Mr Stephen Gray v Automotive Brands Pty Ltd trading as Autobarn

[2011] FWA 2113

[2011] FWA 2113

FAIR WORK AUSTRALIA

DECISION

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

Mr Stephen Gray
v
Automotive Brands Pty Ltd trading as Autobarn
(U2010/14343)

COMMISSIONER SMITH DARWIN, 12 APRIL 2011

Termination of employment - serious misconduct - alleged bullying and harassment.

INTRODUCTION

[1] Mr Stephen Gray has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) claiming that his employment with Automotive Brands Pty Ltd trading as Autobarn (Autobarn) was terminated harshly, unjustly and unreasonably.

[2] In accordance with s.396 of the Act I find that the application was made within the period required and that the person was protected from unfair dismissal. Sections 396(c) and (d) of the Act do not apply.

[3] At the commencement of the matter before me on 4 April 2011, I conferred with the parties in accordance with ss.398 and 399. All parties advised that, in the circumstances, the Tribunal should hold a hearing as it was the most effective and efficient way to resolve the matter. I agreed.

[4] Briefly stated, Mr Gray was summarily dismissed from his employment for serious misconduct in that it is said that he breached the company’s Bullying and Harassment Policy.

BACKGROUND

[5] Mr Gray was employed as a Storeman by Autobarn on 20 October 2008. On 19 April 2010 he was given a written warning in relation to verbal comments made about another employee. It is not in dispute that he said of another employee: “He’s lucky to count to three. He’s a bit of a dumb-arse.” There was a second warning issued for another matter over which there is a disagreement, but in any event it was not relied upon in reaching the decision to dismiss.

[6] In September 2010 two employees complained about Mr Gray’s comments. It is alleged that he criticised the weight of one employee and denigrated the ability of another employee. These comments were made in front of other employees. In relation to this matter the National Union of Workers (NUW) represented Mr Gray. Autobarn relied upon its Solicitors to progress this complaint and by letter dated 7 October 2010, its Solicitors wrote to the NUW setting out the allegation, including the Workplace Harassment Policy, and providing Mr Gray with 7 days in which to show cause as to why his employment should not be terminated.

[7] In the response provided by the NUW it argued that inappropriate verbal banter had, until recently, been permitted if not encouraged, by representatives of the Company. The NUW also alleged that one of the complainants against Mr Gray was asked to submit the complaint by management. The NUW sought that the demand for him to show cause as to why his employment should not be terminated be withdrawn. It was the evidence of Mr Gray that until the current proceedings he had not seen the correspondence from Autobarn’s Solicitors and that he had heard nothing further about the complaints. His response in relation to the complaints was that it was acceptable banter between work colleagues.

[8] On 21 October, Autobarn arranged for a 90 minute training session on workplace bullying to be delivered to staff by an external provider. The evidence of the Chief Operating Officer, Ms Emma-Kate Coggan, for Autobarn was that the training was provided to give employees a clear understanding of Autobarn’s policy and examples of what amounted to bullying. It was the evidence of Ms Coggan that Mr Gray subsequently said to her that he thought the training was very good to which she responded that the company was now taking a zero tolerance approach to workplace bullying. It was her evidence that Mr Gray agreed.

[9] On 10 November a contractor working for Autobarn made a verbal complaint stating that he had been bullied by Mr Gray. The contractor stated that he had a stammer and that when he passed Mr Gray, he (Mr Gray) would start talking with a stammer. This occurred more than once. The contractor made a written complaint 1 and the National Logistics Manager, Mr Tony Raso and Human Resources Generalist, Ms Michelle Nicol met with the complainant to confirm his complaint and to advise that it would be investigated. Another employee wrote a statement confirming that Mr Gray had imitated the stutter.2

[10] On the same day a meeting was organised with Mr Gray and he was asked if he wanted to have someone with him during the course of the meeting. It was the evidence of Mr Raso that Mr Gray declined to have someone attend the meeting with him. Mr Gray’s evidence was that one shift was coming to an end and it may have been difficult to get someone to attend the meeting with him, but more importantly, he asked if he was in trouble and was told that he wasn’t.

