Peter Bridges v McCain Foods (Aust) Pty Ltd

[2015] FWC 6797

[2015] FWC 6797

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Bridges
v
McCain Foods (Aust) Pty Ltd
(U2015/12854)

COMMISSIONER RYAN MELBOURNE, 9 OCTOBER 2015

Application for relief from unfair dismissal – fighting in the workplace – valid reason for termination – termination harsh.

[1] The application in this matter has an interesting history.

[2] In matter C2015/4588 the CEPU on 2 July 2015 notified a dispute arising under the terms of the McCain Foods (Aust) Pty Ltd Ballarat Maintenance Enterprise Agreement 2014 concerning a physical altercation that had occurred between a Manager and the Applicant in the present matter on 26 June 2015. The background to that dispute was as follows:

[3] At the time of the filing of the application the Respondent had suspended the Applicant from his employment with the Respondent and the Respondent had commenced and was part way through an investigation of the conduct of the Applicant. The CEPU was concerned that the Respondent intended to dismiss the Applicant.

[4] The application was subject to conciliation before me on 7 July 2015. At the conference the Commission suggested to the parties that the Respondent cease its investigation of the conduct of the Applicant and that the Commission undertake a fact finding exercise. At the conclusion of the fact finding exercise the parties could then consider their respective positions in relation to the dispute having regard to the findings of fact issued by the Commission.

[5] The Commission conducted a hearing in Ballarat on 21 July 2015 at which the CEPU led evidence from the Applicant, Mr Oxlade, Ms O’Brien, Mr Lockyer and Mr Huggard who are all employees of the Respondent. The Respondent led evidence from Mr Casey, the Facilities Manager for the Respondent and from Ms Smith and Mr Neylon who are both within the HR management of the Respondent.

[6] As a result of the hearing the Commission issued a Findings of Fact to the parties on 10 August 2015.

[7] On 8 September the CEPU wrote to the Panel Head of the Unfair Dismissals Panel of the FWC foreshadowing the dismissal of the Applicant and the process agreed between the parties for dealing with that dismissal:

“The current matter that is in existence is a notice of dispute filed pursuant to a disputes procedure. In general, it concerned an incident that occurred in the workplace involving Mr Bridges and another worker.

As part of the dispute, Commissioner Ryan conducted a hearing invoving (sic) witnesses and examination thereof, to examine the facts of the incident. He has subsequently issued a decision setting out his conclusions of what occurred.

The parties have had discussions since Commissioner Ryan’s decision, and have come to a proposed agreed process in order to deal with the matter as expeditiously as possible, and to avoid duplication and inconsistent findings, and for efficiency of the FWC processes.

It this agreed process that the parties respectfully seek your consent to effect.

The proposed agreed process that the Parties seek is as follows: 

• The CEPU will withdraw the dispute filed.



• The Employer will decide to terminate to Mr Bridges.



• Mr Bridges will file an unfair dismissal.



• The Employer and Mr Bridges will seek by consent that Commissioner Ryan be allocated the unfair dismissal file to avoid duplication and inconsistent findings, and for efficiency of the FWC processes.



• The Employer and Mr Bridges will seek by consent that Commissioner Ryan conciliate and arbitrate the unfair dismissal hearing as quickly as practicable.



• Each party will undertake reasonable endeavours to bring about the above actions. “

[8] The Panel Head agreed to the process outlined by the CEPU and the Applicant was subsequently dismissed on 9 September 2015 and made the application in the present matter on 14 September 2015.

[9] The Commission had a conference with the parties on 22 September 2015 and as the matter could not be settled by conciliation the matter was listed for arbitration on 29 and 30 September 2015.

[10] The arbitration of the unfair dismissal application proceeded on the basis that the Findings of Fact in Matter C2015/4578 constituted the relevant findings of fact for the unfair dismissal application hearing. No directions were issued by the Commission as to the filing and serving of witness statements or submissions and the parties clearly understood and agreed that each had the opportunity to lead any further evidence which was relevant to the determination by the Commission as to the fairness or unfairness of the dismissal or in relation to issues of remedy.

