Mr Steven Gilbert v Downer Edi Engineering Power Pty Ltd T/A Downer Infrastructure
[2015] FWC 5774
•26 AUGUST 2015
| [2015] FWC 5774 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Steven Gilbert
v
Downer EDI Engineering Power Pty Ltd T/A Downer Infrastructure
(U2015/4518)
COMMISSIONER CLOGHAN | PERTH, 26 AUGUST 2015 |
Application for relief from unfair dismissal.
[1] This is an application by Mr Steven Gilbert (Mr Gilbert or Applicant) seeking a remedy for alleged unfair dismissal from his former employer, Downer EDI Engineering Power Pty Ltd T/A Downer Infrastructure (Downer or Employer).
[2] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[3] At the hearing, the Applicant represented himself and gave evidence on his own behalf.
[4] The Employer was represented by Mr D Flight, Human Resources Manager. Evidence was given on behalf of the Employer by:
- Mr R Gould: Project Manager, TAN Burrup Project;
- Mr R Burton: Health and Safety Manager, TAN Burrup Project;
- Mr M Forrest: Scaffolding Supervisor, TAN Burrup Project;
- Mr J Rahui: Leading Hand Scaffolder, TAN Burrup Project; and
- Mrs L Tran: Human Resources Business Partner.
[5] This is my decision and reasons for decision on Mr Gilbert’s application.
RELEVANT BACKGROUND
[6] The Applicant commenced employment as a Trades Assistant on the Burrup TAN Project on 3 September 2014.
[7] On 25 March 2015, Mr Gilbert was involved in an incident with Mr A Takiaho.
[8] Following the incident, the Employer received statements from Mr Gilbert, Mr Forrest, Mr Rahui and Mr Fletcher (Scaffolder). Mr Takiaho gave an oral statement to the Employer. After the incident, Mr Gilbert was stood down 1.
[9] On 26 March 2015, Mr Gilbert met with Mr Burton, Mr Forrest and Mr Cox who is described as the health and safety and “union” representative.
[10] At the end of the discussion, Mr Gilbert was given a letter terminating his employment the letter is signed by Mr Gould and relevantly reads as follows:
“I advise that your employment with Downer Edi Engineering Power Pty Ltd has been terminated effective Thursday 26th March 2015.
This decision has been made after considering your response to the allegations presented to you at the meeting on Wednesday 25th (sic) March 2015 attended by Wayne Burton (Zero Harm Manager), Michael Forrest (Scaffold Supervisor) and yourself.
In summary, the following matters were put to you at the meeting.
- On Wednesday 25th March 2015 at approximately 745am you were involved in a physical altercation and displayed aggressive behaviour towards a fellow employee.
- These actions are considered to be serious and inconsistent with the Downer values and Standards of Business Conduct.
I confirm that at this meeting you were given an opportunity to respond to these matters. Your responses were noted and carefully considered.
In light of the above, after much consideration the decision has been made by Downer Infrastructure to terminate your employment on the grounds of serious misconduct.”
[11] The key issues relate to Mr Gilbert calling Mr Takiaho a “fucking dog” and a subsequent physical altercation between both employees. The altercation will be considered in further detail later in this Decision.
[12] Both Mr Gilbert and Mr Takiaho were dismissed for their conduct during the incident on 25 March 2015.
RELEVANT LEGISLATIVE FRAMEWORK
[13] There is no dispute between the parties that Mr Gilbert has properly made the application in accordance with s.382 of the FW Act. Accordingly, the relevant statutory framework for consideration is ss.385 and 387 of the FW Act.
[14] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) ...
(d) ...”
[15] The criteria for whether a dismissal is harsh, unjust or unreasonable can be found in s.387 of the FW Act and is as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.”