[11] At that meeting, which was attended by Mr Raso and Ms Nicol, the allegation was put to Mr Gray. It is common evidence by all that Mr Gray said that he didn’t know the person who made the complaint and that he denied mimicking him. Mr Gray’s evidence was that he didn’t know him but when his work area was identified he knew who they were talking about. However Mr Gray was clear in his evidence that he did not mimic this person by pretending to stutter.

[12] At this stage of the meeting Ms Nicol sent an SMS to Ms Coggan asking her to attend the meeting as Ms Nicol did not have the authority to terminate the employment of Mr Gray. Ms Coggan attended and asked Mr Gray about the allegations and they were denied. It was the evidence of Mr Coggan that she said that it was the third claim against Mr Gray for bullying and given the training and her comment that the company had adopted a zero tolerance view on bullying, she said that it left her with no choice but to summarily dismiss Mr Gray. Mr Gray was asked for a response to which he asked—‘Are we done?’

REVIEW OF THE EVIDENCE

[13] The state of the evidence is not without difficulty in most respects. On the final alleged incident, Mr Gray presented and gave direct evidence that he did not mimic the employee by adopting a false stutter. The evidence from Autobarn is a copy of a written complaint (supported by a letter from another employee) and the evidence of two persons who interviewed the complainant. On the earlier alleged incident of bullying behaviour the investigation was incomplete, although the conduct complained of was admitted by Mr Gray’s representative but put down to inappropriate banter. The first written warning also related to inappropriate banter for which the NUW later stated had been permitted to occur by management.

[14] Turning to the final incident, I am not persuaded by the evidence of Mr Gray that he did not mimic the stutter of another employee to make fun of him. It does not seem probable that the employer would concoct such a story simply to bring an end to the employment of Mr Gray. I accept the evidence of Mr Raso and Ms Nicol that the complainant wrote the letter of complaint and that they spoke directly to the person to verify the complaint. I find that it was probable that Mr Gray did mimic another employee by pretending to stutter within his hearing.

[15] The relevance of the earlier unresolved complaint presents another problem. What weight, if any, should it be given in the circumstances where the employer has not resolved the matter one way or the other? However, it must also be said that the intervention of the NUW may have led to some caution on the part of the employer and this should not now be used as an example of the employer’s failing.

[16] I am prepared to take into account when considering this matter that the conduct was admitted by the NUW but it, on behalf of Mr Gray, sought to mitigate its impact by putting forward the view that the employer had permitted such a culture to develop.

[17] The other relevant piece of evidence was that Mr Gray stated that he had not seen the policy, the breaching of which caused his dismissal. That policy was not directly presented in evidence in the proceedings although it was said that it was freely available in the workplace. The policy is referred to in the letter of Autobarn’s Solicitors. 3 Mr Gray stated that he had not seen this letter. There is no evidence that Mr Gray has seen the policy, although its existence was discussed in the training session. Material which was tendered in relation to the training session deals with aspects of bullying and harassment in the workplace but does not contain the policy of Autobarn.

THE ACT AND CONCLUSION

[18] In considering applications pursuant to s.394 attention must be given to s.387 which provides:

“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.”

[19] I turn firstly to 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). I am persuaded that there was a valid reason relating to his conduct. It is clear that inappropriate banter did occur by Mr Gray and that he had a history of making inappropriate comments. The action taken by the employer was gradually seeking to bring this to an end. Had it not been for the employer initiated training this matter would have been more difficult, however the attendance by Mr Gray some three weeks before the final incident made his position untenable. It could not be said by him that, given his experience with allegations of workplace harassment and bullying together with the specialised training, he was unaware of what the employer expected in the workplace.

[20] I accept that he was not specifically directed to the language of the policy but it was clear what was acceptable conduct and what was unacceptable conduct. This is even so against the background of Mr Gray stating that he disagreed with some of the conclusions of the training session. The employer’s position was clear and Ms Coggan made it clear in discussions where she stated that the company had adopted a zero tolerance view regarding workplace bullying. It should be observed that simply because an employer expresses the view that it will have zero tolerance doesn’t mean that the Tribunal will share that view if it is not reasonable in all the circumstances.

[21] As to whether or not Mr Gray was notified of the reason I find that he was.

[22] The next consideration is whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person. The evidence of Ms Coggan was that he was given an opportunity to respond although the speed at which this occurred tends to militate against the opportunity to respond. It is uncontested that the whole meeting took a very short amount of time. This included asking Ms Coggan to attend as she was the only one who could terminate the employment of Mr Gray. All in all I believe that the ability of Mr Gray to respond meaningfully was not assisted by the process adopted. Mr Gray was about to lose his employment and the impact of this should not be underestimated.

