Nathaniel O'Brien v Hymix Australia Pty Ltd

[2019] FWC 1737

[2019] FWC 1737

FAIR WORK COMMISSION

DECISION

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

Nathaniel O'Brien
v
Hymix Australia Pty Ltd
(U2018/9384)

COMMISSIONER CAMBRIDGE SYDNEY, 22 MARCH 2019

Unfair dismissal - jurisdictional objection - misconduct involving physical altercation - factual findings of employer verified - dismissal not harsh, unjust or unreasonable - application dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged on 12 September 2018. The application was made by Nathaniel O’Brien (the applicant). The respondent employer is Hymix Australia Pty Ltd (the employer) who has been represented by Copeland Workplace Law.

[2] The application indicated that the date that the applicant’s dismissal took effect was 22 August 2018. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 9 January 2019. The employer raised a jurisdictional objection to the application on the assertion that the applicant had not been dismissed. The Hearing was arranged to deal with both this jurisdictional objection and the merits of the matter generally.

[4] At the Hearing, the Commission confirmed that at a Pre-Hearing conference held on 26 October 2018, permission had been granted, pursuant to s. 596 of the Act, for the Parties to be represented by lawyers or paid agents. At the Hearing, the applicant represented himself and he provided evidence as the only witness called in support of the application. The employer was represented by Mr P Copeland from Copeland Workplace Law. Mr Copeland appeared via video link from Brisbane, and he called three witnesses who were in attendance at the Hearing in Sydney to provide evidence on behalf of the employer.

Background

[5] The applicant had worked for the employer for about 11 months. The applicant was employed as a Concrete Agitator Truck Driver, and he was based to work from the employer’s batching plant located at the New South Wales Central Coast regional suburb of Kincumber (the Kincumber plant).

[6] The employer operates a concrete supply business providing services across Queensland, New South Wales and Victoria. The employer has more than 300 employees and in excess of 200 concrete agitator trucks which operate out of more than 27 plant locations.

[7] The dismissal of the applicant arose as a direct consequence of an incident that occurred at the Kincumber plant at around 11:45 am on 17 August 2018. The incident on 17 August 2018, involved a verbal and physical altercation between the applicant and another truck driver, (Mr Burge) who was engaged by a contractor to pick up waste concrete from the Kincumber plant.

[8] The applicant and Mr Burge had a history of acrimonious disagreement and they openly displayed their dislike for each other. Mr Burge had previously been dismissed from employment with the employer, and the applicant believed that Mr Burge had been prohibited from entering any of the employer’s sites. In this context, the applicant confronted Mr Burge and there was an extremely disagreeable exchange between the two men. The verbal exchange initially involved an excessive use of profanities and derisive comments, and it escalated with the applicant chest-butting Mr Burge, and at the same time he challenged Mr Burge to participate in a more extensive physical engagement outside of the Kincumber plant premises.

[9] The altercation between the two men occurred in the immediate presence of another employee, Ms Harrison, who was employed at the Kincumber plant as a Relief Batcher. As the altercation escalated, Ms Harrison unsuccessfully attempted to restrain the applicant. Mr Burge resisted the advances and challenges that were conveyed by the applicant. After making repeated requests for the applicant to desist his agitated and aggressive conduct, Ms Harrison departed the scene as she “didn’t feel safe at all.” Shortly after the departure of Ms Harrison, the altercation subsided, and the applicant walked back to “his truck.”

[10] Later on 17 August 2018, the employer placed the applicant on paid suspension from work, and it commenced an investigation into the altercation incident of earlier that day. The employer received a written complaint from Mr Burge, and it was provided with the applicant’s handwritten account of the incident which was signed and dated 17 August 2018. In addition, in an email dated, 17 August 2018, 1:58 pm, Ms Harrison provided a documentary account of her observations of the altercation incident.

[11] On 22 August 2018, the applicant was required to attend a meeting with employer representatives to discuss the results of the investigation that it had conducted into the altercation incident of 17 August. At this meeting, the applicant was supported by a Transport Workers’ Union (TWU) Delegate. During the meeting the employer advised the applicant that it had determined that he had initiated some physical contact with Mr Burge, and that in view of this misconduct, and having regard for a number of previous employment conduct related issues, it had decided to dismiss the applicant, effective immediately, and that a termination of employment letter would follow. In response to this advice the applicant replied, “I will see you in court.”