[11] At the hearing on 29 September 2015 the Applicant gave further oral evidence on which he was cross examined. The Applicant also tendered unsworn statements from 4 employees attesting to the Applicant’s good character and a petition signed by 143 employees of the Respondent calling for the reinstatement of the Applicant and asserting his good character. The unsworn statements and the petition were admitted into evidence in the proceedings. The Respondent led no further evidence in support of its position.

[12] During the proceedings on 29 September 2015 the Commission made findings in relation to the initial matters that the Commission must consider under s.396 before dealing with the merits of an unfair dismissal application. This decision deals with the matters raised by s.387 and with the issue of remedy.

[13] The Findings of Fact in Matter C2015/4578 were not published by the Commission and were only provided to the direct parties to that dispute. As the parties in the present matter have agreed that those Findings of Fact are to be the basis upon which the Commission proceeds to deal with the present application it is necessary that the Commission adopt the findings of fact in this matter. Paragraphs 5 to 35 inclusive from the Findings of Fact are now incorporated into this matter and become the findings of fact upon which the Commission addresses the requirements of s.387.

[14] The termination letter issued by the Respondent to the Applicant relies upon the Findings of Fact to provide the reason for dismissal and relevantly says:

“I refer to the incident involving an allegation of assault against you by Simon Casey, Maintenance Manager, on Friday 26 June 2015.

As you are aware, an investigation was undertaken into the complaint that was made against you by Simon Casey. A Findings of Fact hearing in the Fair Work Commission was also conducted. The investigation and the Findings of Fact hearing supported and substantiated the allegations made against you by Simon. It was determined that you did physically assault Simon.
McCain foods cannot and will not condone any acts of physical assault in any of its work places.

In relation to the formal complaint received from yourself regarding Simon’s behaviour, I confirm that the investigation has now been concluded.

With respect to your complaint against Simon, on the basis of statements made, the known circumstances, and on the balance of probabilities, your allegation that Simon’s verbal abuse (ie. the use of a profanity directed towards (an) employee/s) and his physically threatening actions culminating in the abuse, causing you to feel bullied, threatened and intimidated has been partially substantiated. We do not believe Simon’s behaviour towards you constitutes bullying, by virtue of its lack of repetition; however we do consider that his behaviour was inappropriate.

We have also taken into account, Commissioner Ryan’s determination that your actions did constitute an unwarranted physical assault of Simon Casey.

Peter, the Company expects all employees to behave in a professional manner in their interactions with all people at all times regardless of the situation, and regardless of the employee’s position in the business. We consider that you, through your behaviour on 26 June 2015 were directly involved and jointly responsible for an intolerable incident occurring. We consider your actions to have been inappropriate and unacceptable. The incident and the circumstances around it has resulted in an untenable situation which cannot continue.

I advise that your employment is to be terminated, effective immediately for serious misconduct.

Your final pay, including any outstanding entitlements will be paid to you by close of business Thursday September 10 2015.

It is very disappointing to be placed into a position where we have to address unacceptable behaviour such as this, in one of our employees, particularly one who have been part of our business for some time, however this matter is serious, and must be addressed by serious means.”

[15] The essence of the argument put to the Commission by the Respondent was that the findings made against the Applicant and the reasons for those findings were strongly expressed and so serious that they provided a valid reason for the dismissal and that they provide a complete answer to any assertion that the dismissal was unfair. The findings made against the Applicant related to two separate issues: (1) The truthfulness of the evidence of the Applicant and (2) the actual conduct of the Applicant.

[16] As to the evidence of the Applicant the findings were:

• Mr Bridges lied in describing the conduct of Mr Casey as “uncontrolled rage”.
• Mr Bridges lied about the reason for telling Mr Oxlade to leave the room.

