Mr Sam Guido v Akzo Nobel Pty Ltd
[2013] FWC 1222
•7 MARCH 2013
[2013] FWC 1222 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Sam Guido
v
Akzo Nobel Pty Ltd
(U2012/9236)
COMMISSIONER CRIBB | MELBOURNE, 7 MARCH 2013 |
Application for unfair dismissal remedy.
[1] This decision concerns an application by Mr Sam Guido (the Applicant) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). It is alleged that his dismissal by Akzo Nobel Pty Ltd (the respondent, the company, Akzo Nobel) was harsh, unjust or unreasonable.
[2] Mr Guido’s application was the subject of conciliation on 8 August 2012 but no settlement was reached. The application was formally heard on 15 November 2012.
[3] Mr Guido gave evidence as did Mr G Brown, Paint Plant Mill Operator with the company. For Akzo Nobel, Mr C Whittaker, Plant Manager, Mr D Bartolo, Human Resources Manager and Mr B Myers, Plant Supervisor gave evidence.
[4] Mr Guido was represented by Mr S Gome, Industrial Officer, United Voice and the company by Mr P Ludeke, solicitor.
EVIDENCE
[5] Central to determining whether or not Mr Guido’s dismissal was harsh, unjust or unreasonable are the events of Wednesday 4 July 2012. The main focus of the summary of evidence will therefore be on what occurred on that day. Subsequent events and other pertinent issues will also be included as necessary. However, it needs to be stated clearly that all of the material before the Commission has been taken into account in reaching the conclusions in paragraphs 141 - 146 of this decision.
Mr Guido
[6] Mr Guido provided a written witness statement 1 and also gave oral evidence.
Smoking
[7] Mr Guido confirmed that, in a discussion with Mr Whittaker, on 28 June 2010, he had accepted that he had been smoking outside the permitted time. He agreed that he had told Mr Whittaker that he did not give a fuck and that he may as well give him a final warning. He denied that his attitude was that, when a Supervisor or Manager corrected him, he would tell them that he did not care. 2
Final warning dated 16 March 2012
[8] It was Mr Guido’s evidence that what he had written in his statement was his understanding of his final warning. He denied trying to mislead the Commission as to what the final warning was about. It was conceded that his statement in this regard was false. 3 He stated that there was no intention on his part to deliberately try to defraud the company of three days’ pay for an illegitimate personal leave absence.4
[9] Mr Guido indicated that he had not challenged the final warning and that he had no idea what procedure he needed to follow to do that. He said that, in most cases, he just accepted what the company said. 5 It was recalled that he was flabbergasted that the company was accusing him of trying to defraud it. It was stated that he was honest in the situation that he was unable to work but he did not explain the reason for him being there to the company. Mr Guido confirmed that, at the time, he understood the allegation against him.6
Wednesday 4 July 2012
[10] It was confirmed by Mr Guido that the incident occurred shortly after the toolbox meeting during which Mr Myers instructed him to follow the job list. He stated that every morning at the toolbox meeting, Mr Myers said to follow the job list. He agreed that, on 4 July 2012, Mr Myers told him that he should have filled the blade green job instead of the one that he did. 7
[11] Mr Guido explained that Mr Myers had come up to him and had asked him why he had not followed the list yesterday and that he should have. He had responded and then Mr Myers had asked him how he knew that he did not have time (to finish the third job on the list). He had then said that he knew he could not finish the next job on the list but he could finish the job which was not on the list. Mr Myers had then told him that he should have done the next job on the list. It was said that Mr Myers kept on saying “You should have followed the list” and he was trying to make him understand that he could not because he thought that he did not have enough time to finish the job. Mr Guido explained that he had been there a number of years and that he knew how long certain jobs took and what he could or could not finish in time. 8
[12] Mr Guido agreed that Mr Myers had instructed him to work the job list as set. He denied that he had decided to confront/challenge Mr Meyer about his instruction as his Supervisor. He stated that he did not refuse to follow Mr Myers’ instructions at all. It was recalled that he said that he did not have a problem with following the list as long as Mr Myers understood that it will take longer (could cause delay) to do it in the manner that he wanted him to do it. He said that he had no problem whatsoever with following Mr Myers’ instruction as long as Mr Myers accepted his point. 9 Mr Guido recalled that the only reason he started shouting and swearing at him was because, after Mr Myers had made his point, he stood there repeating it. It was said that all Mr Myers had to do was to walk away as he was going to follow his instructions - that was what he was there for.10
[13] It was confirmed that he had said to Mr Myers that, if that was the way he wanted him to do it, that was fine but that, doing a job like that was going to slow him down. He recalled saying that he was trying to do his utmost for the company. Mr Myers had to understand that doing it his way would make him slower and make him look bad and that he did not want to look like he was not doing his job. 11 He said that, to an extent, he had had a disagreement with a Supervisor. However, he really did not have a disagreement because he was willing to do what the Supervisor wanted him to do and he did not refuse to do what he said.12
[14] It was Mr Guido’s evidence that the last part of his conversation with Mr Myers on Wednesday 4 July 2012 was a disagreement. He recalled initially speaking in his normal speaking voice to Mr Myers. It was his recollection that Mr Myers was being repetitive on one point - you’ve got to follow the list, you've got to follow the list..... He said that his voice changed and it became louder because he wanted to be sure that he was being heard by Mr Myers. Mr Guido thought that his voice was at its highest level for maybe 2 to 5 minutes, he could not really say. He denied yelling at Mr Myers but agreed he had shouted at him. 13
[15] Mr Guido stated that he felt that he had no option but to raise his voice to make himself heard. That was said to be the only reason that he had raised his voice. 14 Mr Guido stated that he equated not being listened to by somebody as bullying and harassment on the basis that there can be soft-spoken bullies.15 It was stated that he believed that the company had not listened properly to what he said.16 He indicated that, as he did not have good verbal skills, he gets annoyed and frustrated. He said that he does the best that he can with what he has.17
[16] Mr Guido stated that, during this exchange, he and Mr Myers were moving and that the closest he would have got to Mr Myers would have been about an arm’s length away (for about 30 seconds). 18 He said that, in a way, he was trying to avoid Mr Myers and get away from him as this was where he was working and not Mr Myers’ office. He had nowhere to go because he was doing his job.19 It was recalled that, during this 30 second period, he was trying to get through to Mr Myers that what he wanted him to do was going to be inefficient for him and for the company. However, it was stated that Mr Myers just kept on saying “You must follow the list”.20
[17] It was explained by Mr Guido that, at that point in time, he was also swearing and saying that the situation was effed. Mr Guido could not recall whether anything that he said was directed towards Mr Myers. He confirmed that he called Mr Myers an idiot and that he may have called him an idiot more than once but he could not recall. He denied calling him a bastard. He agreed that he shouted at Mr Myers that “this is fucked”. 21
[18] It was confirmed by Mr Guido that Mr Meyers had asked him to stop swearing and shouting and that he had refused. He explained that he had refused because of the heat of the argument at that time. 22 Mr Guido’s evidence was that Mr Myers had raised his voice at him but had not sworn or called him obscene names. He agreed that Mr Myers was mild-mannered throughout the discussion.23 He denied causing the confrontation. It was explained that he was the only one who was emotional because it was his job.24
[19] Mr Guido indicated that, towards the end of the discussion, Mr Myers had said that he was going to report him to Mr Whittaker (the headmaster) and he took that as a threat. 25 It was his view that, as Mr Meyers kept on arguing with him, he was a school bully and that he was acting like a prefect26. He said that Mr Myers just kept on repeating, repeating and repeating the instruction. He did not want to argue about it - he just wanted to do his job. He said that there was no need for Mr Myers to get into a confrontation with him and that it was Mr Myers who had instigated the discussion. It was stated that when the Supervisor persists in carrying on in terms of giving a direction, it was bullying. It was not a matter of Mr Myers saying it once or twice.27
[20] It was recounted by Mr Guido that, at the end of the conversation when both he and Mr Myers were moving away, he had mumbled something under his breath. 28 He recalled that he had probably mumbled/ muttered “dickhead” as he walked off but he did not remember shouting at Mr Myers. Mr Guido denied calling Mr Myers a fucking c...29 Later on during cross examination, Mr Guido indicated that he could not deny nor confirm that, as Mr Myers was walking away, he called him/ muttered “a fucking c....”30
