Mr Stephen Murphy v David Robinson Landscaping Pty Ltd
[2011] FWA 111
•10 JANUARY 2011
[2011] FWA 111 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Stephen Murphy
v
David Robinson Landscaping Pty Ltd
(U2010/7254)
COMMISSIONER GOOLEY | MELBOURNE, 10 JANUARY 2011 |
[1] Mr Stephen Murphy was employed by David Robinson Landscaping Pty Ltd (“DRL”) from approximately September 2004 until his employment was terminated on 17 March 2010.
[2] On 22 March 2010 Mr Murphy lodged an application for relief pursuant to s 394 of the Fair Work Act 2009 (“the FW Act”) alleging that he was unfairly dismissed. The application was referred to conciliation on 22 April 2010, which was not successful, and then for hearing on 16 and 17 August 2010.
[3] Mr Tayler, a solicitor, appeared with permission for Mr Murphy and Mr Ashleigh of Counsel appeared with permission for DRL.
[4] DRL is a landscaping business and its main client is the Logan City Council. 1 The work involves, amongst other things, laying concrete paths, watering plants and other landscaping work. Mr Murphy’s duties included driving various sized trucks to transport loads such as dirt, construction rubbish and water, as well as fixing small motors and being responsible for DRL’s workshop.2
[5] Mr David Robinson is the owner and director of DRL and he made the decision to terminate Mr Murphy’s employment.
Jurisdiction of Fair Work Australia
[6] Mr Murphy was dismissed by DRL for alleged misconduct. He was paid in lieu of notice.
[7] There is no dispute that Mr Murphy is a person who was protected from unfair dismissal pursuant to s 382 of the FW Act and that Fair Work Australia has the jurisdiction to determine the application.
The Evidence
[8] Mr Murphy gave evidence on his own behalf.
[9] Mr Scott Tainton, Mr Wayne Tainton, Mr John Cadman, Mr Grant Finch, Mr Kevin Brown, Mr Trent O’Neill, Mr Jay Flavell, Mr Bryan Flavell, Ms Stacey Regan and Mr Robert Bright, who had all worked for DRL, and Mr David Robinson gave evidence for DRL.
[10] In a letter to Mr Murphy’s solicitor dated 19 March 2010, DRL’s representatives outlined details of various “matters leading to the termination of Mr Murphy’s employment”. 3 These matters were the subject of witness evidence as follows.
The 4 February 2009 Incident
[11] Mr Robinson gave evidence of a verbal warning given to Mr Murphy about his conduct on 4 February 2009. Mr Robinson was called to a job by Mr Scott Tainton, a foreman with DRL, as there had been a dispute between Mr Tainton and Mr Murphy. Mr Tainton alleged that Mr Murphy had threatened him with violence. Mr Robinson reached the conclusion that Mr Murphy had caused the dispute. Mr Robinson told Mr Murphy that “he had refused to take instructions from the site foreman and that he had consciously obstructed productivity at the worksite.” Mr Robinson told him that “his actions in swearing and behaving in such an anti-social manner were not acceptable.” Mr Robinson set out three principles that Mr Murphy was required to abide by namely, safety on the job; looking after the well being of fellow workers and the public; and protection of the assets. He told Mr Murphy that if he was not willing to uphold these principles he would have to find another job. 4
[12] In cross examination about this incident Mr Robinson said that when he arrived Mr Murphy was threatening to bash Mr Tainton and Mr Robinson calmed the situation down. Mr Robinson concluded that Mr Murphy was at fault because he saw Mr Murphy going off and threatening Mr Tainton 5. Mr Robinson also said that Mr Tainton said to Mr Murphy that if he wanted to fight for him to come around to his place. Mr Robinson’s evidence was that Mr Murphy shook Mr Tainton’s hand and said “I was out of line.”6 Mr Robinson rejected the proposition put to him that Mr Murphy simply said “if you feel I was out of line I apologise.”7
[13] Mr Scott Tainton gave evidence that on 4 February 2009 he had a telephone conversation with Mr Murphy in which Mr Murphy threatened to assault him. When Mr Murphy arrived at work he immediately approached Mr Tainton and verbally abused him. 8 Mr Tainton was also told by Mr Kevin Brown and Mr Trent O’Neill that Mr Murphy had made disparaging remarks about him. Mr Tainton confronted Mr Murphy about this and Mr Murphy denied the comments. This led to conflict between Mr Murphy and Mr Brown and Mr O’Neill which caused Mr Tainton to call Mr Robinson.9
[14] In cross examination Mr Tainton said the confrontation between himself and Mr Murphy about the disparaging comments made by Mr Murphy to the other employees occurred a few hours after the initial confrontation when Mr Murphy first arrived at work. He admitted that he told Mr Murphy that he no longer wanted Mr Murphy on his job site and that it was Mr Murphy’s refusal to leave the site that caused him to call Mr Robinson. 10 Mr Tainton admitted that he said to Mr Murphy “what are you going to punch me now mate” but said this was in the context of Mr Murphy coming very close to him “like in your face.”11 Mr Tainton said that Mr Murphy returned to work until Mr Robinson arrived and Mr Robinson got them together. Mr Tainton said Mr Murphy apologised to him for his conduct and did not accept that Mr Murphy gave a qualified apology.12 Mr Tainton said that Mr Murphy got a verbal warning from Mr Robinson but did not give any evidence of the content of the warning.13
[15] Mr Kevin Brown gave evidence that Mr Murphy swore on this occasion. He confirmed that Mr Robinson was called out to settle the situation. 14
[16] Mr Trent O’Neill’s evidence was that after Mr Tainton confronted Mr Murphy about the statements made to him and other employees about Mr Tainton, Mr Murphy “got very upset and began swearing and threatening to bash Scott.” 15
[17] Mr Murphy denied making any threats to Mr Scott Tainton over the telephone. Mr Murphy’s evidence was that upon arrival at the site, Mr Tainton verbally attacked him and said “You’ve been talking to the boys and undermining my authority... I don’t need this, I have enough trouble getting these guys to work.” Mr Murphy said he denied making the comments and Mr Tainton ordered him off the site. Mr Murphy refused to leave and said he had done nothing wrong. He said Mr Tainton said to him “So you want to punch me now?” Mr Murphy said “Why would I want to do that? If you have a problem call Dave Robinson.” 16
[18] In cross examination Mr Murphy denied making the threats to Mr Tainton when he arrived at work. Mr Murphy also denied making derogatory remarks about Mr Tainton to other employees. Mr Murphy did admit to swearing at Mr Tainton but excused this on the grounds that Mr Tainton had made false allegations about him. Mr Murphy said Mr Tainton provoked him and “if I get angry or in an argument or anything I always swear.” 17
[19] Mr Murphy denied he was given any verbal warning by Mr Robinson. 18
The 8 September 2009 Incident
[20] Mr Robinson gave evidence that after an incident between Mr Murphy and Mr Wayne Tainton on 8 September 2010 he issued Mr Murphy with a written warning on 12 October 2009. 19 Mr Scott Tainton had also issued Mr Murphy with a warning in relation to the incident which was signed by him and Mr Brown, Mr Andrew Dandlon and Mr Callam Robinson who it was said witnessed the incident.
