Phillip Attard v Patrick Stevedores Holdings Pty Limited T/A Patrick Terminals
[2013] FWC 9484
•3 DECEMBER 2013
[2013] FWC 9484 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Phillip Attard
v
Patrick Stevedores Holdings Pty Limited T/A Patrick Terminals
(U2013/1954)
DEPUTY PRESIDENT KOVACIC | MELBOURNE, 3 DECEMBER 2013 |
Application for relief from unfair dismissal.
[1] On 14 June 2013 Mr Phillip Attard (the Applicant) filed an application under s.394 of the Fair Work Act 2009 (the FW Act) alleging that the termination of his employment by Patrick Stevedoring Holdings Pty Ltd T/A Patrick Terminals (the Respondent) on 6 June 2013 was harsh, unjust or unreasonable.
[2] The matter was referred for conciliation on 22 July 2013 but was not resolved. The matter was heard on 11 October 2013 with the Applicant’s final written submissions in reply filed on 28 October 2013. It was not challenged that the Applicant had been dismissed by the Respondent or that the Applicant was protected from unfair dismissal at the time of dismissal.
[3] Ms Jo Swiney appeared with permission for the Applicant and Mr Nicholas Harrington appeared with permission for the Respondent.
[4] The Applicant gave evidence with Messrs Jason Urmston, Brian Kane and Darren Lane also called as witnesses. Messrs Mark Davis, Mark Anderson and Damian Ryan and Ms Laura Omar gave evidence for the Respondent.
Background
[5] It is agreed that at the time of his dismissal the Applicant was employed by the Respondent as a Permanent Guarantee Employee. It is further agreed that the Applicant had been employed by the Respondent since August 2003, though the Applicant states in his application that he had been employed by the Respondent since 16 August 2003, whereas the Respondent states in the Employer’s Response to Application for Unfair Dismissal remedy (Form F3) that the Applicant had been employed on 20 August 2003. The discrepancy in dates is not material.
[6] The Applicant was summarily dismissed for serious misconduct on 6 June 2013 as a result of threatening and intimidating behaviour towards a fellow employee, Mr Mark Davis, on 20 May 2013 in breach of Sections 9 and 10 of the Patrick Terminals 2008 Employee Handbook (the Handbook) and Patrick’s Cardinal Rules. Those sections of the Handbook deal with Equal Employment Opportunity, Discrimination and Harassment Issues and Bullying and Workplace Violence respectively. 1 The latest iteration of the Handbook, Version 7 2011/14 of the OH&S Handbook East Swanson Dock, sets out in detail the Respondent’s policies and procedures in this area. In respect of workplace bullying and violence, the latest iteration of the Handbook states:
“POLICY STATEMENT
Patrick Terminals is committed to ensuring a healthy and safe workplace free from bullying and violence.
Workplace bullying is repeated unreasonable behaviour towards a person by another or others in the workplace which offends, humiliates or intimidates that person and creates a risk to that person’s health and safety.
Workplace violence is any incident where an employee is physically attacked or threatened in the workplace.
Patrick Terminals has adopted a Workplace Bullying and Violence Policy and procedure (THR09-02) that provides that:
● bullying and workplace violence will not be tolerated; ...” 2 (Emphasis added)
[7] Patrick’s Cardinal Rules state that “violence, horseplay, harassment or bullying is strictly prohibited” and that “A breach of these Safety Cardinal Rules will, based on a review of the incident result in disciplinary action up to an including termination of employment.” 3
[8] The Applicant’s dismissal follows an investigation of a complaint made by Mr Davis regarding comments made by the Applicant in a conversation in the mess room on 20 May 2013. What was said in that conversation is disputed, though it is not disputed that a conversation occurred.
[9] Mr Davis subsequently informed Mr Mark Anderson (Operations Manager, East Swanson Dock) of the conversation on 21 May 2013. He alleged that the Applicant had the previous day approached him in an aggressive manner and made a “threatening statement like “watch out you may get bashed outside of work” and “it’s a dangerous place you might end up with a bottlescrew on your head”. 4 Mr Davis further discussed the matter with Mr Anderson and Ms Omar, Human Resources Manager for the Respondent at East Swanson Dock, on 23 May 2013 after which he signed a statement regarding the conversation with the Applicant.
[10] Also on 23 May 2013 the Respondent decided to stand down the Applicant pending an investigation into the allegation. The investigation involved several meetings with the Applicant as well as discussions with Mr Davis and several other employees who Mr Davis indicated were in the mess room at the time of the conversation between him and the Applicant and an examination of closed circuit television (CCTV) footage of the mess room. The investigation culminated in a meeting on 6 June 2013 when the Applicant was dismissed. Mr David Cushion an official of the Maritime Union of Australia (MUA) accompanied the Applicant to meetings which occurred as part of the investigation into Mr Davis’ complaint.