[21] It was Mr Guido’s view that, having given him that instruction, Mr Myers should have walked away. If Mr Myers had walked away, there would not have been any need for him (Mr Guido) to keep on explaining. He said that it was both of their faults but that he had far fewer options than Mr Myers. This was said to be because he had nowhere to go whereas Mr Myers could go to his office or to another part of the plant. 31 It was his understanding that, if a Supervisor is having a problem with a worker, the Supervisor makes his point and then walks away. He said that he had no opportunity to walk away as he was at his job - he had nowhere to go. If he had left his position, it was Mr Guido’s view that he would have been asked as to why he had left his job and why he was not working.32
[22] He explained that his definition of “I got into his face” was about an arm’s length or so. He explained that the Show Cause letter which recorded him saying that he had stepped into Brendan’s face, was not what he had said on the day. Mr Guido stated that he did not say that in his response to the Show Cause letter because there were a lot of things that he could have said but he was very emotional and frustrated and was not thinking clearly. He indicated that he was just trying to resolve the situation to the best of his ability. 33 He said that in his response, he did not go through the Show Cause letter point by point. Mr Guido stated that someone from the union helped him write it. It was agreed that, except for the reference to him standing approximately 6 inches away from Mr Myers, the show cause letter was accurate.34
[23] Mr Guido recounted that Mr Myers had said that he felt threatened. However, he did not think that he had threatened Mr Myers in any way. He stated that, if that is what his Supervisor felt, that is what he felt and there was nothing he could do about his feelings. He had had no intention of making his Supervisor feel threatened or intimidated in any way. Mr Myers was a bigger person than him and he described himself as a pacifist who would walk away. He said that he would argue vigorously but he did not get physical. Mr Guido indicated that he did not know what happened that day and he could not really explain it. 35
[24] With respect to the bullying and harassment presentation by Mr Bartolo, in May 2012, Mr Guido indicated that he remembered very little of it. He confirmed that Mr Bartolo had said, during the presentation, that some behaviour could be subject to instant dismissal. 36
[25] It was Mr Guido’s evidence that he was sorry for the way people took what he had to say the way they did. It was not his intention to make them feel bad (threatened with). He said that he was truly sorry that he made someone feel like that. He did not want him to feel like that and he had absolutely no intention to make him feel like that. It was said that he regretted what he had said to Mr Myers and also regretted the whole situation which should not have occurred. Mr Guido said that he wished he could take it back and reverse it somehow. 37 It was agreed that he did not apologise to Mr Myers at any time.38
[26] Mr Guido explained that he was hoping to get his job back because, at the end of the day, he really had not done anything wrong. It was his opinion, and not an attitude, that he did not think that he had done anything wrong. He said that he had an argument that maybe could have been avoided but not by him. 39
[27] Mr Guido stated that he had been unemployed since his dismissal from Akzo Nobel. He explained that he had been looking for work through the newspapers and a local employment placement company. He had applied for two positions but was unsuccessful. He has had zero income since his dismissal. When he was working at Akzo Nobel, he worked 35 hours a week and earned approximately $31 an hour. 40
Mr Brown
[28] Mr Brown provided a written witness statement 41 in addition to his oral evidence.
[29] Mr Brown gave evidence that swear words are used commonly in the plant and that the F word is said every now and then. 42 He explained that the F word was directed mainly at machinery if something was going wrong or if someone was discussing something. He said that it was not common for an operator to swear or shout at a Supervisor or call them a dickhead. It was not part of the culture to do any or all of those things.43 In his written statement, Mr Brown indicated that Mr Whittaker drops the F word ‘a fair bit’. He also said that Mr Myers had once told an employee to “shut the fuck up”. It was stated that he had taken that up with Mr Myers who had later apologised to that person.44
[30] With respect to the meeting on 5 July 2012, Mr Brown explained that he thought that the document that Mr Bartolo read from was an early version of what became the “Show Cause letter” dated 9 July 2012. 45 It was stated that Mr Bartolo read out each point and then asked Mr Guido whether he agreed with the description. He said that, for most of the points, Mr Guido had responded with “yes” and had wanted to explain in his own words what had happened. However, he was not allowed to continue and that Mr Bartolo kept going on then to the next question and that he was also stopped from saying more than “yes” by Mr Roberts. It was stated that Mr Bartolo did not seem to be interested in Mr Guido’s explanation. He seemed to be simply interested in “yes” or “no”. Mr Guido was said to have been able to explain certain things but they were never written down. It was just written down as “yes” with no explanation.46 Later on during cross examination, Mr Brown agreed that, at the meeting, Mr Guido was able to respond to each point that was put to him, as his evidence was about the meeting on 5 July 2012.47
[31] Mr Brown recalled that he had had a brief look at the Show Cause letter and had advised Mr Guido to see the union about his response. 48
[32] In his written statement, Mr Brown explained that, at one point during the meeting, Mr Bartolo had asked Mr Guido whether he had got “into Brendan’s face”? Mr Guido had replied to the effect of “what do you call someone’s personal space? Yes, I did get into his space.” It was Mr Brown’s view that Mr Guido had not properly heard what Mr Bartolo had asked him. 49 Mr Brown recalled that, a couple of times after the meeting, he had asked Mr Guido about whether he had understood that Mr Bartolo had asked him about getting into Mr Myers’ “face” not “space”. Mr Guido’s response was said to have been that they were all the same thing.50
[33] Further, Mr Guido had denied calling Mr Meyer “a fucking c...” as Mr Myers walked away. 51
Mr Whittaker
[34] Mr Whittaker provided a written witness statement 52 and, initially, there were no questions of Mr Whittaker.
[35] Mr Whittaker’s written evidence concerned three verbal warnings that he gave to Mr Guido between June 2010 and February 2012 concerning smoking outside his permitted break times. The first one was on 28 June 2010 and Mr Guido was said to have accepted that he had been smoking outside the permitted break. However, it was stated that he had responded by saying “I don’t give a fuck. You may as well give me a final warning now.” 53
[36] A second verbal warning was given to Mr Guido for smoking outside his permitted break time on 2 February 2011. Mr Guido was said to have accepted the warning and understood that further breaches would lead to disciplinary action being taken. 54
[37] Another verbal warning was issued to Mr Guido, on 27 February 2012, for smoking outside his permitted break time. Mr Guido was told that, any further breaches within the next six months, would incur further disciplinary action. 55
[38] However, Mr Whittaker did give oral evidence - regarding the final warning to Mr Guido. 56 It was stated that Mr Guido had advised the company before he was scheduled to work, on 7 March 2012, that he was not going to be at work on that day. He did not know whether Mr Guido had mentioned, on 7 March 2012, that he may be absent for more than one day.57 It was confirmed that Mr Guido had returned to work after the public holiday on 12 March 2012 and had provided the company with a statutory declaration giving the reasons why he was away.58
[39] Mr Whittaker indicated that the company had not accepted Mr Guido’s statutory declaration as justifying the length of the absence. This was because Mr Guido was seen at a hotel (within 100 metres of the factory) on the Friday 9 March 2012. It was explained that the company had asked for further evidence but Mr Guido was unable to provide it or unwilling to provide it. Therefore, the company did not accept the statutory declaration. 59 Mr Whittaker explained that Mr Guido had been asked for further information but that he had said that it was none of the company’s business that he could not come to work, that he was not mentally attuned and that his illness was of a private nature.60 It was stated that it was a reasonable distance between the hotel and where Mr Guido lived.61
[40] Mr Whittaker confirmed that he had signed the original final written warning which was then given to Mr Guido. 62 It was also stated that Mr Guido did not challenge the final written warning nor, on his behalf, United Voice.63
Mr Bartolo
[41] Mr Bartolo provided a written witness statement 64 and also gave oral evidence.
