Mr Steven Yardley v R.P.G Australia Pty Ltd
[2010] FWA 23
•7 JANUARY 2010
[2010] FWA 23 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment
v
R.P.G - Australia Pty Ltd
(U2009/2223)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 7 JANUARY 2010 |
Summary: termination of employment – misconduct – language used to amplify threat.
[1] The Applicant in this matter, Mr Steven Yardley, performed duties as Senior Grinder for RPG Australia Pty Ltd (“the Respondent”) at its Wacol site from 7 April 2004 until his employment was terminated on 11 February 2009. The Applicant’s employment it appears, was terminated for reason of aggressive and threatening conduct, particularly so in relation to a co-worker. At the time of the termination of the Applicant’s employment, the Applicant was provided with 4 weeks payment in lieu of notice.
[2] The Applicant made an application to the Australian Industrial Relations Commission under s.643(1)(a) of the Workplace Relations Act 1996 (“the Act”) seeking relief in relation to the termination of his employment, which he viewed as harsh, unjust and unreasonable. 1
[3] For the purpose of an arbitration, in determining whether a termination was harsh, unjust or unreasonable, regard must be had to the matters set out at s.652(3) of the Act, which are:
“(a) whether there was a valid reason for the termination related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee—whether the employee had been warned about that unsatisfactory performance before the termination; and
(e) the degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(g) any other matters that the Commission considers relevant.”
EVIDENCE AND CONSIDERATION
(a) Whether there was a valid reason for the termination related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees)
[4] At the outset, it should be stated that the Respondent contended that its workplace is “high risk” in that its employees were placed in “dangerous situations”. 2 This is because the Respondent’s business involves handling steel products.3
[5] The Respondent gave evidence that in the months prior to the termination of the Applicant's employment the Respondent had performance managed the Applicant in a range of matters relating to absenteeism and performance, and informally wanted him in relation to inappropriate workplace behaviour. 4
[6] The initial relevant incident appears to have occurred in November 2008, when the Applicant caused $35,000 worth of product loss for reason that he had incorrectly cut a sheet of steel plate whilst operating the Profile Machine.
[7] The Applicant's initial response to being advised of the investigation was that he had “F….d up”. 5 But the Applicant was subsequently said to have maintained he had been inadequately trained on the Profile Machine. The Applicant was given a formal written warning6 for unacceptable performance and was transferred to another area of the business (known as “the grinding bay”) for a period, although he endured no loss in remuneration.7 He did, however, believed himself to have been humiliated in front of his lower classified work colleagues.8
[8] The evidence of Mr Denny 9, who oversees the day to day operation of the profiling section in which the Applicant performed his duties was that he had also counselled the Applicant for late arrivals at work, and for absenteeism for reason in the 10 months prior to November 2008 the Applicant had been absent for 20.7 days (on paid and unpaid sick leave). This was confirmed by Ms Karen Padillas, the HR\Payroll Manager.10 The Applicant, for his part, appears to have had marital concerns at that time and may have been taking some prescription medication.
[9] To moderate the impact of absences on the operation of the business, the Applicant was required to provide notice if he was unable to attend to his rostered shifts as early as possible and that if improvements were not evident, the disciplinary process would be escalated, extending to the termination of the Applicant's employment. 11
[10] It further appears from about this time that the Applicant became increasingly belligerent and aggressive in his relationships with management.
[11] Ms Padillas gave evidence that the Applicant complained about management issues to her and on these occasions she felt threatened by the Applicant for reason of his demeanour. 12 On 17th November 2008 the Applicant had sworn loudly and referred to his managers as “F…ing a...holes” and that “he wasn’t going to be screwed”.13
[12] At no time was the Applicant given any formal warnings for his behaviour in these respects.