[16] Serious misconduct is defined in the Fair Work Regulations 2009 (FW Regulations) at 1.07 as follows:
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) …
(c) …
(4) …
(5) …”
PRELIMINARY MATTERS
Electronic recording of telephone conversations
[17] Mr Gilbert, without the knowledge of Mr Burton and Mr Rahui, electronically recorded three (3) telephone conversations he had with them subsequent to filing this application. Mr Gilbert sought to incorporate a transcript of these conversations into evidence. The Employer objected.
[18] Mr Gilbert submitted that the transcript should be admitted because he had read on the Internet that “it was legal to tape a conversation provided one person knew of that”. As there were only two (2) people in the conversation, Mr Gilbert was recording the conversation, and consequently, he was the one person required 2. Secondly, he had no problem with others recording his telephone conversation without his knowledge3.
[19] The Employer objected to their inclusion in proceedings for the plain reason that it was done without Mr Burton and Mr Rahui’s knowledge. Secondly, the conversations consist, in some respects, of “leading questions”, and finally, their relevance.
[20] Putting aside the ethics of Mr Gilbert’s actions, the taped telephone conversation between Mr Gilbert and Mr Burton reveal that both have a different recollection as to what happened at the meeting on 26 March 2015. With respect to the taped telephone conversation with Mr Rahui, Mr Gilbert urged him to make a statement to the Commission – Mr Rahui did and was cross examined by the Applicant, during the hearing.
[21] I am satisfied that I am able to reach a conclusion on the facts and evidence in relation to Mr Gilbert’s application, without the necessity of reaching a conclusion on whether the taped telephone conversations should be admitted into evidence.
APPLICANT’S WRITTEN WITNESS STATEMENT
[22] Directions for the arbitral hearing required Mr Gilbert to produce a written witness statement. I accepted into proceedings a document entitled Statement of Facts received on 8 June 2015 4. The Applicant asserted that he had provided a witness statement to the Commission but neither the Employer, nor the Commission, received a copy. Mr Gilbert did not bring to the Commission a copy of the purported witness statement. Subsequently, Mr Gilbert requested that his statement of 25 March 2015, as provided to the Commission by the Employer, be considered his witness statement.
[23] The Employer advised the Commission that it was prepared to proceed with cross examination of the Applicant’s oral evidence, despite not having a written witness statement from the Applicant.
AGREED STATEMENT OF FACTS
[24] Mr Gilbert advised the Commission that, following discussions with the Employer, the parties agreed that all facts relating to his application were in dispute.
THE INCIDENT
[25] Shortly after a workplace incident, Messrs Gilbert, Forrest and Fletcher were required by the Employer to complete the Employer’s “witness Statement”. Mr Rahui provided a statement subsequent to the incident but it is undated. The notes to the Downer witness statement relevantly state, “provide lead up information of events that occurred prior to actual incident” and “write only about what you saw and heard”.
[26] Mr Gilbert confirms that the Employer’s request to fill out such a form was “standard practice” 5. Mr Gilbert claims that he was involved in two workplace incidents with Mr Takiaho prior to the central incident which led to his dismissal.
[27] Mr Gilbert records in the witness statement what he saw and heard as follows:
“…After a while I noticed Mick Forrest had turned up at the yard. I said Mick I needed to talk to him and asked Gus [Mr Takiaho] to talk about the situation. I walked away from everyone else so the 3 of us could talk. Gus came towards me and punched me in the face with a clenched fist At no time did I swing at or attack anybody. I have received a loose tooth split lip and a swollen jaw from the punch.” 6
[28] The statement was made at 9:30 am on 25 March 2015. Mr Gilbert does not draw a diagram or set out the area relating to the incident.