[42] It was Mr Bartolo’s evidence that he had written a significant proportion of the final warning letter to Mr Guido but he could not be specific as to which paragraphs he wrote. 65
[43] With respect to the Show Cause letter, dated 9 July 2012, which stated that Mr Guido had told the company that he had stepped into Brendan’s face (approximately 6 inches away), Mr Bartolo recalled that Mr Guido had said to him, in a meeting with Mr Roberts, Mr Brown and himself, words to the effect that he stepped in towards him (Mr Myers) and got somewhere between and 2 feet and 6 inches away from Mr Myers’ face. It was stated that when he (Mr Bartolo) spoke to Mr Myers, Mr Myers had said that Mr Guido had got within 6 inches of him. He explained that he had then put the 6 inches to Mr Guido. Mr Bartolo conceded that Mr Guido had given him a range of somewhere between 2 feet and 6 inches. He stated that both Mr Myers and Mr Guido had used 6 inches. 66
[44] Mr Bartolo indicated that Mr Myers was taller than Mr Guido and he guessed that the height difference was about 6 inches. 67
[45] In terms of the company’s Equal Employment Opportunity, Bullying and Harassment Policy, it was Mr Bartolo’s view that Mr Guido may have been a bully in terms of ‘verbal abuse and intimidation or threat’ but he stated that it was one instance and was not ongoing. 68
[46] With respect to the meeting on 5 July 2012, Mr Bartolo disagreed with Mr Brown’s evidence that Mr Guido was not given a chance to fully explain his reasons. It was stated that Mr Guido had a sufficient ability to say whatever he liked and that they were there listening. He could not recall whether he may have cut Mr Guido off at some point. 69
Mr Myers
[47] Mr Myers provided a written statement 70 and gave oral evidence.
[48] With respect to the incident regarding another employee, referred to in Mr Brown’s statement, it was confirmed by Mr Myers that he told this employee “Will you please shut the fuck up and let me talk”. Mr Myers explained that this employee was continually talking to him about how he currently did his job and why he did it that way. He stated that he told him to “shut the fuck up” because he needed to explain to him what he needed him to hear. It was recalled that he had said it calmly and without aggression and that it was a figure of speech that he used. Mr Myers agreed that ‘fuck’ was a swear word and that he was the supervisor of the employee involved. He confirmed that the employee was offended by his figure of speech. 71
[49] Mr Myers confirmed that, during the discussion with Mr Guido on Wednesday 4 July 2012, Mr Guido had fired right up and said that if he didn’t want him to do extras at the same time he would just do as he instructed him. It was agreed that Mr Guido had told him that he (Mr Guido) would do as he was instructed by Mr Myers. 72
[50] It was explained by Mr Myers that the foul language that he said Mr Guido was using, in his email to Mr Whittaker and Mr Bartolo, were swear words. He said that ‘bastard’ was a swear word but that “idiot” was not be a swear word. However, he had found it offensive when he was called an idiot. 73
[51] Mr Myers explained that, as he was going through the door of the office, he heard Mr Guido call him a ‘fucking c...’. He indicated that there would have been 10 metres between Mr Guido in his work area, immediately below the staircase, and the door of the office. It was Mr Myers’ view that Mr Guido said those words out loud so that he could hear it. It was Mr Myers’ opinion that Mr Guido intended him to hear it because he said it loud enough so that he could hear it. He agreed that it was loud enough, possibly, for anyone else to hear it but stated that there was no one else in the work area at that time. 74
[52] With respect to the final warning given to Mr Guido, it was Mr Myers’ evidence that he was sure that it was signed by Mr Whittaker but he did not think that he had signed the letter before it was issued. 75
[53] Mr Myers stated that, during the exchange between Mr Guido and himself, at the closest point, they were 6 inches apart, face to face. It was recalled that Mr Guido turned to walk away and then quickly swung around and stepped back and right up into his face. He said that Mr Guido was angled down as he was coming back out of a step and up into his face. It was explained that Mr Guido was literally right up close into his face. Mr Myers stated that he was 6 foot two inches. He did not know how much taller than Mr Guido he was but agreed that Mr Guido was probably significantly shorter than him. 76
Mr Roberts
[54] Mr Roberts provided a written witness statement 77 but was not called to give evidence.
[55] In his statement, Mr Roberts corroborated Mr Bartolo’s version of events of what Mr Guido said at the interview on 5 July 2012, that Mr Guido did not express any regret for his conduct and that he was given every opportunity to speak. 78
SUBMISSIONS
Applicant
[56] On behalf of the applicant, Mr Gome submitted that most of the significant facts were not in dispute. Rather, what was in dispute were the conclusions that could be drawn from them. It was stated that it was not in dispute that:
- there was an argument on 4 July 2012
- Mr Guido raised his voice
- at some point, Mr Guido moved closer to Mr Myers
- the word “fuck” is a swear word
- this word is used around the factory in different contexts.
[57] With respect to the final warning, it was not disputed that:
- Mr Guido was away at the time
- Mr Guido was in the pub
- Mr Guido provided a statutory declaration.
[58] In terms of the final warning, it was argued that the conclusions the respondent drew were unfounded. Being away from work for three days and being sighted outside his home address on one of these days cannot amount to gross misconduct. This was because it was not a question of an unauthorised absence or that he had advised the company that he was going to be in one place and then he was somewhere else. Mr Guido had told the company that he was taking sick leave. The company was perfectly entitled to say that, as he had been away for three days, we are not satisfied with a statutory declaration. Rather, we need a medical certificate. What Mr Guido had done was not lie but to have just withheld information. 79
[59] It was said that it was really strong language to characterise the situation as Mr Guido attempting to defraud the company of a days’ pay for illegitimate purposes. Further the company stated in the warning that it will summarily terminate his employment if this situation occurred again, regardless of the timeframe. 80 In addition, Mr Gome indicated that the company had continued this approach during the hearing with allegations that the applicant has deliberately attempted to mislead the Commission.81
[60] Further, the Union argued that Mr Guido was entitled to characterise these events as about whether or not the evidence he provided satisfied the preconditions for taking sick leave. It was said not to be about Mr Guido's honesty and that he did not have to accept that he had been dishonest or that he had lied to the company. Accordingly, in Mr Guido’s witness statement, he had characterised the final warning as being for claiming three days of personal leave supported by a statutory declaration and not a medical certificate. 82
[61] In regard to the company’s approach in this case, the Commission was directed to Mr Bartolo’s evidence where he said that Mr Guido gave him a range - somewhere between 6 inches and 2 feet. However, as the company guy, Mr Myers, had said six inches, it was therefore 6 inches - which had then been represented as what Mr Guido had said. 83
[62] With respect to language around the plant, it submitted that it was in Mr Brown’s statement that Mr Whittaker drops the ‘f’ word a fair bit. Mr Whittaker was said to have not responded to that assertion. Further, it was argued that Mr Guido was not picked up when he said to Mr Whittaker on 28 June 2010 “Give me a warning. I couldn't give a fuck.” This was stated to say more about the culture of the workplace than it did about Mr Guido. 84
[63] In terms of the discussion between Mr Whittaker and Mr Guido on 2 February 2011, it was contended that there was no suggestion that there was a formal warning issued. The diary note was said to not say that Mr Whittaker gave Mr Guido a verbal warning. 85 Mr Gome referred to Mr Whittaker’s diary note of 4 February 2011 where it stated that Mr Guido was issued with a verbal warning.86 It was argued that Mr Guido had been spoken to a number of times but that this time he was issued with a verbal warning. It was indicated that Mr Guido had accepted the warning and understood that breaches in the next six months would lead to further disciplinary action. Therefore, in his statement, Mr Guido said that he had only received one formal warning - the final warning regarding being seen in the hotel when he was absent from work.87
[64] With regard to the incident on 4 July 2012, it was submitted that Mr Meyers, in his evidence, said that Mr Guido called him a dickhead and an idiot. It was stated that Mr Guido did not call him a fucking dickhead or a fucking idiot. Mr Myers was said not to have disputed that Mr Guido had said “This is fucked” - meaning that the situation is fucked. 88 The union contrasted this with Mr Myers’ evidence that, as a supervisor, he had told an employee to “Shut the fuck up” which had resulted in the employee concerned being offended. It was stated that Mr Myers had said this perfectly coldly, that he knew what he was doing and that his intention was to shut the employee up, namely, not to listen to them anymore.89
[65] Mr Gome drew a parallel between Mr Myers’ actions with the other employee and Mr Guido’s actions on 4 July 2012. It was argued that the latter was a discussion between Mr Guido and Mr Myers about how the work was done with Mr Guido trying to explain why he did what he did with Mr Myers saying - just do the job - over and over again. Mr Guido has acknowledged that Mr Myers is his supervisor and that he shouted at him. However, it was said to be a bit rich for Mr Myers to say that he was offended when Mr Guido called him an idiot and a bastard. 90 It was argued that only one of those two words was a swear word and that Mr Myers evidence was not that, when he and Mr Guido were in close proximity, that Mr Guido had used real swear words such as fuck and c.....91
[66] The union stated that the company was satisfied that Mr Guido was twice guilty of gross misconduct - on the occasion of the final warning and then, secondly, arising out of his behaviour on 4 July 2012. It was argued that, following the incident on 4 July 2012, the company decided, not only that they were going to nail Mr Guido this time, but that they were also going to say that he was a liar and that he had lied to the Commission. 92
[67] Mr Gome conceded that it is an open question, on the basis of the evidence before the Commission, as to whether or not Mr Myers, from the balcony, heard Mr Guido say “Fucking c...”. It was not denied that they were swear words. However, the Commission was reminded that Mr Guido’s evidence was that he did not remember saying that and that he thought that he had said “dickhead”. Even if it was found that Mr Guido had said that, this was said to not warrant summary dismissal after 23 years service. 93
[68] The Commission was reminded that, in his Show Cause letter, prior to his dismissal, Mr Guido stated that he was prepared to apologise to Mr Myers. It was argued that there had only been a small window of opportunity for Mr Guido to express contrition to Mr Myers - one day - Thursday. 94
[69] It was submitted that, after 23 years service, the company had summarily dismissed Mr Guido for gross misconduct. Mr Guido was said to be a person with limited English who had worked in a manufacturing site in the western suburbs for 23 years. Mr Guido’s evidence was recalled to be that he was finding it difficult to obtain other work at the age of 58. 95
