Mr Stephen O'Loughlin v APS Group (Placements) Pty Ltd

[2010] FWA 7367

Note: An appeal pursuant to s.604 (C2011/5239) was lodged against this decision and the order arising from this decision [PR501931] - refer to Full Bench decision dated 8 August 2011 [[2011] FWAFB 5230] for result of appeal.

[2010] FWA 7367

FAIR WORK AUSTRALIA

DECISION

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

Mr Stephen O'Loughlin
v
APS Group (Placements) Pty Ltd
(U2010/6981)

COMMISSIONER CAMBRIDGE SYDNEY, 24 SEPTEMBER 2010

Unfair dismissal - misconduct - alleged racial vilification - summary dismissal - misconstrued findings of misconduct - harsh and unreasonable dismissal – compensation Ordered.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged at Sydney on 15 March 2010. The application was made by Stephen O’Loughlin, (the applicant) and named the respondent employer as APS Group (Placements) Pty Ltd (the employer).

[2] The application indicated that the date of the applicant’s dismissal was 3 March 2010. Consequently the application was made within the 14 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation and has proceeded to arbitration before Fair Work Australia (FWA) in a Hearing conducted in Sydney on 9 September 2010.

[4] The applicant was self represented and he was also the only witness called to provide evidence in support of the claim. The employer was represented by Ms K Murphy who called Ms Sherry Little to provide evidence on behalf of the employer. Ms Little is the employer’s Group State Manager for New South Wales, Queensland and South Australia.

Factual Background

[5] The applicant had worked for the employer for about 4 years and 3 months. The applicant worked as a “Picker and Packer”. The employer operates a national recruitment agency which, inter alia, provides industrial labour hire employees to client Companies. The applicant worked on a casual labour hire basis engaged at sites of the VersaCold Logistics Company located at Arndell Park and Eastern Creek.

[6] On 24 February 2010 the applicant was working a night shift as a Picker at the VersaCold Eastern Creek site. Towards the end of his shift the applicant etched the words “WELCOME TO HELL” in the ice that accumulates on the door of the freezer room where he was working on that night. The applicant also etched a swastika into the ice in close proximity to the words “WELCOME TO HELL”.

[7] The words “WELCOME TO HELL” (the words) and the swastika (the symbol), were seen by other employees and the applicant’s actions in etching the words and symbol were captured on CCTV. The employer contacted the applicant on the following day, 25 February and cancelled his rostered shifts. The employer conducted an investigation into the applicant’s actions including interviewing the applicant on two separate occasions.

[8] Although the applicant initially denied that he had written the words and symbol he subsequently confirmed that he wrote the words and symbol as part of what he described as a jovial display of criticism of the harsh working conditions in the freezer room. The employer was very offended by, in particular, the symbol, because senior staff members of the employer are Jewish.

[9] The employer concluded that the applicant had defaced company property in a manner that amounted to racial vilification and it summarily dismissed the applicant for gross misconduct. The applicant was provided with a letter of dismissal dated 5 March 2010, which described the reason for dismissal as serious misconduct in the form of discrimination on the grounds of racial vilification.

[10] Following his dismissal the applicant has sought, without success, to obtain alternative employment.

The Case for the Applicant

[11] The applicant said that his dismissal was unfair because he did not write the words and symbol with any intention to be racist or to hurt anyone. The applicant said that he wrote the words and symbol only to display his view about the harshness of working for extended periods in the very cold conditions of the freezer room.

[12] The applicant said that he wanted to be returned to his employment.

The Case for the Employer

[13] The employer was represented by Ms Murphy who submitted that the dismissal of the applicant was not unfair. Ms Murphy submitted that the applicant’s action in etching the words and symbol was an open display of a seriously offending symbol that any reasonable person would, or should, have known would cause offence and hurt to others at the workplace.

[14] Ms Murphy submitted that the employer had obligations and responsibilities arising under the Racial Discrimination Act 1975(Cth) and the Anti-Discrimination Act 1977(NSW). Ms Murphy said that the employer was required to protect other employees from racial discrimination and or vilification and therefore the misconduct of the applicant could not be tolerated.

[15] Ms Murphy submitted that there was a valid reason for the dismissal of the applicant and that the employer had properly investigated the matter so that an opportunity to respond had been provided to the applicant. Ms Murphy submitted that there was no basis to find that the applicant had been unfairly dismissed and she urged that FWA dismiss the matter.

Consideration

[16] Section 385 of the Act stipulates that FWA is to be satisfied that 4 cumulative elements are met in order to establish an unfair dismissal. These elements are:

(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.

[17] In this case there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that FWA must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.

Valid reason for the dismissal related to capacity or conduct

[18] It is relevant to set out that part of the text of the letter of dismissal dated 5 March 2010, wherein it was stated:

“Grounds for termination

You were advised of the grounds for termination of your employment at the meeting held on 3rd March 2010 at the APS Parramatta Branch conducted by Sherry Little, APS State Manager. The meeting was attended by Kevin Martin, APS Transport Manager and yourself.