[17] As to the conduct of the Applicant the findings were:

• Mr Bridges was in control of Mr Casey whilst the two were holding each other’s clothing.
• Both Mr Casey and Mr Bridges lied about what was said when Mr Oxlade left the room.
• At a point of time and certainly no later than when Mr Oxlade tried to separate Mr Bridges and Mr Casey, the fact of Mr Bridges holding the clothing of Mr Casey became an act of aggression on the part of Mr Bridges and Mr Casey’s holding the clothing of Mr Bridges became an act of self defence on the part of Mr Casey.
• At the conclusion of the physical encounter between Mr Casey and Mr Bridges, the latter engaged in a deliberate assault of Mr Casey after Mr Casey had apologised and released his grip on Mr Bridges.
• On the balance of probabilities the Commission cannot be satisfied that when Mr Oxlade left the room that Mr Bridges threatened to kill Mr Casey, but can be satisfied that Mr Bridges spoke violently to Mr Casey.

[18] On their own the findings (and the reasons for the findings) paint a reasonably damning picture of the Applicant. However to look at the findings on their own is to take them out of context. The parties to Matter C2015/4578 were cautioned to treat the Findings of Fact with caution. The Commission concluded the Findings of Fact with the following:

“[36] I urge the parties to use these Findings with caution. Any reliance by any party on a finding of fact needs to take into account any mitigating circumstances and needs to take into account all of the circumstances of the matter.”

[19] In the present matter the consideration as to whether the dismissal of the Applicant was fair or unfair centred on the criteria in s.387(a) and (h). It was accepted by both parties that each of the other criteria in s.387 was either not relevant or had a neutral effect on the consideration as to whether the dismissal was fair or unfair.

Valid Reason – s.387(a)

[20] The Applicant contends that there was not a valid reason for his dismissal. The Applicant contended that when his conduct is considered in context and where regard is had to all of the circumstances of the matter then his conduct does not constitute a valid reason for dismissal. The Applicant relied upon the Full Bench decision in Tenix Defence Systems Pty Ltd v Fearnley 1(Tenix) to support this contention. In that matter the Full Bench, after considering earlier authorities said:

“[25] We think these authorities support the view that in determining whether there is a valid a reason for a 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.”

[21] The Applicant in final submissions contended “that the threshold of a valid reason for termination has not been reached”.

[22] In support of this position the Applicant relied on the following:.

21. The Applicant was provoked and was not the instigator of the Incident:

(a) The Applicant was in the lunch room eating his lunch in his usual calm way.

(b) Mr Casey entered the room seeking out the Applicant.

(c) The language used by Mr Casey to Mr Bridges was deliberate, threatening, offensive in the extreme, belittling and demeaning, and would constitute a non-physical assault. (See Findings of Fact – point 5)

(d) Mr Bridges was in fear of being physically assaulted by Mr Casey. (See Findings of Fact – point 9)

(e) In the context of the overall evidence where Mr Casey was standing and where he had moved whilst uttering the profanities in an aggressive manner and where Mr Bridges was seated, it would appear reasonable for Mr Bridges to be in fear of physical violence from Mr Casey and to respond by standing and by preparing to defend himself. (See Findings of Fact – [20])

22. The Applicant did not hit or punch or otherwise injure Mr Casey:

(a) Although we do not seek to underplay physical contact, the extent and nature of the contact involved is obviously relevant;

(b) For example, a person who king hits another person, thereby potentially causing them seriously injury, should be treated differently than someone who restrains a person by physical contact but doesn’t place them in a position of being hurt. Obviously, these actions would be treated much differently at criminal law.

(c) We submit that the Applicant’s physical contact was at the very low end of seriousness.

(d) The Applicant had no intention to strike Mr Casey. (See Findings of Fact – point 19)

(e) Both the Applicant and Mr Casey separated from each other without either striking the other. (See Findings of Fact – point 23)

23. The Respondent has contributed to a workplace environment that “might incite an employee to resort to violence”:

(a) Swearing in the workplace is engaged in by employees, supervisors and managers. (See Findings of Fact – point 24)

(b) The Respondent has not previously stopped swearing in the workplace. (See Findings of Fact – point 24)

(c) The Respondent only expressed concern as to the level of swearing used not the fact of swearing being used. (See Findings of Fact – point 25)

(d) The above environment of swearing has led to a situation whereby a Manager has felt it permissible and acceptable to yell and swear at an employee in respect of workplace issue.

24. Mr Casey was the Maintenance Manager:

(a) The Respondent is also responsible for the conduct of its Manager, Mr Casey. The Respondent has chosen him to be a representative of the company and management, and to be a leader and supervisor of many employees. For him to have abused his position of power is a significant mitigating factor.