[70] The Union argued that there was no valid reason for Mr Guido’s dismissal. This was on the basis that the company was drawing completely sinister and implausible inferences from what had happened. There was said to be no objective basis for doing this. This had rendered the dismissal as very unjust. 96 Further, it was contended that there was no particular reason to terminate the applicant’s employment summarily. Mr Guido had worked one day after the incident and then taken personal leave. It was stated that, if Mr Guido had not taken personal leave, there was therefore no obstacle from the company’s perspective to Mr Guido returning to work.97
[71] In addition, the Union submitted that Mr Guido’s dismissal was incredibly harsh. It was contended that both Mr Myers and Mr Guido have significant girths and that, if some part of their anatomy was 6 inches away, their faces may well have been some distance apart. Mr Gome stated that 6 inches nose to nose, was hard to believe. Even if everything that the respondent says was accepted, it was said that the consequences of the dismissal were harsh. This was not only from a financial perspective but also from the perspective of Mr Guido’s reputation. The Commission was requested to make a finding as to whether the inferences and allegations of repeated dishonesty by Mr Guido are reasonable. 98
[72] In the union’s submissions in reply, Mr Gome argued that the case of Lawrence v Coal and Allied Mining Services Proprietary Limited 99 (Lawrence decision) was not particularly relevant as the part that had been referred to is a consideration of whether the public interest consideration might be applicable in that particular context.100 It was argued that the Lawrence decision only applied to serious misconduct. It was stated that, in this case, it was a summary dismissal for serious misconduct and that, if the Commission were to take into consideration previous history as part of a valid reason for dismissal, then that is not, on its proper construction, serious misconduct.101
Akzo Nobel
[73] On behalf of the company, Mr Ludeke submitted that there will be hyperbole in submissions but that the company had not made sinister inferences nor perverse conclusions. Rather, the company's conclusions are set out in the show cause letter and the termination letter. In these documents, the company has dealt with the facts and set out its conclusions, the principal one being gross misconduct on the part of the applicant. 102
[74] It was argued that the gross misconduct arose out of Mr Guido deliberately and directly challenging the authority of his employer as represented by one of its supervisors. The company contended that Mr Guido had chosen not to accept an instruction given to him to follow the daily job list. Mr Guido had decided for himself that he knew better than his supervisor and so decided to push back at the supervisor. 103
[75] Further, the challenge was not in a civil and structured way and Mr Guido did not accept that Mr Myers was entitled to repeat the instruction that he follow the daily job list. It was stated that it was when Mr Myers repeated the instruction that Mr Guido decided to challenge his authority. Mr Guido did not make any reasonable response to the instruction. Instead, he started shouting at Mr Myers and stepped into his face at a distance of somewhere between the arms length, two feet, 6 inches. It was recalled that Mr Guido accepted the rhetorical description that he stepped into Mr Myers’ face. 104
[76] Mr Ludeke stated that, not only did Mr Guido shout at Mr Myers, he cursed at him by calling him an idiot more than once and a dickhead. It was also Mr Myers’ evidence that Mr Guido had called him a bastard. In addition, Mr Guido continued to shout and swear at him despite a further lawful instruction to stop shouting and swearing. The company pointed out that Mr Guido’s evidence was that he had been told by Mr Myers to stop but that he did not stop. So this was said to be the direct challenge to the authority of the employer as represented by one of its supervisors. It was described as a deliberate non-acceptance of the authority of the supervisor to instruct Mr Guido lawfully on what to do in his work and what not to do in his interpersonal contact with that supervisor. 105 The last part of the exchange between Mr Myers and Mr Guido was said to have included Mr Guido saying “fucking c...”. Mr Guido’s evidence was characterised as equivocal but not due to his inability to speak English. This included whether or not he had said this to Mr Myers. The company contended that Mr Guido’s conduct was deliberate.106
[77] The respondent questioned Mr Guido’s contrition in that he was saying that he was contrite about the incident but was also saying that he had not done anything wrong. It was argued that it was not possible for Mr Guido to say that he genuinely regretted what had occurred whilst also saying that he had not done anything wrong. 107
[78] It was submitted that Mr Guido has an attitude problem which was evident from his history. His attitude was said to have been demonstrated by his response to Mr Whittaker, on 28 June 2010, when he said that he did not give a fuck about being verbally warned for smoking and that Mr Whittaker may as well give him the final warning now. This attitude was said to have continued through to the 4 July 2012 incident when he said that he did not give a fuck when his Manager told him he was doing something wrong. It was described as sending the message that, in his view, he had not done anything wrong. 108
[79] The company referred to the contemporaneous records of what occurred on 4 July 2012. These were the email from Mr Myers of that date and the Show Cause letter. With respect to Mr Myers’ email, it was highlighted that Mr Myers said that Mr Guido’s aggression and abuse was well beyond reasonable - to the point that he felt that Mr Guido was going to strike him at one moment. 109 It was argued that there was no culture at Akzo Nobel which tolerated Mr Guido’s behaviour towards his supervisor on 4 July 2012.110
[80] With respect to the Show Cause letter, the respondent argued that Mr Guido’s evidence was that he accepted the accuracy of the Show Cause letter except for the 6 inches/2 feet issue. It was stated that Mr Guido had accepted in his oral evidence that Mr Myers felt threatened by his behaviour and felt that Mr Guido was going to strike him. 111 Mr Ludeke submitted that, if there was anything inaccurate or out of order with the Show Cause letter, the Union, on Mr Guido’s behalf, should have forensically deconstructed the Show Cause letter to that end. However, this was stated to have not happened.112
[81] In terms of the final written warning, the company contended that, whilst Mr Guido may have been flabbergasted, he did not do anything to challenge it at the time. It was argued that Mr Guido could not say to the Commission that the final warning was for claiming 3 days of personal leave supported by a statutory declaration and not a medical certificate and at the same time be flabbergasted by the defrauding allegation. The respondent submitted that Mr Guido had not been frank on important matters. 113 Mr Ludeke argued that Mr Guido’s evidence had not been honest and that there was a continuum through the events of an attitude problem by Mr Guido.114 Specifically, it was stated that paragraph 10 of Mr Guido's statement regarding the reason for his final warning was dishonest. Further, it was contended that, during cross-examination, Mr Guido had eventually conceded the dishonesty in that he had said that he knew what the final warning was about.115
[82] It was stated by the company that Mr Guido was dismissed because of what he did on 4 July 2012 which amounted to gross misconduct. In addition, the company looked at Mr Guido’s history and observed that his history was not good and that, in the last two years, it was poor. It was explained that, if at 4 July 2012, there were no strikes against Mr Guido and the company was in the Commission, they would struggle to say that, after 23 years of service, this was not harsh. However, it was stated that Mr Guido’s attitude was that he could do what he likes. Hence, in the face of a final warning, he behaved as he did on 4 July 2012 - and he does not think that he has done anything wrong. 116
[83] With respect to section 387 of the Act, Mr Ludeke submitted that it was a question of gross misconduct. It was stated that Mr Guido had attended a training course earlier in the year where it was explained to him what sort of conduct was acceptable and not acceptable in the workplace. He had acknowledged that he understood that certain conduct would result in instant dismissal. 117
[84] In terms of whether Mr Guido was given an opportunity to respond, it was the company’s submission that he was not only given the opportunity to respond in meetings but he was also a given a Show Cause letter with two days to go away and get advice and then to respond. It was stated that Mr Guido’s response did not challenge the facts in any material way. 118
[85] Further, the company submitted that Mr Guido was given a reasonable opportunity to have a support person at all of the meetings. It was stated that it was not a question of unsatisfactory performance. In addition, the procedures that were said to have been followed were classically sound and there was a dedicated Human Resources specialist. 119
[86] The Commission was referred to two authorities in support of the company’s submission regarding valid reason. The company argued that the Full Bench decision in Parmalat Food Products Pty Ltd v Mr Wililo 120 was authority for the proposition that significant mitigating factors have to be established, once a valid reason for the termination is found, for the termination to be harsh, unjust or unreasonable. It was contended that, in this case, the respondent had met the burden to demonstrate that there was a valid reason.121
[87] However, it was argued that it was for the applicant then to establish significant mitigating factors. With respect to this, the Commission was referred to the Full Bench decision 122 in the Lawrence decision. The facts in the Lawrence decision were contrasted with this case including the fact that Mr Lawrence was an exemplary employee with an exceptional work ethic, that in 28 years of service, Mr Lawrence had not been subject to any disciplinary allegation or action and that the conduct that led to his dismissal was entirely out of character. On the other hand, it was said that Mr Guido’s attitude to his work was quite different, that he had a significant record of disciplinary action in the past two years, including a final warning and that Mr Guido’s conduct, on 4 July 2012, was not out of character.123 The Full Bench also expressed the view that the harshness of a dismissal is a contextual consideration in light of the seriousness of the conduct and it should be weighed cautiously because most dismissal decisions have a harsh effect on the employee concerned.124
CONCLUSIONS
[88] Section 396 of the Act sets out four matters which must be decided in applications of this kind before the merits are considered. These matters are:
“(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[89] The application was made 14 days after the termination which is within the period required in subsection 394(2). With respect to the requirements of s.396(b), the applicant was covered by an award or an enterprise agreement. Therefore, the applicant was protected from unfair dismissal within the meaning of s.383 of the Act. Sections 396(c) and (d) have no relevance in this matter.