[11] The Applicant had previously received two written warnings. The first written warning was issued on 6 July 2011 in respect of a claim of bullying against a fellow employee which following an investigation was not substantiated and deemed to be vexatious. 5 The second warning was issued on 20 February 2013 in respect of the Applicant sleeping on duty.6 Neither of the warnings was formally challenged by the Applicant, though the Applicant did indicate in writing that he did not agree with the first written warning and that it should be overturned.7 The Applicant had also received a verbal warning on 19 March 2013 “for failing to follow his return to work plan and going overseas when he was capable of performing suitable duties.”8 The Applicant was subsequently spoken to in May 2013 about his timekeeping after he had arrived late for work two days in a row.9 In addition, the Applicant had two periods of leave without pay. The first from late December 2009 until late March 2010, which according to Mr Ryan’s evidence was as a result of “depression and other personal issues”10, and the second from early June 2011 until late April 2012.11 The latter period commenced around the time of the Applicant’s claim that he was being bullied by a co-worker.
The submissions of the Applicant
[12] In short, the Applicant submitted that his termination was harsh, unjust or unreasonable because:
(a) it was not for a valid reason as there was no valid reason relating to conduct;
(b) he had not been warned about serious misconduct prior to his termination;
(c) he was not given an adequate opportunity to respond or comment on his termination as he was not provided with a copy of either or both statements made by Mr Davis whom it is alleged he intimidated, bullied and harassed;
(d) the allegation of serious misconduct was never specified to him; and
(e) he had been placed on light duties due to a work related injury prior to being summarily dismissed. 12
[13] The Applicant further submitted that his dismissal was:
(a) unjust because he was not guilty of the misconduct relied upon by the Respondent;
(b) unreasonable because it was decided upon inferences that could not reasonably have been drawn from the material before the Respondent; and
(c) harsh, not only because of the personal and economic consequences for the Applicant, but because it was out of all proportion to the gravity of the Applicant’s conduct. 13
[14] The Applicant further submitted that he had a fair performance record with the Respondent and that the warning he received on 6 July 2011 had lapsed (on the basis that it was only valid for 12 months), meaning that only one written warning was in place at the time of his dismissal. 14 In addition, the Applicant submitted that:
(a) the Respondent’s investigation lacked procedural fairness and was biased, “discriminating against him for having made a previous complaint of bullying” 15;
(b) there were other options available to the Respondent other than summary dismissal, including “counselling, providing a written warning, providing him with a final written warning or a combination of these options” 16; and
(c) consideration ought to have been had to the Applicant’s service history, in particular that he had only received 2 written warnings in 10 years. 17
The Applicant’s evidence
[15] The Applicant’s evidence was that:
(a) it was rumoured that Mr Davis had in early May 2013 reported three colleagues to management for allegedly not performing their duties;
(b) on 20 May 2013 he was in the mess room along with Mr Davis who was seated at a different table but moved to the table where he was seated;
(c) when asked by the Applicant, Mr Davis confirmed that the rumour was correct;
(d) he then asked Mr Davis why he would do that given that he was not a supervisor or team leader and potentially create problems for himself;
(e) he was concerned for Mr Davis given his own experience following an allegation of bullying he made against a fellow employee which resulted in the Applicant’s colleagues making it “very clear to me that they were not pleased with me and regarded me as a ‘dobber’ ...”;
(f) at no time was his tone aggressive, threatening or intimidating;
(g) on 23 May 2013, he attended Mr Damien Ryan’s (Terminal Manager, East Swanson Dock) office where he was informed that a complaint had been made by a fellow employee which was deemed to be serious and was to be investigated and that pending that investigation he was to be stood down;
(h) no details as to the complainant or the nature and particulars of the complaint were provided at that time;
(i) on 28 May 2013 he attended a meeting with the Respondent where he was informed about the nature of the complaint against him and asked questions by Mr Ryan - also present at that meeting was Mr Cushion of the MUA;
(j) at that meeting he denied the allegations, stating “that at no time did I intimidate or harass” Mr Davis;
(k) he attended a further meeting on 30 May 2013, again with Mr Cushion, where he was asked further questions as well as being informed that Mr Davis had made a further statement;
(l) at that meeting he again denied the allegations and indicated that “my only intention was to give Mark [Mr Davis] the heads-up and in no way intimidate him”;
(m) at a further meeting on 6 June 2013, which Mr Cushion again attended, he was informed by Mr Ryan that there were differences between Mr Davis’ and his version of events and that the Respondent accepted Mr Davis’ version and had decided to terminate the Applicant’s employment; and