[13] The reason for this, according to Mr Sutton, Production Manager, was that the Applicant would not respond positively or constructively to warnings, which would become sources of conflict in their own right. Instead, the Respondent attempted to redirect the Applicant and focus him upon his tasks:
“[…] I hoped the best way was to try to placate you, lower the aggression and agitation and get you back on the workshop floor. You coming in for two hour meetings or, you know, hour and a half meetings every day wasn't productive for us. The idea was to basically get your head right and get you back on the machines the best way we could. I figured the reaction from the first warning wasn't good and I didn't think that more warnings was going to get you in the right direction, Steven. I definitely thought that was going to work against certainly myself and everybody else involved.” 14
[14] Around this same period it appears that the Applicant was the subject of allegations of drug use. 15 It appears that the Applicant was approached by Mr Sutton and Mr Denny about these rumours.
[15] The Applicant denied the use of drugs other than prescribed medications and according to Mr Sutton stated that he had “baited” his workplace colleagues with inaccurate information so that the Applicant could prove that his co-worker(s) could not be trusted:
“MR YARDLEY: If I remember rightly that was done out on the factory floor down near the - - -?---It was actually discussed a couple of - there was a couple of times it was discussed. The one that I recall most vividly when we spoke about the stuff in paragraph 11 was done at Justin Denny's desk. But yes, there was another time where I suggested that you stop baiting people and starting rumours and just worry about your work.
I'll put it to you now that that's a lie, that I never at any stage discussed drugs with anyone else in the workplace, yes or no?---I wouldn't know that. You told me that you told them.
I never told you any such thing?---Then that's a lie then, yes. You're not telling the truth because that's exactly what happened.
Okay, who did I discuss drugs with in the workplace?---That I don't know, you wouldn't say a name, you just - - -
You're saying that I baited people or, what were the words, yes, baited people and talked about drugs or whatever. Who were these people?---You wouldn't tell me that. You actually said that you'd told - - -
I never talked about it with you, Nathan?---It's in all of my statements here but you said you'd baited a couple of guys to see whether you could trust them for info and it's obvious now that you couldn't trust them for info. Those people I don't know because you didn't tell me that. You just said that you'd spoken to a couple of people, given them some information and that information had come back as you thought it was, meaning that you couldn't trust these people.” 16
[16] Mr Denny, who was present with Mr Sutton when the allegations of drug use were raised with the Applicant, stated in his evidence 17 that the Applicant had claimed that he had set a “trap” to identify which of his co-workers could be trusted.
[17] The Applicant, as the above exchange indicates, denies having been a drug user in any unlawful sense, though his questioning itself suggests some equivocation as to whether or not he “baited” any co-workers with information about drug use.
[18] The Applicant, so the Respondent claimed, was counselled not to conduct himself in such a manner about such an issue, particularly in a potentially hazardous workplace where drug use could raise risk management issues. No other action was taken against the Applicant and he was not asked to undertake any testing. This issue, however, was to arise again in early February 2009. 18
[19] The Applicant was said to have reacted negatively to the counselling, in essence alleging he was being victimised. 19 His behaviour was said to have deteriorated still further from this time making him more “suspicious” and “unpredictable” and he sought the identity of the person who had brought the drug allegations to the attention of the Respondent.20
[20] In early February in a meeting with management, the Applicant sought the identity of his accuser in relation to the drug rumours suggested above:
“So, Mr Yardley, you looked at the personnel file. You didn't see any names there as far as the rumour source was concerned, that's right, isn't it?---Sorry, can you repeat that?
You looked at the personnel file, correct?---Correct.
You didn't see by looking at it who was the source of the rumour about drug use, did you?---No, I didn't, no.
At that point you didn't know, did you?---No, I didn't know.
[…]
So how did you come to the conclusion that it was either Coleman or Strasburg?
---The rumours, the bullshit, whatever, had played its natural course and it come out.