[90] Section 385 of the Act provides that a person has been unfairly dismissed if the Fair Work Commission is satisfied that:
“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
In this matter, s.385(a) has been met and s.385(c) and (d) have no relevance. Therefore, what remains is to determine whether or not Mr Guido’s dismissal was harsh, unjust or unreasonable (s.385(b)).
Was the dismissal harsh, unjust or unreasonable?
[91] In order to determine whether the termination of the Mr Guido’s employment was harsh, unjust or unreasonable, the Fair Work Commission is required to take into account the factors set out in s.387 of the Act. These factors are as follows:
“Section 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.”
I will deal with each of these factors in turn.
Valid reason – s.387(a)
[92] Mr Guido’s employment with Akzo Nobel was terminated on 12 July 2012. The reasons given, in the letter dated 12 July 2012, were that Mr Guido’s response to the Show Cause letter had not refuted the prima facie conclusion by the company that his serious misconduct warranted termination of his employment. 125 The letter went on to state that the company considered Mr Guido’s contention that he had not acted aggressively towards Mr Myers to be dishonest and contrary to the facts. This dishonesty was said to have compounded the serious nature of the misconduct.126 The letter also referred to a number of verbal warnings over the previous two years and a final written warning in March 2012.127 Mr Guido was advised that his employment was to be terminated immediately (ie. Summary dismissal).128
[93] The letter of termination was preceded by a Show Cause letter dated 9 July 2012. 129 This letter set out the results of the investigation into the exchange between Mr Guido and Mr Myers on 4 July 2012. It recounted what was said to have been told to the company by both Mr Myers and Mr Guido.130 The letter indicated that, as a result of the investigation, the company had determined, prima facie, that Mr Guido’s behaviour and actions amounted to gross misconduct. His behaviour was said to be clearly unacceptable and that the company did not tolerate any intimidation towards other employees. Mr Guido’s attendance, in May 2012, at bullying and harassment training was referred to.131 Further, it was stated that Mr Guido’s gross misconduct on 4 July 2012 together with a final warning for gross misconduct, dated 16 March 2012, warranted summary termination of his employment.132 Mr Guido was provided with two days to respond to the letter.133
[94] As can be seen from the company’s correspondence, it decided that Mr Guido’s conduct on 4 July 2012 was gross misconduct warranting dismissal. When Mr Guido’s final warning and verbal warnings were taken into account, summary dismissal for gross misconduct was deemed appropriate.
Incident on 4 July 2012
[95] I will start with the incident which took place on 4 July 2012 involving Mr Guido and Mr Myers (Mr Guido’s Supervisor). It was common ground that there was an argument between Mr Guido and Mr Myers and that Mr Guido raised his voice and was shouting. It was also not disputed that, at some point, Mr Myers asked Mr Guido to stop shouting and swearing and that Mr Guido did not stop. In addition, there was no dispute in the evidence that Mr Guido told Mr Myers that he would do as he was instructed by Mr Myers and that Mr Myers was mild mannered throughout the exchange. It was common ground that Mr Guido called Mr Myers an idiot and that Mr Guido said “This is fucked” - meaning - the situation is fucked.
[96] What was not agreed in terms of the facts was:
- How close Mr Guido came, physically, to Mr Myers.
- What Mr Guido said as Mr Myers was going through the door into the upstairs office.
- Whether Mr Guido called Mr Myers a “bastard”.
[97] I will deal with each of these disputed facts in turn.
1. How physically close did Mr Guido come to Mr Myers
[98] It was Mr Myers’ evidence at, at one point in time during their conversation, Mr Guido came within 6 inches of him and right up into his face. 134
[99] Mr Myers’ described what happened in these terms:
“When you were having the argument with Mr Guido, approximately how far away from each other were you?---I started the discussion, what I would consider - - -
At the closest point?---Six inches, 150 mill.
What were the closest two parts of your physiques?---He turned to walk away at one moment and then quickly turned back around and came up with a sort of half shoulder sort of approach, like that, right up into my face.
So for the record you’re leaning to one side and lurching?---No, he was.
Yes, you’re indicating - - -?---He went to step off and then swung around and stepped back and right up into my face.
He’s slouching?---He was angled down as he was coming back out a step and up into my face, yes.
So the six inches, what are the two points that you’re measuring there?---Face to face.
Face to face?---Yes.
How tall are you?---Six foot two.
How much taller than Mr Guido are you?---I’m not sure.
But he’s significantly shorter than you, isn’t he?---He probably is, yes.
So “in my face”, it’s not to be taken literally, is it?---Yes. He literally was right up close into my face.
On tip toes?---He was right up to my face.” 135
[100] It was also Mr Myers’ evidence that he felt threatened by Mr Guido’s aggressive behaviour and took offence at being called an idiot. 136 In his email to Mr Whittaker on the day of the incident, Mr Myers said that Mr Guido was extremely aggressive towards him, and stood right up to within inches of his face and used continuous foul language. Further, the email stated that “I thought for one moment that he was going to strike me he was so aggressive and in my face literally. He did not strike me, but appeared out of control.”137
[101] On the other hand, Mr Guido’s version of events was that he came within 2 feet to 6 inches (an arm’s length) of Mr Myers for about 30 seconds. 138
[102] In terms of whether Mr Guido came close to Mr Myers’ face, Mr Guido stated that he had answered the question during the investigation - “How close you got to Brendan?” - by saying that he “got into his face”. During the hearing he said that his definition of “his face” was about an arm’s length. 139 He indicated that the record of what he said, as set out in the Show Cause letter, was not an accurate record of what he said on that day.140
[103] Further, Mr Guido’s evidence was that he tried to explain to Mr Myers the reason why he did not follow the job list and that Mr Myers kept on repeating that he had to follow the job list. Mr Guido stated that he felt that Mr Myers was not listening to him nor accepting what he had to say. It was explained by Mr Guido that he then became emotional, frustrated/angry and that he raised his voice/shouted at Mr Myers and was swearing. 141
[104] It is evident that, for Mr Guido’s part, during the exchange with Mr Myers, he expressed his frustration at not being listened to or heard by Mr Myers by shouting and swearing. However, I do not accept My Myers contention that Mr Guido came within 6 inches of his face and that they were face to face. Mt Myers’ evidence was that he was 6 feet 2 inches tall and that Mr Guido was probably significantly shorter than him. On the basis of Mr Myers’ evidence and the opportunity to see both Mr Myers and Mr Guido in person during the hearing, it is my view that it would have been most unlikely that Mr Guido was able to get “into Mr Myers’ face”. The difference in their respective heights would seem to make this quite difficult to achieve.