(n) his dismissal had not only caused him financial hardship but affected his ability to find alternative employment in the industry. 18
[16] Under cross examination the Applicant:
(a) agreed that he knew when he was employed that the Respondent had a workplace bullying and violence policy and procedure and that under Patrick’s Cardinal Rules “violence, horseplay, harassment or bullying is strictly prohibited”; 19
(b) disputed Mr Davis’ version of events;
(c) maintained that he questioned Mr Davis regarding the rumour that he had reported three colleagues to management and failed to understand why Mr Davis would do that given that it was not his job, particularly as it was the topic of conversation among their workmates who were unhappy about the event;
(d) he wanted to alert Mr Davis to the fact that “everyone was upset with him”; 20
(e) contradicted some of the statements he had made during the investigation, for example under cross examination the Applicant conceded he used the term “lagged” and possibly the term “dog” in his conversation with Mr Davis; 21
(f) stated that “I go to work and I do my job and I mind my own business”; 22
(g) conceded that he had already booked flights to Sydney for 1 March 2013 and overseas for 4 March 2013 when he visited his doctor on 28 February 2013 which resulted in him being provided with a medical certificate stating that he was unfit for work for a month; 23
(h) considered he was being targeted by the Respondent; 24 and
(i) stated that since his dismissal he had completed a paintless dent repair course which had cost $3600 and subsequently visited numerous car yards to try and generate some work. 25
[17] At the Applicant’s request, the Commission ordered Messrs Jason Urmston, Brian Kane and Darren Lane to attend the hearing on the basis that they were in the mess room on 20 May 2013 and in the area where the conversation occurred. Mr Cushion was also ordered to attend as he was present at all but the 23 May 2013 meeting leading up to the Applicant’s dismissal. However, Mr Cushion was unable to attend the hearing as he was overseas. 26
[18] Mr Urmston’s evidence was that, based on an understanding that he was in the mess room on 20 May 2013, he had no recollection of what happened on that day between Mr Davis and the Applicant. 27 Mr Kane’s evidence was that he “didn’t know anything happened.”28 Mr Lane’s evidence was that he became aware of the incident “a couple of days after Phil [the Applicant] was walked out of the premises” through talk in the work room.29
The submissions of the Respondent
[19] The Respondent submitted that the dismissal was not harsh, unjust or unreasonable in view of:
(a) the Applicant’s misconduct;
(b) the thorough investigation undertaken, during which the Applicant had not been entirely candid; and
(c) the Applicant’s previous employment history. 30
[20] The Respondent also submitted that:
(a) the Applicant’s conduct was inconsistent with the Handbook and Patrick’s Cardinal Rules;
(b) the 6 July 2011 written warning issued to the Applicant is a relevant consideration because it goes to the Applicant’s work history and credibility, it is evidence of the Applicant having been warned regarding his conduct and it contributed to the Respondent’s decision to dismiss the Applicant; 31
(c) it was not relevant that the Respondent did not speak to every employee who made comment to Mr Davis regarding his reporting of the three employees as that there was no evidence that any other employee “made any threat or harassed Davis”; 32
(d) the submission as to bias in the investigation process is without foundation; 33 and
(e) the evidence of Mr Davis should be preferred to that of the Applicant. 34
The Respondent’s evidence
[21] Mr Davis’ evidence was that on 20 May 2013 he was in mess room when the Applicant approached him. Mr Davis’s recollection of the ensuing conversation is set out in his witness statement in the following terms:
“Mr Attard: I heard a rumour you lagged on some of the boys. Why did you do that? Why would you lag on them?
Me: Phil they weren’t doing any work. This has nothing to do with you. It’s in the hands of management leave it alone.
Mr Attard: It’s the wrong thing to do, you’ve lagged on your mates.
Me: Well, it’s nothing to do with you - it’s in the hands of management. You’re hearing this from someone else. You weren’t there.
Mr Attard: If it was me, I would have had a go. You’re lucky it’s not like in the old days.
Me: What are you referring to?
Mr Attard: You could be bashed outside of work in the old days.
Me: Well, it’s not the old days.
Mr Attard: You might have to watch out, you could end up with a bottlescrew on your head.
Me: Are you implying you’re going to do that, or know someone who is going to do that?
Mr Attard: No, I’m just saying these things can happen, it’s a dangerous place, you should watch yourself. You just go out there and do what you have to do and let the guys do what they need to do.
Me: It’s nothing to do with you.
Mr Attard: I’m just saying I think it is wrong.
Me: I appreciate your opinion. I’ll take it on board.” 35
[22] Mr Davis interpreted the comment regarding a bottlescrew “as a threat of future violence against me” and “a form of warning to me.” 36 A bottlescrew is used in the lashing of containers to vessels and weighs about 15kgs.37
[23] After reflecting on the conversation, Mr Davis decided to report it to management for two reasons:
(i) in case a bottlescrew was dropped on him; and
(ii) because in his view management should be aware of harassment in order to stop it occurring in future. 38
As previously noted, Mr Davis reported the conversation to Mr Anderson on 21 May 2013.