25. The Applicant was not a Manager/Supervisor

(a) The Applicant is a maintenance electrician.

(b) It is a mitigating factor that the Applicant is not in a Managerial role, and indeed, in an inferior role to Mr Casey.

26. The Applicant’s length of service of and work record:

(a) The Applicant length of service is almost 21 years.

(b) This is a very long length of service and is a significant mitigating factor.

(c) Other than the Incident, the Applicant’s work record is impeccable. He has never had any disciplinary action taken against him.

(d) The Applicant has never been involved in anything like the Incident, nor any arguments or the like.

(e) The Applicant is seen by his fellow workers as a calm, respectful, generous, considerate, selfless and non-violent person.

(f) Additionally, the performance of his work is of a very high standard.

27. Based on the above mitigating factors, we submit that the Incident does not constitute a valid reason.”

[23] The Applicant’s representative was pressed by the Commission in relation to several of the findings made by the Commission and as to their relevance in Commission’s consideration of the overall circumstances of “valid reason”. The Applicant’s representative contended as follows:

“MR BORENSTEIN: In terms of how we address that, is we say that you must take into account the fact that Mr Casey was the instigator and the provoker and these things happen very quickly and that we submit that you should not hang Mr Bridges, who has this impeccable record for 21 years at McCains and 40 years overall, on a split second thing that occurred. It goes to not slowing down this incident, but realising it happened very quickly, where you have someone quite aggressive moving towards you and being the aggressor, which is what was found, that Mr Casey was the one who was aggressive in the first instance. We submit it would be unreasonable to hold Mr Bridges to account for something that happened very quickly.

That doesn't mean you excuse it, but in the heat of a moment where someone else has instigated and provoked someone, we submit that would not justify there being a valid reason for termination. We accept the findings of fact as we deposed and agreed to do, but we would say that those other factors outweigh the fact that half way through an incident, the Commission found that Mr Bridges became the aggressor and it moved to Mr Bridges.

We would say that it's not as if Mr Bridges went off tac and started swinging punches and basically take advantage of the situation to use his alleged boxing skills to enforce something, he just continued to hold the person. He didn't injure them, he restrained them. We submit that is another factor to take into account in that circumstance. Yes he could have let them go, but there are cases that I think I deal with when coming to reinstatement, and the previous case were I refer to that these things do happen quickly and the Commission must be mindful of that, but where someone might have another option.

I think there's a case where - not sure if it's Yew (indistinct 11.40.31) or another case, but another employee threw a hammer at someone and was walking towards them. Now that person could have turned around and run away, but the person stood there and then they engaged in a good fisty fight. I think the court said well, yes there may have been an error of judgment, but again these things happen quickly and if the person has an apprehension, it can still be reasonable.

For us to try and say what we will do in a situation where Mr Casey is standing over us and yelling in our face, he's yelling profanities in an intimidating way, in a belittling way and whether we would try and run or let him go and then have him get angry again. The findings of fact are the findings of fact, but these are not calm situations where you get a change to think about it like a lawyer and prepare submissions and work out what conduct you're going to do.

Therefore we would submit that even though the findings of fact that Mr Bridges did become the aggressor, it would be unreasonable to expect him to act like he knew what was going to happen in the future. I think we would emphasise the fact that there were no punches thrown. Mr Casey was released within a very short period and no punches were thrown, show that Mr Bridges, even though he was in controlled aggression, did show significant restraint. The matter could have been whole lot worse. I think we could all accept that - in terms of the other case - - -

THE COMMISSIONER: I'm not dealing with what could have been, I'm dealing with what was.

MR BORENSTEIN: Exactly, but we would say that Mr Bridges in terms of the assault that you found occurred, again we say it's on the very low end, even though that Mr Bridges became the aggressor, the fact it was on the very low end in our submission, especially compared with - it's a matter of common sense that the terms of restraining someone with no injuries, it is a much lesser thing than king hitting someone as occurred in those other cases and the like.