It came out, so, what, you discussed the rumour with other people in the workplace who came out?---I had a couple of people come to me and said it was Rob Strasburg, one of them being Gary Coleman.” 21
[21] The Applicant was attempting to narrow down the potential sources of the information given to management about his alleged drug use:
“”[…] And at that point in time you asked to see your personnel file you thought that Gazza was one of - it was either Gazza or Strasburg that had dobbed you in, is that right? You said earlier you were looking to narrow it down? ---- Yes, yes, that’s right, that’s right.” 22
[22] It appears that the Applicant re-agitated other issues at the same meeting such as to why he had been placed back on the Profile Machine. 23 The Applicant, so Mr Sutton said, again claimed he was being victimised by being required to return to the Profile Machine. It was said that he displayed considerable agitation and it was necessary to ask him to calm down.24 The Applicant, for his part believed, that he was being set up to fail by his employer.25
[23] This particular meeting, according to Mr Sutton’s notes of the time, came to an end because the Applicant kept “dredging up the past”, highlighting staff members who had made mistakes and that the conversation was just going “around in circles”, despite the Mr Sutton’s efforts to focus the Applicant on the future. 26
[24] Some days later, Mr Coleman (otherwise referred to as ‘Gazza’) approached Mr Sutton and Mr Denny and expressed concerns that he appeared to have inadvertently attracted the Applicant’s ire and did not wish to become involved in any issues. It seems Mr Coleman was afforded the opportunity to take some additional time off if he felt he needed to do so. 27
[25] The issue here concerned the identity of the co-worker who had informed management that the Applicant was a drug user.
[26] Mr Coleman’s evidence in this regard had to be teased from him by cross examination and he was a decidedly reluctant witness who only appeared under a summons (at the Applicant’s request).
[27] Mr Coleman conceded that the Applicant had come to see him about the drug allegations or a “lifestyle” issue. 28 He further conceded that their relationship had been affected as a consequence:
“You felt at some point in time that you were on the wrong side of Mr - I understand that's not the situation now, but you were on the wrong side of
Mr Yardley for a while, weren't you?---We had our dispute, we had - you know, when someone accuses someone of doing something I just - you don't stay friends for too long, do you know what I mean?” 29
[28] The discussions between Mr Coleman and the Applicant were described by Mr Coleman as being “firm”. 30
[29] On 10 February 2009 the Applicant again agitated through Mr Sutton a number of the aforementioned issues, including why he was being placed back on the Profile Machine, issues relating to his personnel file, allegations about drug use, why he could not see the General Manager, Mr Thornton and so forth. Mr Sutton stated in his evidence at the hearing that the Applicant was aggressive and was diverted into a meeting room away from the more public area. 31 Mr Martin for the Respondent gave evidence that appears to support the aggressive tone and the action by Mr Sutton of moving the Applicant into a near by room.32
[30] This appears to have been the meeting to which the Applicant referred to the hearing in the following terms:
“Mr YARDLEY: […] On the 10th I did see Nathan. Nathan did pull me into that room and we had - at that stage I was told that Nathan, Karen - I asked if we could have Dick there, who's the general manager in relation to these allegations that were going on in regard to drug use and my treatment over being off the machine for that period of time. I just wanted things sorted out, put to bed like I said earlier, so I could get on with my job, my life, just one less hassle in my life and that's how it was left.” 33
[31] At that same time, the Respondent claimed that the Applicant again accused Mr Coleman of spreading rumours about him (in what appears to be a continuation of the incident discussed above). Mr Sutton’s evidence was that the communication was in the following terms:
“This is bullshit. I want to know who's been dogging me out. I know it's Gary Coleman, that black dog c..t. I'm going to f..k him up," and I just said, "Look, I swear to you on my children's life, it wasn't Gary that spoke to me about this stuff." 34
[32] Mr Sutton ended the meeting at that time. 35
[33] Ms Padillas gave evidence that she recalled receiving a telephone call from Mr Sutton after this meeting in which Mr Sutton referred to the threat made to Mr Coleman by the Applicant. 36 Mr Sutton’s voice at the time was “extremely upset” and “nervous”.37
[34] The Applicant’s evidence, again, was in stark contrast and evasive as to any detail:
“Did you in the course of your conversation with Mr Sutton prior to the meeting, the day before the meeting on 11 February, that is on or about 10 February 2008, did you ever say any aggressive words about Mr Coleman to Mr Sutton?---No, your Honour. All I wanted to do was put the thing to bed. I was sick of being harassed in the office and harassed by my fellow guys on the floor I worked - well, not harassed by the guys I worked with, but questioned what was going on, rah, rah, rah, rah, you know. I had my own problems at the time. That was something I did not need.