[24] Under cross examination Mr Davis:
(a) confirmed that several other workers had asked him whether he had made a complaint about some of his workmates; 39
(b) denied that he was aware the Applicant had been involved in a matter where he alleged that he had been bullied, though he did indicate he was aware that the Applicant had “had one confrontation with a fellow worker. I don’t know the end result of that” ; 40 and
(c) indicated that, as a result of the complaint he had made against the three co-workers, he had been the subject of graffiti in the workplace such as “Sarge is a dog” and “Sarge is a scab” 41 (Sarge being Mr Davis’ nickname in the workplace).
[25] Mr Anderson’s, Ms Omar’s and Mr Ryan’s evidence set out in detail, among other things, the Applicant’s work history/performance record with the Respondent, details of the various conversations with the Applicant regarding Mr Davis’ complaint as well as their response to the Applicant’s witness statement. The following are some of the key points made in their evidence:
(a) Mr Anderson was concerned firstly by what Mr Davis had told him on 21 May 2013 and secondly, that if Mr Davis’ allegation were substantiated, the Applicant’s conduct may be a breach of Patrick’s Cardinal Rules; 42
(b) at the show cause meeting on 30 May 2013, Mr Attard had described the conversation with Mr Davis as “niggly” and conceded that he had approached Mr Davis; 43
(c) the 20 February 2013 warning letter signed by Ms Omar and issued to Mr Attard included the following:
“...This formal warning will remain valid for a period of 12 months from the date of this letter. If during this 12 month period there is any recurrence of this behaviour or other problems then you may be disciplined up to and including termination.
I remain ready to assist you should you require support to work through any difficulties you may have and am happy to discuss this matter with you further as may be necessary ...” 44 (Emphasis added);
(d) since at least 1998, safety committees at Patrick had attempted to take positive action to eradicate violence, violent behaviour and threats of violence in the workplace and by consistently responding to issues, concerns and instances of violent behaviour or threats in the workplace, Patrick had methodically eradicated such behaviour; 45
(e) Patrick’s Cardinal Rules were one element in the company’s program to reduce violence and threatening behaviour in the workplace; 46
(f) in April 2005 Mr Attard had been given a final written warning, following a counselling and written warning, in relation to his performance as a straddle driver; 47
(g) CCTV footage showed the Applicant entering the mess room and heading straight to the area where Mr Davis was sitting; 48
(h) on 29 May 2013 Mr Ryan had formed the view that “unless Mr Attard was able to provide a good reason why I should not terminate his employment, I considered that he had broken the Cardinal Rules by harassing Mr Davis and displaying threatening behaviour”; 49
(i) on 31 May 2013 after reviewing the information before him and taking into account the views of Mr Anderson and Ms Omar, Mr Ryan formed the view that it was likely that the threatening behaviour had occurred, that the Applicant should be dismissed for breaching Patrick’s Cardinal Rules, that Mr Davis and other employees would not be safe in the workplace, and that from a safety perspective such behaviour could not be condoned; 50
(j) Mr Ryan did not consider it appropriate to issue a warning to an employee if they had engaged in serious (or gross) misconduct; 51 and
(k) none of them considered reinstatement appropriate.
[26] Under cross examination Mr Anderson indicated that he did not note from the CCTV footage of the mess room which, if any, other employees beyond those identified by Mr Davis may have been in the vicinity of the conversation between Mr Davis and the Applicant. 52
[27] Ms Omar, when cross examined, described the Applicant as always being respectful to her. 53
[28] Mr Ryan’s evidence under cross examination was that:
(a) falling bottlescrews are a rare occurrence; 54
(b) Mr Davis is not visible in the CCTV footage, nor does it show him entering the mess room, though it does show the Applicant entering the mess room and heading in the direction of where Mr Davis was sitting; 55
(c) as the Applicant conceded that he had approached Mr Davis there was no reason to retain the CCTV footage; 56 and
(d) a verbal warning is different to a written warning in that it does not affect promotional opportunities. 57
The statutory framework
[29] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that the Applicant is a person who is protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss. 385 and 387 which read as follows:
385 What is an unfair dismissal
A person has been unfairly dismissed if FWC is satisfied that:
(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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWC considers relevant.
[30] There is no dispute that the Applicant was dismissed, so s.385(a) of the Act is satisfied. The Respondent is not a small business employer, therefore s.385(c) is not relevant. There is no contention that this is a case of genuine redundancy, so s.385(d) does not apply. Therefore, in determining whether the Applicant was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable as per s.385(b). To do so, I must have regard to the criteria set out in s.387. I will address each of those criteria separately.
