It is past your finish time and I have to do a shift change”.

Paul: “Let’s go to the car park and sort this out”.

Me: “What? “Just fuck off”.

Paul: “Let’s go out to the car park and sort this out”.

Me: “Let’s go sort it out.” (Meaning going to the manager)

10. I then started walking and he must have thought I was going to the car park and so he followed me. I was not going to the car park, I was going to the manager’s office (production office). When I got to the office, the door was locked. Paul then said words to the following effect:

Paul: “I thought you were going to the car park”.

Me: “I’m looking for Ati, so we can sort this out with the manager”.

Paul: “No, don’t be a girl, let’s sort this out in the car park”.

11. As Ati wasn’t there, I went into the canteen to see if Ati was there. Paul followed me to the canteen. When Ati wasn’t there, I call Ati on the phone and explained what happened and that this needed to stop. Ati offered to return to the office at this point and I no(sic) will follow up with Rob when he gets in. I don’t know where Paul went then.”

[30] Mr Bradnam in his statement dated 10 May 2017, recalls that Mr Braughton suggested to Mr Naicker that they “sort it out in the car park”. 33 Mr Bradnam’s evidence on this was clear and consistent.

[31] Mr Kunde’s evidence in his statement dated 15 May 2017 varied from the evidence of both Mr Braughton and Mr Naicker in terms of what was said and when it was said during the exchange. His evidence was that he believed Mr Braughton initiated the incident and Mr Braughton’s behaviour was unacceptable. His evidence on what Mr Braughton said included that he said to Mr Naicker “if you want to sort it out, we can go to the car park.” 34 Mr Kunde said he did not remember the exact words of Mr Naicker’s response and there was some swearing. Mr Kunde said he told Mr Braughton to “fuck off and go home” and said to Mr Naicker “fuck off back to the blow moulder”. He said around this time Mr Naicker pushed him aside and left and Mr Naicker was shaking.35

[32] Mr Barrio the Interim Production Manager gave evidence that around 10.15pm he received a phone call from Mr Naicker and Mr Naicker sounded distressed, upset and angry. His evidence was to the effect that Mr Naicker told him Mr Braughton had been abusing him and he had been putting up with it every day. Mr Barrio included in his evidence that Mr Naicker has told him Mr Braughton had said to Mr Naicker to “….take it outside to the car park to sort out.” 36

[33] Mr Ford, the Production Manager and the ultimate decision maker concerning the termination gave similar evidence concerning the nature of claims made by Mr Naicker to him on the morning of 16 December about Mr Braughton’s conduct toward him. 37 Mr Ford said in that meeting the next morning Mr Naicker was visibly upset, and broke into tears. Mr Ford said it was clear to him Mr Naicker had taken the comment from Mr Braughton as a personal threat.38

[34] Mr Van Beest the Human Resource Business Partner said he first became aware of the altercation the following day through discussions with the Human Resource Team following Megan Norton meeting with Mr Naicker that morning to discuss the incident. Ms Norton took notes of the meeting that Mr Van Beest attached to his statement. Mr Braughton was stood down on full pay later that day. Mr Van Beest provided an overview of how the allegations were investigated and the ultimate decision taken by Mr Ford to terminate Mr Braughton. 39

[35] It is said for Mr Braughton that, applying the Brigginshaw test, the evidence concerning the first incident was imprecise and cannot be sustained. 40

[36] It was conceded for CCA there were some inconsistencies between the evidence of Mr Naicker, Mr Kunde and Mr Bradnam. 41 CCA argued these inconsistencies were not significant. Further it was said that despite the inconsistencies on each account of Mr Naicker, Mr Kunde and Mr Bradnam, Mr Braughton was the aggressor and instigator, and each of those three heard Mr Braughton say words to effect as alleged concerning the car park.

[37] Mr Naicker and Mr Kunde’s evidence is contradictory in that Mr Naicker claimed when he said to Mr Braughton, “Let’s go sort it out” Mr Naicker claimed he was referring to going to speak to Mr Barrio in management, whereas Mr Kunde said Mr Naicker responded to Mr Braughton by saying “Let’s go” and indicated he had taken Mr Naicker to mean to the car park. 42 CCA submitted that Mr Naicker never said the words “Let’s go to the carpark”.