Back on 9 February you accused Mr Coleman of spreading the rumours about your drug taking. Did you have any discussion or interaction with Mr Coleman at that time?---9 February, your Honour, was the Monday. Mr Coleman approached me I think it was the Monday or the Tuesday. It was the Tuesday, so the 10th, Gary Coleman approached me and he was having the same, similar problems and all that was said was let's go to Justin who was our supervisor, whatever, and let's try and sort this out and Gary Coleman apparently went on the Wednesday to see Justin, but according to Gary he didn't say half the things that I've been accused of.” 38
[35] The Applicant expressly denied making any comments about Mr Coleman of the kind as alleged above. 39 However, the Applicant did concede that he did make reference to Mr Sutton of Mr Coleman’s role in the drug allegations.40
[36] Following the meeting on 10 February 2009 a further meeting was convened the next day with the Applicant, Ms Padillas and Mr Sutton.
[37] The Applicant, according to Ms Padillas stated upon the Applicant being asked at the commencement of the meeting if he wanted a representative present said that he did not want a representative and to “just f…..g get on with it”. 41
[38] Again, over the course of this meeting Ms Padillas said she felt threatened by the Applicant’s demeanour, which involved profanities and counter allegations against another employee, which are discussed below. It was this incident that caused Ms Padillas to state that the Applicant was displaying inappropriate conduct and his employment was terminated (with notice paid in lieu).
[39] It is somewhat difficult to tell from Ms Padillas’ evidence whether she was affirming the decision to terminate the Applicant’s conduct for reason of prior misconduct or whether she was responding to the immediate circumstances she faced. 42 My preferred construction of the evidence, however, is that Ms Padillas became frustrated by and insecure during the meeting of 11 February 2009 and, believing the meeting was deteriorating, informed the Applicant of the Respondent’s decision (taken prior to the meeting) to terminate his employment. There is some further discussion of the decision making in respect of the Applicant’s employment below.43
[40] The Applicant, according to Ms Padillas, responded “by wrenching open the door and swearing loudly , “F…k this Company and, I’ll f…..g see you in court”.” A comment he again repeated when leaving the premises. 44
[41] The Applicant’s recall of the meeting was starkly different. He claimed there had been no discussion in effect prior to being issued with his separation certificate and informed his employment was terminated. There was no opportunity for there to be any discussion or for him to manifest any aggressive behaviour.
“So you say there wasn't any opportunity for any discussion or any exchanges at all with your employer in the meeting of 11 February?---All that was said was what I said. I asked why I'd been sacked. On the way out the door I said you've done the wrong thing, I'll see you in court.
So there was no other discussion?---No other discussion, your Honour, nothing whatsoever.” 45
[42] At 4.00pm that same day, Mr Coleman (who had been on leave at home) informed Messrs Sutton and Denny that a person had rung him on a phone number he believed to have been the Applicant’s stating words to the effect that he (Mr Coleman) was a “dog c..t” and that the caller was “coming round to f..k him up at his home.” 46
[43] There is some similarity between the words conveyed to the Respondent by Mr Coleman and those utilised by the Applicant in his meeting with Mr Sutton (in relation to Mr Coleman) on 10 February 2009.
[44] Mr Coleman under questioning admitted he had reported to his employer that he believed the Applicant was the source of the telephone call and that he sent his young family away from the house for a few days because of safety concerns. 47
[45] The Applicant denied making any telephone call to Mr Coleman.
[46] The Applicant, it should be added, made a telephone call to Mr Strasburg on 8 December 2009, prior to this hearing, in which he allegedly stated:
“[Y]ou know all that shit that was going down with Gazza? I know it was you.”
[47] And then when this was denied by Mr Strasburg, Mr Yardley was said to have stated:
“[Y]ou’re a gutless dog and what goes around comes around […] stay out of my life you piece of s..t.” 48
[48] The Applicant did not deny making the telephone call, only some of its more aggressive content. 49
[49] The Applicant provided only a short, informal written submission to these proceedings. His argument was developed ‘on the fly’, as it were, by way of lengthy questioning of the various witnesses. Generally, the Applicant contended that he was harassed and humiliated by Mr Sutton, his Production Manager and it was “obvious he [Mr Sutton] didn’t want [him] there”. The Applicant contended further that he was refused access to resolve matters to the General Manager, Mr Thornton (who nonetheless gave evidence in this matter and attested to a meeting with the Applicant 50). The Applicant argued that he was eventually terminated without any show cause process or warnings for alleged misconduct because, “I raised my voice”.
