Mr Ricky Oxley v Cascade Brewery Company Pty Ltd

[2011] FWA 892

[2011] FWA 892

FAIR WORK AUSTRALIA

DECISION

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

Mr Ricky Oxley
v
Cascade Brewery Company Pty Ltd
(U2010/12481)

COMMISSIONER DEEGAN CANBERRA, 9 FEBRUARY 2011

Termination of employment - Summary dismissal for serious misconduct - whether dismissal harsh, unjust or unreasonable - history of misconduct.

[1] This matter arises from an application for unfair dismissal remedy filed at Fair Work Australia’s Hobart registry on 16 September 2010 by Mr Ricky Oxley (the applicant) in respect of the termination of his employment by Cascade Brewery Company Pty Ltd (the respondent). An unsuccessful conciliation conference was conducted on 7 October 2010 and the matter was then listed for hearing on 1 and 2 December 2010.

[2] In accordance with Directions given in the matter, submissions and witness statements were filed by both parties.

Background

[3] The applicant had been employed by the respondent for approximately 31 years, initially as a truck driver and then in the packaging area. The applicant’s employment was terminated on 9 September 2010 following an investigation by the respondent into an allegation that he had been witnessed urinating against an external wall of the company’s property on 8 September 2010.

The applicant’s evidence

[4] It was the applicant’s evidence that he had suffered a workplace injury in 2007 and since that time had been working subject to a number of restrictions relating to weight to be lifted and rest breaks. His duties included collecting and testing beer samples and performing seal and carton checks. He was also required to take samples to the laboratory for testing and to enter test results in a computer.

[5] The applicant also gave evidence concerning his interactions with Mr Evans, the witness for the respondent who had claimed to have observed the applicant urinating against the wall of the building. According to the applicant he had had an altercation with Mr Evans on 5 August 2009 over some work that had not been completed by Mr Evans at the time the applicant took over from him at the commencement of his shift.

[6] It was the applicant’s evidence that he had queried with Mr Evans why the “secure seals had not been done”, and in response Mr Evans had become aggressive with him. The applicant claimed to have made a note 1 of the incident on the day which set out what had occurred. The note was to the effect that Mr Evans had asked him if he had a problem with him doing “QA” (quality assurance) and then advised the applicant that he would “no (sic) when I am pissed off with you, Rick”. Mr Evans then left the area and spoke to Gavin Calbert, the co-ordinator of the packaging area. Mr Calbert directed the applicant not to talk to Mr Evans until Mr Hogan (the packaging manager) arrived. The applicant’s note recorded that he had not raised his voice with Mr Evans but just asked a simple question. Mr Hogan spoke to the applicant about the matter later that day and then spoke to Mr Evans. The applicant was unaware of any action being taken about the matter.

[7] The applicant also recalled an incident which occurred in the days after Christmas 2010 when Mr Burslem, the General Manager, came to him at his workplace to speak to him about his work ethic and about leaving the lights and fan on in the quality assurance office when he left on his Christmas break. The applicant denied having been responsible for leaving the lights and fan on and claimed that he was not the last person to leave the office on the day in question. According to the applicant, Mr Burslem had not said that there had been complaints about his work but had said that he would like the applicant to pick his game up a bit.

[8] Under cross-examination by Mr Tuck the applicant was asked about a number of incidents which had occurred during his employment, about which he had received written warnings. The applicant estimated that he had received four or five warnings about his conduct and agreed that he had been in the Australian Industrial Relations Commission about his conduct in the past.

December 1998

[9] The applicant recalled an incident which occurred on 2 December 1998 for which he received a final written warning. 2 He agreed that he had been advised that his behaviour was “totally unacceptable and warrants dismissal”. He also agreed that he was warned that any form of aggressive behaviour, including verbal abuse, towards any employee under any circumstances in the future would result in his termination.