(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)
[31] In Rode v Burwood Mitsubishi (Rode’s Case) 58a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd.59 The following is an extract from the Full Bench’s decision in Rode’s Case.
“[17] In relation to the meaning of "valid reason" the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:
"Section 170DE(1) refers to a `valid reason, or valid reasons', but the Act does not give a meaning to those phrases or the adjective `valid'. A reference to dictionaries shows that the word `valid' has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: `2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.' In The Macquarie Dictionary the relevant meaning is `sound, just or wellfounded; a valid reason'.
In its context in s 170DE(1), the adjective `valid' should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, commonsense way to ensure that' the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC." 4
[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).
[19] We agree with the appellant's submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”
[32] The issue of whether there was a valid reason for dismissal in circumstances where the dismissal relates to the conduct of an employee was canvassed by a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd (King’s Case). 60 In its decision in King’s Case the Full Bench, drawing on Moore J’s comments in Edwards v Guidice61, stated:
“[23] When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.
[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”
[33] Accordingly, the threshold issue which I need to decide in this matter is whether the alleged conduct took place. If I find that the conduct did occur, I then need to determine whether there was a valid reason for the dismissal. Consistent with King’s Case, the threshold issue needs to “be determined by the Commission on the basis of the evidence in the proceedings before it.”
[34] Turning to the threshold issue, the only aspect which is agreed is that the conversation between the Applicant and Mr Davis in the mess room on 20 May 2013 did occur. However, beyond that the circumstances leading to and the nature of the conversation are disputed. Based on the evidence before the Commission it is likely that the only people who definitely know what was said in the conversation are the Applicant and Mr Davis, particularly as no evidence was led as to a third party in the mess room overhearing the conversation and the CCTV footage not showing Mr Davis. As such, the Commission needs to carefully consider the evidence of the Applicant and Mr Davis to form a view as to whether one’s evidence is to be preferred over the other’s. Mr Cushion’s comment in the 6 June 2013 meeting that “It seems like you have a ‘he said, she said’ situation” 62 is particularly apt.
[35] From an examination of the written and oral evidence before the Commission, it is apparent that the Applicant consistently denies having threatened Mr Davis. The Applicant’s consistent claim was to the effect that he wanted to alert Mr Davis that his colleagues were unhappy that he had reported three colleagues to management. However, there are inconsistencies in the Applicant’s evidence and the comments/statements attributed to him in other aspects of the evidence before the Commission. I set out these inconsistencies in no particular order.
[36] The first relates to whether or not the Applicant approached Mr Davis in the mess room. In his witness statement 63, the Applicant stated that Mr Davis was initially seated at another table in the mess room and moved to the table at which the Applicant was seated. Under cross examination, the Applicant reiterated this and denied that he had deliberately approached Mr Davis.64 However, the File Note of the 30 May 2013 show cause meeting indicates that the Applicant said:
“I approached him. There was nothing intimidating. I haven’t got anything against him.” 65
[37] The second relates to the Applicant’s description of the tone of his conversation with Mr Davis. In his witness statement the Applicant states that “At no time was my tone aggressive, threatening or imitating (sic intimidating).” 66 Similarly, the File Note of the 28 May 2013 records the Applicant as saying “It was a normal general conversation.”67 Yet the File Note of the 30 May 2013 show cause meeting indicates that the Applicant described the conversation as “a niggly discussion.”68 Under cross examination, the Applicant initially indicated that the conversation was not “niggly”, but later said “... I would characterise part of the conversation as niggly.”69
[38] The third area relates to the Applicant’s witness statement where he states “I did not say anything to Mark [sic Mr Davis] which would have caused him to feel intimidated, bullied or harassed.” 70 However, the File Note of the 28 May 2013 records the following exchange:
“DR (Mr Ryan): What about an inference that he should watch himself?
PA (Mr Attard): No, nothing.
DC (Mr Cushion): Did you inadvertently say something like ‘you have got to be watching yourself out there?’
PA: Maybe I said something along those lines...along the lines of why would you create problems with other guys on the ship? This is a dangerous place. I was talking to him as a friend.
DR: How would you take it if someone said this to you?
PA: I wasn’t indirectly threatening him. I’m trying to look out for the bloke.” 71 (Emphasis added)
Under cross examination the Applicant could not recall saying the above. 72
[39] Under cross examination the Applicant conceded that he had used the term “lagged” and possibly the term “dog” 73 in the conversation with Mr Davis, both of which have a highly negative connotation in the workplace. The Applicant further conceded under cross examination that his witness statement made no reference to him using this language.74 Of note is the reference in Mr Davis’ evidence (see paragraph [21] above) to the Applicant having used the term “lagged” in the 20 May 2013 conversation.