[29] Mr Fletcher’s statement records that Mr Takiaho was seated in the shaded area adjacent to the scaffold rack and:
“…I recall hearing Steve [Mr Gilbert] proceed to walk over to Angus [Mr Takiaho] and shout words to the effect, “did you tell Mick [Mr Forrest], you fucking did didn’t you! Why did you tell Mick you fucking dog! You’re a fucking dog.” When Angus stood up to confront Steve, Steve turned his back and walked back towards Mick [Mr Forrest] and asked if he could talk to him saying, “see Mick, look Mick, I need to talk to you Mick”…they faced each other and Angus has hit Steve with a left…gone to the ground…the pair grabbled (sic) for a short while…pulled apart…” 7
[30] Mr Forrest’s statement reads:
“…I heard Steven Gilbert loudly calling another person a dog…Steven then walked past me and said, “Mick can I speak with you”. When I turned around I saw Angus Takiaho walking toward Steve. They both stood face to face and a few harsh words and obscenities were exchanged, both employees grabbed hold of each other’s clothing and then Angus Takiaho punched with his left hand, both employees then fell to the ground…” 8
[31] Mr Rahui’s statement relevantly reads:
“…he walked up to Angus and said “you’re a fucken dog and spat at him”…They continued to argue, then both walked out into the center of the yard in each others faces and still swearing and arguing. By this point they were chest to chest and pushing against each other.
After Steve fell to the ground, Angus bent over and said “I’ve fucken had enough of you”...Steve yelled back “well do it” [pulled apart]. Steve stood up and they carried on yelling at each other and trying to get at each other…Steve walked off and said “ha ha well done, you’ve just lost your job” and Angus replied, “come back and we’ll sort it out”. 9
[32] With little effort, it is readily seen that Mr Gilbert’s recollection of the incident, which occurred two hours earlier, is neither fulsome nor is an accurate reflection of his role. In its totality, I prefer the detailed witness statements of Messrs Fletcher, Forrest and Rahui as to what happened in the scaffolding yard between Mr Gilbert and Mr Takiaho on 25 March 2015.
CONSIDERATION
[33] Section 387 of the FW Act sets out the matters which the Commission must take into account in determining whether a dismissal was “harsh, unjust or unreasonable”. In seriatim, they are as follows.
s.387 (a) - was there a valid reason for the Applicant’s dismissal?
[34] A valid reason for dismissal is one that is “sound, defensible or well founded and not capricious, fanciful or spiteful”. The authority for this approach is found in the often cited case of Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at page 373 which reads as follows:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.”
[35] A valid reason for dismissal attempts to balance, in a practical way, the needs of employees and employers.
[36] When the reason for the dismissal relates to the employee’s conduct, it is necessary for the Commission to determine, on the balance of probabilities, whether the alleged conduct occurred, and if so, whether it was a sufficient reason for termination 10. Further,
“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed on reasonable grounds after sufficient enquiry that the employee was guilty of the conduct which resulted in the termination”. 11
[37] Downer’s offer of employment to Mr Gilbert makes it clear, at Clause 10, that he is required to comply with the Employer’s policies and procedures. On 1 September 2014, Mr Gilbert accepted the offer of employment on the terms and conditions set out in the correspondence 12. One such policy is the Standards of Business Conduct (Conduct Policy)13.
[38] The Conduct Policy is described as “an important part of each person’s employment” and employees are expected to understand and comply with the Policy. Further, each employee is responsible for their own conduct 14.
[39] Where there is a failure to comply with the Conduct Policy, employees are advised that Downer considers the matter serious and disciplinary action, including termination of employment, may be taken against an employee 15.
[40] The Conduct Policy states that the following behaviour is not acceptable in any circumstances, “demeaning and abusive remarks”, and “physical, verbal and psychological abuse such as screaming…” 16
[41] Consistent with the Conduct Policy, employees are required to treat other employees “fairly and courteously and with…dignity and respect…” Employees are never to “engage in behaviour that could be perceived as violent, abusive, offensive, malicious, threatening or intimidating” 17.
[42] Finally, the Conduct Policy states that when Downer is required to conduct investigations into the conduct of its employees, the employees must “cooperate with the investigation…and disclose all relevant information in a complete and truthful manner” 18.