In terms of valid reason, I think the main point is the fact that overcomes that, is the fact that the applicant was provoked and that's a clear relevant principle we take into account. We would submit that would certainly outweigh the fact that half way through the incident, you found that Mr Bridges became the aggressor in the confrontation.

We say it is a circumstance to be put in the mix with all the other circumstances as I said, and the fact that we emphasise the fact that no punches were thrown, Mr Casey was released. Mr Casey suffered no injury and Mr Bridges did show restraint in a very volatile situation where he was sitting there eating his lunch nice and calm and all of a sudden a big whirlwind came in. I think it's difficult to judge someone enough to expect them to be necessarily an angel all throughout that process. It think there's an often quoted phrase that men should not be considered angels, and they aren't and there's a reasonable expectation of their behaviour if the circumstances should be put on them. I don't know if that addresses the position?” 2

[24] The Respondent contended that the Commission should have regard to the changing social attitudes towards violence in the workplace and the fact that the authorities relied on by the Applicant predated the changes in social attitudes towards violence in the workplace. As Mr Dalton contended:

“So safety in the workplace includes that employees, amongst other things, are safe from assault;  verbal and physical.  There is real and justifiable community concern about violent behaviour.  I note in regards to this particular matter that some of the decisions that have been put forward by my colleague today - Bruce Cornwall v Qantas [1997…..

…….Even the Tenix decision is May 2000.  The community has moved on from this sort of behaviour. There is real concern in the community - and we've just seen very recently this family violence package that the government has brought out: family violence, road rage, bullying in the workplace, one-punch cowards, unprovoked attacks; all these and other acts of violence are rightly condemned by the community as being incompatible with civilised behaviour and reasonable community standards.

These old decisions where, you know, it was recognised that blokes were going to be blokes and blokes will have a fight when they want to have a fight and it's not such a big deal when blokes have a fight, you know; it's not automatically grounds for termination; that stuff is gone. The community has moved on from that. We don't accept that blokes can come home from the pub on Saturday night half-cut and belt the wife. We don't accept that sort of stuff. We don't accept that bullying is acceptable in the workplace. The Commission itself has jurisdiction only recently given in regards to bullying in the workplace.

We don't accept anymore that people can get up, grab somebody and assault them. We don't accept that that's acceptable behaviour. It may have been in the past. We may have been able to get away with that sort of stuff. I remember when I was at secondary school, two boys had differences, they put the gloves on and into the gym, although there was plenty of other fights that occurred. But that was the way it was looked at, okay? Yes, sometimes blokes have got to work it out between themselves. The community doesn't allow for that anymore. It's not civilised behaviour.

We need to not send a message to that workplace at McCain that getting up and assaulting someone is okay if you've got the right circumstances. I note my colleague talked about if somebody had a gun and you were going to knock it out of their hand, would that be serious misconduct? Well, Mr Casey didn't have a gun. He didn't have a knife. He didn't have any weapon at all. He had his mouth and he misused that. That's been acknowledged in your findings of fact. But what Mr Bridges did in response to that was to get up and have a physical altercation. That is not acceptable behaviour in the workplace. It is not acceptable behaviour in the community.

People have to take responsibility for their actions, whether they be taken in the heat of the moment or not. Responsibility and accountability for your own actions. This situation where, "It's not my fault, it's his fault; he swore at me. He swore at me, that's justification for me getting up and having an altercation with him." I say, the respondent says, it is not. He engaged in serious misconduct in terms of that this issue of blokes having it out is just not acceptable and these old decisions are no longer acceptable in terms of the way that the community looks at violence not just in the workplace but in the community in general.

We say in terms of that, we submit to the Commission that finding a situation where the employee, having engaged in - in your words - "unwarranted, considered and deliberate aggression" - I'll just find the - "considered and deliberate aggression and unwarranted assault on Mr Casey." So in terms of that we say that given that this is serious misconduct by all definitions that it clearly is appropriate that he be terminated.

THE COMMISSIONER: Just on this issue of the authorities, do I have the ability to ignore and not follow these older Full Bench authorities?

MR DALTON: It's not a matter of ignoring them, Commissioner. What it is, it's a matter of evaluating the facts of this particular scenario and none of these authorities have the same set of facts as this particular scenario.