[105] Therefore, I find that it is more probable that Mr Guido was 2 feet (an arm’s length) away from Mr Myers at the time they came closest to each other.
2. What Mr Guido said as Mr Myers was walking through the upstairs office door
[106] It was Mr Myers’ contention that Mr Guido deliberately said to him “fucking c…” as he was walking through the office door upstairs. He believed that it was said out loud so that he would hear it and that it was intended that he would hear it. 142
[107] For his part, Mr Guido denied saying those words to Mr Myers. It was his evidence that, as both he and Mr Myers had parted company, he had probably mumbled “dickhead” to himself. 143
[108] It would appear from the evidence that Mr Guido most likely said something as he and Mr Myers were walking away from each other. Having considered carefully all of the evidence before me, I accept Mr Guido’s denial that he said “fucking c….” to Mr Myers. It is most probable that Mr Guido did say “dickhead”.
3. Whether Mr Guido called Mr Myers a “bastard”
[109] Mr Myers, in his witness statement, said that Mr Guido had told him that he was “a real bastard”. 144 In his email to Mr Whittaker, dated 4 July 2012, Mr Myers stated that Mr Guido had called him a “bastard” several times.145 It was Mr Myers’ evidence that he considered “bastard” to be a swear word.146
[110] Mr Guido denied calling Mr Myers a “bastard”. 147
[111] Having taken account of all of the material before me, I accept Mr Guido’s denial that he called Mr Myers a “bastard”. Mr Guido has consistently denied doing this - from his interview with Mr Bartolo to during the hearing. Therefore, I find it most probable that Mr Guido did not call Mr Myers a “bastard”.
Summary
[112] Taking account of the findings set out in paragraphs 105, 108, and 111 and also the undisputed facts outlined in paragraph 95, it would seem that the following took place on 4 July 2012 between Mr Guido and Mr Myers:
- Mr Myers approached Mr Guido and asked him why he had not followed the work schedule the previous day.
- Mr Guido tried to explain why but felt that he was not being listened to/heard and that Mr Myers was not accepting what he had to say.
- Mr Guido told Mr Myers that he would do as he wanted him to do.
- Mr Guido became frustrated/angry and emotional because Mr Myers kept telling him to “follow the list”.
- Mr Guido started shouting and he swore (he said this (the situation) is fucked and called Mr Myers an idiot.
- At one point, Mr Guido was arm’s length (2 feet) away from Mr Myers.
- Mr Myers asked Mr Guido to stop shouting and to stop swearing. Mr Guido did not do either.
- As they both walked away, Mr Guido said “dickhead”.
[113] It is clear, even on Mr Guido’s evidence, that he became loud, frustrated and emotional and that he was using expressive arm gestures. He was shouting and called Mr Myers an idiot and later, a dickhead. He also said that “This is fucked”. Further, Mr Myers remained mild mannered and asked Mr Guido to stop shouting and swearing. Mr Guido did not do as he was requested by Mr Myers.
[114] On the basis of the findings set out above, I do not accept that the conduct by Mr Guido amounted to serious misconduct. Rather, it was misconduct - unacceptable behaviour in the workplace towards a Supervisor, which is not condoned by the Commission.
Final Warning
[115] In determining whether there was a valid reason for Mr Guido’s dismissal, account needs to be taken of the final warning that Mr Guido received on 16 March 2012. 148 The final warning was given for “gross misconduct” in that it was the company’s view that Mr Guido deliberately and wilfully attempted to defraud Akzo Nobel of three days’ pay for an illegitimate Personal Sick Leave absence.149 The final warning also stated that “The only reason we have not summarily terminated your employment in this instance is in recognition of your 23 years’ service with the company.”150 It is noted that the final warning was issued four months prior to the incident on 4 July 2012 which led to Mr Guido’s dismissal.
[116] The events that lead to the company issuing the final warning were:
- On Wednesday 7 March 2012, Mr Guido telephoned the company advising that he was ill and that he was taking sick leave. He was absent from work on 7, 8 and 9 March 2012.
- On Friday 9 March 2012, Mr Guido was seen at the Westend Hotel at lunch time.
- Mr Guido returned to work on Tuesday 13 March 2012 with a statutory declaration that he was too ill to work on 7 - 9 March 2012.
- An investigation meeting was conducted by the company once it learnt of Mr Guido’s whereabouts on 9 March 2012.
- During this meeting, Mr Guido confirmed that he had been at the Westend Hotel on 9 March 2012 whilst on sick leave.
- Mr Guido’s explanation was that his illness was of a private nature and that he could not attend work as he was not “mentally attuned”. He also did not see it as the company’s business as to what he did whilst on sick leave. 151
[117] It is noted that a verbal warning was issued to Mr Guido on 27 February 2012 for smoking outside his break times. 152
Conclusion
[118] When Mr Guido’s conduct (being in a hotel whilst on sick leave), which resulted in a final warning, four months before the events of 4 July 2012, is taken together with Mr Guido’s misconduct on 4 July 2012, it is the Commission’s view that, all together, these amount to a valid reason for Mr Guido’s dismissal on the basis of misconduct.
Notified of the reason - s.387(b)
[119] Mr Guido was provided with a Show Cause letter 153 on 9 July 2012 which set out the results of the investigation into the incident on 4 July 2012. It was found by the company that Mr Guido’s behaviour amounted to gross misconduct, which, together with the final warning, warranted summary termination of his employment.154
[120] Further, Mr Guido received a letter of termination, dated 12 July 2012, which set out the reasons for his dismissal. 155
[121] Therefore, I am satisfied that Mr Guido was notified of the reason for his dismissal.
Opportunity to respond – s.387(c)
[122] It was submitted, on behalf of Mr Guido, that he was not given adequate opportunity to respond to the allegations. This was on the basis that the respondent refused to hear his full responses to the allegations and to give due consideration to the responses he was permitted to make. 156
[123] The company argued that Mr Guido was not only given the opportunity to respond in meetings but was also given a Show Cause letter to which he responded. It was stated that, in his response, Mr Guido had not challenged the facts in any material way. 157
[124] It is clear from the material before me that Mr Guido was given a Show Cause letter on 9 July 2012. 158 He was given two days to respond and he did so, in writing, on 10 July 2012.159
[125] Prior to the Show Cause letter being issued, a meeting was held on 5 July 2012, as part of the company’s investigation. Mr Bartolo, Mr Roberts, Mr Guido and Mr Brown were in attendance. It was Mr Brown’s evidence, at the beginning of cross-examination, that during the meeting, when Mr Guido said ‘yes’ and then tried to explain what had happened to each point read out by Mr Bartolo, he was not allowed to continue. It was stated that Mr Bartolo would go onto the next question. Mr Brown’s view was that the company was not interested and that Mr Guido did say some things but they were not written down. In addition, it was said that Mr Guido would say “yes, but…..” and that Mr Roberts would interrupt and say that the company was only concerned about two main issues. 160
[126] Towards the end of cross examination, Mr Ludeke stated that he was only talking about the meeting on 5 July 2012. Then, when asked if Mr Guido was able to respond at that meeting, to each point put to him, Mr Brown’s evidence was that that was a fair statement. 161
[127] In his witness statement, Mr Brown also stated that, during the meeting on 9 July 2012, when Mr Bartolo read out the Show Cause letter, Mr Guido kept on trying to get his point of view across. 162
[128] It is not completely clear as to which meeting Mr Brown was referring to during his oral evidence. It may not be material as to specifically which meeting his comments related to - the Show Cause meeting on 9 July 2012 or the 5 July 2012 meeting, as both of these meetings formed part of the process which led to Mr Guido’s dismissal. I accept Mr Brown’s evidence that, during one of the meetings (either 9 July 2012 or 5 July 2012), when each of the statements were put to Mr Guido, he did not have a full opportunity to respond to the allegations being put to him
[129] Of greater concern, from a procedural fairness perspective, was Mr Bartolo’s knowing inclusion in the Show Cause letter of an inaccurate representation of what Mr Guido had told him. It was Mr Bartolo’s evidence that Mr Guido had told him that he had got within 6 inches to 2 feet away from Mr Myers. He agreed that Mr Guido had given him a range (6 inches to 2 feet) and that Mr Myers had told him 6 inches. 163 As to why he chose to use the lowest end of Mr Guido’s range in the Show Cause letter (“6. You [Mr Guido] then told us that you stepped into Brendan’s face (approximately 6 inches away)…….”,164 Mr Bartolo said that “It was the same number, yes. They both agreed that it was six inches. Sorry, they both used six inches, a distance of six inches.”165
[130] It is the Commission’s view that it was an act of bad faith by Mr Bartolo, Human Resources Manager, on behalf of the company, to misrepresent in a Show Cause letter, a statement by the applicant about a crucial factual element regarding what occurred on 4 July 2012. Further, the nature of the misrepresentation cast Mr Guido’s conduct in a worse light than if, what he had actually said, had been included.