[21] Mr Robinson said that Mr Murphy’s response to this warning was to abuse his work colleagues and say that he was going to call in Workplace Health and Safety to conduct drug tests on them. 20
[22] Mr Wayne Tainton gave evidence that he asked Mr Murphy to pack up the road signs and he was aware that Mr Murphy asked another person to do the job. The next day Mr Tainton raised this with Mr Murphy who got very angry and yelled and swore at Mr Tainton. Mr Tainton said that Mr Scott Tainton tried to intervene and mediate but Mr Murphy remained aggressive and continued swearing at him so Mr Scott Tainton asked Mr Murphy to leave. 21
[23] In cross examination it was put to Mr Wayne Tainton that the altercation occurred because Mr Murphy said that Mr Scott Tainton was unfit for work. Mr Tainton denied this. While he remembered some confrontation with Mr Murphy about this, he said it did not occur on 8 September 2009. He accepted that he had interrupted a conversation Mr Murphy was having with someone else. It was his evidence that Mr Murphy was standing in his bobcat bucket abusing him. Mr Wayne Tainton said that they were all aggressive on that day. 22
[24] Mr Scott Tainton gave evidence that he had to mediate the altercation between Mr Murphy and Mr Wayne Tainton. He said Mr Murphy was swearing at Mr Wayne Tainton and Mr Murphy leant into Mr Wayne Tainton’s bobcat bucket and threatened him. Mr Scott Tainton said that Mr Murphy continued swearing even though he had been asked to stop because they were in front of a primary school. 23 Mr Scott Tainton asked Mr Murphy to leave the site. Mr Scott Tainton issued Mr Murphy with a warning for this incident.24
[25] Mr Scott Tainton was cross examined about this incident but it was not put to him that he and Mr Wayne Tainton had initiated the aggressive behaviour. Mr Tainton denied that he was hung over on that day. It was Mr Tainton’s evidence that he did not drink alcohol 25 nor smoke marijuana.
[26] Mr Brown did not refer to this incident in his witness statement.
[27] Mr Murphy’s evidence was that on 8 September 2009 Mr Scott Tainton arrived at work unfit for work and he suggested that Mr Tainton go home. His evidence was that Mr Scott Tainton and Mr Wayne Tainton became aggressive and told him to leave the site and go home. He said he “took offence and tried to stand up for [himself] in the face of a barrage of abuse from both Scott and Wayne Tainton.” 26 Mr Murphy said he did not get the letter of warning until 8 November 2009. His evidence was that he was not provided with an opportunity to put his side of the story and was simply given the letter of warning. On 23 November 2009 he provided a written response to the allegations.27 In this response Mr Murphy complained about the process adopted by Mr Robinson, in particular that Mr Robinson had not provided him with an opportunity to put his side of the story. Mr Murphy said the claims are unsubstantiated but did not in his letter set out his version of what occurred. Mr Murphy did ask for a meeting to discuss his future employment with DRL.
[28] Mr Robinson did not see this incident and said he had not had an opportunity to discuss this incident with Mr Murphy because Mr Murphy was absent from work on workers compensation. He did say he spoke to Mr Murphy on 6 November 2009 before he gave him the written warning on 8 November 2009. On that occasion Mr Murphy asked Mr Robinson if he wanted him back and Mr Robinson told him that there would need to be some changes. 28 Mr Robinson did not accept the proposition put to him in cross examination that Mr Murphy’s response to the warning was to question why he had received the warning when there were other problems with drugs and alcohol at DRL.29
The 18 November 2009 Incident
[29] Mr Murphy injured his knee at work around 8 September 2009. 30 Mr Murphy was cleared to return to work on 16 November 2009 and a return to work plan was put in place.31 On 6 November 2009 an occupational therapist attended the workplace with Mr Murphy. Mr Robinson gave evidence that the occupational therapist instructed Mr Murphy on how to climb out of trucks safely.32 The report provided to WorkCover said “it was stressed to Mr Murphy that when climbing, he must have three out of four points of contact, climb out of the truck backwards and not jump from the cabin or back out of the truck to the ground.”33
[30] Mr Robinson gave evidence that on 16 November 2009 he told Mr Murphy he was not to jump out of trucks. He further said that on 18 November 2009 he observed the CCTV footage 34 of the yard and it showed Mr Murphy jumping out of his truck. Mr Robinson issued Mr Murphy with a written warning about this on 2 December 2009.35 In that warning he referred Mr Murphy to a memo issued to all staff on 26 October 2009 directing all staff to use the steps when getting into and out of trucks.
[31] Mr Robinson accepted in cross examination that Mr Murphy was not at work when the 26 October 2009 notice was given out. 36 Mr Robinson insisted that Mr Murphy knew about the notice because it was put in each truck and on the notice board. The issue was also addressed in the occupational therapist’s report.