[38] I accept Mr Naicker’s evidence that he was referring to going to Mr Barrio’s office for the simple reason that is what he did. Beside the impression of Mr Kunde that he thought Mr Naicker was accepting an invitation to the carpark, there is nothing else to support that view. As was pointed out by CCA in closing submissions Mr Braughton’s own case has been that he never said “Let’s go to the carpark” so it is difficult to now be asserted for Mr Braughton that Mr Naicker was accepting such an invitation. Mr Braughton himself never made such an assertion.

[39] Having weighed the evidence of the four witnesses who could give direct evidence concerning the exchange between Mr Braughton and Mr Naicker I am satisfied that Mr Braughton did say words to the effect of a challenge to Mr Naicker to sort the issue out in the car park as claimed by CCA. Mr Braughton’s position changed from being a denial of the allegation during the investigation process to being that he could not recall saying it at the hearing. The three witnesses in CCA’s case all had Mr Braughton using similar language.

[40] Mr Braughton’s version of the exchange has Mr Naicker saying to him “Yeah, just fuck off and go home” before Mr Braughton claimed he said to Mr Naicker “OK, let’s go and get this sorted out”. Mr Naicker’s version is that Mr Braughton first challenged him to go to the car park before Mr Naicker told him to “Just fuck off”. Mr Kunde denied Mr Braughton’s version. 43 On balance I prefer Mr Naicker’s version as the other witness Mr Kunde rejected Mr Braughton’s version and it fits more comfortably with my earlier finding concerning how the exchange proceeded.

[41] It was put for Mr Braughton that even if he did say “Let’s take this to the carpark” that is not an unequivocal threat to Mr Naicker. It was said there is no evidence the car park was notorious for fights, and no other words inviting violence were used. I do not accept this submission. The expression is well understood to be intended to mean a challenge to have a physical altercation and on that basis constituted a threat to Mr Naicker.

Did Mr Naicker accept an offer to go to the car park?

[42] It was submitted for Mr Braughton that on Mr Naicker’s evidence if Mr Braughton offered to take the matter to the carpark Mr Naicker accepted the challenge. I am not satisfied that Mr Naicker accepted the challenge and prefer his evidence as already stated that he was attempting to go and see Mr Barrio. This is consistent with the evidence concerning what he did and where he went immediately following Mr Braughton’s challenge to go to the car park. I reject Mr Braughton’s claim during his evidence that it was his idea, and not Mr Naicker’s to take the matter to the Production Team Manager Mr Barrio. 44

[43] There is evidence however to suggest that Mr Braughton, at least for a short time believed Mr Naicker’s accepted his invitation to the car park. Having formed the view that Mr Braughton did say words to effect of “Let’s take this to the car park”, in this context Mr Braughton’s witness statement concerning events immediately after this sheds light on the issue. Mr Braughton claimed that Mr Naicker walked past him and said “Come on then, let’s go.” 45 Mr Naicker’s evidence was to effect that Mr Braughton must have thought he was going to the car park and that Mr Braughton said to Mr Naicker “I thought you were going to the car park”, and “No, don’t be a girl, let’s go out to the car park.” Mr Naicker’s witness statement is consistent with the statement the day after the incident on this point.46 Mr Naicker also gave evidence that from where he was the direction of the manager’s office was the same as the direction of the car park.47

[44] The written record of the incident made by Mr Kunde the next day as attached to his statement 48 also supports the conclusion that Mr Kunde formed the view at the time (incorrectly) that Mr Naicker had accepted Mr Braughton’s invitation to the car park.

[45] The conclusion that Mr Braughton had formed the view (contrary to his evidence) that Mr Naicker intended to go to the car park is consistent with the evidence overall, and is also supportive of Mr Naicker’s claim about what Mr Braughton later said to him to the effect that Mr Braughton thought he was going to the car park, and the claim that Mr Braughton repeated the challenge by saying outside Mr Barrio’s office “No, don’t be a girl, let’s go out to the car park”.

[46] There was a dispute in the evidence as to whether Mr Naicker aggressively swung open the safety gates as he left the production area. Mr Naicker denied that. 49 I am inclined to prefer Mr Naicker’s evidence on the point however nothing of particular importance turns on it.

Who instigated the incident?