[131] Taking all of this into account, the Commission is unable to be satisfied that Mr Guido’s dismissal was procedurally fair.
Support person – s.387(d)
[132] On the basis of the material before me, I find that the company did not unreasonably refuse to allow Mr Guido a support person.
Previous warnings regarding the unsatisfactory performance – s.387(e)
[133] This section is not relevant in this case as Mr Guido was not dismissed for unsatisfactory performance.
Impact of the size of the business/absence of dedicated human resources – s.387(f) and s.387(g)
[134] It appears that the company is an employer of some size and that it has a dedicated Human Resources Manager who conducted the investigation into the events of 4 July 2012 and who was a co-signatory to the Show Cause letter and the letter of termination. 166
Any other matters – s.387(h)
[135] Neither party made submissions regarding s.387(h) of the Act.
[136] However, from the Commission’s perspective, a matter that is considered relevant concerns the interaction between Mr Myers and another employee, whom he supervised, which was referred to in the material filed by both parties and about which oral evidence was subsequently given. In his evidence Mr Myers confirmed that he said to an employee who he supervised to “..shut the fuck up…..” and that the employee concerned was offended. 167 Mr Myers agreed that the employee was continuously talking to him about how he did the job and why he did it that way. He stated that he said those words to the employee because he needed to explain to him a new way of doing something and he needed the employer to hear.168 Further, it was Mr Myers’ evidence that he said it calmly and without aggression.169 He described it as a figure/expression of speech.170
[137] There is no material before me which suggests that Mr Myers was the subject of any disciplinary action as the result of his conduct towards this employee.
[138] I accept the union’s submissions that there are some parallels between Mr Myers’ actions with the other employee and Mr Guido’s actions on 4 July 2012. Both situations involved a discussion about how the work was done. In the first situation, Mr Myers had said to the employee “Will you please shut the fuck up and let me talk” because he could not get the employee to stop and listen to what he (Mr Myers’) was suggesting. 171
[139] It was Mr Guido’s evidence that he was trying to explain why he had not followed the list but that Mr Myers’ was not listening to him or hearing what he had to say. He had then become frustrated and angry and had sworn at Mr Myers.
[140] Account will therefore be taken of this seemingly unequal treatment of two employees in similar situations.
Conclusions
[141] In all of the circumstances of this matter, and having taken account of each of the factors in s.387 of the Act, I determine, on balance, that Mr Guido’s dismissal was harsh.
[142] On the one hand, there was a valid reason for Mr Guido’s dismissal, on the basis of misconduct, as the result of his misconduct on 4 July 2012 and the final warning four months earlier.
[143] On the other hand, I have taken into account the lack of procedural fairness as set out in paragraphs 128 - 131 above. Taken into account also was the seemingly unequal treatment between Mr Guido and Mr Myers as set out in paragraphs 136 - 139 above. It is reasonable for there to be a higher expectation of the conduct of supervisors, particularly towards those that they supervise and who they are therefore in a position of power over. Mr Myers, as the person’s supervisor, told an employee to “…please shut the fuck up….”. There is no evidence of any disciplinary action having been taken against Mr Myers by the company for having sworn at one of the employees he supervised.
[144] Further, Mr Guido was summarily dismissed by the company for gross misconduct. In finding that there was a valid reason for his dismissal, this did not include a finding that Mr Guido’s behaviour amounted to serious misconduct. Rather, it was misconduct. His summary dismissal, therefore, is a consideration in determining whether Mr Guido’s termination was harsh.
[145] Therefore, balancing all of these factors, I find that Mr Guido’s dismissal was harsh.
[146] Accordingly, it follows that, pursuant to s.385 of the Act, Mr Guido has been unfairly dismissed.
REMEDY
[147] Section 390 of the Act sets out when the Fair Work Commission may order a person’s reinstatement or payment of compensation for unfair dismissal. It is as follows:
“390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.”
[148] With respect to the requirements of s.390, I am satisfied that Mr Guido was protected from unfair dismissal at the time of his dismissal (s.390(1)(a)) and that he has been unfairly dismissed (s.390(1)(b)). Further, Mr Guido has made an application under s.394 of the Act (s.390(2)).
[149] Section 390(3) states that the Fair Work Commission must not order the payment of compensation unless two conditions have been met. The first condition is that the Fair Work Commission is satisfied that reinstatement is inappropriate (s.390(3)(a)). The primary remedy sought, on behalf of Mr Guido, was reinstatement to his previous position with continuity of service and remuneration lost. 172 The company does not appear to have made specific submissions regarding remedy.
[150] Despite Mr Guido seeking reinstatement in the first instance, it is my view that reinstatement would not be appropriate in this case, in all of the circumstances. In reaching this conclusion, I have been mindful of the nature of the events that led to Mr Guido’s dismissal. On this basis, reinstatement would not be appropriate.
Compensation
[151] Section 390(3)(b) requires that the Fair Work Commission consider it appropriate in all of the circumstances of the case to order compensation. Taking into account all of the circumstances of this matter, an order for payment of compensation is considered appropriate.
[152] The requirements regarding an order for compensation are contained in section 392 of the Act. Section 392(2) sets out the criteria for deciding the amount of compensation in all of the circumstances of the case. These criteria are:
“(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.”
[153] I will deal with each of the criteria in turn, guided by the decision of the Full Bench in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge. 173
[154] There is no sound basis on which to conclude that an order for the payment of compensation would affect the viability of Akzo Nobel’s enterprise. The effect of such an order on the company’s viability does not mitigate against such an order.
[155] Mr Guido’s length of service with the company was 23 years and 10 months. This is a period of service which supports such an order.
[156] In the circumstances, it was likely that Mr Guido would have worked for Akzo Nobel for another six month but for his dismissal. This supports an order for the payment of compensation.
[157] It was Mr Guido’s evidence that he had actively sought to mitigate his loss of employment with the company but had not been successful. His earnings, as a result, were zero. The amount earned from alternative employment would not mitigate against such an order.
[158] With respect to contingencies, the period Mr Guido would have worked for Akzo Nobel, save for his dismissal, has just recently passed. Therefore, contingencies do not mitigate against an order for the payment of compensation.
[159] However, Mr Guido’s misconduct contributed to the company’s decision to dismiss him. This, therefore, does go against an order for compensation.
[160] There are no other matters that are considered relevant to the circumstances of the case in terms of considering whether a compensation order is appropriate.
[161] The matters supporting an order for the payment of compensation outweigh those going against such an order. Therefore, it is considered that an order for the payment of compensation by Akzo Nobel to Mr Guido is appropriate in all of the circumstances of this case.
Compensation amount and instalments
[162] Determination of an amount of compensation is made having regard to the matters in section 392 of the Act and instalments having regard to s.393 of the Act.
[163] It is not possible to fully address the requirements of s.392 of the Act as the Commission does not appear to have Mr Guido’s precise hourly wage rate. The parties are directed to reach agreement as to Mr Guido’s hourly rate (s.392(2)(c) by close of business on Friday 15 March 2013 and for this figure to be provided to the Commission.
[164] With respect to remuneration earned (s.392(2)(e)) and income reasonably likely to be earned (s.392(2)(f)), time has elapsed since the hearing. During the hearing, it was Mr Guido’s evidence that he had been unable to find alternative employment and had therefore earned no income. The union is directed to provide the Commission and the company with an update as to whether alternative employment has been obtained by Mr Guido since the hearing and the amount of income earned (if any). This update is also to be provided by close of business on Friday 15 March 2013.
[165] Once this information is to hand, determination of an amount of compensation will be finalised within two weeks.
COMMISSIONER
Appearances:
S Gome of United Voice for the Applicant
P Ludeke Solicitor for the Respondent
Hearing details:
2012.
Melbourne:
November 15.