[32] Mr Murphy’s evidence was that Mr Robinson showed him the CCTV footage and they then inspected the vehicle. Mr Murphy’s evidence was that the lower two steps had been damaged making it unsafe to use when leaving the truck. He said he lowered himself to ground from the top step. 37
[33] Mr Murphy in cross examination said that he did not jump out of the truck, he lowered himself. 38
[34] It was put to Mr Robinson that the truck that Mr Murphy jumped from had a broken foot pedal. Mr Robinson denied it was broken, he said it was bent and said it was like that when the occupational assessment was done. 39
Meeting on 14 December 2009
[35] On 14 December 2009 a meeting was held to discuss Mr Murphy’s employment. Mr Morrison, Mr Murphy’s representative, took notes of the meeting. 40
[36] The meeting discussed the incident on 8 September 2009 and a complaint from Mr Finch that Mr Murphy had threatened to fight with an employee who had complained about Mr Murphy’s work. Mr Morrison’s notes report Mr Murphy “referring to his English workplace upbringing and the fighting way disputes were resolved. He added that he didn’t start fights but would not walk away or back down from any man.” 41
[37] The meeting also discussed the warning about jumping from the truck and after seeing the video footage they inspected the truck.
[38] Mr Morrison also reported that Mr Murphy admitted that “he was quick to respond to criticism or attack from fellow employees and that that attitude started when D Robinson - without warning or reason - removed him from his position of Workshop Manager and installed G Finch in his stead.” 42
[39] At this meeting Mr Robinson said “he was willing for S Murphy’s current employment with the company to continue ... conditional upon S Murphy ceasing his ‘aggressive attitude towards fellow employees’ ... he does not want any more violence, anger or personal disputes.” 43
[40] Mr Murphy expressed the view that all employees should be required to comply with the directive. Mr Morrison was concerned that employees might harass Mr Murphy in the hope that his response would trigger his dismissal. Mr Murphy was also concerned that his fellow employees would target him for harassment because of his threat to advise authorities whenever he encountered illegal alcohol or drug use on the work site. 44
[41] Mr Robinson undertook to advise all employees of the situation and seek their co-operation. 45
Complaints Against and By Grant Finch
[42] On 16 February 2010 Mr Murphy made a written complaint to Mr Robinson about Mr Grant Finch. He accused Mr Finch of a campaign of victimisation and harassment. 46
[43] He complained that:
(a) on two occasions that there was no vehicle available for him to drive home;
(b) on 12 February 2010 Mr Finch told him that if he took a meal or rest break he would have to make up that time by working back;
(c) on 13 February 2001 Mr Finch issued the same instruction again and told Mr Murphy that he could not work with him; and
(d) Mr Finch had been following him and checking his performance.
[44] Mr Murphy also complained of being replaced by Mr Finch, that his salary was reduced, and the company car was being taken away. He referred back to his request for a written contract and job description.
[45] On 22 February 2010 Mr Robinson wrote to Mr Murphy about this complaint and advised that he had met with Mr Finch about the complaint. He further advised that he had received a formal written complaint from Mr Finch about Mr Murphy. 47
[46] Mr Finch’s complaint alleged that:
(a) he felt physically and mentally threatened by Mr Murphy;
(b) Mr Murphy had made derogatory comments against both Mr Finch and Mr Robinson; and
(c) Mr Murphy monitors Mr Finch and other staff’s work performance in a way which makes him nervous and edgy. 48
[47] Mr Finch commenced work with DRL in February 2008. It was his evidence that Mr Murphy often made menacing and threatening comments at work. 49 He also gave evidence that Mr Murphy made derogatory remarks about him to his face. Mr Finch said this caused him stress and uncertainty. Mr Murphy would not accept direction from Mr Finch and Mr Finch’s evidence was that Mr Murphy threatened him by saying “you better watch yourself.”
[48] He also gave evidence that Mr Murphy from about March 2010 walked around the site taking notes of what was happening and criticising in a negative way Mr Finch and other employees’ work. Mr Finch said this created a tense and difficult work atmosphere. 50
[49] Mr Robinson sought a response from Mr Murphy within two days.
[50] In response to Mr Murphy’s questions about his ongoing role, Mr Robinson advised that he was employed for a 38 hour week and he had a half hour unpaid meal break. He provided a job description and advised that a two year contract would not be offered, that the salary would be reviewed when appropriate, no redundancy or severance payment would be offered and the company vehicle was to be used solely for work purposes and for on call work.
[51] No response was received by DRL to the 22 February 2010 letter, so a reminder was sent on 4 March 2010 requesting a response by 8 March 2010.
[52] Mr Murphy’s solicitors responded on 8 March 2010. 51 In that correspondence his solicitors referred to failure of Mr Robinson to respond to Mr Murphy’s complaint fairly. In response to the specific allegations about the derogatory comments made to Mr Finch, Mr Murphy’s solicitors say they have been taken out of context by Mr Finch for the purpose of causing distress to DRL and thereby provoking disciplinary action against Mr Murphy. The only statement listed which Mr Murphy specifically denied was the statement “you better watch yourself.” The letter further states that “no comment or suggestion offered by him during any conversation with Mr Finch has been made with any malicious or disrespectful intent. Our client regrets any misunderstanding Mr Finch might have formed as a result of any conversation he had with Mr Finch.”
[53] In cross examination Mr Murphy denied telling Mr Finch to “watch himself” 52 and denied saying “Nobody fucks with the Murphy family”.53 He did admit saying “You don’t fuck with the Murphy’s livelihood”.54
[54] Mr Bright, an employee of DRL, gave evidence that he witnessed this incident with Mr Finch and he said that “Steve then said to Grant in a menacing way ‘You better watch yourself’.” 55
[55] A meeting was called for 17 March 2010. Mr Murphy was advised he could bring a support person with him. 56 On 15 March 2010 Mr Murphy’s solicitors requested information about the meeting’s agenda57 and on 15 March 2010 Mr Robinson advised that it would be a disciplinary meeting.58
The Termination
[56] The meeting took place on 17 March 2010 and in addition to Mr Robinson and Mr Murphy, Mr Adam Tayler and Mr Rodney Sahay, the parties’ respective solicitors, were present. Mr Murphy was provided with a list of allegations. 59 These included the allegation made by Mr Finch but it also included allegations about incidents with Mr Scott Tainton and Mr Wayne Tainton. Further allegations were included about assaults or threats of assaults made to other employees.