[43] On 23 August 2014, Mr Gilbert confirmed that he read and understood the Conduct Policy. Further, Mr Gilbert agreed to comply with the Conduct Policy and acknowledged that disciplinary action, including termination of employment, may be taken against an employee who does not comply with the Policy 19.
[44] Unless Mr Gilbert has an unconventional view about the workplace, he could not possibly think that his outburst towards Mr Takiaho and subsequent incident was within the Conduct Policy. It was not within the boundaries of the Conduct Policy for a number of reasons which are considered below.
[45] When asked if he called Mr Takiaho a “fucking dog”, more than once, Mr Gilbert answered, “I don’t think I did” 20, “I don’t remember exactly how many times”21, and “I may have”22, “once or twice”23. This is just one example of Mr Gilbert’s evidence in which he was evasive of answering questions directly.
[46] Mr Gilbert considered that when he called Mr Takiaho a “fucking dog”, it was not abuse but concedes he was angry 24. However, subsequently, Mr Gilbert agreed that he verbally abused Mr Takiaho25.
[47] Mr Gilbert gave evidence that his intention immediately before the incident, was to discuss matters between Mr Takiaho and himself with Mr Forrest, as their Supervisor. However, on the morning of the incident, he deliberately walked past Mr Forrest 26 and in an angry way, verbally abused Mr Takiaho more than once, by calling him a “fucking dog” and then walked away from him and went back to Mr Forrest. Mr Gilbert said to Mr Forrest that he “needed to talk to him and asked Gus [Mr Takiaho] to come and talk about the situation”27.
[48] Mr Gilbert, in an understatement, gave evidence that, “it wasn’t probably the smartest” or “best way” to approach the situation 28.
[49] According to Mr Gilbert, earlier that morning, he and Mr Takiaho had a dispute. However, when the incident took place in the scaffolding yard, it was approximately 10 minutes after the earlier dispute 29. For readily apparent reasons, Mr Gilbert attempts to conflate the earlier dispute with Mr Takiaho and the events in the scaffolding yard. I am not persuaded that the incident in the scaffolding yard can be conveniently described as a continuation of the earlier dispute.
[50] Mr Gilbert concedes that he did not take any evasive action to avoid the confrontation with Mr Takiaho. According to Mr Gilbert’s evidence, he stood with his hands by his side but held his ground 30.
[51] When asked in cross examination what happened when he and Mr Takiaho went toe to toe 31 in the scaffolding yard, Mr Gilbert’s evidence is:
“But you swore at him?---I may have.
You yelled at him?---I don't remember.
What kind of things would you have been talking about, or would you have been yelling to him?---I don't remember what was said.
Maybe not the exact words, but what sort of things might have been said?---Any number of things, but I don't remember what was said.” 32
[52] I am satisfied after Mr Gilbert was hit by Mr Takiaho, both employees ended up on the ground and were grappling with each other. Shortly thereafter, both parties were pulled apart by Mr Forrest and Mr Rahui.
[53] After being pulled apart, Mr Rahui’s evidence is that Mr Gilbert said words to the effect, “ha ha, well done, you’ve lost your job.” When asked whether he uttered these words, Mr Gilbert said, “I don’t remember saying that” 33.
[54] On a number of occasions, Mr Gilbert was asked to explain why he did not include in the Employer’s witness statement calling Mr Takiaho a “fucking dog”. Mr Gilbert’s responses were far from convincing. He stated, “I don’t believe that’s how it kicked off” 34, “I thought that’s what I was doing was putting my side of events of what had just occurred”35, “all I did was went down and wrote a statement of what had happened”36, “all I was doing was writing what I saw, what had happened”37 and “I did put forward my side of events”38.
[55] Plainly on the evidence, Mr Gilbert did not record everything that happened during the incident. Contrary to the Conduct Policy, Mr Gilbert had engaged in behaviour which was abusive, offensive and intimidating. Further, when required by the Conduct Policy to disclose all relevant and truthful information during the disciplinary investigation, he did not. It is difficult to come to any other conclusion, but Mr Gilbert’s abusive comments to Mr Takiaho, were an inconvenient truth.