1 Exhibit A1
2 Transcript PN 485 - 495
3 Ibid PN 377 - 4429 and Exhibit A1 at paragraph 10
4 Ibid PN 443 - 449
5 Ibid PN 451 - 454
6 Ibid PN 459 - 466
7 Ibid PN 496 - 501
8 Ibid PN 271 and 363 - 365 and Exhibit A1 at paragraph 38
9 Ibid PN 346 - 357 and 359
10 Ibid PN 358 - 359
11 Ibid PN 284 and 348 - 357 and Exhibit A1 at paragraph 41
12 Ibid PN 312, 348 and 356 - 357
13 Ibid PN 232 - 243, 511 - 520 and 542
14 Ibid PN 314 - 315
15 Ibid PN 672
16 Exhibit A1 at paragraph 78
17 Transcript PN 372
18 Ibid PN 244 - 246 and 543 - 544
19 Ibid PN 244
20 Ibid PN 248 - 259
21 Ibid 250 - 258 and 569 - 570, 584, 591 and 610 - 611
22 Ibid PN 329 - 331 and 599 - 600
23 Ibid PN 334 - 337, 344 - 345, 566 - 568, 632 and 668 - 670
24 Ibid PN 341
25 Ibid PN 636 and 643
26 Ibid PN 630 - 631
27 Ibid PN 645 - 654
28 Ibid PN 263 - 266 and Exhibit A1 at paragraph 52
29 Ibid PN 596 - 598 and 626 - 629 and 617 - 618
30 Ibid PN 619 - 624
31 Ibid PN 366 - 370 and Exhibit A1 at paragraph 39
32 Ibid PN 331
33 Ibid PN 556 - 569 and 593
34 Ibid PN 563 - 565
35 Ibid PN 312 and 318 - 319 and 327
36 Ibid PN 710 - 721 and Exhibit A1 at paragraphs 23 - 27
37 Ibid PN 316, 320, 673 - 676, 682 - 690, 697, 701 - 703 and ibid at paragraph 83
38 Ibid PN 677 - 681, 698 - 700 and 703 - 707
39 Ibid PN 312 and 322 - 327
40 Ibid PN 298 - 302
41 Exhibit A2
42 Ibid at paragraphs 5 - 6
43 Ibid at paragraph 7 and Transcript PN 773 - 779 and 824
44 Ibid at paragraphs 9 - 10
45 Ibid at paragraph 20 and Transcript PN 780 - 782
46 Exhibit A2 at paragraphs 21 - 23 and ibid PN 783 - 804 and 808 - 810
47 Ibid PN 815
48 Ibid PN 816 - 819
49 Exhibit A2 at paragraphs 24 - 26
50 Ibid at paragraphs 30 - 31
51 Ibid at paragraph 27
52 Exhibit R1
53 Ibid at paragraph 4 and Attachment CW-1
54 Ibid at paragraph 6 and ibid CW-2 and CW-3
55 Ibid at paragraph 7 and ibid CW-4
56 Exhibit A1 at Attachment SG-1
57 Transcript PN 1084 - 1092
58 Ibid PN 1093 - 1094
59 Ibid PN 1096 - 1119 and 1129
60 Ibid PN 1124 - 1125, 1128 and 1132
61 Ibid PN 1130 - 1131
62 Ibid PN 1126 - 1127
63 Ibid PN 1133 - 1134
64 Exhibit R3
65 Ibid at Attachment SG-1 and Transcript PN 884 - 886
66 Transcript PN 927 - 952
67 Ibid PN 935 - 936
68 Ibid PN 972 - 976 and Exhibit R3 at Attachment DB-1 at page 25
69 Ibid PN 976 - 984 and ibid at paragraph 22
70 Exhibit R4
71 Ibid at paragraph 19 and Transcript PN 999 - 1009
72 Ibid at Attachment BM-1 and ibid PN 1010 - 1011
73 Ibid PN 1012 - 1020
74 Ibid PN 1021 - 1039
75 Ibid PN 1040 - 1045 and Exhibit A1 at Attachment SG-1
76 Ibid PN 1056 - 1068
77 Exhibit R2
78 Ibid at paragraphs 3 - 5
79 Transcript PN 1165 - 1168
80 Ibid PN 1169 - 1173
81 Ibid PN 1174 - 1177
82 Ibid PN 1180 - 1182
83 Ibid PN 1183
84 Ibid PN 1186 - 1192 and Exhibit R1 at Attachment CW-1
85 Ibid PN 1193 - 1194 and ibid at Attachment CW-2
86 Ibid PN 1194 and ibid at Attachment CW-3
87 Ibid PN 1194 - 1195
88 Ibid PN 1199
89 Ibid PN 1205 - 1206
90 Ibid PN 1207 - 1208
91 Ibid PN 1208
92 Ibid PN 1213
93 Ibid PN 1214
94 Ibid PN 1225 - 1226
95 Ibid PN 1209 - 1213
96 Ibid PN 1127
97 Ibid PN 1226 - 1227
98 Ibid PN 1228 - 1229
99 [2010] FWAFB 10089
100 Transcript PN 1362
101 Ibid PN 1367 - 1376
102 Ibid PN 1236 - 1237
103 Ibid PN 1238 and Exhibit R5 at paragraph 3
104 Ibid PN 1239 - 1240 and ibid at paragraph 5
105 Ibid PN 1240 - 1241 and ibid at paragraph 4
106 Ibid PN 1241 - 1242
107 Ibid PN 1244 and Exhibit R5 at paragraph 7
108 Ibid PN 1248 - 1249
109 Ibid PN 1250 - 1251
110 Ibid PN 1253
111 Ibid PN 1254 - 1257
112 Ibid PN 1254 - 1277 and Exhibit R5 at paragraph 10
113 Ibid PN 1279 - 1281 and ibid at paragraphs 9, 12 and 15
114 Ibid PN 1284 - 1302
115 Ibid PN 1315 and 1321
116 Ibid PN 1304 - 1305 and Exhibit R5 at paragraph 17
117 Ibid PN 1329 - 1338 and ibid at paragraph 11
118 Ibid PN 1338 - 1340
119 Ibid PN 1340
120 [2011] FWAFB 1166
121 Transcript PN 1341 - 1343
122 [2010] FWAFB 10089
123 Transcript PN 1344 - 1354
124 Ibid PN 1357
125 Exhibit A1 at Attachment SG-4
126 Ibid
127 Ibid
128 Ibid
129 Exhibit A1 at Attachment SG-2
130 Ibid
131 Ibid
132 Ibid
133 Ibid
134 Transcript PN 1057 - 1063
135 Ibid PN 1056 - 1068
136 Ibid PN 1016 - 1018 and Exhibit R4 at paragraph 15
137 Exhibit R4 at Attachment BM-1
138 Exhibit A1 at paragraph 47 and Transcript PN 244 - 246 and 549
139 Ibid PN 549
140 Ibid PN 550
141 Ibid PN 240 - 241, 271 and 504 - 542
142 Ibid PN 1021 - 1036 and Exhibit R4 at paragraphs 13 and 17
143 Ibid PN 265 - 266, 596 - 597 and 612 - 629 and Exhibit A1 at paragraph 52
144 Exhibit R4 at paragraph 10
145 Ibid at Attachment BM-1
146 Transcript PN 1020
147 Ibid PN 570, 584 and 591
148 Exhibit A1 at Attachment SG-1
149 Ibid
150 Ibid
151 Ibid
152 Exhibit R1 at Attachment CW4
153 Exhibit A1 at Attachment SG-2
154 Ibid
155 Ibid at Attachment SG-4
156 Exhibit A3 at paragraph 38
157 Transcript PN 1340
158 Exhibit A1 at Attachment SG-2
159 Ibid at Attachment SG-3
160 Transcript PN 785 - 810 and Exhibit A2 at paragraphs 22 - 23
161 Ibid PN 814 - 815
162 Exhibit A2 at paragraph 36
163 Transcript PN 932 - 934, 937 - 939 and 946 - 950
164 Exhibit A1 at Attachment SG-2
165 Transcript PN 951
166 Exhibit A1 at Attachments SG-2 and SG-3
167 Transcript PN 1000 - 1008 and Exhibit R4 at paragraph 19
168 Ibid PN 1001 and 1003 and ibid
169 Ibid PN 1002 and 1004
170 Ibid PN 1005
171 Ibid PN 1000 - 1001 and Exhibit R4 at paragraph 19
172 Exhibit A3 at paragraph 46
173 [2013] FWCFB 431
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