[47] Mr Braughton accepted that he approached Mr Naicker about the key. Mr Braughton claimed that he was not initially aggressive when he approached Mr Naicker, however he claimed when Mr Naicker initially denied he had touched the key contrary to what Mr Braughton had been told he said the words he did. 50

[48] Mr Naicker’s evidence which Mr Braughton appeared to accept was that Mr Braughton was referring to the transponder key which Mr Naicker had taken out because the filler wasn’t working and he couldn’t reset it. Mr Naicker said that part of the normal trouble shooting process was to take the key out and put it back in to see if that would get the line going. 51 I accept on the evidence that Mr Braughton instigated the incident.

Second Incident – alleged offensive gesture and comments

[49] CCA submits that on either 12 or 13 December 2016, Mr Braughton:

“made a rude hand gesture by curling up his index finger and placing his thumb around it and telling Mr Naicker that his arse was tight and that he should bend over more for the company and get fucked up the arse in response to Mr Naicker agreeing to perform overtime”. 52

[50] Mr Braughton denies making such a gesture as alleged at any time. 53 He submits that the only rude or offensive gestures he makes occurs while handling cartons on the production line. Further, he submits that he was not at work on 10 December 2016.54

[51] Mr Ford accepted that a precise date for the second incident was not identified to Mr Braughton. 55 Mr Van Beest accepted that the letter sent to Mr Braughton of 22 December 2016 setting out the issues to be responded to was incorrect in regard to the date of 10 December being the date of the alleged second incident, and it emerged at a meeting on 4 January 2017 that Mr Braughton was not at work on that date.56 A subsequent email sent to Mr Braughton on 9 January 2017 stated that the incident referred to as allegation 2 occurred in the week immediately prior to the incident on 15 December.

[52] Mr Naicker said in his statement that his reaction to Mr Braughton was the result of several ongoing issues he was experiencing with Mr Braughton. Mr Naicker said that earlier in the same week, either on the Monday or the Tuesday at approximately 10pm during the shift changeover, Mr Braughton approached him at shift changeover and made a rude hand gesture. Mr Naicker said it was Mr Braughton curling his index finger and placing his thumb around it. Mr Naicker claimed that Mr Braughton said words to the following effect:

Paul: “your arse is this tight”; “your arse is this tight”; “You should bend over more for the company and get fucked up the arse”. “You need to bend over more”.

[53] Mr Naicker said he was asked to work the previous Saturday day shift to run the line with the contractors to finish the production schedule. Mr Naicker claimed that on previous occasions when he had agreed to do additional hours, Mr Braughton had approached him and bent over so that his back side was facing towards him and said words to the effect of:

Paul: “Here have some more, get fucked up your arse” and “Frank you need to get fucked up the arse more from the company”.

[54] Mr Naicker’s evidence was he was offended and viewed it as harassment. Mr Naicker accepted that he hadn’t complained of those incidents until after 15 December but claimed he had told Mr Braughton to stop twice, and had warned him. 57 He said he hadn’t reported it because Mr Braughton had been doing it for so long.58

[55] Mr Kunde in his statement dated 15 May 2017 recalled that he observed Mr Braughton made a gesture towards Mr Naicker, which he describes as Mr Braughton “joining his second finger and thumb in a circle and putting the second finger of the other hand through it”. 59

[56] Mr Kunde said he observed the gesture on the Monday or Tuesday before 15 December 2016 incident. Mr Kunde said while making the gesture Mr Braughton said to Mr Naicker words to the effect of “Everytime you do overtime, you are bending over for the company.” Mr Kunde used slightly different words concerning the comment in his earlier statement made on 11 January 2017. 60 Mr Kunde said his recollection was that Mr Naicker did not react. Interestingly Mr Kunde agreed with the proposition while under cross examination that the comment or gesture made to Mr Naicker did not particularly bother either himself, or Mr Naicker which I find to be unlikely in Mr Naicker’s case.61

[57] CCA submits that this behaviour was inappropriate and had the potential to intimidate or harass Mr Naicker, was a breach of the relevant enterprise agreement, a breach of CCA’s Code of Conduct and Working Together Policy and inconsistent with CCA’s workplace health and safety obligations. 62

[58] CCA submitted that while much was made by Mr Braughton of a lack of “supporting tangible evidence” it would not have mattered as Mr Braughton has flatly denied the allegation.

[59] CCA referred to the evidence of Mr Naicker and Mr Kunde that both gave an account that Mr Braughton made the obscene hand gesture to Mr Naicker in the week preceding the event on 15 December, and also made offensive comments to Mr Naicker (although Mr Kunde’s version was not as severe as Mr Naicker’s recollection) against a flat denial from Mr Braughton.