[57] Mr Sahay began the meeting by asking Mr Murphy about the first allegation namely the complaint made by Mr Finch. Mr Murphy’s solicitor advised that Mr Murphy would not be answering questions about the allegations, and that the questions should be put in writing and a response would be provided by Mr Murphy in writing after he had a reasonable time to consider the allegations and take advice. 60 Mr Sahay advised Mr Murphy that the meeting was an investigation and “was a further warning situation”. Mr Sahay advised Mr Murphy that if he chose not to respond then his employer was entitled to rely on the information provided by other employees in reaching his decision.61
[58] After conferring with Mr Robinson, Mr Sahay then advised Mr Murphy that his employment would be terminated. Mr Robinson said he made this decision because he “had a duty of care to [his] other employees.” 62 A letter confirming this decision was sent to Mr Murphy on the 17 March 2010.63
[59] On 17 March 2010 Mr Murphy’s solicitor wrote to DRL requesting additional information about the allegations and advising that Mr Murphy considered that he had been unfairly dismissed and he had been dismissed because he exercised a workplace right. 64
[60] On 18 March 2010 DRL’s solicitors wrote advising that Mr Murphy would be paid in lieu of notice and all outstanding entitlements. 65
[61] As mentioned above, on 19 March 2010 a detailed letter was sent by DRL’s solicitors setting out the matters leading to the termination of Mr Murphy’s employment. 66
Other Allegations
[62] In addition to the matters outlined in the letter of 19 March 2010 which have been discussed above, evidence was given about various other incidents involving Mr Murphy, many of which occurred a significant time ago.
[63] Mr Robinson gave evidence of a range of incidents including allegations of assault of his sons, Callan and Jarred Robinson, by Mr Murphy 67 as well as verbal abuse of other employees.68
[64] DRL also sought to rely on allegations of sexual harassment of Ms Regan, theft and truancy to justify the termination. DRL submitted that they were not aware of these issues at the date of termination but submitted that they are entitled to rely upon these matters in resisting the unfair dismissal application. 69
Written Submissions of the Parties
[65] At the end of the hearing on 17 August 2010, the parties were directed to file further written submissions in regard to the matter. Final written submissions were filed on behalf of Mr Murphy on 15 September 2010. Final written submissions were filed by DRL on 8 October 2010.
Submissions of Mr Murphy
Violence Against Other Employees
[66] Mr Tayler submitted that this was a workplace in which violence and abuse were tolerated and rife. 70 Mr Tayler submitted that the other employees baited Mr Murphy to anger time and time again because they did not like him.71 In this context Mr Tayler submitted that Mr Murphy’s behaviour was not abnormal and did not amount to misconduct.72
[67] In response to the allegations that Mr Murphy was violent towards other workers, Mr Tayler submitted that Mr Murphy admitted hitting Mr Callam Robinson but that this was in self defence. Mr Tayler submitted that Mr Murphy punched Mr Callam Robinson after he was pushed by him. While the evidence of Mr Scott Tainton was that Mr Murphy was not pushed, Mr Tayler submitted that Mr Tainton was out to “paint the applicant in the worst possible light and if necessary to exaggerate as much as possible.” 73 Mr Tayler said I should draw an inference from the failure of DRL to call Mr Callam Robinson to give evidence that his evidence would not have assisted DRL’s case.74
[68] Mr Tayler accepted that Mr Murphy hit Mr Jarrod Robinson with an open hand. Mr Tayler submitted that the evidence did not support the claim that Mr Murphy punched Mr Jarrod Robinson. Mr Tayler justified this conduct on the basis that Mr Jarrod Robinson had sprayed Mr Murphy with water while he was talking on the phone. Mr Murphy was not disciplined about this incident. 75
[69] Mr Tayler submitted that there was a culture of violent interactions between the employees of DRL and that this was tolerated. He submitted that Mr Murphy’s dismissal was not justified because “other employees who had committed worse acts of violence had not been disciplined at all as to their behaviour let alone dismissed for it.” 76
Alleged Intimidating and Threatening Behaviour to Other Employees
[70] Mr Tayler submitted that Mr Murphy’s reactions needed to be seen in the context of the environment in which he worked. Mr Tayler submitted that Mr Murphy reported incidents of poor workplace behaviour or breaches of policy, and that he was not liked because of that. 77
[71] Mr Tayler submitted that the “applicant will not back down from a fight and was taunted and goaded into his reactions.” 78
[72] Further Mr Tayler submitted that Mr Murphy was the victim of intimidating and threatening behaviour. He referred to an incident in which it was alleged that Mr Brown made abusive comments to Mr Murphy. Mr Brown denied this allegation. 79 Mr O’Neill, who was present in the truck, could not recall specifically what was said but admits that Mr Brown did speak to Mr Murphy.
Abuse of Andrew Frick
[73] Mr Tayler submitted that the evidence about this allegation is unreliable and the Tribunal should prefer the evidence of Mr Murphy. Mr Tayler also submitted that given the failure of the respondent to call Mr Frick an inference should be drawn that his evidence would not have supported DRL’s case.
4 February 2009 Incident
[74] Mr Tayler submitted that the Tribunal should find that the allegations made by Mr Scott Tainton about what occurred when Mr Murphy arrived at work are not supported by the evidence and that Mr Tainton had an agenda of painting Mr Murphy in the worst possible light. Mr Tayler made submissions about the inconsistencies in the evidence about what occurred on this date.
16 April 2009 Incident
[75] Mr Tayler submitted that this incident did not occur.
8 September Incident
[76] Mr Tayler submitted that while Mr Murphy accepted that he got into Mr Wayne Tainton’s bucket and swore at him, this was because Mr Scott Tainton and Mr Wayne Tainton were aggressive towards him. Mr Tayler submitted that the Tribunal should draw the inference from the failure of DRL to call two witnesses who were present that their evidence would not have assisted DRL. Mr Tayler further submitted that Mr Murphy was not provided with an opportunity to put his version of events prior to being given a warning about the incident. Mr Tayler submitted that swearing was common and these events cannot be relied upon to support the dismissal.
Threat to Mr Trent O’Neill
[77] Mr Tayler acknowledged that Mr Murphy cannot recall this incident but submitted that it should not be relied upon because Mr Murphy was often taunted by Mr O’Neill. He further submitted that Mr O’Neill and others would taunt Mr Murphy to bash them to get him in trouble. He submitted that no complaint was made at the time and no other witnesses were called to corroborate the allegations.
Threat to Mr Kevin Brown
[78] Mr Tayler submitted that the verbal threat to bash Mr Brown only occurred once. He submitted that the Tribunal should find that Mr Brown was an unreliable witness and his version of events should not be relied upon.