August 2005

[10] According to his evidence the applicant received a further written warning on 23 August 2005 for leaving early, not completing his work and inappropriate behaviour. 3 The applicant conceded that he had been advised about his use of language and the distinction between what was acceptable and what was not. He was also warned that inappropriate body language, intimidating employees and use of swear words would not be tolerated by the company. He agreed that he had responded to the warning by saying that “it won’t happen again”.

[11] The applicant acknowledged that he had attended sessions about “Appropriate Workplace Behaviour” and after the August 2005 incident had received a copy of the respondent’s Code of Conduct.

June 2006

[12] When cross-examined about a meeting that occurred on 27 June 2006 the applicant recalled that he had been given a further final written warning concerning sabotage at the work site. 4 He agreed that it had been alleged that he had tossed a gas cylinder tag into the crown hopper. He also conceded that a piece of foreign material, such as a tag, introduced into the crown hopper could stop production. The applicant noted that he had denied the allegation but agreed that on the date the tag had been found in the hopper he had been the operator responsible for monitoring and changing over the gas cylinders. He had changed the cylinders that day and claimed that he had disposed of the tag in a nearby bin. No tag could be found in that bin and an initial inspection of the tag of the gas cylinder the applicant had changed over showed it to match the tag found inside the crown hopper. The applicant had eventually admitted that the tag found in the crown hopper was the tag that he removed from the gas cylinder that day.

[13] The applicant agreed that he was given a final written warning for misconduct and advised in writing that, given that he had been previously warned and counselled in relation to his conduct, any further breaches would result in the termination of his employment.

[14] The matter of the final warning for the crown hopper incident was notified as a dispute to the AIRC. 5 Following conciliation the parties accepted that the final warning would remain operative for a period of 12 months, and if there were no further transgressions in that period the warning would remain on the applicant’s file but not regarded as final.

[15] It was the applicant’s evidence that he had been required to attend an anger management course which he denied was on account of aggressive behaviour, claiming that he was not aggressive but frustrated. He conceded, however, that his attendance at the anger management course had been approved by the AIRC Commissioner who had conciliated the earlier dispute following a further incident when it was alleged that the applicant had used inappropriate language and engaged in behaviour that was considered threatening by a supervisor. The Commissioner had stated that the applicant’s behaviour had been unacceptable, could intimidate others and was not to be tolerated.

[16] When questioned, the applicant stated that it was only when the AIRC Commissioner became involved that he realised his job might be in jeopardy, up until that point he had not considered that to be the case.

August 2009

[17] In relation to the incident with Craig Evans the applicant denied saying to Mr Evans "and you would know about it if I was pissed off with you” or raising his voice. He agreed that the outcome of the incident was that it was to be taken no further by the supervisors.

November 2009

[18] It was the applicant’s evidence that on 4 November 2009 he had received a letter relating to a complaint by another employee that he had been abusive towards that employee. The applicant conceded that, despite the previous warnings, he had behaved in the manner alleged in the letter. The letter had advised him that it was the employer’s expectation that he would at all times at work, or in work matters, demonstrate proper conduct and behaviour. The letter also stated that he was to be provided with a final opportunity to demonstrate that he could meet the required conduct and behaviour standards in the future. This final opportunity was given on the condition that the applicant attend a further anger management course. The letter stated that, "if you are willing to give such a commitment, you will be issued with a final warning placing you on notice that any further breaches by you in relation to your conduct and behaviour will result in your employment being summarily terminated”. The applicant agreed that at the time he received the letter he realised that his employment was in jeopardy.

December 2009

[19] The applicant was also cross-examined about a complaint that he had made against another employee in December 2009. He had alleged that the employee had said words to the effect of “frigging hell” when he opened the door of the crib room for her. He denied the employee’s claim that he had pushed past her roughly or that it was another example of his aggressive behaviour.

