Mr Tommy Lee v Toll Transport Pty Ltd

[2013] FWC 8616

[2013] FWC 8616

FAIR WORK COMMISSION

DECISION

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

Mr Tommy Lee
v
Toll Transport Pty Ltd
(U2012/16060)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 5 NOVEMBER 2013

Termination of employment.

[1] On 28 November 2012, Mr Tommy Lee (the applicant), made an application to Fair Work Australia for an unfair dismissal remedy in relation to his dismissal by Toll Transport Pty Ltd (the respondent) on 14 November 2012. The application was subject to a conciliation conference on 12 December 2012 but did not settle. It was then listed for a hearing on 22 February 2013 to consider a jurisdictional objection by the employer. However on 20 February 2013 the respondent withdrew its jurisdictional objection and the application was referred to me for determination.

[2] A hearing was subsequently conducted on 15 July 2013. At the hearing the applicant was represented by Mr Stephen Ryan, solicitor, and the respondent was represented by Mr Matthew Smith, an officer of the respondent. The applicant gave evidence on his own behalf. Evidence was given on behalf of the respondent by Ms Maria Crabb, Employee Relations Manager, and Mr Quintin Rudolph, Team Manager for the afternoon shift.

[3] The applicant was employed as a casual employee by Toll Personnel Pty Ltd trading as Toll People (a subsidiary of Toll Holdings Ltd) in various periods from 2010 until 14 October 2012. He performed work for the respondent, trading as Toll Customised Solutions as well as other businesses. 1 According to Ms Crabb’s evidence, while Toll People is part of Toll Holdings Ltd, it does not share resources, facilities, personnel or commercial information with the respondent2.

[4] The respondent is a third party warehousing and distribution specialist. The Ingleburn site at which the applicant was employed by the respondent is a joint venture between Toll Customised Solutions, a trading name of Toll Global Logistics, and Jalco Pty Ltd.

[5] On 15 October 2012, the applicant commenced employment with the respondent. The applicant's employment with the respondent was terminated on 12 November 2013.

[6] According to the applicant’s statement, on Monday 12 November 2012 Mr Rudolph had asked him to do some wrapping.

‘I knew another worker called "Pawan". I have never had an argument with him before this date.

I had wrapped one stack and picked up a second stack when I saw Pawan with a half pallet on his forklift. He put the half pallet on to the wrapper that I was using. He then got off his forklift and started to wrap the half pallet.

I stopped my forklift about 4 metres from him and waited for him to finish.

He then started the wrapper but did not use the automatic button. He was using the manual button. When the manual button is used it takes twice as long.

I then said to Pawan words to the effect "why are you using the manual button. It takes too long. I have to wrap these stacks. Why didn't you use the upper wrapper".

Pawan ignored me.

I then said "fuck me dead” in frustration.

I then got off the forklift and walked towards Pawan. I was about 3 metres away and said to him words to the effect "why are you using this machine when you know that I have to wrap these stacks. You can use the upper wrapper".

I then returned and walked back to my forklift and said "fuck you".

Pawan then finished using the wrapper and then went and printed a label for the pallet.

It is usual practice to place a label on the pallet after the palate is removed from the wrapper.

He then came back and put the label on the pallet. He then drove away.

I then drove the forklift to the wrapper but turned the forklift too quickly and some boxes fell off. I again said "Fuck me”.’ 3

[7] During his cross-examination, the applicant said he got angry with Mr Pawan:

‘--Because he use the wrapping machine with the manual button, but that’s the - Quinton tell me only myself to do wrapping. That’s why we can use the wrapping machine by myself only. He don’t have to do but he want to ignore me. He just jump on the ---.’ 4

[8] The applicant subsequently conceded that Mr Pawan also had to use the pallet wrappers (of which there were four.) 5 According to the applicant, one of the wrappers was not working. He later said this was 10 metres away and it would have taken a couple of minutes to get to.6 He agreed he was angry with Mr Pawan, and had raised his voice with him.7 It was put to the applicant that he had told Ms Crabb that Mr Pawan had sworn at him. He then said:

‘I say Pawan when - I speak to him to do manually on the wrapper machine and then he just say, Fuck, me first.” That’s what I say. He say “fuck” to me and that’s why it made me angry and just yelling back, I said.

Are you saying that that’s why you became angry? --- Yes, that’s why I became angry.