[40] When looked at together, these inconsistencies do two things. First, in a number of key respects they narrow the discrepancies between the Applicant’s and Mr Davis’ version of events, bringing them closer to the latter’s description of the conversation and the circumstances leading to it. Secondly, they raise doubts about the reliability of the Applicant’s evidence.
[41] A similar examination of Mr Davis’ evidence indicates a consistency throughout - from his initial reporting of the conversation with the Applicant through to his evidence under cross examination.
[42] Together these factors support a finding which prefers Mr Davis’ version of events over the Applicant’s. However, as noted above, the threshold issue which I need to decide in this matter is whether the alleged conduct took place. The inconsistencies in the Applicant’s evidence and the comments/statements attributed to him in the other aspects of the evidence before the Commission supports a finding that a conversation in similar terms to that described by Mr Davis did occur. While the motivation for the conversation may have been bona fide from the Applicant’s perspective, I accept Mr Davis’ evidence that he interpreted the Applicant’s remarks as harassment. Mr Davis described the conversation to Mr Anderson on 23 May 2013 as “It was more harassment. It was an indirect threat that he was pointing out ‘these things happen.’ I don’t know why he would say something like that.” 75 As such, I find that on the balance of probability the alleged conduct did occur.
[43] Having found that on the balance of probability the alleged conduct did occur, I now need to determine whether there was a valid reason for the dismissal. As stated by the Full Bench at paragraph [18] in Rode’s Case “A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason.”
[44] In short, the issue to be determined is whether dismissal or some other form of disciplinary action was an appropriate response to the Applicant’s conduct. Relevant considerations in this regard are Patrick’s Cardinal Rules, the Handbook and the Applicant’s employment record.
[45] Patrick’s Cardinal Rules are explicit in setting out the expectations of employees and the implications of a breach of the Rules. Specifically, Patrick’s Cardinal Rules state that “violence, horseplay, harassment or bullying is strictly prohibited” and that “A breach of these Safety Cardinal Rules will, based on a review of the incident result in disciplinary action up to an including termination of employment.”
[46] The Handbook makes it clear that “bullying and workplace violence will not be tolerated.” The Handbook also includes the following definitions in respect of workplace bullying and violence:
“Victimisation: unacceptable treatment by one person towards another in relation to the second person having lodged or given evidence in relation to a complaint.
Threat: means a statement or behaviour that causes a person to believe they are in danger of being physically attacked.” 76 (Emphasis added)
[47] Mr Ryan’s evidence as to the concerted effort by the Respondent over many years “to eradicate violence, violent behaviour and threats of violence in the workplace” and the importance of consistently responding to incidents in successfully eradicating such behaviour are important considerations. In short, it reflects the importance of “the walk” matching “the talk.”
[48] The Applicant’s employment record indicates that for much of his employment with the Respondent he proved to be a reliable employee. However, since 2011 when the allegation of bullying was made by the Applicant there appears to have been a series of work-related issues involving the Applicant. These are briefly summarised at paragraph [11] above. It would be suffice to say that since 2011 the Applicant has not been a ‘model’ employee. However, it is noteworthy that the Applicant has not previously been disciplined for bullying, violence harassment or intimidation.
[49] Against that background, in some circumstances a first and final warning may have been appropriate. However, the Respondent’s longstanding desire to eradicate bullying and harassment from the workplace together with the Applicant’s more troubled recent employment history support a finding that there was a valid reason for the Applicant’s dismissal.
[50] As noted at paragraph [14](a) above, the Applicant submitted that the Respondent’s investigation lacked procedural fairness and was biased, “discriminating against him for having made a previous complaint of bullying.” On this point much was made of the limited viewing of the CCTV footage (only Messrs Ryan and Anderson had viewed the footage), Mr Ryan’s evidence that the CCTV footage did not show where Mr Davis was sitting in the mess room, the failure to retain the CCTV footage and the failure to identify and interview from the CCTV footage any other persons who may have been in the mess room in the vicinity of the conversation between Mr Davis and the Applicant. While I accept that these are chinks in the thoroughness of the investigation, in circumstances where the Applicant conceded at the 30 May 2013 show cause meeting that he approached Mr Davis, I am satisfied they do not undermine the findings of the investigation.
(b) Whether the person was notified of that reason
[51] The Applicant was informed by Mr Ryan on 23 May 2013 that “The allegation is that you demonstrated threatening behaviour against another employee.” 77 The allegation was reiterated by Mr Ryan when meeting with the Applicant on 28 May 2013. On that occasion the Applicant was asked a number of questions which go to the nature of the complaint and the conversation which led to it. These include questions such as:
Did you have a conversation with Mark Davis in the mess room?