[56] Mr Gilbert concedes that after the incident and after completing Downer’s witness statement, he did not contest why he had been stood down 39. According to the Applicant, he “didn’t think a lot about that”40.
[57] I am not persuaded that Mr Gilbert was an innocent party to the incident. Clearly, the direct and immediate cause of the altercation in the scaffolding yard was Mr Gilbert calling Mr Takiaho a “fucking dog” on a number of occasions.
[58] The Applicant submits that, at the time he completed the Employer’s witness statement, “he had no reason to believe he was being investigated for any reason” 41 (my emphasis). This assertion is made after, at least, calling another employee a “fucking dog”, being hit in the face, grappling with another employee on the ground, sustaining what he describes as “significant injuries”42, and finally being separated by other employees. Such a submission that he had no reason to believe he was being investigated is more in hope than in reality.
[59] There are certain categories of conduct where, irrespective of the employer’s policies or disciplinary procedure, are regarded as sufficiently serious conduct to result in the employer’s right to instantly dismiss an employee. While in this case, the dismissal was not instant, the Employer engaged in a brief investigation.
[60] Clearly, the Employer attempted to establish the facts as early as possible from those who were present at the incident between Mr Gilbert and Mr Takiaho. Those present at the incident set down their observations at the time. Some five months later, those individuals gave the same evidence, which was not disturbed in cross examinations.
[61] The evidence of Messrs Forrest and Rahui was largely not disturbed. Mr Gilbert had the benefit of their evidence well before the hearing.
[62] The simple fact is that Mr Gilbert went out of his way to call Mr Takiaho a “fucking dog” on a number of occasions.
[63] The Applicant asserts that he was a victim of “workplace bullying” 43. Further, that he submitted his witness statement on 25 March 2015 in the belief he was the victim and witness to workplace bullying44.
[64] I will commence with the allegation that Mr Gilbert was the victim of workplace bullying.
[65] Mr Gilbert asserts that he was “physically assaulted and abused on a number of occasions” by Mr Takiaho 45.
[66] Firstly, I have no evidence from Mr Gilbert that, at any time prior to 25 March 2015, he reported to the Employer any allegations of physical assault by Mr Takiaho or any other employee. Secondly, I have no evidence that he made any complaints regarding workplace bullying to the Employer. What I do have from the Applicant is a submission that he is a “very strong male person who could easily inflict injuries upon another if he became involved in a physical altercation” 46.
[67] Further, in the Employer’s witness statement of 25 March 2015, Mr Gilbert does not mention the word “bullying”.
[68] From the evidence set out above, I am unable to come to the conclusion that Mr Gilbert was a victim of workplace bullying.
[69] The Full Bench of the AIRC in Tenix Defence Systems Pty Ltd v Fearnley S6238 sets out the approach which should be applied by the Commission concerning alleged unfair dismissals due to fighting in the workplace. I do not intend to record all the cases cited in the Full Bench Decision but its summary, is as follows:
“[25] We think these authorities support the view that in determining whether there is a valid reason for termination of employment arising from a fight in the workplace the Commission should have regard to all of the circumstances in which the fight occurred including, but not limited to:
- whether the terminated employee was provoked and whether he or she was acting in self defence;
- the employer’s need to establish and retain discipline amongst its employees; and
- the service and work record of the employee concerned.”
[70] The approach to be adopted by the Commission is to examine “all the circumstances”
as described by the Full Bench, or the “relevant factual matrix” 47 to determine whether termination of an employee’s employment was harsh, unjust or reasonable. In doing so, the Commission must take into account the criteria in s.387 of the FW Act.
[71] I apprehend Mr Gilbert’s case to say that there were extenuating circumstances which occurred on the same day before the altercation in the scaffolding yard and that he did not hit Mr Takiaho.