[60] It was said Mr Braughton was not prepared to acknowledge conduct of which he was innocent. 63 It is said that at no point was direct evidence put to Mr Braughton supporting allegation 2. It was submitted that the very concept of allegation 2 had to be explained to Mr Naicker and Mr Kunde.

[61] It was put that in the alternative if the Commission was persuaded that Mr Braughton did make the comments and gestures as alleged, this does not give rise to a valid reason for termination.

[62] I am satisfied on the evidence that CCA addressed the initial error in nominating 10 December as the date of the alleged incident and Mr Braughton was under no illusion as to the nature of the allegation being made against him. I find on the balance of probability Mr Braughton did make the hand gesture to Mr Naicker in the week before 15 December, and also said words to the effect as alleged by Mr Naicker. I make this finding on the basis that Mr Kunde corroborated to a large extent the evidence of Mr Naicker and overall Mr Naicker’s evidence has more credibility than Mr Braughton’s. This is an issue I shall return to.

Was the context of the incidents a mitigating factor?

[63] It was put for Mr Braughton that the altercation between Mr Naicker and himself occurred in the immediate context of Mr Braughton’s concerns around damage being caused to plant and machinery on-site.

[64] In his statement Mr Braughton said prior to the events that led to his termination he observed and raised concerns around damage that was being caused to blow moulders on line 5. Mr Braughton said in a period of one week in early December 2016 he recalled three instances where he observed damage to catches and at least one occasion where he observed damage to moulds. 64

[65] Mr Braughton claimed in his statement that in the weeks leading up to the 15 December Incident, he had raised concerns with Mr Ken Kunde, Team Leader of CCA, that damage was being caused to the blow moulders. 65 He claimed Mr Kunde dismissed his concerns.

[66] It was said that the context also included that Mr Braughton had noticed casuals engaged on line 5 and he suspected that they had not been properly inducted and trained to work on the relevant plant, and whether that was contributing to the damage to the blow moulders. Mr Braughton said he had a conversation with Mr Naicker where he suggested Mr Naicker speak with the Manager Mr Barrio in relation to obtaining clear work instructions for the trainees and/or casuals which may reduce the instances of damage to the blow moulders and labellers. 66 Mr Naicker said he had no recollection of this conversation.67

[67] It was submitted that it was not just a case of Mr Braughton “launching into” Mr Naicker. 68 It was submitted that the robust discussion was predicated on a suspected interference with the blow moulder where Mr Naicker admitted he had removed the key. Mr Braughton’s evidence was not disputed that a co-worker, Mr Kieran Gould informed him that Mr Naicker had removed the “manual key” from a blow moulder.69

[68] It was also submitted that the enterprise bargaining agreement being negotiated at the time was part of the broader context, and Mr Naicker had indicated that he believed Mr Braughton’s negative interactions with him were related to the ongoing bargaining process informing the alleged conduct in allegation 2. Mr Naicker said several weeks prior to 15 December 2016 he had an argument with Mr Braughton about the enterprise agreement and Mr Braughton said words to the effect of:

“Paul: “I will blame you if I lose any money under the EBA. It’s your fault because you don’t stand up and say something in EBA meetings.”

Me: “Get your facts right”.”

[69] Mr Naicker claimed Mr Braughton was yelling and screaming and blaming him for his loss of income. 70 The evidence appeared to be that both Mr Braughton and Mr Naicker were members of a union albeit different unions.

[70] Having had regard to the various issues that have been raised for Mr Braughton as contextual considerations that might provide some mitigating factors for his conduct, I am not satisfied they provide much assistance to him. Mr Naicker gave evidence concerning his decision to remove the key which appeared reasonable on the evidence and I could not find any basis on the evidence to understand why Mr Braughton’s acted as he did toward Mr Naicker because of the enterprise bargaining that was occurring, or the standard or training provided to trainees or casuals.

History of relationship

[71] Mr Braughton gave evidence that Mr Naicker and himself had a reasonably cordial relationship, including Mr Braughton calling Mr Naicker when he had been in hospital. Mr Naicker said he did not recall this. Mr Naicker accepted that the two of them had played the share market game. It was submitted for Mr Braughton that this is not evidence of a year of abuse as claimed by Mr Naicker. 71 It may be the case that in the past Mr Braughton had behaved in a reasonable and even friendly manner toward Mr Naicker, however I have found that the misconduct as alleged occurred, and other previous more reasonable behaviour does not excuse Mr Braughton’s misconduct.