What about an inference that he should watch himself?
Did you inadvertently say something like ‘you have got to be watching yourself out there? 78
[52] At the show cause meeting on 30 May 2013, Mr Anderson made it clear to the Applicant that “we are considering terminating you” and asked the Applicant “Can you please explain to us why we should continue your employment given we believe that your behaviour was intimidating?” 79
[53] Further, the following is an extract from the File Note of the meeting of 6 June 2013 where the Applicant’s employment was terminated:
“PA [Mr Attard]: ... Why are you terminating me?
DR [Mr Ryan]: Because of your violent, threatening behaviour.” 80
[54] The termination letter sent to the Applicant later on 6 June 2013 sets out the reason for dismissal in the following terms:
“Further to our meeting with you today I confirm that your employment ... has been terminated effective today, Thursday, 6 June 2013.
The reason for this decision is because of the threatening, intimidating behaviour you demonstrated to a fellow employee on Monday, 20 May 2013 ...” 81
[55] While the Applicant was not provided with copies of Mr Davis’ statements, I am satisfied that the Applicant was made aware of the allegation against him, that the Respondent was contemplating terminating his employment and the reason for his dismissal.
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[56] The File Notes of the meetings of 28 and 30 May 2013 82 indicate that the Applicant was provided the opportunity to explain his conduct.
(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
[57] As previously noted, Mr Cushion of the MUA attended with the Applicant all but the 23 May 2013 meeting leading up to the Applicant’s dismissal.
(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[58] The dismissal does not relate to unsatisfactory performance.
(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
[59] The Respondent is a large employer with an in-house human resource function.
(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
[60] As noted above, the Respondent is a large employer with an in-house human resource function.
(h) Any other matters that FWC considers relevant
[61] The Applicant’s employment history with the Respondent is set out at paragraph [11] above and is further discussed at paragraph [48]. As noted at paragraph [11], since 2011 the Applicant has received two written warnings, a verbal warning and also been spoken to about being late for work.
[62] Mr Anderson’s evidence was that Mr Davis had been employed by the Respondent for approximately ten years and “does not have any discipline issues on his employment record.” 83
[63] The Applicant’s evidence was that his dismissal has had a financial impact on him and had affected his prospects of gaining alternative employment elsewhere in the industry. With regard to his financial situation, the Applicant attested that “I am living off my life savings and at home with my parents. I have a 13 year old daughter from a previous relationship for which I pay child support. I am currently in arrears in the approximate amount of $20,000.00.” 84 The Applicant also outlined the measures he had taken to find alternative employment so as to mitigate the financial impact of his termination (see paragraph [16](i) above). The Applicant’s evidence was that he had applied for approximately 100 positions without success since his dismissal.
[64] Other than Mr Ryan’s uncontested evidence regarding the Respondent’s efforts over many years to reduce violence and threatening behaviour in the workplace, no evidence was led on the Respondent’s handling of other instances of alleged bullying and harassment. Accordingly, I am unable to form a view as to whether or not the Respondent’s approach in this instance was consistent with previous instances of alleged bullying and harassment.
Conclusion
[65] There is considerable jurisprudence on the issue of what constitutes a harsh, unjust or unreasonable dismissal. That jurisprudence was recently summarised in B,C and D v Australian Postal Corporation T/A Australia Post (the Australia Post Case) 85 in the following terms:
“[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”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button[2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited[2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. 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.]
…
[53] A determination as to whether a dismissal was harsh, unjust or unreasonable involves the application of a broad discretionary standard. The discretion is nevertheless one that must be exercised judicially, that is, in accordance with applicable legal principles. As noted, the key principle here is the principle that a dismissal may be harsh, notwithstanding the existence of a valid reason for dismissal, because it is disproportionate to the misconduct. The classic statement of principle comes from the judgement of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[66] As to how the Commission should approach its task, the Full Bench in the Australia Post Case said:
“[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;
against
(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.
[59] It is in that weighing that the Commission gives effect to a ‘fair go all round’.”
[67] Applying that approach, I summarise the factors weighing in favour of a finding that the dismissal was not harsh, unjust or unreasonable as follows:
(a) for the reasons outlined at paragraphs [43] to [49], there was a valid reason for the dismissal;
(b) since 2011 the Applicant has received two written warnings, a verbal warning and also been spoken to about being late for work;
(c) the Respondent’s longstanding desire to eradicate bullying and harassment from the workplace;
(d) the statement in the Handbook that bullying will not be tolerated;
(e) the statement in the Cardinal Rules that “violence, horseplay, harassment or bullying is strictly prohibited” and a breach may result “in disciplinary action up to and including termination”; and
(f) the absence of any evidence suggesting or indicating that the Respondent’s approach in this case differed from its handling of previous similar matters.