The grounds are as follows:

Serious misconduct in the form of:

(a) Discrimination on the grounds of racial vilification

The details of these allegations, which were detailed to you at our meeting, are that:

• On Wednesday the 24th of February 2010, between 23:00 and 24:30, while at work at VersaCold Logistics, Eastern Creek, in the freezer area, you wrote words ‘welcome to hell’ and the swastika symbol. VersaCold have video footage of this.” 1

[19] The first observation that can be made about the letter of dismissal is that although the “Discrimination on the grounds of racial vilification” is preceded by the letter “(a)” there was no “(b)” or any other stated ground for dismissal. This unusual peculiarity with the stated reasons for dismissal was raised by FWA with Ms Little.

[20] Ms Little confirmed that there was no error with or omission from the letter of dismissal in respect to the reason or reasons for dismissal. Ms Little was clear that the reason for the applicant’s dismissal was confined to the “Discrimination on the grounds of racial vilification” as set out in the letter of dismissal. The following extract from transcript involving FWA questioning of Ms Little is relevant:

“...was there anything else other than what you concluded to be the deliberate misconduct involving the swastika - was there anything else that underpinned your decision during the meeting of the 3rd to decide to dismiss?---I honestly felt that what he'd done was wrong, that it was racial vilification, that it was offensive and not acceptable. Given his behaviour in the past wasn't really a consideration at this point, it was his behaviour then and the comments during our meetings - so discussing people of colour. I felt that perhaps - or this is who he is and what he's done and it was wrong. I had to do the right thing. It was my duty to do the right thing in termination.” 2

[21] The evidence provided by Ms Little on this point was curious. The letter of dismissal also referred to the applicant's initial denial of the misconduct involving the writing of the words and the symbol. The evidence strongly suggested that it was not until the applicant was advised of the CCTV footage that he admitted to the misconduct. Consequently it appeared that the applicant may have been dishonest with the employer when he initially denied the misconduct. However there was no suggestion by Ms Little that the employer considered the applicant's apparent dishonesty as a reason for dismissal.

[22] Consequently the reason for the dismissal of the applicant was established to be exclusively that stated in the letter of dismissal as “Discrimination on the grounds of racial vilification”. The subsequent consideration has therefore involved a requirement to determine whether the applicant's misconduct involving the etching of the words and the symbol could properly be established to represent discrimination on the grounds of racial vilification.

[23] The words “WELCOME TO HELL” of themselves are, on any reasonable and objective analysis, unable to represent discrimination on the grounds of racial vilification. The symbol of the swastika on the other hand, is a well-established icon synonymous with racial discrimination, oppression and bigotry. The misconduct of the applicant was clearly focused upon the etching of the swastika as opposed to the words.

[24] It is understandable that Jewish people in particular would be offended by the swastika symbol. In many respects the swastika is a symbol of the very worst that human nature can produce. It must also be recognised that non-Jewish people are unlikely to have the same depth of understanding for the offence and hurt that would be created by the sight of the swastika irrespective of the context in which the symbol was depicted.

[25] A careful analysis of the circumstances in which the applicant utilised the swastika does not support a finding that he was acting with an intention to vilify Jews or any other race or creed of people. It is important to recognise the connection between the words and the symbol. The swastika was added after the words “welcome to hell” were etched in the ice. When used in this context the swastika connotes the “hell” of the words with the oppressive nature of the working conditions in the freezer room.

[26] Ironically, when used in this context the swastika was utilised as reinforcement and reminder of the hell of the suffering and oppression of the Holocaust. I readily acknowledge and accept that this rationale for the use of the symbol does not remove or necessarily lessen the offence and hurt that would be felt, particularly by Jews, by the open display of the swastika. The use of the swastika, irrespective of context, is offensive and unacceptable particularly in the workplace.

[27] However, when the rationale for the use of the swastika is revealed, the stated and exclusive reason for the applicant’s dismissal cannot be sustained as fact. The applicant strongly maintained that he never intended the etching of the swastika to have any racial connotation whatsoever. Although this is a naive or ignorant proposition, it is supported by the analysis that revealed the rationale for the use of the swastika in connection with the words “welcome to hell.”

[28] Consequently the reason for the applicant's dismissal as maintained by the employer and involving the serious misconduct of discrimination on the grounds of racial vilification, has no proper factual basis.

[29] On balance however it must be recognised that the applicant clearly committed serious misconduct. The etching of the words and the symbol even when properly considered in context represents misconduct, albeit not discrimination on the grounds of racial vilification. Unfortunately this misconduct was exacerbated by the applicant's responses to the employer's investigation of the misconduct involving the etching of the words and the symbol.