Mr Kunde

[72] It is important to make some reference to Mr Kunde’s role in the matter. Mr Kunde is a long serving employee who holds the position of Production Co-ordinator. Given Mr Kunde was a direct witness to both the first incident and second incident, and he held a position with supervisory responsibility it appears to me he could have done more than he did to deal with Mr Braughton’s conduct. His evidence, particularly regarding the second incident was that he witnessed it, but didn’t take any action at the time to address it. It appears Mr Kunde failed to address Mr Braughton’s conduct when he should have and this should not be ignored, ultimately however the responsibility for Mr Braughton’s conduct still rests with Mr Braughton himself.

Previous Warning

[73] Mr Braughton said in his statement that in approximately mid to late 2013 he was counselled for an argument that occurred in the staff kitchen. The evidence disclosed the incident actually occurred in late 2012. He said he entered into argument with a co-worker as he was unhappy that a number of co-workers, including the co-worker he argued with, as they were not cleaning up after themselves in the kitchen. 72

[74] Mr Braughton said approximately 3 weeks after this incident he was verbally counselled by CCA and management requested that he attend a 6 week anger management course and he complied with the request. He said from memory this was not a formal disciplinary process, and he was not sure it was contained on his formal employment record. He said he did not have any more issues with the particular co-worker. 73 In oral evidence Mr Braughton changed his evidence to the extent that he accepted that the process was a formal one.74

[75] Mr Braughton was issued a warning in relation to his conduct at that time and the warning was attached to the statement of Mr Van Beest. 75 As part of the disciplinary process Mr Braughton was required to attend anger management counselling paid for by CCA. He attended 6 sessions over a three month period. It was confirmed that Mr Braughton attended the sessions.

Conclusion Valid Reason

[76] CCA assert that if I was to find that Mr Braughton threatened Mr Naicker that amounts to assault and falls within the meaning of misconduct. CCA also referred to the language of s.387(a) requiring that the FWC have regard to the effect on the safety and welfare of other employees of the conduct in question. It was unchallenged that Mr Naicker was visibly upset by these events. Mr Kunde’s evidence which I accept was that Mr Naicker was shaking when he pushed past him.

[77] The evidence of Mr Barrio was that Mr Naicker seemed very upset when he spoke to him on the telephone, so much so that Mr Barrio immediately rang the shift supervisor to address the issue when he was driving home.

[78] Mr Ford gave evidence that Mr Naicker broke down crying when Mr Ford spoke to Mr Naicker the next day. This evidence was unchallenged. Mr Naicker himself gave evidence concerning how upset he was. The evidence disclosed that Mr Braughton had previously worked as a security guard and he was physically larger than Mr Naicker.

[79] CCA submitted that a threat of assault is a risk of injury. Further it was said that Mr Braughton was aware that Mr Naicker has previously been hospitalised with a heart condition.

[80] I found Mr Naicker to be a witness of truth, however I am not as confident about Mr Braughton’s evidence given I have not accepted his denial of the Second Incident, and he changed his position concerning the First Incident from denial, to not being able to recall.

[81] I have rejected the submission for Mr Braughton that the context of the events is a mitigating factor in his favour. It is said there is no evidence of Mr Braughton displaying adverse behaviour or poor performance in the period from the warning in December 2012. It is submitted the warning should have diminished weight. The difficulty with this submission is that the conduct was of a related nature and CCA had been put to the time and expense of putting Mr Braughton through an anger management course to prevent a future repetition of the conduct. Unfortunately for Mr Braughton he did repeat the conduct.

[82] Whilst Mr Braughton accepted that his conduct was ‘out of line’ and apologised for it, 76 and it was claimed he demonstrated remorse and contrition, that is not quite correct. Mr Braughton never admitted to central allegations made against him which I have found to be made out against him.