THE COMMISSIONER: So I can apply the Full Bench authorities but apply them but have regard first and foremost to the particular facts of this matter?

MR DALTON: - - of this matter. As the matter in Tenix says, all relevant matters and what is relevant here - - -

THE COMMISSIONER: All the circumstances.

MR DALTON: All the circumstances, and what is relevant to these circumstances is the findings of fact that you have already found.”  3

[25] The Respondent did not contend that the decision in Tenix was no longer authoritative nor did the Respondent point to any more recent Full Bench authority which went against the decision in Tenix.

[26] I also note that the Applicant did not point to any Full Bench decisions which considered the Tenix decision or which adopted the same or different approach from Tenix.

[27] The decision in Tenix has been applied by a Full Bench of the FWC in a matter arising under the Fair Work Act, Jetstar Services P/L v Ishtak. 4 However the Full Bench in B, C, and D v Australia Postal Corporation T/as Australia Post,5(Australia Post) adopted a different approach based upon the difference between the Fair Work Act and earlier the legislation applicable at the time of earlier decisions.

[28] In the present matter I intend to apply the decision of the Full Bench in Australia Post.

[29] The decision in Australia Post suggests at [22] that:

“Often it will not make any difference to the ultimate outcome whether a particular circumstance is considered pursuant to s.387(a) in determining whether there is a valid reason, or as a relevant matter pursuant to s.387(h), leading to the ultimate determination of whether the dismissal was “harsh, unjust or unreasonable”. However, in some cases it may matter greatly.”

[30] In the present matter I consider that it does matter if matters which should be separately considered under s.387(a) and (h) are dealt with only under s.387(a).

[31] In the present matter the Respondent has relied on the Findings of Fact issued by the Commission to assert that there was valid reason for the dismissal of the Applicant.

[32] The approach adopted by Australia Post at [34] and [35] when applied to the present matter requires the Commission to make a finding as to the existence or otherwise of a valid reason by focusing on the reason for the dismissal ‘considered in isolation from the broader context’ in which the conduct of the Applicant occurred. As Australia Post said at [35]:

“It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.

[33] Where, as in the present matter, the Commission has conducted a fact finding hearing and then issued a Findings of Fact and the Respondent has then relied upon the adverse findings made against the Applicant as the reason for dismissing the Applicant it would appear to be incomprehensible for the reason for dismissal to be anything other than a valid reason. It is certainly sound defensible and well founded for the Respondent to dismiss the Applicant for conduct which the Commission found occurred and which was described as constituting an assault against a Manager. The Respondent’s reason for the dismissal of the Applicant is a valid reason within s.387(a).”

Any other relevant matter – s.387(h)

[34] The decision in Australia Post describes the process of dealing with the separate concepts of ‘valid reason’ and ‘harsh, unjust or unreasonable’ as follows:

“[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: (references omitted) That principle reflects the approach of the High Court in Victoria v Commonwealth and is consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.

[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:

(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.
(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]
(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]

[43] The determination of whether there was a valid reason proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as “substantive fairness” from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason”.

[35] Having found the existence of a ‘valid reason’ the Commission must take into account any other relevant matters which may establish that the dismissal was harsh unjust or unreasonable notwithstanding the existence of a ‘valid reason’..

[36] What the Applicant would have me consider under 387(a) are relevant matters that should more properly be considered under 387(h). Equally the Respondent’s contentions as to societal expectations in relation to fighting and the need for any employer to maintain a healthy and safe workplace for all employees are relevant matters for consideration under s.387(h).

[37] The decision in Australia Post specifically refers to Tenix but does so in relation to a discussion around harsh unjust or unreasonable rather than in relation to valid reason. 6

Two of the earlier decisions relied on by the Full Bench in Tenix are still very apposite to the application of s.387(h) to dismissals because of fighting: AWU-FIME Amalgamated Union v Queensland Alumina Limited, (1995) 62 IR 385 at 393 (third full paragraph), and Qantas Airways Ltd v Bruce Cornwall (1998) 83 IR 102 at 103 (first full paragraph) and 110 (last paragraph).