[72] Mr Gilbert refers, in particular, to the two earlier incidents with Mr Takiaho in Downer’s witness statement. However, the credibility of such assertions has to be considered in the context of what he stated (and more particularly did not state) concerning the incident in the scaffolding yard.
[73] In relation to Mr Gilbert’s assertion of what happened in the earlier incidents, the Commission has only his evidence. Mr Takiaho was not called to give evidence.
[74] However, the truth of Mr Gilbert’s statements regarding the central incident on 25 March 2015, is seriously weakened by the evidence of the other witnesses present.
[75] The propensity of Mr Gilbert to omit certain facts, like angrily abusing Mr Takiaho and calling him Takiaho a “fucking dog” on a number of occasions, cannot be overlooked. Nor can it be overlooked that, in his application to the Commission, he states that when Mr Forrest arrived at the scaffolding yard, “I immediately approached Mick to discuss my concerns of what had occurred. Angus [Mr Takiaho] was also nearby and I said to Angus “we need to sort this out with Mick”. Clearly, Mr Gilbert was not truthful at the time of writing Downer’s witness statement to the incident, nor subsequently in making an application to the Commission. It’s as if his role in the incident never happened.
[76] In such circumstances, an independent and disinterested observer would say “be careful” about how Mr Gilbert has described the two earlier incidents involving himself and Mr Takiaho. I consider such an observation fair and reasonable.
[77] In summary, with respect to the material facts in dispute, I am satisfied that:
- Mr Gilbert angrily and abusively called Mr Takiaho a “fucking dog” on a number of occasions and walked away;
- on Mr Rahui’s undisturbed evidence, Mr Gilbert spat at Mr Takiaho;
- both Mr Gilbert and Mr Takiaho met chest to chest, argued and engaged in swearing at each other;
- both employees had a hold of each other’s clothing;
- Mr Gilbert was hit by Mr Takiaho;
- after being hit, both employees ended up on the ground grappling with each other;
- both Mr Gilbert and Mr Takiaho were pulled apart by their work colleagues.
[78] I am satisfied that Mr Gilbert was not a “victim”, but was certainly hit by Mr Takiaho. However, being hit by Mr Takiaho is not the determinative issue on whether the Employer, having been presented with such a “factual matrix”, had a valid reason to terminate Mr Gilbert’s employment.
[79] In my view, immediately before the physical altercation, Mr Gilbert had created a hostile, intimidating and offensive environment. Having established such an environment, Mr Takiaho responded.
[80] As a consequence, both employees received the same treatment - dismissal. In such circumstances, it is difficult to see how Downer could treat one employee more favourably than another, especially when the evidence is that immediately after the incident, Mr Rahui’s unchallenged evidence is that, Mr Gilbert said to Mr Takiaho, “ha ha, you’ve just lost our job”.
[81] Such a precise unchallenged remark, perversely, is contrary to the submission by Mr Gilbert that he was “stitched up” by the Employer in these proceedings.
[82] For the above reasons, I am satisfied that the Employer had a valid reason to terminate Mr Gilbert’s employment. In the circumstances, it was sound, defensible and well founded. It was also contrary to the Conduct Policy. Finally, the Employer, of necessity, must establish and retain discipline in the workplace.
[83] I now turn to the remaining criterion in paragraph 387(b) to (h) in determining whether overall the dismissal was harsh, unjust or unreasonable.
s.387(b) - notification of the reasons for termination of employment
[84] The Applicant concedes that he was notified of the reasons for the termination of his employment by the Employer’s correspondence dated 26 March 2015.