August 2010,

[20] According to the applicant, in August 2010 it was alleged that he threw a disposable cup of coffee against the wall and a rubbish bin in the workplace, rather than disposing of it correctly. He agreed that if such an incident had occurred it would have been inappropriate in a place where consumables were produced, but he claimed that he had seen employees throw coffee in the drain. He stated that he had thrown coffee into the drain but denied that he had thrown half a cup of coffee across the floor and work bench. When questioned he stated that he was unaware that an employee had made a statutory declaration about the incident. When told the employee’s name he claimed that he did not get on with that particular employee and that the statement was false.

Code of Conduct

[21] The applicant was shown the Cascade Brewery Code of Conduct, 6 in particular section A paragraph 14, entitled "Wilfully damaging, sabotaging or causing damage or sabotage to the company's property and product". The applicant agreed that that issue was a serious misconduct matter and that he had seen that particular part of the Code before. The applicant also acknowledged having seen section C paragraph 15 of the Code of Conduct which dealt with "Unsanitary practices such as spitting, non-use of receptacles for waste" and hygiene standards. He was also aware of paragraph 19 of the Code which prohibited "Smoking, eating or drinking in areas which are not designated areas for smoking, eating or drinking, that is, no food or drink be consumed in production areas, smoking only in designated smoking areas." The applicant agreed that he was aware that breaches of any of those matters could result in removal from the site.

September 2010

[22] Under cross-examination the applicant agreed that urination in a place other than a toilet would be an unsanitary practice and unacceptable at a brewery. He also agreed that smoking outside of a designated smoking area was inappropriate but conceded that, despite being on a final warning, he had smoked on occasions outside the roller door which was not a designated smoking area. He claimed that other employees also smoked there. When shown a photo of the roller door the applicant acknowledged that inside the door was the pasteurising area and conveyer belt for the bottles. He also agreed that the area could be seen from an adjacent public road and that he had seen people on that road walking their dogs and riding bikes.

[23] It was put to the applicant that on 7 September 2010 he had been seen by another employee standing not far from the area shown in the photo, between the crib room and the packaging hall, urinating against a wall. The applicant claimed that at the time it was claimed he had been urinating he was actually further away near a steel tank having a cigarette. The applicant denied having seen Mr Evans, the employee who made the allegation about him, at that time although he conceded that had he been standing by the steel tank he should have been able to see him as he passed by.

[24] It was the applicant’s evidence that on 8 September 2010, accompanied by the site delegate for the LHMU, he attended a meeting with the Engineering Manager and Mr Hogan. At that meeting he was told that there had been an allegation that he had urinated on the external wall of the crib room. He had admitted that he had been in the area between the crib room and the roller door at the time, but advised that he had been standing near the steel tank. The applicant denied the allegation. He also denied having said, at the meeting, “Nah, not me, cock. If I did that, that's a sackable offence”.

[25] The applicant agreed that themeeting on 8 September 2010 had been suspended and that at a meeting the following day he had been informed that his employment would be terminated.

[26] In response to a number of further questions from his representative the applicant maintained that swearing was common at the workplace and that he was not the only offender. He also noted that he had received no warning in relation to the incident in December 2009 when he had complained about the language used by another employee. According to the applicant, although it was common for employees to throw coffee dregs down the drain, he was unaware of any other employees being counselled or warned about the practice. Finally, the applicant noted that the area outside the roller door had no signage indicating that it was a no smoking area.

The respondent’s evidence

[27] Mr Craig Evans, an employee, was called first by the respondent and stated that he had witnessed the applicant urinating in the area between the crib room and the roller door on the afternoon of 2 September 2010. Mr Evans identified the area where he had seen the applicant and pointed it out in the photographs which were tendered. 7

[28] Under cross-examination Mr Evans stated that he had known the applicant for about 4 years. Mr Evans explained the circumstances which led to the incident between the applicant and him on 5 August 2009, and stated that he had not been aggressive towards the applicant. Rather, he had indicated to the applicant that he was not “pissed off with him” in answer to a question from the applicant. He had then got management involved to deal with the issue so that it didn’t get out of hand.