A few moments ago you said you were angry because he used the manual button?---Yes, but that time I just far away from him. That’s why I just have to yelling a bit louder, that’s it.’ 8

[9] In the applicant’s statement in reply he indicated that he said to Mr Pawan “fuck you” in frustration. 9 During cross examination he said that he was looking at Mr Pawan when he said this.10 He also maintained that he only used this expression once,11 while he was walking back to his forklift. He did not care whether Mr Pawan heard or not.12

[10] According to his written statement, just after 8 PM on 12 November 2012, Mr Rudolph came around a corner of the warehouse towards the pallet wrapping area and heard yelling. When he looked over he saw the applicant and Mr Pawan Kalra.

‘Tommy appeared to be angry towards Pawan and was asking him why he was taking so long when wrapping his palate. When he was asking this he was very aggressive towards Pawan and was "in his face". I also heard him yell "f*** you” at Pawan on 3 or 4 occasions.

I heard Pawan asked Tommy to stop yelling and swearing at him however Tommy did not listen and continued to yell at him and behave aggressively. At no stage did I hear Pawan swear or see him behave inappropriately.

I was concerned at how aggressive Tommy was towards Pawan and I became concerned that there might be a fight. I moved over and stepped in to settle the situation down and moved on the away from the area.

I spoke to Tommy separately and asked him what happened. He was very agitated and still very angry towards Pawan. It seems that Tommy felt that Pawan should have used a different wrapper.’ 13

[11] According to Mr Rudolph’s oral evidence he was roughly 10 metres away when he saw the altercation. The applicant and Mr Pawan were around the pallet wrapper when he saw them. They were ‘on the ground’ rather than being on their forklifts. 14 Mr Rudolph could hear the applicant yelling “why are you taking so long?” Pawan reacted “Why are you yelling at me?” The applicant then starting yelling and swearing at Pawan. They were roughly two metres from each other.15 The applicant said “fuck you”, about three times, in a very loud and aggressive manner. Mr Pawan, by contrast, was speaking in a calm tone.16

[12] In response to a question from the Bench as to how common it was for employees to swear or be aggressive at Toll sites, Mr Rudolph said:

‘---In all honesty, it’s not very common because we sort of have a no-swearing sort of policy because we have ladies on the floor as well. Being them on the floor, it's a sort of bit of respect thing....

--- So there's not a tolerance of people swearing?--- No.’

[13] Mr Rudolph said he was worried that the applicant, because of his aggressive behaviour, could start being violent towards Pawan. After Mr Rudolph's intervention, the applicant got back on his forklift, swung away and product fell off his pallet. 17 During his cross examination, Mr Rudolph agreed that the applicant would have been unable to hit Mr Kalra from where he was standing (a distance of two metres), but a fight might have ensued without Mr Rudolph’s intervention.18

[14] I did not find the applicant a convincing witness. He was evasive in responding to questions and his oral evidence was inconsistent with his written evidence, particularly with regard to how he swore at Mr Pawan, and whether Mr Pawan swore at him. By contrast I found Mr Rudolph’s evidence to be clear and consistent. Where there is any conflict in their evidence about the events of 12 November 2012 I prefer Mr Rudolph’s version.

[15] On 13 November, an Account Manager from Toll People, Ms Tanya Sitta, forwarded to Ms Crabb an email she had received from Mr Kalra. In this email Mr Kalra complained that he had been sworn at and abused in the middle of the warehouse by one of the workers "Tommy". Mr Kalra indicated that he wished to proceed with a formal complaint. 19

[16] Ms Crabb attended the Ingleburn site on 14 November 2012 to conduct an investigation. She interviewed Mr Rudolph, who made a signed statement. 20 She then had a meeting with the applicant where she put the allegations to him. The applicant declined an offer to have a support person present.21 A copy of her handwritten notes of the meeting was attached to her statement.22

[17] At first, the applicant denied swearing at Mr Kalra, stating instead he “swore at himself”. However, after further questioning, he said that he had sworn at Mr Kalra once, stating “fuck off”. He had sworn at him because he was frustrated. He said that Mr Kalra did not ask him to stop swearing at him. He said he was approximately three metres away from Mr Kalra during the incident and had stayed on his forklift at all times. He specifically denied that he had said “fuck you” on a number of occasions. He denied his behaviour was threatening. He said that Mr Kalra had told him to fuck off. He reiterated his concern at how long Mr Kalra had taken wrapping. “How long he takes, it is not fair on everyone else. I don’t care anymore.” 23

[18] Ms Crabb told the applicant the allegations against him were very serious and could lead to his dismissal. In particular, a threat of violence was considered as serious as violence and that was the allegation that was made. He was on probation and it would be necessary to decide what to do. The applicant told Ms Crabb that Mr Rudolph had seen the incident and could tell her what had happened. According to Ms Crabb’s statement she found the applicant to be aggressive and angry in his tone. In a further meeting, Mr Rudolph confirmed to her that the applicant “was in Pawan’s face”. The applicant could have used the other wrapping machine - it was only 10 metres away.