[12] On 27 August 2018, the employer sent the applicant a termination of employment letter. On the following day, 28 August 2018, the employer was contacted by an official from the TWU who engaged in discussions about the applicant’s dismissal. As a result of these discussions the applicant sent an email on 28 August 2018 at 3:44 pm, which relevantly stated; “I tender my resignation for personal reasons affective 22 August 2018.”

[13] On 29 August 2018, the employer sent a response email to the applicant which relevantly stated; “I accept your resignation dated 22 August 2018.” On 31 August 2018, the employer sent a draft Deed of Release to the TWU which represented the proposed documentary finalisation of the applicant’s employment. The applicant was not satisfied with certain terms contained in the proposed Deed of Release and on 12 September 2018, the TWU advised the employer that the applicant had instructed that all correspondence with the employer cease, and that the Deed of Release would not be executed.

[14] The TWU made no further representations on behalf of the applicant as apparently the applicant had cancelled his membership with that organisation. Consequently, the applicant personally filed the application in these proceedings on 12 September 2018. The matter was the subject of unsuccessful conciliation, and subsequently a Pre-Hearing Conference was held on 26 October 2018.

The Case for the Applicant

[15] The applicant made verbal submissions during the Hearing. The documentary material that the applicant provided and which became Exhibits 1 and 2 included a mixture of assertions of fact, and documentary submission material. This documentary submission material has been examined and considered.

[16] The submissions made by the applicant opposed the jurisdictional objection raised by the employer, and which asserted that the applicant had not been dismissed. The applicant submitted that although he had sent the employer an email that tendered his resignation, that resignation was dependent upon the Deed of Release being properly executed. The applicant submitted that as the Deed of Release was never properly executed, and that he had filed an unfair dismissal claim, these steps voided his resignation, and therefore his unfair dismissal action should be allowed to continue.

[17] The applicant made submissions which acknowledged that he had an unfortunate working history with Mr Burge that involved incidents of verbal abuse at different work sites. These matters had been communicated to the employer, according to the submissions made by the applicant. The applicant complained that despite this advice, the employer had allowed Mr Burge to enter its work sites.

[18] The applicant further submitted that during the actual incident, Mr Burge was never assaulted or threatened, and there was no video or dashcam footage to corroborate the evidence of either Mr Burge or Ms Harrison. The applicant also submitted that he had no written warnings and that he was a good employee.

[19] The submissions made by the applicant also mentioned that the employer had a human resources department but at no stage were they involved in the termination of his employment.

[20] In conclusion, the applicant submitted that due to the fact that the employer could not provide a safe working environment for him, he asked for three months’ severance.

The Case for the Employer

[21] The employer was represented by Mr Copeland, who made verbal submissions in elaboration of written material that had been filed on behalf of the employer on 12 December 2018. The submissions made by Mr Copeland firstly addressed the jurisdictional objection that was raised by the employer.

[22] Mr Copeland submitted that the applicant had voluntarily resigned from his employment, and that this resignation was not disturbed by the applicant failing to execute the Deed of Release. In this regard, Mr Copeland submitted that the circumstances in this instance involved an agreement that could be categorised into what he referred to as the second class of agreement mentioned in the case of Masters v Cameron. 1

[23] Mr Copeland submitted that the agreement that had been made between the applicant and the employer involved circumstances where all the essential terms of the contract had been agreed upon, and the signing of the Deed of Release was not a condition of the agreement that the applicant resign. Mr Copeland said that just because the applicant changed his mind midstream and decided not to sign the Deed of Release that action did not affect that an agreement had been reached, and the resignation formed part of that agreement. In these circumstances, Mr Copeland submitted that the Commission did not have jurisdiction to hear the matter.

[24] Consequently, according to the submissions made by Mr Copeland, the applicant’s resignation took effect, and it could not be disturbed by his subsequent refusal to sign the Deed of Release. Mr Copeland submitted that the termination of the employment of the applicant was not at the initiative of the employer, and therefore the applicant was not a person dismissed from employment as required by s. 385 (a) of the Act.

[25] Mr Copeland made further submissions which addressed the substantive merits of the case. These further submissions referred to the various factors or criteria set out in s. 387 of the Act.

[26] Mr Copeland submitted that there was valid reason for the dismissal of the applicant. According to the submissions made by Mr Copeland, the valid reason for the dismissal of the applicant involved his physical assault upon a contractor on 17 August 2018 while at work. Further, Mr Copeland submitted that the applicant was notified of the reason for his dismissal at the meeting on 22 August 2018, and this was subsequently confirmed in the termination letter issued on 27 August 2018.