[29] The witness could not recall ever saying to another employee that the applicant did not do his job properly.

[30] According to the witness he had said in his witness statement that he had assumed the applicant was urinating down a drain as there was a drain in the area and when he saw the applicant urinating he had given him the benefit of the doubt and assumed that he was using the drain which was a bit cleaner than urinating on the ground. The witness stated that he had not said anything to the applicant at the time, despite the fact that it was strange for the applicant to be urinating where he was, as “Rick wasn’t the sort of person that you approach about these issues”. He claimed that the applicant was not well-liked in the packaging area but denied having a grudge against him.

[31] The witness maintained that he had witnessed the applicant urinating and claimed that it was clear from the applicant’s stance and the stream of urine he observed.

[32] A statement of the evidence of Ms Catherine Byrnes, Human Resources Manager, was filed. 8 The statement set out the applicant’s previous disciplinary history and the advice she provided to Mr Hogan about the manner in which the urination allegation against the applicant should be handled. When Mr Hogan advised that he intended to terminate the applicant’s employment Ms Byrnes drafted the termination letter. Ms Byrnes also produced photographs she had taken of the area where Mr Evans claimed to have seen the applicant urinating and these were tendered.9 Ms Byrnes was not cross-examined.

[33] Mr Brendan Hogan, Manager, Brewery Packaging also filed a statement of evidence. 10 Mr Hogan’s evidence concerned the investigation of Mr Evans’ allegation that the applicant was urinating near the crib room, and the meetings he conducted which led to the termination of the applicant’s employment. It was his evidence that the applicant had admitted being in the area at the time of the alleged act but that he had claimed that he had been smoking and had not urinated. Mr Hogan’s evidence described his knowledge of the previous warnings given to the applicant.

[34] Having considered the nature of the alleged incident and the response given by the applicant, and having taken into account the fact that the applicant was the subject of a final warning, Mr Hogan took the decision to terminate the applicant’s employment.

[35] In his oral evidence Mr Hogan further elaborated on his knowledge of the earlier incidents involving the applicant, including the incident involving Craig Evans in August 2009. It was Mr Hogan’s evidence that he considered the August 2009 incident to be a storm in a teacup, but that he had nonetheless made a detailed file note about it as Mr Evans had been upset and so as to fully inform the manager of the area, who was on leave at the time.

[36] Mr Hogan was cross-examined about his practice of making shorthand notes about matters as they arose and then transcribing the notes into a fuller form when he had the time. It was his evidence that he often, but not always, informed people he would be making a file note about a matter. Mr Hogan was not cross-examined about his decision to terminate the applicant’s employment.

The applicant’s submissions

[37] It was put by Mr Tullgren for the applicant that FWA could not be convinced “beyond a reasonable position” that the applicant was guilty of the alleged misconduct. The applicant denied the misconduct and the only contrary evidence was that of Mr Evans who did not like him. It was put for the applicant that while Mr Evans was defensive in his responses when cross-examined, the applicant’s denial of the misconduct was not shaken by cross-examination. The submission was that the applicant’s evidence should be preferred to that of Mr Evans given the history between the men.

[38] The applicant’s poor record was not denied. It was conceded by his representative that that it was “atrocious”. It was, however, argued that some of the conduct for which the applicant had received warnings, or had otherwise been referred to by the respondent as an indicator of his overall attitude, was also conduct engaged in by other employees.

[39] It was submitted on the applicant’s behalf that the content of Mr Hogan’s file notes and witness statement showed an inherent bias against the applicant. Further, it was put that the applicant had not attempted to minimise his previous behaviour but clearly denied urinating as alleged.

[40] Overall it was the submission of the applicant that if FWA accepted the applicant’s denial of the misconduct then the dismissal was unfair and the applicant should be reinstated.

It was argued that reinstatement was appropriate given the applicant’s age, length of service and limited education. In addition, it was put that the workplace injury suffered by the applicant would make it very hard for him to find other employment.