[50] In effect, the Applicant denied every claim by the Respondent.
[51] In my view, the evidence as led by the Respondent in this matter is credible. The Respondent’s witnesses were credible each in their own right. But what is more important is that their respective evidence interlocked to provide a consistent narrative about the Applicant’s interactions with management and as to key events and conduct.
[52] By contrast, the Applicant provided no coherent alternative narrative. For example, whilst he denied speaking in aggressive terms about Mr Coleman’s role in drug allegations, he did agree that he raised the subject in conversation with Mr Sutton. In so doing, however, he provided no context for the exchange or wider narrative about his course of conduct. This was a deficiency over the course of the Applicant’s own evidence and his lengthy questioning of the Applicant’s witnesses.
[53] More importantly, however, if I were to accept the Applicant’s case, it would require that I discern from the evidence a quite elaborate conspiracy on the part of Mr Sutton, Mr Denny, Mr Dallas and Ms Padillas, and to some degree Mr Coleman.
[54] I cannot discern such a conspiracy.
[55] Mr Denny and Mr Sutton both gave evidence that the Applicant had informed them that he had “baited” or trapped his co-workers with a fictitious story about drug use in order to test their reliability, as it were. The Applicant denied so doing. The evidence of Mr Sutton and Mr Denny showed no signs of fabrication or orchestration. Both Mr Sutton and Mr Denny gave further evidence (which was buttressed by the Applicant’s own admissions) of the desire by the Applicant subsequently to identify the source of the rumours from amongst his work colleagues.
[56] The Applicant’s own evidence also demonstrates that he was seeking to narrow the scope of the potential identities of the person who made accusations, as he put it, about drug use, and Mr Coleman was one such person. 51 Mr Coleman’s evidence was that he was being blamed by the Applicant for saying “something about him” related to “lifestyle” issues and that he and the Applicant had had “firm” discussions about this matter.52 Despite Mr Coleman’s studied imprecision, Mr Yardley’s evidence sufficiently demonstrates these concerns to have been about allegations of drug use.
[57] Mr Coleman’s evidence, taken on the day under summons as sought by the Applicant, was clearly incapable of being concocted in cooperation with the Respondent.
[58] Ms Padillas gave evidence that following Mr Sutton’s meeting with the Applicant on 10 February 2009, Mr Sutton was shocked and conveyed to her the nature of the Applicant’s conduct, his own conduct and the Applicant’s comments about Mr Coleman.
[59] Mr Martin gave evidence, under questioning by the Applicant, that he is likely to have heard the aggressive language used by the Applicant when confronting Mr Sutton on 10 February 2009. The fact that Mr Martin recalls that Mr Sutton shepherded the Applicant into another work area when the incident commenced lends support to this conclusion. Mr Martin’s evidence was candid and showed no signs of being construed for a particular purpose, and it was the Applicant’s questioning that directed his evidence.
[60] Such interrelated and interlocking evidence presents a credible narrative framework on its own. In my view, the evidence demonstrates that the Applicant sought to entrap certain of his fellow co-workers for the purpose of identifying their underlying loyalties (to himself or to management). Thereafter he pursued the identity of the co-worker who informed management, only to reach a point where he threatened a co-worker he believed to be a prime suspect.
[61] Ms Padillas, Mr Sutton, Mr Denny and Mr Thornton all gave evidence of the difficulties in managing the Applicant’s wider conduct and his aggressive posture in challenging what he perceived to be inequities and discriminatory decision-making in the workplace.
[62] In all, the Respondent’s evidence exposed a coherent pattern of conduct on the part of the Applicant that was not otherwise brought into question by the Applicant’s denial of certain particulars.