[83] Whilst it is true Mr Naicker said in his evidence that during his discussion with Mr Ford the day after the incident he did not want the issue to escalate, and in his oral evidence he repeated that at the time he did not want to take the matter further, it was also his evidence that this had to stop and he could not take it anymore. 77

[84] Mr Ford was the final decision maker in regard to the decision to terminate Mr Braughton however he took a consultative approach including with Mr Van Beest and Ms Jhana Clarke from Human Resources as the site operations and manufacturing managers. 78

[85] CCA submits that Mr Braughton’s behaviour was an inappropriate interaction in the workplace, threatening and upsetting to Mr Naicker, a breach of the relevant enterprise agreement, a breach of CCA’s Code of Conduct and Working Together Policy and inconsistent with CCA’s workplace health and safety obligations. 79 It was also put by CCA that Mr Braughton lost credibility when he resisted in his evidence the proposition that the expression “Let’s sort this out in the carpark” might mean something other than a physical confrontation.80

[86] CCA has also put that Mr Braughton’s denial of the fact that he made the hand gesture and associated comments points to a level of integrity that goes to the root of the trust that needs to exist between an employer and employee.

[87] On initial consideration of the facts of this matter the decision to terminate would appear harsh given Mr Braughton’s length of service, and because the altercation on 15 December did not progress to a physical altercation. However on closer examination of all of the facts the circumstances are more serious than they initially appear. Whilst this is not an application under s.789FC and I am not required to make a determination concerning bullying there is little doubt if it were Mr Braughton’s conduct in the period leading up to and including his being stood down would meet the definition of bullying as set out in s.789FD.

[88] Mr Kunde gave evidence that Mr Braughton was “A disruptive influence.” 81 Mr Barrio said he did not consider it would be appropriate for Mr Braughton to be reinstated at CCA because of his conduct toward Mr Naicker on 15 December was inconsistent with the Working Together Policy and created a risk to the health and safety of Mr Naicker.82 Mr Barrio said bullying at CCA is not tolerated and is regularly discussed in training and tool box talks. Mr Van Beest said Mr Braughton had shown a disregard for the health and safety of Mr Naicker.

[89] Submissions made for Mr Braughton rejected the assertion his actions represented a risk to health and safety, but even if this were so it was minimal. I disagree, the evidence concerning the impact that Mr Braughton’s conduct was having on Mr Naicker was sufficient to be satisfied it represented a risk to Mr Naicker. This finding supports the conclusion that CCA had a valid reason for termination.

[90] However should there be room for doubt as to whether CCA had a valid reason for termination there is a further matter which shifts the balance against Mr Braughton and that is Mr Braughton’s decision to deny the allegations concerning the challenge to go to the car park, and the denial he had made the earlier gestures and comments directed at Mr Naicker. I have made clear findings earlier in this decision despite his denials, that CCA’s conclusions were correct.

[91] The show cause letter of 16 January 2017 included the following paragraph.

“As such, your conduct and involvement in this matter and your subsequent denial of the incident, despite it being witnessed by other employees, has substantially damaged our employment relationship and CCA considers that it has no other option but to terminate the employment.”

[92] Mr Braughton’s continued denial of critical elements of the alleged conduct raised concerns for CCA about its ability to trust Mr Braughton in the future as they had found his denials not to be truthful.

[93] It is apparent even before Mr Braughton had been terminated that CCA viewed Mr Braughton’s denials of the allegations in the face of the evidence as undermining the relationship. Mr Ford said in oral evidence that Mr Braughton had denied certain very serious aspects of the allegations. 83 When asked why Mr Ford viewed options other than termination as being inappropriate he referred to the health and safety of employees but again returned to the fact of Mr Braughton having denied the allegations.84 Mr Braughton’s failure to accept full responsibility for his conduct raises the issue of the reliability of his responses in the future if he were to remain in employment with CCA.

[94] Whilst it was never said by CCA in the course of the hearing that had Mr Braughton not denied the allegations and accepted full responsibility for his conduct they may have taken a different view that may have been so. In any event I find the combination of the conduct itself in connection with the First and Second Incident, the continued denial of the allegations in the course of the investigation and CCA’s findings that the allegations were made out, in addition to the fact of the conduct being a repetition of similar earlier conduct despite the existence of an earlier warning and training paid for and provided by CCA, that CCA had a valid reason to dismiss.

Notified of the reason – s.387(b)

[95] Mr Braughton submits that, as there was no valid reason for dismissal, it was not possible for him to be notified of that reason. CCA submits that, at the time of the dismissal, Mr Braughton was “clearly aware” of the reasons for this dismissal. 85 The evidence supports the conclusion that Mr Braughton understood and knew what the allegations were at the time and why he was terminated.