The respondent’s submissions

[41] It was submitted for the respondent that the applicant did have an atrocious record and had been given numerous warnings. It was noted that the respondent’s concerns were not about the applicant’s language but the way he used that language. The respondent pointed out that the applicant had previously been instructed to attend anger management courses and been given multiple opportunities to amend his behaviour.

[42] The first written final warning the applicant had received was in 1998 and had involved an assault. It was put that it was rare for an employee to be given a second chance in such circumstances. The respondent also noted that the applicant didn’t consider that he was on a final warning until he had been spoken to by a commissioner of the AIRC in 2006.

[43] The respondent argued that the applicant had been given opportunities to amend his behaviour, had been sent to anger management courses and had been counselled. It was submitted that the applicant’s behaviour, including the aggression towards other employees and contractors and the sabotage of the machinery, showed a total disregard for his employer.

[44] It was the respondent’s position that Mr Evans was a witness of truth and had given clear evidence about witnessing the applicant urinating. It was put that the applicant could not make out a case that the allegation was a result of a grudge held by Mr Evans over an incident which had occurred between the men over twelve months earlier.

[45] It was the respondent’s submission that FWA could be satisfied that, when asked about the urination allegation, the applicant had, as claimed by Mr Hogan said the words, "No, not me, cock. If I did that, I'd be sacked. That's a sackable offence."

[46] According to the respondent the applicant was a man who flouted the rules. While it was accepted that other employees may also have breached some rules on occasion, it was put that those employees did not have the applicant’s long history of misconduct. The respondent noted that while the applicant’s employment was not terminated because he had been smoking in the wrong area, that he would do so while on a final warning was an indication of his overall attitude.

[47] The respondent put that the applicant’s employment was terminated for urinating in the workplace, conduct which was simply unacceptable. The area in which he was seen to have urinated was visible from a nearby public road. His behaviour was completely inconsistent with the standards required of a food manufacturing facility. The photographs had indicated that the area involved was visibly close to where product was on the pasteuriser. The behaviour was unhygienic, and as such, unacceptable.

[48] Finally, it was put that the applicant had been given every opportunity to reform his behaviour but committed one offence too many. The respondent submitted that the misconduct was a serious matter in and of itself, but when characterised against his background of misconduct, sabotage, assaults, inappropriate language and aggression, it was an even more valid reason for the termination of his employment. The applicant was given opportunities to his case and availed himself of those opportunities.

[49] On the question of remedy, it was submitted by the respondent that it would be inappropriate for a person of the applicant’s character to be reinstated as the company had lost all trust in him.

Consideration of the issues

[50] Section 387 of the Act provides as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.

Valid Reason?

[51] The applicant’s employment was terminated for serious misconduct as it was found that he had urinated in the grounds of the Brewery in breach of the respondent’s Code of Conduct and health and safety standards. The applicant denied the allegation which was made by a fellow employee who stated that he had witnessed the applicant committing the act. Clearly, the Brewery Packaging Manager, Mr Hogan accepted the truth of the allegation despite the applicant’s denial.

[52] Having heard both the applicant’s denial of the allegation at the hearing, and the evidence of Mr Evans who witnessed and reported the applicant’s conduct, I am satisfied that the applicant did commit the misconduct alleged. Contrary to the submissions put for the applicant I did not find Mr Evans’ answers to questions in the least defensive. His recollection was clear, and his answers direct.

[53] In light of the applicant’s prior record it is unsurprising that the respondent found the allegation made against him credible. I do not accept the contention that Mr Evans fabricated the allegation against the applicant as he held a grudge about the incident that occurred between them over a year earlier. While Mr Evans was forthright about the fact that the applicant was not well-liked I was unable to discern any animosity of the type that would give credence to such a claim.