[63] In essence, the Applicant’s key claims appear to be that:
- he was humiliated before his peers by the disciplinary process (in which he was placed in the grinding bay for a period) in response to the ($35,000) damage he caused to the Respondent’s stock (though his remuneration was never affected);
- he was of the view he was being invited to return to his prior duties so that he could fail and have his employment terminated;
- he was victimised by claims he was a drug user and singled out for special or discriminatory treatment; and
- there was no evidence that Mr Coleman was threatened by him or felt threatened by him.
[64] It appears to me that for the most part the Applicant invited me to find that the Respondent’s management and his former co-workers were motivated, over as period of months, by a conspiracy firstly to single him out for “special treatment”, next to humiliate him, and then to have his employment terminated. 53
[65] As I have found above, the evidence supports no such conspiracy.
[66] In my view, while I have not had reason to question the credibility of the Respondent’s witnesses, the interlocking circumstances and evidence further strongly supports the Respondent’s case. It also gives me cause to accept the evidence of Mr Sutton that the Applicant spoke in aggressive terms about his threatening intentions in relation to Mr Coleman.
[67] The conduct manifested by the Applicant over the course of the period November 2008 to the time of the termination of his employment critically undermined the confidence and trust that must support the employment relationship (and particularly so in respect of the Applicant’s capacity to work cooperatively, productively and safely within the workplace). In so conducting himself, the Applicant provided the Respondent with a valid reason for the termination of his (the Applicant’s) employment.
[68] The Applicant’s conduct comprised, in the main:
- “baiting” his fellow co-workers with false drug information to test their loyalty;
- pursuing at the expense of the productivity of the workplace persistent claims about the identity of such co-workers who disclosed the information to his employer;
- conducting himself in belligerent terms in his dealings with management; and
- making threats to an individual co-worker, which were amplified by the aggressive use of language, and
- doing so in a potentially dangerous workplace environment.
[69] Such conduct forms no part of the modern workplace, and it also introduces wider safety risks into what was already a dangerous operational environment (and which should not be tolerated in the interests of all employees).
[70] In my view, therefore, the Respondent had a valid reason for the termination of the Applicant’s employment.
(b) whether the employee was notified of that reason
[71] On the written evidence, the Applicant was terminated for misconduct at the meeting of 11 February 2009 and required to leave the premises immediately
[72] The Applicant was not notified of the reason prior to the meeting to terminate his employment. He was notified of the reason at the point his employment was terminated.
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee
[73] The cross-examination of Ms Padillas and Mr Sutton revealed that the decision to terminate the Applicant’s employment was made prior to the meeting with the Applicant, and following discussions between Mr Thornton, Ms Padillas and Mr Sutton. 54
[74] It was therefore never the intention of the Respondent to provide the Applicant with a reason for the termination of his employment to which he could have responded.
[75] That said, the Applicant’s “agitated” and “aggressive” 55 posture from the commencement of the termination meeting (see above) provided little scope for wide discussion in any event.
(d) if the termination related to unsatisfactory performance by the employee—whether the employee had been warned about that unsatisfactory performance before the termination
[76] There were elements of unsatisfactory performance in the Applicant’s recent work history, as set out above, and for which he had received counselling (for absenteeism) and a written warning (for performance in relation to profile cutting errors giving rise to $35,000 in stock losses). 56 These matters, however, were not the reason for the termination of employment. The reasons for the termination of his employment resided in his conduct over the period from November 2008 to February 2009, which I have cited above in relation to the requirements of s.652(3)(a) of the Act
(e) the degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination
[77] No evidence was put to me in relation to this consideration and I therefore make no finding in relation to it.
(f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination
[78] No evidence was put to me in relation to this consideration and I therefore make no finding in relation to it.
(g) any other matters that Fair Work Australia considers relevant
[79] There are no other matters to which I should have regard. I note that the Applicant has stated in his short written statement (and indirectly in his other comments over the course of the hearing, particularly in relation to his absenteeism) that he had personal problems. But the evidence in this regard is not made out (nor did the Applicant seek to make it out or rely upon it).
[80] I make the general observation that I do not know the reason why the Applicant’s conduct deteriorated sharply from November 2008 onwards, after a number of years as a competent grinder. There may be a combination of reasons involving his marital circumstances and other stressors that have not been disclosed at hearing.