[68] Mitigating circumstances and other relevant matters weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct are:
(a) the financial impact of the dismissal on the Applicant;
(b) the impact on the Applicant’s employment prospects in the stevedoring industry;
(c) the Applicant’s almost 10 years of service with the Respondent;
(d) the Applicant has not previously been counselled or warned for bullying, violence harassment or intimidation; and
(e) that, in some circumstances, a first and final warning may have been an appropriate response to the Applicant’s conduct.
[69] Weighing all of these factors together with the criteria in s.387 of the Act, I find that the dismissal was not harsh, unjust or unreasonable, particularly in view of, but not limited to, my finding that there was a valid reason for the dismissal, the Applicant’s more recent disciplinary record, the importance attached by the Respondent to eradicating bullying and harassment from the workplace and the Applicant’s awareness of the Respondent’s policies regarding workplace bullying and violence. The application is therefore dismissed. An order to that effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
J Swiney for the Applicant
N Harrington for the Respondent
Hearing details:
11 October 2013,
Melbourne.
1 Employer’s Response to Application for Unfair dismissal (Form F3) at Part 2.
2 Exhibit H3, Attachment LO1.
3 Ibid, Attachment LO2.
4 Exhibit H2 at paragraph 35.
5 Exhibit H3 at paragraph 19.
6 Ibid at paragraph 16.
7 Ibid at paragraphs 20 and 25.
8 Exhibit H4 at paragraph 49(b).
9 Exhibit H1 at paragraph 15.
10 Transcript at PN1534.
11 Exhibit H3 at paragraph 11.
12 Applicant’s outline of submissions at paragraph 2.
13 Applicant’s final submissions at paragraph 16.
14 Applicant’s final submissions in reply at paragraph 12.
15 Ibid at paragraph 6.
16 Ibid at paragraph 14(a).
17 Ibid at paragraph 14(b).
18 Exhibit S1.
19 Transcript at PN322 and PN328.
20 Ibid PN501.
21 Ibid PN637 and PN639.
22 Ibid PN511.
23 Ibid PN696-719.
24 Ibid PN740-742.
25 Ibid PN785-787.
26 Ibid PN54.
27 Ibid PN112.
28 Ibid PN203.
29 Ibid PN220 and PN221.
30 Respondent’s outline of submissions at paragraph 6.
31 Respondent’s outline of closing submissions at paragraph 43.
32 Ibid at paragraph 38.
33 Ibid at paragraph 39.
34 Ibid at paragraph 10.
35 Exhibit H2 at paragraphs 24 and 26.
36 Ibid at paragraph 29.
37 Transcript at PN1390 and PN1391.
38 Exhibit H2 at paragraph 33.
39 Transcript at PN1028-1042.
40 Ibid PN1047 and PN1066.
41 Ibid PN1134.
42 Exhibit H1 at paragraph 20.
43 Ibid at paragraph 43.
44 Exhibit H3, Attachment LO6.
45 Exhibit H4 at paragraph 9.
46 Ibid at paragraph 11.
47 Ibid at paragraph 16.
48 Ibid at paragraph 42.
49 Ibid at paragraph 44.
50 Ibid at paragraphs 52-54.
51 Ibid at paragraph 80.
52 Transcript at PN940-948.
53 Ibid PN1367.
54 Ibid PN1393.
55 Ibid PN1446, PN1455 and PN1515.
56 Ibid PN1446.
57 Ibid PN1467.
58 Print R4471
59 (1995) 62 IR 371
60 Print S4213.
61 (1999) 169 ALR 89 at 92 per Moore J.
62 Exhibit H3, Attachment LO21.
63 Exhibit S1 at paragraph 6.
64 Transcript at PN390 - PN408.
65 Exhibit H3, Attachment LO20.
66 Exhibit S1 at paragraph 10.
67 Exhibit H3, Attachment LO19.
68 Exhibit H3, Attachment LO20.
69 Transcript at PN596-600.
70 Exhibit S1 at paragraph 18.
71 Exhibit H3, Attachment LO19.
72 Transcript PN566 and PN567.
73 Ibid PN637 and PN639.
74 Ibid PN621.
75 Exhibit H3, Attachment LO17.
76 Ibid.
77 Exhibit H3, Attachment LO16.
78 Ibid, Attachment LO19.
79 Ibid, Attachment LO20.
80 Ibid, Attachment LO21.
81 Ibid, Attachment LO22.
82 Ibid, Attachments LO19 and LO20.
83 Exhibit H1, paragraph 7.
84 Exhibit S1, paragraphs 21 and 22.
85 [2013] FWCFB 6191.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR545252>
0
7
0