[54] I also accept the evidence of Mr Hogan that, when confronted with the urination allegation at the meeting on 8 September 2010, the applicant denied that allegation and stated that such conduct was a “sackable offence”. I found Mr Hogan a credible witness and his evidence in this regard was clear. On that basis I not only accept that the applicant was guilty of the misconduct alleged, but also that he was well aware of the consequences of his actions.

[55] The term ‘serious misconduct’ is defined in section 12 of the Act as having “the meaning prescribed by the regulations”. Relevantly, Regulation 1.07 of the Fair Work Regulations 2009 (Cth) provides as follows:

1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

[56] I am satisfied that the applicant’s action in urinating in the open, in view of the public and relatively close to the respondent’s pasteurising area, did constitute serious misconduct when the potential for harm to the company’s reputation and business is taken into account.

[57] I am satisfied that there was a valid reason for the dismissal relating to the applicant’s conduct.

Notified of the reason?

[58] The applicant was clearly notified of the reason for his dismissal. Two meetings were held with him to discuss the issue and he was provided with a letter of termination which set out the reasons for the termination.

Opportunity to respond?

[59] The applicant was invited to two meetings on 8 and 9 September 2010 and given the opportunity to respond to the urination allegation. The applicant took that opportunity and denied the alleged misconduct. His denial was not believed by the employer’s representative who was responsible for making the decision to terminate the applicant’s employment.

Refusal of a support person?

[60] There was no suggestion that the applicant was denied the assistance of a support person at any stage of the termination process. The site delegate for the applicant’s union, the LHMU, accompanied the applicant to the meetings called by management to on 8 and 9 September 2010.

Unsatisfactory Performance?

[61] The termination of the applicant’s employment was not related to unsatisfactory performance and was a direct result of misconduct engaged in by the applicant on 5 September 2010.

Size of enterprise and absence of dedicated human resources expertise?

[62] The respondent in this matter is a large employer and part of a multi-national enterprise. The respondent has dedicated human resources specialists, one of whom provided the manager Mr Hogan with advice and assistance in relation to the investigation of the misconduct and the dismissal process. I do not think this factor had any bearing on the fairness of the dismissal.

Other relevant matters?

[63] The applicant’s atrocious record, as characterised by his own representative, is a relevant factor in this matter. While such conduct would most likely have been grounds for dismissal for any employee who engaged in it, the applicant had been given numerous “second chances” in the past and was not deserving of yet another.

[64] While the applicant’s long period of service, age and workplace injury are relevant factors that need to be taken into account when determining whether the dismissal was harsh, the seriousness of the conduct engaged in and the applicants’ disciplinary history negate any suggestion that the termination of employment was a disproportionate reaction.

Conclusion

[65] In light of the findings I have made in this case I am satisfied that the termination of the applicant’s employment was not harsh, unjust or unreasonable. In the circumstances the applicant’s dismissal was not unfair.

[66] The application is dismissed.

COMMISSIONER

Appearances:

Mr Peter Tullgren of counsel for the LHMU on behalf of the applicant

Mr John Tuck, DLA Phillips Fox for the respondent

Hearing details:

Commonwealth Law Courts, Hobart
Wednesday, 1 December 2010

 1   Exhibit T2 - Ricky Oxley handwritten note (transcript reference PN611).

 2   Attachment 4 to Exhibit C2 - Witness Statement of Catherine Byrnes (transcript reference PN88).

 3   Attachment 4 to Exhibit C2 - Witness Statement of Catherine Byrnes (transcript reference PN90).

 4   Attachment 5 to Exhibit C2 - Witness Statement of Catherine Byrnes (transcript reference PN108)

 5   LHMU v Foster’s Group Limited (C2006/2846) 9 August 2006 (Mansfield C).

 6   Attachment 2 to Exhibit C4 (transcript reference PN242).

 7   Exhibit C3 (transcript reference PN570).

 8   Exhibit C2 (transcript reference PN556).

 9   Exhibit C3 (transcript reference PN570).

 10   Exhibit C4 (transcript reference PN589).

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