[81] Whatever the causality, the Applicant has developed an unhealthy distrust of many people with whom he worked and interacted, and, despite the passage of time, the intensity of this distrust continues to condition his world view, as is evidenced from his telephone call to Mr Strasburg on 8 December 2009, prior to the hearing of this matter and 10 months after the termination of his employment.
CONCLUSION
[82] I have some concerns with the procedural fairness extend to the Applicant leading up to the decision to terminate his employment. The Applicant was denied express notification of the reason the Respondent was considering terminating his employment, and was given no opportunity to respond to that reason.
[83] Notwithstanding this, such information and opportunities, on the evidence that is before me, would have been to no substantive avail. The misconduct manifested by the Applicant over the months prior to the termination of his employment (and particularly so in making an aggressive threat against a co-worker the day prior) were such that there was a compelling cause for the Respondent to cease the employment relationship promptly.
[84] The fact that the Applicant was denied some measure at least of procedural fairness, does not, in the circumstances of this matter otherwise condition the seriousness of the misconduct identified in the evidence.
[85] Indeed, it appears to me on the evidence that little of practical effect would have come from further engaging the Applicant about the suite of matters that had come to concern his employer. Engagement had only resulted previously in further confrontation.
[86] Having regard to all the circumstances relevant to this application, therefore, I find the Applicant’s employment was not harshly, unjustly or unreasonably terminated. Accordingly, the application made under s.643(1)(a) of the Act is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr S Yardley on his own behalf
Mr D Pratt of Counsel instructed by the Australian Industry Group for the Respondent
Hearing details:
2009.
Brisbane:
December 14, 17 and 18.
1 This decision is published by Fair Work Australia pursuant to Section 11, Part 2, Schedule 18 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
2 Statement of Justin Denny dated 2 October 2009 at PN 13; Statement of Nathan Sutton dated 2 October 2009 at PN 12 and NS-2; Statement of Dick Thornton dated 2 October 2009 at PN 15
3 See Transcript PN2352
4 Statement of Karen Padillas dated 2 October 2009 at Annexures KP-2 and KP-3
5 Statement of Nathan Sutton dated 2 October 2009 at PN 8; Statement of Karen Padillas dated 2 October 2009 at Annexure KP-4; Transcript of Proceedings dated 14 December 2009 at PN 1088-1089
6 Statement of Karen Padillas dated 2 October 2009 at Annexure KP-4
7 Statement of Nathan Sutton dated 2 October 2009 at PN 7-8 and Annexure NS-1; Statement of Dick Thornton dated 2 October 2009 at PN 3-8
8 Transcript of Proceedings dated 14 December 2009 at PN 520
9 Statement of Justin Denny dated 2 October 2009 at PN 10; Statement of Nathan Sutton dated 2 October 2009 at PN 10-11
10 Statement of Justin Denny dated 2 October 2009 at PN 5; Statement of Karen Padillas dated 2 October 2009 at PN 5 and Annexure KP-2
11 Statement of Justin Denny dated 2 October 2009 at PN 6-7; Statement of Karen Padillas dated 2 October 2009 at Annexure KP-2
12 Statement of Karen Padillas dated 2 October 2009 at Annexure PN-9
13 Statement of Karen Padillas dated 2 October 2009 at Annexure KP-10
14 Transcript of Proceedings dated 14 December 2009 at PN 1110
15 Statement of Nathan Sutton dated 2 October 2009 at PN 11
16 Transcript of Proceedings dated 14 December 2009 at PN 1251-1254; Statement of Nathan Sutton dated 2 October 2009 at PN 12 and Annexure NS-2
17 Transcript of Proceedings dated 14 December 2009 at PN 2211-2214