[23] Of course, having an opportunity to respond is related to the next area which requires consideration namely; was there any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal? Again, it is not unusual for notice to be given to an employee that a meeting is going to be held at which consideration will be given to her/his future employment. This is particularly so in enterprises which have sufficient resources to employ a human resources specialist. Mr Gray was called into a meeting at the end of his shift. The gravity of this meeting was known to the employer but not known to Mr Gray. On his evidence, Mr Gray asked if he was in trouble and was told that he wasn’t. Whilst the incident which gave concern to the employer needed to be dealt with expeditiously, given the history of the matter and the fact that the last investigation had not been resolved, it may have been appropriate for Mr Gray to be permitted more time to prepare.

[24] Sections 387 (e), (f) and (g) are not relevant.

[25] I turn now to the final legislative requirement and that is any other matter that Fair Work Australia considers relevant.

[26] In this connection it is appropriate to examine the fact that it was a summary dismissal. A summary dismissal is more serious than a dismissal with notice. It brings with it the notion that the conduct is of such a quality that the employer is entitled to bring the contract to an end immediately without the payment of notice. In this connection I have had regard for Regulation 1.07 of the Act. In this case it also meant that Mr Gray could not access unemployment benefits for a longer period of time.

[27] It has been stated that misconduct connotes action which is ‘so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment’. 4 Whilst it is not necessary to establish that the conduct was so serious as to justify summary dismissal at common law,5 nevertheless the impact of a summary dismissal is a matter that can be taken into consideration:

“Employers can promulgate policies and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable” 6

[28] This approach was adopted by the Australian Industrial Relations Commission 7 and in my view it remains good. The same can be said of the approach in Windsor Smith v Liu & ors8 where it is clear that the fact that there is a valid reason does not mean that the termination cannot be harsh, unjust or unreasonable.

[29] There have been several areas where I am sure that, upon reflection, the employer would have preferred to have handled matters differently. Of relevance is the incomplete investigation into the earlier claims against Mr Gray for bullying and the timing surrounding the dismissal meeting. There is little doubt that conduct of the kind described is unacceptable in the workplace and the reason for termination does not lead me to disturb the termination of employment of Mr Gray. The significant point in favour of such a finding is the training provided on workplace bullying and harassment and the commitment of the employer to ensure its eradication. I have also had regard to the relatively short period of service and the fact that issues of conduct have occurred during this period. However, there seemed to be an element of exasperation in the approach of the employer which was, in the circumstances understandable. Although it must be said that before a person’s employment is brought to an end there needs to be proper reflection on both the reason for, and the method of, termination. The totality of the circumstances leads me to the conclusion that summary dismissal was harsh.

[30] For the reasons outlined, reinstatement is inappropriate. I have decided that compensation is appropriate in all the circumstances of this case. If Mr Gray had been terminated with notice he would have worked, at the employer’s election, for another two weeks. 9 His age is 49 and as such he would have been entitled to another week of work as he had just served more than two years of continuous service. I am aware that Mr Gray has earned some income in the period since his termination but he was also denied unemployment benefits because of the nature of his termination. I have taken these factors into account. There is no other reason to discount this amount as all the circumstances are known and there is no consideration of contingencies in the future.

[31] The order is attached to this decision.

COMMISSIONER

Appearances:

G. Dircks for the applicant.

R. Nelson of Counsel on behalf of the respondent.

Hearing details:

2011.

Melbourne;

April, 4.

 1   Exhibit N1, TR—10

 2   Exhibit N1, TR—11

 3   Exhibit N1, TR—8

 4   North v Television Corporation Ltd (1976) 11 ALR 599 per Smither and Evatt JJ

 5   Annetta v Ansett Australia (2000) 98 IR 233

 6   Bostik (Australia) Pty Ltd v Gorgevski (No 1) per Sheppard and Heerey JJ (1992) 41 IR 452 at 460

 7   Fearnley v Tenix Defence Systems Pty Ltd, Ross VP, Polites SDP and Smith C, Print S6238

 8   Print Q3462

 9   Mr Gray was employed more than 1 year but less than 3 years.

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