[85] I find that Mr Gilbert was notified of the reasons for his termination of employment.
s.387(c) - opportunity to respond
[86] The Applicant refers to the Full Bench in Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200 (RMIT) and cites paragraph [26] in which it states: “that the employer is required “to take reasonable steps to investigate the allegations and give the employee a fair chance of answering them” however “this does not require any particular formality. It is intended to be applied in practical, common sense way so as to ensure the effected employee is treated fairly. Where the employee is aware of the precise nature of the employers concerns about his or her conduct or preface and has a full opportunity to respond to this concern, that is enough to satisfy the requirement of this section.”
[87] In the first instance in RMIT, the Commission was not satisfied that Dr Asher was given an opportunity to respond. The Full Bench, on appeal, found to the contrary, and that Dr Asher had been given an opportunity to respond to the allegations of misconduct.
[88] Mr Gilbert concedes that he was given an opportunity to respond when he was completing the Employer’s witness statement after the incident 48.
[89] There is a dispute about whether, or at what time, Mr Gilbert was notified when Mr Burton and Mr Forrest were coming to see him on 26 March 2015.
[90] Mr Gilbert was informed by Mr Burton there had been an investigation into the incident on 25 March 2015. Initially, Mr Gilbert gave evidence that on 26 March 2015 he was given a letter by Mr Burton and told “you’re flying out this afternoon” 49. When it was put to him that Mr Burton had asked Mr Gilbert if there was anything further he wanted to add to his statement, he replied, “he may have, but I don’t remember him saying”50 and subsequently, “I don’t think so”51 and then “he may well have”52, and finally, “he just handed me a letter and said I’ve been terminated”53.
[91] Mr Gilbert’s responses, to whether he had been given the opportunity to respond in the meeting of 26 March 2015, are indicative of the Applicant’s ever changing evidence on what happened before, during and after the incident.
[92] Ultimately, Mr Gilbert took the view, in any event, that he could not add any more to what he had said in his witness statement 54.
[93] Pursuant to s.387(h) of the FW Act below, I am satisfied that Mr Gilbert had the opportunity to respond to the incident on the day of the incident. Secondly, I am satisfied, on the evidence, that Mr Gilbert had the opportunity to respond at the meeting with Mr Burton and Mr Forrest on 26 March 2015.
s.387(d) - support person
[94] The Applicant submits that he was never afforded the opportunity to have a support person 55. The evidence is that the Employer never refused, or unreasonably refused, Mr Gilbert to have a support person present in the discussions relating to his dismissal. The evidence is that the Employer, of its own volition, ensured that Mr Cox, the Employee Safety Representative on site, was present at the discussions on 26 March 2015.
[95] Mr Gilbert had no objection to Mr Cox attending the meeting 56.
s.387(e) - unsatisfactory performance
[96] In its broadest sense, performance of an employee includes how they relate to fellow employees and other persons they come into contact with in the workplace.
[97] With the exception of the incident described above, I have no evidence to conclude that Mr Gilbert’s performance was anything but satisfactory. However, it has to be recalled that Mr Gilbert had only been employed for approximately seven (7) months and was a fly-in-fly-out (FIFO) employee.
s.387(f) - size of enterprise
s.387(g) - Human Resources
[98] The Applicant acknowledges that s.387(f) is not relevant to the application. I agree.
[99] With respect to s.387(g), the Applicant asserts that the Employer should have provided a more professional approach to their role in supporting the investigation to ensure procedural fairness was maintained at all time 57.
[100] Mr Gould was the signatory to Mr Gilbert’s letter terminating his employment.
[101] Mr Gould’s evidence was uncomplicated. Fighting is not something that is a regular occurrence at the Employer’s workplace. When it occurs, the individuals are separated, and the relevant employees required to give witness statements. Having obtained the statements from the relevant persons, given the physical nature of the altercation, the Employer’s Human Resources personnel were contacted 58.
[102] Mr Gould’s evidence is that he is not authorised to terminate employees at the time of the incident, hence the need to obtain the various statements 59.