[27] It was further submitted by Mr Copeland that the applicant had been given an opportunity to explain his actions and he provided a hand written statement on 17 August 2018. It was also submitted that the applicant had further opportunity to respond to the reason for his dismissal during the meeting held on 22 August 2018. Mr Copeland submitted that the applicant had a support person with him during the meeting on 22 August 2018.

[28] The submissions made by Mr Copeland also drew attention to particular conduct of the applicant following his dismissal. Specifically, Mr Copeland drew attention to an email response that the applicant had provided to the employer when, on 6 December 2018, the employer had sent the applicant a statement of service. The applicant sent a reply to the employer’s Area Manager, Mr Aaron Binnie, and copied in other of its managers, which stated; “Dear Aaron, Go fuck yourself. Regards Nathan.”

[29] In summary, Mr Copeland submitted that the jurisdictional objection raised by the employer should be upheld as the applicant was not a dismissed employee. In the alternative, Mr Copeland submitted that there was valid reason for the dismissal of the applicant and he urged that the application for unfair dismissal remedy be dismissed.

Consideration

[30] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

[31] In this case there was a jurisdictional objection raised in respect to that element contained in subsection 385 (a) of the Act, specifically whether the applicant was a person who had been dismissed. The question of whether or not a person has been dismissed from employment involves mixed findings of both fact and law. Further, section 386 of the Act prescribes a meaning of “dismissed”. Relevantly, sub-section 386 (1) of the Act is in the following terms:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[32] In this instance, the applicant provided a written resignation from his employment in an email dated 28 August 2018. The applicant has asserted that his resignation should not be considered to have been valid because he did not subsequently execute the proposed Deed of Release which finalised his employment in accordance with his resignation. Conversely, the employer argued that the absence of any subsequently executed Deed of Release did not operate to invalidate or otherwise disturb the resignation provided by the applicant.

[33] There is strong basis to support the position as advanced by the employer. Clearly, the primary operative components of the agreement that was reached between the Parties and which is reflected in the email exchanges of 28 and 29 August 2018, 2 concerned the resignation of the applicant and the acceptance of that resignation by the employer. In large part, the primary operative terms of the agreement had been performed, and the failure to finalise ancillary terms contained in the Deed of Release would be unlikely to provide sound legal basis to invalidate or otherwise void the primary terms of the agreement that had already been performed. Thus, the circumstances in this instance appear to be properly categorised as those described as the second category identified in the authoritative Judgement in Masters v Cameron.

[34] Notwithstanding the strong prospect that the jurisdictional objection of the employer should be upheld, I am reluctant to dispose of the application on the basis that the applicant had not been dismissed as he provided a valid and voluntary resignation from employment. There are three reasons for my reluctance to uphold the jurisdictional objection of the employer.

[35] Firstly, there was a paucity of evidence about the negotiations that were conducted on behalf of the applicant by a representative of the TWU and which precipitated his email resignation to the employer on 28 August 2018. As an unrepresented litigant, the applicant did not provide evidence as to the representations that were made to him by the representative of the TWU about the terms that would be anticipated to be included in any Deed of Release. Consequently, in the absence of this important evidence it is potentially unsound to dispose of the matter on the assumption that the TWU representative had provided the applicant with sufficiently accurate information about the anticipated terms to be included in any Deed of Release and upon which the applicant presumably then provided his resignation.

[36] Secondly, the determination of the substantive merits of the application can be dealt with easily as the matter is not at all complex. In many respects, the determination of the matter can be made upon the theoretical adoption of the highest case that could be identified from the evidence provided by the applicant.

[37] Thirdly, although agreements are frequently made between dismissed employees and their former employers which “allow for” the resignation of the employee, as opposed to a recorded dismissal, in many instances such agreements to retrospectively “convert” a dismissal into a resignation, create an undesirable public misrepresentation of the true position. Particularly in circumstances where the reason for dismissal involved serious misconduct, a subsequent presentation of the dismissal as a resignation is little more than the creation of a deliberately false record which conceals the serious misconduct and creates significant potential for others to be misled.

[38] Consequently, in this case, although there was significant prospect for the employer’s jurisdictional objection to succeed, I have decided to make a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable.

Harsh, Unjust or Unreasonable

[39] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

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

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

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

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

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

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

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

(h) any other matters that the FWC considers relevant.