Comments to Mr Grant Finch
[79] Mr Tayler submitted that Mr Finch made his complaint in response to Mr Murphy’s complaint against him. Mr Murphy accepted that he made the comments alleged by Mr Finch except he denied saying “you better watch yourself”. Mr Tayler submitted that Mr Murphy made the comments because he was concerned about Mr Robinson’s business.
Alleged Disregard For and Undermining of Employer’s Delegate’s Authority
[80] Mr Tayler submitted that there was either no evidence to support these allegations or, if there was, it was unreliable, or if Mr Murphy did refuse to follow directions it was because Mr Brown would try and stir him up and he did not believe anything Mr Brown told him.
Conduct Calculated to Cause Unrest
[81] Mr Tayler submitted that there is no misconduct in Mr Murphy making notes in a notebook and reporting health and safety breaches.
Sexual Harassment
[82] Mr Tayler submitted that Ms Regan’s evidence regarding sexual harassment by Mr Murphy should not be believed. He submitted that Mr Murphy did not engage in the conduct alleged and that on Ms Regan’s evidence the incidents occurred at a time Mr Murphy was not even working for Mr Robinson. Mr Tayler further submitted that the other allegations of inappropriate behaviour were not supported by reliable evidence. Further Mr Tayler submitted that if the Tribunal finds the conduct did occur then Mr Murphy was not warned about his conduct and the employer had no policy about sexual harassment.
Theft
[83] Mr Tayler submitted that Mr Cadman’s evidence regarding theft by Mr Murphy cannot be accepted. Mr Murphy denied removing goods without permission, denied that Mr Cadman had been at this house and denied that his garden was landscaped at the time. Mr Tayler submitted that the allegations by Mr Finch were inadmissible hearsay and no weight should be given to them.
Truancy
[84] Mr Tayler submitted that the allegations of Mr Murphy leaving the worksite were not supported by the evidence.
Performance
[85] Mr Tayler submitted that the evidence does not show Mr Murphy jumping from the truck and therefore the warning given was not justified. Further he submitted that Mr Murphy was not given an opportunity to respond to the allegations before the warning was issued.
Unfairly Dismissed
[86] Mr Tayler submitted that there was no valid reason to terminate Mr Murphy’s employment. He further submitted that Mr Murphy while told of the allegations was not told of the reasons for his termination. It was also submitted that Mr Murphy was not given an opportunity to respond. It was further submitted that warnings relied upon by Mr Robinson were either not given or were invalid. Mr Murphy seeks compensation of $30,000.
Submissions of DRL
Sexual Harassment
[87] The respondent submitted that Ms Regan’s evidence is credible and should be accepted. It was submitted that the conduct she complained of was consistent with the conduct Mr Finch alleged Mr Murphy engaged in.
Theft of property
[88] The respondent submitted that while Mr Cadman was uncertain of Mr Murphy’s address his evidence of the event should be accepted.
Assaults on Mr Callam and Mr Jarrod Robinson
[89] The respondent denied that Mr Murphy hit Mr Callam Robinson in retaliation. It was submitted that Mr Callam Robinson was punched three times. Further it was submitted that Mr Murphy accepted he hit Mr Jarrod Robinson.
Abuse of and threat to Mr Brian Flavell
[90] The respondent submitted that this incident is an example of how Mr Murphy deals with conflict, that is, by fighting.
Abuse of Andrew Frick
[91] The respondent submitted that this is another example of Mr Murphy throwing his weight around in the workplace.
Abuse and Threats to Mr Scott Tainton - Verbal Warning
[92] The respondent relied on two incidents, namely the threat to Mr Scott Tainton when Mr Murphy was late for work and the threat made to Mr Scott Tainton when he attended for work. The respondent relied upon the warning given to Mr Murphy by Mr Robinson.
Abuse of Mr Wayne Tainton
[93] The respondent submitted this occurred on two separate occasions.
Jumping Out of the Truck
[94] The respondent submitted that the evidence showed Mr Murphy jumping out of the truck.
Complaint by Mr Murphy and by Mr Finch
[95] The respondent submitted that Mr Murphy’s complaint against Mr Finch was investigated. The respondent submitted that Mr Murphy did not respond to the complaint made by Mr Finch when given the opportunity. Mr Murphy admitted most of the allegations made by Mr Finch.
Unfairly Dismissed
[96] The respondent relied on Mr Murphy’s aggression and threatening behaviour to justify the termination. The respondent submitted that Mr Murphy must have been aware of the reason he was dismissed and he was afforded an opportunity to respond and he declined to take that opportunity.
The Legislative Framework
[97] Pursuant to s 385 of the FW Act:
“A person has been unfairly dismissed if FWA 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.”
[98] There is no dispute that the Applicant was dismissed from his employment. DRL is not a small business and it was not submitted that Mr Murphy had been made redundant.
[99] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, Fair Work Australia must take into account the following:
s387(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);
[100] I do not intend canvassing all the evidence in my conclusions. As I have focused on the reasons relied upon by Mr Robinson at the time of the termination in reaching my conclusion in this matter it is not necessary for me to make findings in relation to all the allegations made against Mr Murphy.
[101] I find on the evidence and submissions before me, and in particular on Mr Murphy’s own evidence, that there was a valid reason for the termination of his employment.
[102] Mr Robinson terminated Mr Murphy’s employment because of Mr Murphy’s
(i) violence against other employees;
(ii) intimidating and threatening behaviour to other employees;
(iii) breaches of occupational health and safety;
(iv) disregard for and undermining of employer’s delegate’s authority; and
(v) conduct calculated to cause unrest.
Violence Against Other Employees
[103] On Mr Murphy’s evidence he has assaulted at least two fellow employees namely, Mr Callam Robinson and Mr Jarrod Robinson. In both cases Mr Murphy’s defence was that he was provoked. In the case of Mr Callam Robinson, Mr Murphy alleges that Mr Callam Robinson was verbally abusive and pushed him. Even if this is accepted Mr Murphy in response punched Mr Callam Robinson three times 80 causing him to fall to the ground81 and left him with bruises and skin abrasions.82 This incident occurred in December 2005 and Mr Murphy received no warning about this conduct. Mr Murphy admits he hit Mr Jarrod Robinson after Mr Robinson squirted him with a hose. This occurred in 2007 and Mr Murphy received no warning about this conduct.