 24

[19] Ms Crabb then had a further brief meeting with the applicant. She told the applicant that she had spoken to Mr Rudolph and that he had confirmed that he had seen the applicant "in Pawan’s face". In her statement she said that the applicant became angry at what she had said. She then asked him if he had anything further to add, as a decision would need to be made. He advised her that he did not.

[20] According to her statement, Ms Crabb was concerned about Mr Kalra’s safety and the risk of a further incident occurring between the applicant and Mr Kalra. She had also found the applicant to be aggressive during her meeting with him, and as Mr Rudolph did not support his version of events, she was further concerned about what the applicant might do. Ms Crabb formed the view that the applicant's actions on 12 November 2012, including what she considered to be his dishonesty in relation to the investigation, amounted to serious misconduct and that his employment should be terminated. 25

[21] Ms Crabb then had another meeting with the applicant, explained the outcome of the investigation, and told him that he would be dismissed. The applicant was given a termination letter. The letter, dated 14 November 2012, included the following:

‘I have considered your responses, Quinton’s responses and Pawan’s responses and find that you engaged in serious misconduct. In particular, you acted inappropriately towards Pawan, a casual team member, by swearing at him on a number of occasions. I also find that you were within close proximity when you were swearing at Pawan. Your actions constituted a threat of violence towards Pawan, which is in breach of the (Appropriate Behaviour) Policy.

I also find that you were dishonest during the investigation process, as you denied swearing to Pawan on more than one occasion. Further, you denied being in close proximity to Pawan when you were swearing to him. Both of these statements are contrary to Pawan’s and Quinton’s version of events.

Toll-Jalco does not tolerate violence or the threat of violence or any behaviour which risks the health and safety of our employees and casual employees. Toll-Jalco also expects its team members to act in an honest manner and in line with our STRIVE values. In particular, your behaviour is not in line with the values of Integrity, Respect and Teamwork.

You are currently in your probation period and your conduct and behaviour has fallen well below the expected standard, the Policy and our STRIVE values. Accordingly, your employment at Toll-Jalco will be terminated summarily and your last date of employment will be today, 14 November 2012. You will not be paid your notice...’ 26

Consideration

[22] I am satisfied that the applicant was protected from unfair dismissal at the time his employment was terminated. The issue to be determined is whether his dismissal was harsh, unjust or unreasonable. In considering this issue, I am required by s.387 of the Fair Work Act 2009 to 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.’

[23] I have already found that I prefer Mr Rudolph’s version of events to that of the applicant. The applicant - for no good reason - aggressively abused a co-worker in a totally unacceptable manner. He was highly offensive and intimidating. Mr Rudolph, who was close by and was in a good position to judge, was concerned that the applicant’s behaviour was so aggressive that he may have become violent. I am also satisfied that the applicant was dishonest during his interview by Ms Crabb. I am particularly concerned that the applicant appeared to show no remorse for his behaviour during the investigation and continued to try to justify his actions on the basis of his frustration with Mr Kalra. I am satisfied that these considerations in aggregate amount to a valid reason for the dismissal of the applicant on the basis of serious misconduct.

[24] The applicant was told of the allegations against him, and was given an opportunity to respond. The employer did not refuse to allow the applicant to have a support person present during discussions. The procedures adopted by the employer were consistent with its size and access to specialist human resources expertise. While the applicant had prior service with a related entity, I also note that his misconduct occurred while he was on probation with the respondent.

[25] I conclude that the dismissal was not harsh, unjust or unreasonable. The application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

S Ryan for the applicant

M Smith for Toll Transport Pty Ltd

Hearing details:

Sydney

2013

15 July

Final written submissions:

2013

11 September

 1   Exhibit T1, paragraph 4

 2   Exhibit T1, paragraph 4

 3   Exhibit L2, paragraphs 8-20

 4   PN1116

 5   PN1121-2

 6   PN1187-8

 7   PN1133-6

 8   PN1151-4

 9   Exhibit L3, paragraph 1 (j)

 10   PN1308

 11   PN1131

 12   PN1276

 13   Exhibit T3, paragraphs 2-6

 14   PN855-6

 15   PN900

 16   PN893-917

 17   PN929-949

 18   PN1044-7

 19   Exhibit T1, attachment 2

 20   Exhibit T1, attachment 5

 21   Exhibit T1, paragraph 18

 22   Exhibit T1, attachment 8

 23   Exhibit T1, paragraphs 22-27

 24   Exhibit T1, paragraph 39

 25   Exhibit T1, paragraphs 40-1

 26   Exhibit T1, attachment 10

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