[30] The applicant displayed an abrasive and insensitive approach to the employer’s enquiry regarding the etching incident. These unfortunate personal characteristics were displayed during the applicant's appearance at the Hearing. It was highly regrettable to observe that the applicant had not appreciated the offence and hurt that he had caused by use of the swastika and the subsequent insensitive suggestions that he had made including absurd connections between Hitler killing the Jews and the Jews killing Jesus. The applicant’s insensitivity and ignorance manifest as a view that can be summarised as; “Get over it, the war finished 70 years ago.” 3

[31] Consequently it was understandable that the employer mistakenly connected the etching of the swastika with racial vilification. Although purely speculative, if the applicant had acknowledged that he had (unintentionally) caused great offence and hurt, apologised and displayed genuine remorse, he may have experienced compassion and kindness from his employer and suffered little more than several lost shifts and a formal warning. Instead the applicant acted in a manner which only maintained offence and hurt to the employer and in doing so created insurmountable impediment to any prospect of reinstatement as a remedy for his unfair dismissal.

Notification of reason for dismissal

[32] The employer provided notification of the reason for the applicant's dismissal. Unfortunately for the employer, that reason has been unable to be sustained as a fact.

Opportunity to respond to any reason related to capacity or conduct

[33] The employer provided proper opportunity for the applicant to respond to allegations of serious misconduct surrounding the etching incident. Unfortunately for the applicant the responses that he provided exacerbated the misconduct.

Unreasonable refusal to allow a support person to assist

[34] There was no evidence that the applicant was unreasonably refused permission to have a support person to assist. However there was no evidence that there was a support person present at any of the meetings between Ms Little and the applicant. It appeared that the applicant was given an opportunity to have a support person present but decided to attend alone.

Warning about unsatisfactory performance

[35] This factor has no relevance in this instance.

Size of enterprise likely to impact on procedures

[36] Although the employer appeared to have dedicated employee relations staff it engaged a consultant to provide assistance in the defence of claim.

Absence of management specialists or expertise likely to impact on procedures

[37] The employer appeared to have dedicated employee relations staff.

Other relevant matters

[38] The applicant had worked for the employer for a little over 4 years. During the disciplinary meeting of 3 March 2010, the applicant was invited to show cause as to why his employment should not be terminated. The applicant offered issues such as his length of service, loyalty, otherwise good performance, and that he had a family and children as matters for the employer's consideration. Unfortunately the employer had only hasty regard for these issues because the decision to dismiss was finalised during the discussion in the meeting held on 3 March.

[39] There was no evidence that the employer contemplated any other measures less severe than dismissal as a means to address the applicant's misconduct. The employer had made erroneous conclusions about the applicant's intention for using the swastika to the extent that the evidence of Ms Little was that she felt that it was her “duty” to dismiss. Although the applicant's subsequent insensitivity and abrasive comments contributed to a heightening of the emotion that surrounded the etching event, any decision to dismiss should always involve careful, analytical and dispassionate considerations. Unfortunately, because of the elevated emotion that developed from the etching event and the applicant's subsequent responses, there was no contemplation of potential alternatives to dismissal.

Conclusion

[40] The applicant was dismissed for serious misconduct involving “discrimination on the grounds of racial vilification”. Upon analysis there can be no factual finding that the applicant intentionally committed any discrimination on the grounds of racial vilification. Consequently the reason for the applicant's dismissal cannot be held to be valid.

[41] The applicant did however commit an act of misconduct and either through stupidity or ignorance or both, he has failed to appreciate that the display of the swastika, no matter what the intended purpose, creates understandable offence and hurt.

[42] On balance the absence of valid reason for dismissal as maintained by the employer must render the applicant's dismissal as harsh and unreasonable.

Remedy

[43] Although the applicant sought reinstatement as remedy for his unfair dismissal his abrasive and insensitive conduct as mentioned earlier, has created impediment to the re-establishment of any employment relationship. In the circumstances I am satisfied that reinstatement of the applicant would be inappropriate and that payment of compensation would represent an appropriate remedy for the applicant's unfair dismissal.

[44] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidelines that were established in the Full Bench Decision in Sprigg v Paul’s Licensed Festival Supermarket 4 and as commented upon in the subsequent Full Bench Decision in Smith and Ors v Moore Paragon Australia Ltd 5.

[45] Firstly, I confirm that an Order of the payment of compensation to the applicant will be made against the employer in lieu of reinstatement of the applicant.

[46] Secondly, in determining the amount of compensation that I Order I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.

[47] Consequently for the reasons outlined above I have decided that an amount approximating with 4 weeks remuneration should be Ordered as compensation to the applicant. That amount is $4,800.00. Accordingly separate Orders [PR501931] providing for remedy in these terms will be issued.

COMMISSIONER

Appearances:

Applicant represented himself.

Respondent represented by Ms. K. Murphy (Katrina Murphy Industrial Relations Pty Ltd)

Hearing details:

Sydney, Thursday 9 September 2010.

 1   Exhibit 1, submissions of the applicant.

 2   Transcript of proceedings @ PN433.

 3   See in particular transcript of proceedings @ PN105.

 4   Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

 5   Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR501932>