[38] The Respondent’s representative in his final oral submissions relied upon a selective quote from the first Full Bench decision in DP World Sydney Ltd v Stephen Lambley 7 at [26] and contended that the test set by the Full Bench had not been met by the Applicant in the present matter. The real difficulty with this contention is that the Federal Court in Lambley v DP World Sydney Limited8, at paras 33 to 38, made a significant criticism about paragraphs [26] to [31] of the Full Bench decision. The approach adopted by the Federal Court and by the second Full Bench in DP World Sydney Limited v Lambley,9 is consistent with the approach adopted in the present matter.

[39] In the present matter relevant matters which must be taken into account under s.387(h) are:

• The Applicant was not the instigator of the altercation between himself and Mr Casey. It was Mr Casey who engaged in an assault not involving the application of force against the Applicant. Mr Casey was the Manager and the Applicant was his subordinate.

• The Applicant’s initial response was in self defence

• That self defensive conduct became an act of aggression and therefore an assault involving the application of force against Mr Casey during the altercation.

• The entirety of the altercation occurred over a very short period of time and in a very confined area.

• The conduct of the Applicant which constituted the assault on Mr Casey was that the Applicant had hold of the clothing of Mr Casey with one hand.

• At no time did the Applicant hit or punch Mr Casey.

• The workplace had a history of foul language being used by managers to employees and by employees to each other and to managers.

• The Applicant had an unblemished record of 20 years of service with the Respondent.

• The Applicant’s age meant that any dismissal would have a significant personal impact on him and his family. The Applicant’s age and location in a regional Victorian city meant that a dismissal for having engaged in an assault of a manager would have extremely serious consequences in terms of possible future employment.

• The need for the Respondent to be seen to have acted decisively to retain discipline within the workforce where two employees had engaged in a physical altercation. The Respondent’s representative in his final oral submissions contended that:

‘Now, this isn't a situation where the respondent is terminating the employment of the applicant to set an example to the rest of the workplace. It's a situation where the actions of the applicant warrant termination and the respondent is upholding the standard it has set regarding reasonable conduct in the workplace. Failure to do so in a situation where there are not sufficient mitigating circumstances would send a message that the respondent condones such misconduct.” 10

The answer to this contention is that the Respondent’s need to maintain standards could have been met by action less than dismissal of the Applicant and Mr Casey. However, the very fact that the Respondent did dismiss both the Applicant and Mr Casey will of itself act as a significant deterrent against a repetition by any employee of the conduct which led to the dismissal of the Applicant and Mr Casey. Further there were sufficient mitigating circumstances which warranted a penalty for the Applicant far less than dismissal.

• The obligation imposed on the Respondent to maintain a workplace which was healthy and safe for all employees. The Respondent’s representative in his final oral submissions relied on the Full Bench decision in Parmalat Food Products P/L v Wililo, 11 at [18] and [19]. I wholeheartedly endorse the comment of the Full Bench that “(c)learly disciplinary action was necessary and appropriate because a failure to do so sends a message to the workforce that safety breaches can occur with impunity.” However the present matter is not a challenge to the necessity for disciplinary action where an altercation occurred between the Applicant and Mr Casey but rather whether the disciplinary action taken by the Respondent, i.e. dismissal, was the appropriate disciplinary action.

[40] When all of these relevant matters are considered and weighed with the existence of a valid reason for the dismissal the conclusion that flows from this weighing exercise is that whilst the Respondent had a valid reason for the dismissal the very act of dismissing the Applicant from his employment was an excessively harsh punishment for the conduct of the Applicant given the overall context in which that conduct occurred. The punishment of dismissal was clearly disproportionate to the misconduct of the Applicant.

[41] The Commission is satisfied that having taken into account the matters raised under both s.387(a) and (h) that the dismissal of the Applicant was harsh. The Applicant was therefore unfairly dismissed by the Respondent. (s.385)

Remedy

[42] The provisions of Division 4 of Part 3-2 of the Act deal with remedies for unfair dismissal.

[43] Section 390 provides as follows:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[44] The Commission is satisfied that the Applicant was protected from unfair dismissal and that the Applicant has been unfairly dismissed.