S. 387 (a) - Valid Reason for the Dismissal Related to Capacity or Conduct

[40] The reason for the applicant’s dismissal was that his actions and behaviour during the altercation incident on 17 August 2018, at the Kincumber plant, involved a confrontation between the applicant and another person whereby the applicant was both hostile and aggressive. The applicant acted in a manner that had an impact on the person that he was confronting, and his belligerent behaviour caused another employee, Ms Harrison, to have concern for her own safety.

[41] The applicant’s own hand written account of the altercation incident has provided sufficient basis to establish that the applicant’s actions represented serious misconduct that justified his summary dismissal. Unfortunately, the applicant appears to have no appreciation for the entirely unacceptable nature of his conduct, and he displayed a disturbing misunderstanding of his actions when he asserted that “At no stage did I assault him or threaten violence.”

[42] Consequently, there was a valid reason for the dismissal of the applicant that related to his capacity or conduct.

S. 387 (b) - Notification of Reason for Dismissal

[43] The employer provided notification of dismissal in the termination of employment letter dated 27 August 2018.

S. 387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct

[44] The applicant was provided with an opportunity to respond to the reason for his dismissal, and he provided his hand written account of the altercation incident on the day that it occurred, 17 August 2018. He was also provided with a further opportunity to respond during the meeting held with the employer on 22 August 2018.

S. 387 (d) - Unreasonable Refusal to Allow a Support Person to Assist

[45] The applicant was provided with an opportunity to have a support person present during the meeting that was held on 22 August 2018, and he was accompanied on that occasion by a TWU delegate.

S. 387 (e) - Warning about Unsatisfactory Performance

[46] The applicant was not dismissed for unsatisfactory performance and therefore this factor is not relevant in this case.

S. 387 (f) - Size of Enterprise Likely to Impact on Procedures

[47] The size of the employer’s enterprise is not a factor that is relevant to consideration in this instance.

S. 387 (g) - Absence of Management Specialists or Expertise Likely to Impact on Procedures

[48] Although there was some evidence that the employer did have dedicated human resource management specialists this is not a factor that is relevant to consideration in this instance

S. 387 (h) - Other Relevant Matters

[49] Although the applicant advanced that he had a good employment record during his fairly short period of service with the employer, this was a matter of some contest.

[50] The applicant inferred that because the employer had permitted Mr Burge to enter its premises, it therefore failed to provide a safe working environment for the applicant. This is a proposition that must be unequivocally rejected. The fact that Mr Burge was present at the Kincumber plant, and even if he had made disparaging remarks directed at the applicant, there can be no justification for the applicant’s belligerent, confronting behaviour that caused the altercation incident.

[51] Further, there was evidence of very regrettable aspects of the applicant’s character which were reflected in his response when the employer provided him with a statement of service, and he sent an email reply to the Area Manager which stated; “Dear Aaron, Go fuck yourself. Regards Nathan.” This unnecessary insulting remark was made in an email that was copied to other of the employer’s managers, and, astonishingly, it was made at a time when the applicant was engaged in proceedings before this Commission seeking remedy for alleged unfair dismissal.

Conclusion

[52] The applicant was dismissed upon the employer’s findings that his conduct in respect to the altercation incident of 17 August 2018 represented serious misconduct. These findings were established following a sufficiently comprehensive investigation into the incident. The employer relevantly found that the applicant’s hostile and aggressive verbal and physical confrontation with another person at the workplace represented serious misconduct.

[53] Upon full Hearing of the applicant’s claim for unfair dismissal remedy, the findings of serious misconduct made by the employer have been confirmed by the Commission. There were no other factors which militated against the primary factual findings which represented the reason for the dismissal of the applicant.

[54] Consequently, the employer dismissed the applicant for valid reason relating to the applicant's conduct. That conduct represented serious misconduct sufficient to justify summary dismissal. The employer adopted a fair and just procedure regarding the determination and implementation of the decision to dismiss the applicant.

[55] The dismissal of the applicant was not harsh, nor was it unjust, or unreasonable. Therefore, the application for unfair dismissal remedy must be dismissed and an Order to that effect will be issued accordingly.

COMMISSIONER

Appearances:

Mr N O’Brien appeared unrepresented.

Mr P Copeland of Copeland Workplace Law appeared for the employer.

Hearing details:

2019.

Sydney and Brisbane (video hearing):

January, 9.

Printed by authority of the Commonwealth Government Printer

<PR705926>

 1 Masters v Cameron (1954) 91 CLR 353.

 2   Exhibit 3 - Attachment 2.