Opportunity to respond – s.387(c)

[96] CCA submitted the correspondence exchanged between the parties throughout the process indicates Mr Braughton had a full opportunity to respond in writing and verbally. Mr Braughton grudgingly accepted that he understood the allegations. The correspondence exchanged as part of the investigation and show cause process was set out in the written submissions of CCA. I have also had regard to the evidence of Mr Davey and Mr Pullen concerning the investigation however I am satisfied Mr Braughton was given an opportunity to respond to the reasons related to his conduct.

Unreasonable refusal by the employer to allow a support person – s.387(d)

[97] Mr Braughton submitted s.387(d) was not relevant. CCA submitted Mr Braughton was assisted throughout the process by his union and at a point where there was an assertion as to a lack of clarity around the findings and the manner in which, and what had been substantiated, and this was responded to by Mr Van Beest clarifying the allegations that had been substantiated.

Warnings regarding unsatisfactory performance – s.387(e)

[98] Section 387(e) is not relevant as the dismissal was related to conduct not performance.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal – s.387(f)

[99] CCA is a large employer with approximately 4000 employees. It could not be argued any procedurals failings could be based on the employer having insufficient resources.

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 – s.387(g)

[100] CCA has a dedicated human resources team.

Any other matter the FWC considers relevant – s.387(h)

[101] In addition to the above considerations, Mr Braughton submits that regard should be had to issues including the financial and economic impact upon him insofar as he is his family’s sole source of income and will find it difficult to find suitable alternative employment.Mr Braughton obtained full time permanent employment on 2 March 2017 however his rates of pay are considerably lower than at CCA.

[102] Mr Braughton also referred to the personal and psychological impact upon him and his family which has been experienced as a result of dismissal. Mr Braughton’s length of service was in excess of 18 years.

[103] It was put for Mr Braughton that CCA had alternative disciplinary options that did not involve dismissal and dismissal was disproportionate.

[104] CCA submits that after having made its findings it then provided a show cause process for Mr Braughton which he took up, and that proper consideration was given to all matters before the decision to dismiss was taken. 86 I am satisfied that CCA did give due weight to a range of issues including Mr Braughton’s length of service.

[105] There is no doubt that the consequences of the decision to terminate have had a significant impact on Mr Braughton and this is a factor that must be weighed in determining whether the termination was harsh, unjust or unreasonable. I have also had regard to the views of Mr Davey and Mr Pullen concerning why they say termination was inappropriate.

CONCLUSION

[106] I have taken into account all of the elements of s.387 that are relevant including that there was valid reason for termination and that the process followed was not procedurally flawed in any significant way. I am not satisfied considerations under s.387(h) outweigh the other considerations that tell against Mr Braughton and have therefore concluded that the dismissal was not harsh, unjust or unreasonable. On that basis the application must be dismissed.

COMMISSIONER

Appearances:

Mr S. Ong of United Voice for the Applicant

Mr J. Dwyer of Counsel, instructed by instructed by Australian Business Lawyers & Advisors for the Respondent

Hearing details:

2017,

Brisbane:

May 31, June 1

1 Statement of Michael Van Beest dated 10 May 2017 at [5].

2 Applicant’s Form F2 – Unfair Dismissal Application dated 14 February 2017 at 3.2.

3 Statement of Paul Braughton dated 18 April 2017 at [48].

4 Respondent’s Letter to the Applicant dated 22 December 2016.

5 Ibid at [93] – [94], [110].

6 Applicant’s Outline of Submissions dated 18 April 2017 at [28] – [32].

7 Statement of Paul Braughton dated 18 April.

8 Statement of Greg Davey dated 18 April 2017.

9 Statement of David Pullen dated 18 April 2017.

10 Transcript PN 25 - PN 30.

11 Statement of Frank Naicker dated 8 May 2017.

12 Statement of Ray Bradnam dated 10 May 2017.

13 Statement of Ken Kunde dated 15 May 2017.

14 Statement of Atiliano Barrio dated 9 May 2017.

15 Statement of Keith Ford dated 9 May 2017.

16 Statement of Michael Van Beest dated 10 May 2017.

17 Statement of Paul Braughton dated 18 April at [69] – [70].

18 Applicant’s Outline of Submissions dated 18 April 2017 at [28].

19 Ibid.

20 Respondent’s Outline of Submissions dated at 12 May 2017 at [11].

21 Transcript PN 1675.

22 Statement of Paul Braughton dated 18 April at [41].

23 Ibid.

24 Applicant’s Outline of Submissions dated 18 April 2017 at [28].

25 Transcript PN 100 – 104.

26 Transcript PN 119.

27 Transcript PN 117.

28 Statement of Paul Braughton dated 18 April 2017 at [48], Transcript PN 121.

29 Transcript PN 121.

30 Transcript PN 122.

31 Transcript PN 129.

32 Transcript PN 136.

33 Statement of Ray Bradnam dated 10 May 2017 at [7], Transcript PN 814.

34 Statement of Ken Kunde dated 15 May 2017 at [7].

35 Statement of Ken Kunde dated 15 May 2017 at [9].

36 Statement of Atiliano Barrio dated 9 May 2016 at [5].

37 Statement of Keith Ford dated 9 May 2017 at [5] to [7].

38 Statement of Keith Ford dated 9 May 2017 at [7].

39 Statement of Michael Van Beest dated 10 May 2017 at [7] to [18].

40 Transcript PN 1479- PN 1482.

41 Transcript PN 1643.

42 Transcript PN 922.

43 Transcript PN 903-904.

44 Statement of Paul Braughton dated 18 April at [47].

45 Statement of Paul Braughton dated 18 April at [49].

46 Statement of Michael Van Beest dated 10 May 2017 attachment MVB 2.

47 Transcript PN 755.

48 Statement of Ken Kunde dated 15 May 2017 attachment KK 1.

49 Transcript PN 657.

50 Transcript PN 112.

51 Statement or Frank Naicker dated 8 May at [6].

52 Ibid at [17].

53 Statement of Paul Braughton dated 18 April 2017 at [93].

54 Ibid at [94].

55 Transcript PN 1275.

56 Transcript at 1406.

57 Transcript PN 504-505.

58 Transcript PN 716.

59 Statement of Ken Kunde dated 15 May 2017 at [11].

60 Statement of Ken Kunde dated 15 May 2016 attachment KK-2.

61 Transcript PN 946-947.

62 Respondent’s Outline of Submissions dated at 12 May 2017 at [15]..

63 Transcript PN 1500.

64 Statement of Paul Braughton dated 18 April 2017 at [23] to [25].

65 Statement of Paul Braughton dated 18 April 2017 at [26].

66 Statement of Paul Braughton dated 18 April 2017 at [29].

67 Transcript PN 582.

68 Transcript PN 1508.

69 Ibid at [39].

70 Transcript PN 717.

71 Transcript PN 643.

72 Statement of Paul Braughton dated 18 April 2017 at [18].

73 Statement of Paul Braughton dated 18 April 2017 at [19] – [22].

74 Transcript PN 89.

75 Statement of Michael Van Best dated 10 May 2017 at [21].

76 Transcript PN 109.

77 Transcript PN 496.

78 Transcript PN 1151-1152.

79 Respondent’s Outline of Submissions dated at 12 May 2017 at [15].

80 Transcript PN 1671.

81 Statement of Ken Kunde dated 15 May 2016 at [18], Transcript PN 952.

82 Statement of Atiliano Barrio dated 9 May 2017 at [16].

83 Transcript PN 1162.

84 Transcript PN 1294.

85 Ibid at [27].

86 Transcript PN 1702.

Printed by authority of the Commonwealth Government Printer

Mr Paul Braughton v Coca-Cola Amatil Limited T/A Coca-Cola Amatil

[2017] FWC 2680

10 JULY 2017

DECISION

BACKGROUND

RELEVANT PROVISION

HARSH UNJUST OR UNREASONABLE

First Incident 15 December

Did Mr Braughton say to Mr Naicker words to the effect of “Let’s go sort this out in the carpark”, and if so did that constitute a threat to Mr Naicker?

Did Mr Naicker accept an offer to go to the car park?

Who instigated the incident?

Second Incident – alleged offensive gesture and comments

Was the context of the incidents a mitigating factor?

Mr Kunde

Previous Warning

Conclusion Valid Reason

Notified of the reason – s.387(b)

Opportunity to respond – s.387(c)

Unreasonable refusal by the employer to allow a support person – s.387(d)

Warnings regarding unsatisfactory performance – s.387(e)

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal – s.387(f)

Any other matter the FWC considers relevant – s.387(h)

CONCLUSION