[45] The Applicant seeks the remedy of reinstatement. The Respondent opposes any remedy being ordered.

[46] The decision as to whether any remedy should be granted by the Commission is at the discretion of the Commission. S.381 sets out the objects of Part 3-2 of the Act and is as follows:

“381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

[47] Whilst the Commission has discretion to not grant a remedy, the very language of s.381 suggests that where a dismissal has been found to be unfair then a remedy will normally follow. In the present matter having regard to all of the circumstances of this matter I am of the view that it is appropriate that I exercise the discretion available to the Commission to order a remedy.

[48] As s.390 makes clear the primary remedy is reinstatement and compensation cannot be considered as a remedy unless the Commission decides that reinstatement is an inappropriate remedy. In all of the circumstances of this matter I am satisfied that reinstatement is an appropriate remedy in this matter.

[49] The Respondent’s representative in his final oral submissions contended that no remedy should be granted and contended that reinstatement was inappropriate for two reasons. Firstly, that the Applicant’s own conduct, as identified in the Findings of Fact, meant that the Respondent could not trust that the Applicant would not do something similar in the future. 12 Secondly, “reinstatement is not a practical scenario because of the message it would send to other employees, because of the breach of safety that has been involved, because of the nature of the conduct that was the subject of the termination.”13

[50] Where an employer opposes reinstatement because of an alleged loss of trust and confidence it is necessary for the employer to lead some evidence to support its contentions. A Full Bench in Nguyen v Vietnamese Community in Australia,¹⁴ summarised the law on this point.

[51] In the present matter the contentions of the Respondent that there has been a loss of trust and confidence in the Applicant are unsupported by any evidence. Further the appropriateness or inappropriateness of reinstatement cannot be determined by only having regard to the conduct of the Applicant as found in the Findings of Fact. In all of the circumstances of this matter reinstatement is the appropriate remedy.

[52] Section 391 provides as follows:

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

[53] The Applicant was employed as an electrician and was part of a group of electricians and other maintenance tradespersons employed at the Respondent’s Ballarat operations. There appears to be no reason why the Commission should not make an order under s.390(1)(a) to reappoint the Applicant to the position in which the Applicant was employed immediately before the dismissal. An order to this effect will be issued.

[54] The Applicant has also sought an order under s.390(3) for lost pay. Having considered all of the circumstances of this case I am not satisfied that it is appropriate to cause the employer to pay to the Applicant an amount for the remuneration lost because of the dismissal. The Applicant was suspended on full pay when the incident was first reported to the Respondent and remained on suspension with pay until his dismissal on 9 September 2015. The Applicant has lost remuneration only since 9 September 2015. Given the effect of the order made in relation to the effective date of reinstatement the Applicant will suffer a loss of remuneration of about 5 weeks’ pay. I consider that the misconduct of the Applicant which gave rise to a valid reason for the dismissal warrants some form of effective penalty being borne by the Applicant and the loss of 5 weeks’ pay is a sufficient penalty.

[55] I am satisfied that an order to maintain the Applicant’s continuous service pursuant to s.391(2) should be made. Not to make such an order would visit upon the Applicant a significant penalty in addition to the loss of wages. As the loss of wages is the appropriate penalty that the Applicant should bear no further penalty should be added.

[56] The orders for reinstatement and continuous service will be issued with these reasons and these orders will have an operative date of Monday 19 October 2015.

COMMISSIONER

Appearances:

G. Borenstein for the Applicant

T. Dalton for the Respondent

Hearing details:

2015.

Melbourne:

September 29.

 1   Print S6238, (22 May 2000).

 2   Transcript at PN311 – PN320.

 3   Ibid at PN563 – PN578.

 4   [2013] FWCFB 7030.

 5   [2013] FWCFB 6191.

 6   Ibid at para. 50.

 7   [2012] FWAFB 4810.

 8 [2013] FCA 4.

 9   [2013] FWCFB 9230.

 10   Transcript at PN581.

 11   [2011] FWAFB 1166.

 12   Transcript at PN605 – PN606.

 13   Ibid at PN607.

14 [2014] FWCFB 7198.

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