18 Statement of Nathan Sutton dated 2 October 2009 at PN 12 and Annexure NS-2, being a near contemporaneous file note; Transcript of Proceedings dated 14 December 2009 at PN 1251
19 Statement of Nathan Sutton dated 2 October 2009 at PN 8
20 Statement of Justin Denny dated 2 October 2009 at PN 9; Statement of Nathan Sutton dated 2 October 2009 at PN 5-6 and 9; Statement of Dallas Martin dated 2 October 2009 at PN 3 (to some limited extent)
21 Transcript of Proceedings dated 14 December 2009 at PN 195-197 and 202-202. Also see Transcript of Proceedings dated 14 December 2009 at PN 332-346
22 Transcript of Proceedings dated 14 December 2009 at PN 278
23 Statement of Nathan Sutton dated 2 October 2009 at PN 13 and NS-3, Transcript of Proceedings dated 14 December 2009 at PN 1088-1089
24 Statement of Nathan Sutton dated 2 October 2009 at PN 13
25 Statement of Nathan Sutton dated 2 October 2009 at Annexure NS-3
26 Statement of Nathan Sutton dated 2 October 2009 at Annexure NS-3
27 Statement of Nathan Sutton dated 2 October 2009 at PN 15; Statement of Justin Denny dated 2 October 2009 at Annexure JD-2
28 Transcript of Proceedings dated 14 December 2009 at PN 829- 834
29 Transcript of Proceedings dated 14 December 2009 at PN 846
30 Transcript of Proceedings dated 14 December 2009 at PN 602-606
31 Statement of Nathan Sutton dated 2 October 2009 at PN 19 and 20; Transcript of Proceedings dated 14 December 2009 at PN 1348
32 Transcript of Proceedings dated 17 December 2009 at PN 1789-1798
33 Transcript of Proceedings dated 14 December 2009 at PN 1403
34 Transcript of Proceedings dated 14 December 2009 at PN 1393; Statement of Nathan Sutton dated 2 October 2009 at PN 17
35 Statement of Nathan Sutton dated 2 October 2009 at PN 22-23
36 Transcript of Proceedings dated 18 December 2009 at PN 2078-2081
37 Transcript of Proceedings dated 18 December 2009 at PN 2164-2166
38 Transcript of Proceedings dated 14 December 2009 at PN 88-89
39 Transcript of Proceedings dated 14 December 2009 at PN 333-334, 347-348
40 Transcript of Proceedings dated 14 December 2009 at PN 335-7
41 Statement of Karen Padillas dated 2 October 2009 at PN 13 and Transcript of Proceedings dated 17 December 2009 at PN 1731-1735
42 Statement of Karen Padillas dated 2 October 2009 at PN 17
43 Transcript of Proceedings dated 18 December 2009 at PN 2109
44 Statement of Karen Padillas dated 2 October 2009 at PN 16
45 Transcript of Proceedings dated 14 December 2009 at PN 61-62 and 83
46 Statement of Nathan Sutton dated 2 October 2009 at PN 27; Statement of Justin Denny dated 2 October 2009 at PN 12; Transcript of Proceedings dated 18 December 2009 at PN 2313-2315
47 Transcript of Proceedings dated 14 December 2009 at PN 859- 865, 878 and 884; Transcript of Proceedings dated 18 December 2009 at PN 2313-2315
48 Statement of Robert Strasburg at PN 5-6
49 Transcript of Proceedings dated 14 December 2009 at PN 439 and 465-472; Transcript of Proceedings dated 18 December 2009 at PN 2425. But see Transcript of Proceedings dated 18 December 2009 at PN 2428-2431, in which Mr Strasburg insisted the threatening component to the conversation was made by the Applicant.
50 Statement of Dick Thornton dated 2 October 2009 at PN 3; Transcript of Proceedings dated 18 December 2009 at PN 2451
51 Transcript of Proceedings dated 14 December 2009 at PN 446-461
52 Transcript of Proceedings dated 14 December 2009 at PN 832
53 Transcript of Proceedings dated 18 December 2009 at PN 2454, 2480 and 2482
54 Transcript of Proceedings dated 17 December 2009 at PN 1609- 1611 and 1709; Transcript of Proceedings dated 18 December 2009 at PN 2017
55 Transcript of Proceedings dated 17 December 2009 at PN 1737
56 Statement of Karen Padillas dated 2 October 2009 at PN 7 and Annexures KP-2 and KP-3
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