[103] Mr Burton collated the statements and forwarded them to the relevant Human Resources personnel 60. Although the Employer had come to a preliminary view on the statements provided that Mr Gilbert and Mr Takiaho were to be dismissed, they were given a final opportunity to respond on the following day61.
[104] Mr Burton was advised by Human Resources personnel that, on the basis of the witness statements, unless Mr Gilbert and Mr Takiaho could provide additional extenuating or exceptional reasons, their employment had to be terminated 62.
[105] Mr Burton requested that Human Resources prepare correspondence terminating both Mr Gilbert and Mr Takiaho subject to any additional information to be provided at the meeting which took place on 26 March 2015 63. No flights to leave site were booked until after the meetings with both employees.
[106] It would appear that the Employer certainly considered alternative penalties other than termination of employment 64 relating to Mr Takiaho. However, consideration of an alternative to dismissal is less clear, on the evidence, in relation to Mr Gilbert. However, Mr Gould, as the decision maker, gave evidence that he came to the view that there was no other alternative but to dismiss of Mr Gilbert. In the circumstances, I am satisfied that his decision was not harsh, unjust or unreasonable.
[107] I am satisfied that the Employer took reasonable steps to investigate the fight in a practical common sense way. The fight was clearly a serious breach of conduct in the workplace.
s.387(h) - other matters
[108] I am satisfied that there are no other matters involved in this application which have not been considered above and require my consideration.
CONCLUSION
[109] In conclusion, for the reasons set out above, I am satisfied that Mr Gilbert’s dismissal from his employment was not unfair pursuant to s.387 of the FW Act. Accordingly, the application must be dismissed. An order to this effect is issued jointly with this Decision.
COMMISSIONER
Appearances:
S Gilbert, the Applicant on his own behalf.
D Flight on behalf of the Employer.
Hearing details:
2015:
Perth,
19 August.
1 Transcript PN298
2 Transcript PN66
3 Transcript PN74
4 Exhibit A3
5 Exhibit A2 (19)
6 Exhibit R4 (8)
7 Exhibit R4 (7)
8 Exhibit R4 (6)
9 Exhibit R4 (5)
10 Brink v TWU PR922612 at paragraph [7]
11 King v Freshmore (Vic) Pty Ltd S4213 at paragraph [24]
12 Exhibit R4 (1)
13 Exhibit R4 920
14 Exhibit R4 (2) page 5
15 Exhibit R4 (2) page 7
16 Exhibit R4 (2) page 8
17 Exhibit R4 92) page 9
18 Exhibit R4 (2) page 18
19 Exhibit R4 (16)
20 Transcript PN133
21 Transcript PN135
22 Transcript PN137
23 Transcript PN181
24 Transcript PN141
25 Transcript PN143
26 Transcript PN177
27 Exhibit R4 (8)
28 Transcript PN189 and PN190
29 Transcript PN199
30 Transcript PN229
31 Transcript PN226
32 Transcript PN217 to PN220
33 Transcript PN260
34 Transcript PN264
35 Transcript PN268
36 Transcript PN269
37 Transcript PN270
38 Transcript PN271
39 Transcript PN302 and PN307 to PN310
40 Transcript PN311
41 Exhibit A1 (12)
42 Exhibit A1 (6)
43 Exhibit A3 (5)
44 Exhibit A1 (12) and (15)
45 Exhibit A3 (5)
46 Exhibit A1 (6)
47 Qantas Airways Limited v Cornwall 1998 83 IR 102
48 Transcript PN277 and PN278
49 Transcript PN336
50 Transcript PN339
51 Transcript PN342
52 Transcript PN343
53 Transcript PN348
54 Transcript PN356
55 Exhibit A1 (25)
56 Transcript PN336
57 Exhibit A1 (38)
58 Exhibit R8 (2)
59 Exhibit R8 (4) and (7)
60 Exhibit R5 (5)
61 Exhibit R5 (11)
62 Exhibit R7 (2)
63 Exhibit R5 (14)
64 Exhibit R5 (17)
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