[104] This conduct is consistent with Mr Murphy’s own statement at a meeting with Mr Robinson on 14 December 2009 where he “referred to his English workplace upbringing and the fighting way disputes were resolved. He added that he didn’t start fights but would not walk away or back down from any man.” 83
[105] Such conduct in a workplace is unacceptable. I do not accept Mr Tayler’s submissions that Mr Murphy’s conduct is excused because of the workplace culture. Nor do I accept Mr Murphy’s justification that he was provoked by both Mr Callam Robinson and Mr Jarrod Robinson. Even if Mr Callam Robinson pushed Mr Murphy this does not justify punching Mr Robinson. Mr Jarrod’s Robinson’s action in squirting Mr Murphy with water did not justify Mr Murphy hitting him over the head. Mr Murphy appears to believe that provocation justifies a violent reaction. It does not.
[106] However I have regard to the fact that these incidents occurred in 2005 and 2007 and that no reasonable explanation was provided by Mr Robinson about why he did not take any disciplinary action against Mr Murphy at the time.
Intimidating and Threatening Behaviour to Other Employees
[107] Mr Murphy also admits to swearing at employees but it was submitted on his behalf that that was in reaction to the taunting he received from other employees who, it is alleged, engaged in conduct aimed at taunting him to bash them to get him in trouble. 84
[108] Mr Murphy denies Mr Scott Tainton’s allegations about the telephone call on the morning of 4 February 2009. Only Mr Scott Tainton and he were witnesses to this incident. On the balance of probabilities I am unable to be satisfied that this incident occurred.
[109] Mr Murphy does not deny that an altercation with Mr Scott Tainton occurred on 4 February 2009. While the evidence about when this incident occurred on that day is confused it is clear that an altercation arose between Mr Scott Tainton and Mr Murphy about comments Mr Murphy had made to other employees about Mr Scott Tainton. Mr Robinson alleges that when he arrived at the site Mr Murphy was abusing Mr Tainton. Mr Tainton’s evidence was that while Mr Murphy was aggressive and threatening him to him this occurred prior to Mr Robinson arriving at the site. I therefore do not accept Mr Robinson’s evidence that he saw Mr Murphy threatening Mr Scott Tainton. However I do accept the evidence of Mr Tainton that Mr Murphy was threatening and abusive towards him. This evidence is supported by Mr O’Neill who gave evidence that he heard Mr Murphy swear and threaten Mr Tainton prior to Mr Robinson being called out. This evidence was supported by Mr Brown. Mr Murphy also admitted swearing at Mr Tainton but justified this on the basis that Mr Tainton had made false allegations against him.
[110] I find that an altercation arose between the workers that caused Mr Scott Tainton to direct Mr Murphy to leave the site. I also accept that Mr Murphy refused to do as directed by Mr Tainton. I accept that Mr Robinson was called to the site and that Mr Murphy apologised to Mr Tainton for his behaviour. I do not accept the slant put on the apology by Mr Tayler. I accept that Mr Murphy apologised for his inappropriate behaviour which included swearing. I accept Mr Robinson’s evidence that he spoke to Mr Murphy on this occasion about his behaviour. While Mr Tainton did not give evidence of the content of the warning, his evidence was that Mr Robinson warned Mr Murphy.
[111] Another altercation occurred on 8 September 2009 in which Mr Murphy swore and behaved in a threatening way towards Mr Wayne Tainton. Both Mr Scott Tainton and Mr Wayne Tainton gave evidence that Mr Murphy got into Mr Wayne Tainton’s bobcat bucket to abuse him. Mr Murphy’s evidence was that Mr Scott Tainton and Mr Wayne Tainton were aggressive towards him. It is difficult to accept that even if Mr Wayne Tainton had been abusive towards Mr Murphy that this justified him moving into Mr Tainton’s bobcat bucket to abuse him. Mr Scott Tainton directed Mr Murphy to leave the site but again he refused.
[112] This incident led to Mr Scott Tainton issuing a “letter of warning” to Mr Murphy. I do not accept that this was in fact a letter of warning. It was a record of what occurred on the day and it was signed by Mr Wayne Tainton, Mr Kevin Brown and two other employees.
[113] I do not accept Mr Murphy’s evidence that he was provoked on this occasion. No other person gave evidence to support Mr Murphy’s evidence that Mr Wayne Tainton initiated the aggressive behaviour. Even if he had been verbally abusive to Mr Murphy, Mr Murphy did not have to step into Mr Wayne Tainton’s bobcat to abuse him.
[114] I accept that the note from Mr Scott Tainton to Mr Murphy made at the time of the incident was a true account of what occurred on the day.
[115] Mr Murphy received a letter of warning about the incident from Mr Robinson. I accept that Mr Robinson issued this warning without providing Mr Murphy with an opportunity to put his version of events. I accept Mr Robinson’s evidence that the delay in issuing the warning was because of Mr Murphy’s absence from work due to an injury. Mr Murphy responded to Mr Robinson’s letter of warning but did not in that letter set out his version of events. In a subsequent letter Mr Murphy indicated that he would not discuss the allegations.
[116] While Mr Murphy should have been provided with an opportunity to put his version of events prior to the decision of Mr Robinson to issue a warning from that date, Mr Murphy can have been in no doubt that aggressive and threatening behaviour was not going to be tolerated.
[117] It is also clear from the notes taken by Mr Murphy’s witness at the meeting on 14 December 2009 called to discuss this incident and others, that Mr Murphy did not have any insight into the inappropriateness of his behaviour. Mr Murphy’s reference to fighting as a way disputes were resolved and his comment that he would did not back down from any man show that Mr Murphy did not consider his conduct to have been inappropriate.
[118] Mr Finch gave evidence that Mr Murphy subsequently made threatening comments to him. In particular Mr Finch gave evidence that on 12 February 2010 Mr Murphy threatened him by saying “you better watch yourself.” Mr Murphy denied making the statement but this statement was heard by Mr Andrew Bright. I accept that Mr Murphy made this comment to Mr Finch on 12 February 2010.
[119] Mr Murphy agreed that he made the other comments recorded by Mr Finch in his complaint except that he denied saying “no one fucks with the Murphy family”, saying instead that he said “no one fucks with the Murphy livelihood”. Mr Tayler submitted that Mr Murphy’s comments to Mr Finch were misunderstood and stemmed from his concern about Mr Robinson’s business. I do not accept this slant put on Mr Murphy’s comments to Mr Finch. I also accept Mr Finch’s evidence that Mr Murphy’s constant abuse and questioning made him feel physically and mentally threatened.
[120] Mr Finch made a formal complaint to Mr Robinson about this and Mr Robinson advised Mr Murphy of Mr Finch’s complaint. Mr Murphy did not respond to that complaint until 7 March 2010 when his solicitors wrote to Mr Robinson and, while not admitting all the allegations, expressed Mr Murphy’s regret for any misunderstanding Mr Finch might have formed as a result of the conversation he had.
Breaches of Occupational Health and Safety
[121] Mr Robinson issued two warnings to Mr Murphy on 2 December 2009 about not alighting from his truck in a safe manner. Mr Murphy denied the allegation. While no one witnessed the incident CCTV footage was admitted into evidence.
[122] An examination of the CCTV footage shows the driver getting out of the truck and jumping to the ground. The driver does not climb out the truck backward or lower himself to the ground. It was accepted that the driver was Mr Murphy.
[123] Mr Murphy was not shown this footage prior to being issued with a letter of warning.
Disregard for and Undermining of Employer’s Delegate’s Authority
[124] The respondent relies on the evidence about Mr Murphy refusing to follow Mr Scott Tainton’s instructions to leave the site on 4 February 2009, Mr Wayne Tainton’s evidence that Mr Murphy’s conduct affected productivity and work relationships, Mr Scott Tainton’s evidence that Mr Murphy continuously undermined his authority on the worksite and sought actively to cause discontent 85 and Mr Brown’s evidence that Mr Murphy refused to follow Mr Tainton’s instructions when they were conveyed to him by Mr Brown.
[125] Mr Murphy denies many of these allegations. There is evidence to support the conclusion that Mr Murphy did not always do as instructed. However it is not clear from the evidence that Mr Tainton had the authority to direct Mr Murphy in the performance of his work. In his letter of warning on 12 October 2009 Mr Robinson made reference to Mr Murphy’s refusal to take instruction from Mr Scott Tainton yet he did not in this letter inform Mr Murphy that he was required to take instruction from Mr Tainton.
Conduct Calculated to Cause Unrest
[126] The respondent relies upon the conduct of Mr Murphy in walking around the worksite with a notepad and pen, criticising other people’s work. Mr Finch said this created a tense and difficult work atmosphere. 86 Mr Brown made reference to this conduct as well.
[127] Mr Murphy submitted that he was asked by Mr Robinson to report on workplace health and safety. Mr Tayler’s submissions suggested that the notes were reports on health and safety breaches yet Mr Murphy did not produce any notebooks to support this submission. I do not accept that Mr Murphy was acting on Mr Robinson’s instructions in March 2010 to report on health and safety breaches and there was no evidence that any such breaches were brought to Mr Robinson’s attention. However it is not possible to conclude on the evidence before me that Mr Murphy’s conduct was calculated to cause unrest. I do accept however the evidence of Mr Finch that at least from his perspective it created a tense and difficult work atmosphere.
Conclusion
[128] In this matter evidence was given of a range of other allegations. Mr Tayler made submissions that much of the evidence brought by the respondent should be disregarded. He alleges that some witnesses have lied, some exaggerated events and some have misunderstood Mr Murphy’s actions.
[129] I have not had regard in reaching my decision to evidence that was not supported by at least one other witness. I have done so because, while I do not consider that the witnesses have lied, their memories of events were not always clear or consistent with one another. This is not surprising given that these events occurred over a five year period.
[130] I have not had regard to the allegations of sexual harassment, truancy or theft in reaching my decision that there was a valid reason for the termination of Mr Murphy’s employment.
[131] I find that Mr Murphy’s intimidating and threatening behaviour to other employees over a period of five years was a valid reason for the termination of his employment.
[132] I do not accept the submissions of Mr Murphy that the conduct of his fellow employees justified his conduct. I do not accept Mr Murphy’s defence of provocation. These were not situations where Mr Murphy was defending himself. They were, if Mr Murphy’s version of events was accepted and, to use Mr Murphy’s words, fights he did not start but would not walk away from.
[133] Mr Murphy seeks to paint the workplace as dysfunctional and, while I accept that action should have been taken earlier to make it clear that his violence and threatening behaviour would not be tolerated, I do not accept that Mr Murphy’s submission that “the respondent had created a workplace in which violence and abuse was tolerated and was rife.” While Mr Robinson intervened when told about incidents, Mr Murphy should have been formally told that his conduct was unacceptable at a much earlier time.
[134] However Mr Murphy, even without being told, should have known that violent and threatening behaviour in the workplace are unacceptable.
[135] Further while I find that there is an accepted level of swearing in this workplace, there is a real difference between swearing as part of conversation and swearing in an aggressive manner at someone.
[136] Mr Murphy is described in his submissions as “a skilled tradesman who felt an obligation as a senior employee of the respondent and says he was given the responsibility to report poor behaviour and act on it if appropriate.” 87
[137] Mr Murphy unfortunately did not act as one would expect someone who thought they had this responsibility would act. Mr Murphy’s conduct in these confrontations was not to act as a responsible senior employee but as someone who was entitled to settle disputes by fighting and to abuse fellow employees when angry.
[138] Mr Murphy submitted that Mr Robinson was improperly motivated to get rid of him. There is no evidence to support such a conclusion. This is not a situation where at the first sign of bad behaviour Mr Robinson terminated Mr Murphy’s employment. Mr Robinson told Mr Murphy on more than one occasion that his behaviour was a problem. There was no evidence before me that Mr Robinson tolerated bad behaviour from other workers that he did not tolerate in Mr Murphy. Even if it is accepted that on some occasions other employees behaved inappropriately, none had the history of inappropriate behaviour that Mr Murphy had.
s387(b) whether Mr Murphy was notified of that reason
[139] Mr Murphy was provided with a letter outlining Mr Finch’s complaint on 22 February 2010 and invited to respond. Mr Murphy responded via his solicitors on 7 March 2010. He was advised that there was a disciplinary meeting on 17 March 2010. At the start of the meeting, Mr Murphy was provided with a list of allegations. 88 Mr Murphy was questioned about these allegations by Mr Robinson’s solicitor. Mr Murphy’s solicitors advised that Mr Murphy would not be answering any questions and that any questions should be put in writing to enable Mr Murphy to have a reasonable time to consider the allegations and to take advice. Mr Robinson then instructed his solicitor to advise Mr Murphy that his employment was terminated.
[140] Mr Tayler submitted that Mr Murphy was told of the allegations not the reasons for the termination. This is, with respect, splitting hairs. An employer is required to advise the employee of the reasons for the termination prior to the termination and to provide the employee with an opportunity to respond. 89 In this situation Mr Murphy was told of the allegations prior to the making of the decision to terminate his employment.
s387(c) whether Mr Murphy was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[141] Mr Tayler submitted that Mr Murphy was not given a proper opportunity to respond. I do not accept that the meeting on the 17 March 2010 was an ambush. The first item on the list was Mr Finch’s complaint of which Mr Murphy had notice, yet Mr Murphy refused to answer questions about this. Mr Tayler submitted that Mr Murphy was not provided with clearly articulated or particularised allegations nor with any evidence relied upon by DRL. However this is not a trial. The employer is required to provide sufficient particulars to enable the employee to respond to the allegations. They are not required to prepare written particularised complaints and give detailed evidence to the employee. I find that Mr Murphy was given an opportunity to respond to the allegations.
[142] Mr Murphy’s submissions on this point would have more weight had he, at the meeting, at least responded to the allegations of which he had had notice.
s387 (d) any unreasonable refusal by the employer to allow Mr Murphy to have a support person present to assist at any discussions relating to dismissal;
[143] Mr Murphy had a support person with him.
s387 (e) if the dismissal related to unsatisfactory performance by the person—whether Mr Murphy had been warned about that unsatisfactory performance before the dismissal;
[144] Mr Murphy had been put on notice that his conduct was not acceptable on at least two separate occasions. While I accept Mr Murphy’s complaint that the second warning was given without hearing his version of events, his conduct on that occasion warranted a warning.
s387 (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
[145] The respondent made no submissions on this matter.
s387(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;
[146] The respondent made no submissions on this matter.
s387 (h) any other matters that FWA considers relevant.
[147] I have had regard to Mr Murphy’s length of service and the failure of Mr Robinson to deal with the two assaults committed by Mr Murphy.
Conclusion
[148] I do not consider that in all the circumstances the termination of Mr Murphy’s employment was harsh, unjust or unreasonable. Mr Murphy unfortunately took the view that his violent and threatening behaviour in the workplace was acceptable in certain circumstances. It is not.
[149] I therefore dismiss the application.
COMMISSIONER
Appearances:
A Tayler for the Applicant.
P Ashleigh of Counselfor the Respondent.
Hearing details:
2010.
Brisbane:
16 to 17 August.
Final written submissions:
Filed by the Applicant on 15 September 2010.
Filed by the Respondent on 8 October 2010.
1 Respondent’s final submissions at [2]
2 Exhibit A2 at [6]
3 Exhibit A2 at SM23
4 Exhibit R1 at [29]
5 Transcript PN 257
6 Transcript PN 179
7 Ibid PN 203
8 Exhibit R3 at [7]
9 Ibid at [8]
10 Transcript PN 578
11 Ibid PN 584
12 Ibid PN 598
13 Ibid PN 580
14 Exhibit R8 at [6]
15 Exhibit R9 at [5]
16 Exhibit A2 at [39]-[44]
17 Transcript PN 2288 and 2291
18 Ibid at [50]-[51]
19 Exhibit A2 at SM2
20 Exhibit R1 at [31]
21 Exhibit R4
22 Transcript PN 940
23 Exhibit R3 at [9]
24 Ibid at ST1
25 Transcript PN 494
26 Exhibit A2 at [60]
27 Ibid at SM 3
28 Transcript PN 269
29 Ibid PN 275
30 Exhibit R1 at [33]
31 Exhibit A2 at SM??
32 Exhibit R1 at [33]
33 Exhibit A2 at SM7
34 Exhibit R14
35 Exhibit A2 at SM 6
36 Transcript PN 277
37 Exhibit A2 at [85] - [89]
38 Transcript PN 2439
39 Transcript PN 1879-1880
40 Exhibit A2 at SM5
41 Ibid
42 Ibid
43 Ibid
44 Ibid
45 Ibid
46 Ibid SM 11
47 Ibid at SM 12
48 Exhibit R7 at GF 1
49 Exhibit R7 at [7]
50 Ibid at [11] and [12]
51 Exhibit A2 at SM 14
52 Transcript PN 2124
53 Ibid PN 2143
54 Transcript PN 2147
55 Exhibit R13
56 Exhibit A 2 at SM 15
57 Ibid at SM 16
58 Ibid at SM 17
59 Ibid at SM 18
60 Ibid at SM 19 and Exhibit R 1 at [44]
61 Exhibit R 1 at [47]
62 Ibid at [49]
63 Exhibit A1 at SM20
64 Ibid SM 19
65 Ibid SM 21
66 Ibid SM 23
67 Exhibit R1 at [25] and [26]
68 Ibid at [28] and [29]
69 Submissions of the Respondent at [9]
70 Final Submissions of the Applicant at [18]
71 Ibid at [20]
72 Ibid at [22]
73 Ibid at [83]
74 Ibid at [88]
75 Ibid at [102], [110] and [113]
76 Ibid at [129]
77 Ibid at [133] - [134]
78 Ibid at [137]
79 Transcript PN 1478
80 Exhibit R3 at [4]
81 Ibid
82 Exhibit R1
83 Exhibit A2 at SM5
84 Final submissions of the Applicant at [276]
85 Exhibit R3 at [10]
86 Exhibit R7 at [13]
87 Final submissions of the Applicant at [17]
88 Exhibit A2 at SM18
89 Crozier v Palazzo Corporation Pty Ltd Print S5897 at [73]
Printed by authority of the Commonwealth Government Printer
<Price code C, PR505741>
0
0
0