Phillip Bright v Turners Civil Pty Ltd
[2023] FWC 915
•18 APRIL 2023
| [2023] FWC 915 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Phillip Bright
v
Turners Civil Pty Ltd
(U2022/12268)
| DEPUTY PRESIDENT EASTON | SYDNEY, 18 APRIL 2023 |
Application for relief from unfair dismissal – heated conversation with manager – words spoken that could be interpreted as a threat against another employee – valid reason found – employee summarily dismissed without any opportunity to respond – employee did not actually threaten another employee and had de-escalated earlier threats – dismissal was harsh and unreasonable – remedy ordered.
Mr Phillip Bright made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) for a remedy, alleging that he had been unfairly dismissed from his employment with Turners Civil Pty Ltd.
Mr Bright worked for Turners Civil for almost 18 months. Turners Civil described Mr Bright as a “fantastic employee” who gave 110% every day every week.
However, Mr Bright had ongoing difficulties with one particular employee, Mr Jones. Mr Bright said that Mr Jones was always wanting to fight him at work.
In September 2022 there was an incident at a worksite where Mr Jones allegedly picked a fight with Mr Bright. No actual fight occurred because Mr Bright removed himself from the situation, reported the matter to a supervisor and then relocated himself to another worksite. Mr Bright said that he had reported his concerns about Mr Jones to supervisors but that Turners Civil had done nothing to assist him.
On 2 December 2022 another incident occurred at a worksite. According to Mr Bright:
“I was at [a] farm dropping off a tool in johns office when i came out of office to get in ute Brett Jones came walking up from behind ute saying “come on you old c*nt lets fight now” i told him to “go away” and walked off about 50 meters to work shed where [three] fellow workers were ... [a truck driver, an apprentice and a field manager]. Brett jones followed all the way to shed trying to entice me to fight.
I rang [the] owner of farm and told him what was going on and to get back to the farm to speak with Brett.
I left, arrived home and rang Ben Moseley (manager) told him of situation that Brett wanting to fight. Ben advised he would deal with situation.”
Mr Bright also said when he spoke to Mr Moseley that he had urged him not to resign his employment and told him that he would “sort this problem out”.
Despite Mr Moseley’s assurances, Mr Bright was “not in the right frame of mind” when he went home on Friday 2 December 2022. He had an argument with his partner and drank too much.
When he woke up the next day, Mr Bright said, he was still not “in the right frame of mind” and he sent Turners Civil’s General Manager a resignation by SMS in the following terms:
“Good morning I'm just informing you that I'm giving my notice of 2 weeks I'm done got fuck wits wanting to fight me in yard.”
On Sunday 4 December 2022 Mr Bright sent a further SMS to the General Manager:
“Hi Penni just wondering if yous have a policy and procedures in place for incidents at work re fighting harrrassment if so can I receive a copy.”
The General Manager, Ms Penny Iori, did not reply to either message.
Mr Bright decided not to attend work on Monday 5 December 2022 because he feared for his safety. He spoke to Mr Moseley by telephone before 7:30am and the conversation did not go well.
Mr Bright asked Mr Moseley what he was going to do about Mr Jones and Mr Moseley replied “what do you want me to do about it?” On Mr Bright’s evidence he then said:
“What do you want? Me to go into the yard and we have a fight?”
Turners Civil alleges that Mr Bright threatened to put Mr Jones in hospital in the phone call with Mr Moseley, which Mr Bright denies.
Whatever precise words were used, the conversation became heated and that the conversation led to Mr Bright’s employment being terminated by Turners Civil. It is not clear from the evidence whether Mr Moseley told Mr Bright in the phone call that his employment was terminated.
Mr Moseley sent an SMS message to Mr Bright at 7:41am advising (or confirming) that Mr Bright’s employment was terminated immediately.
Unfortunately, in the following minutes, hours and days Mr Bright sent many SMS messages to Mr Moseley and to Ms Iori that were aggressive and confrontational, and some messages were vile. Almost none of the messages were responded to.
Turners Civil argued that Mr Bright resigned his employment and was not dismissed, relying on the resignation sent by SMS on Saturday 3 December 2022.
There is evidence of Mr Bright being under significant strain at the time that he sent the resignation by SMS. However, there is no evidence of Mr Bright attempting to retract his resignation. There was only a very small two-day window between when Mr Bright sent the SMS resignation on the Saturday morning and when the situation, and his employment, exploded on the Monday morning. After Monday morning there was no point in Mr Bright withdrawing his resignation because Turners Civil had terminated the employment.
In these circumstances I am satisfied that the SMS sent on Saturday 3 December 2022 was sufficient to give notice of Mr Bright’s resignation - and that the resignation would have taken effect two weeks later on Saturday 17 December 2022 but for the intervening events on 5 December 2022.
I am also satisfied that on 5 December 2022 Turners Civil dismissed Mr Bright without giving any notice and that the dismissal by Turners Civil was effective immediately. Mr Moseley’s and Ms Iori’s text messages to Mr Bright on 5 December 2022 confirm this dismissal by the employer.
As such the employment was terminated at the initiative of the employer for the purposes of s.386(1)(a) of the Act on 5 December 2022.
In the conversation with Mr Moseley on 5 December 2022 that led to his dismissal, Mr Bright said words to the effect of “do you want me to go in and we have a fight?”. These words could be interpreted as a threat towards Mr Jones – being a threat that Mr Bright would take matters into his own hands, attend work and start a fight with Mr Jones. However, the same words could be interpreted as a plea for action to the employer - meaning that if Mr Bright returns to work his fears could come true and that Mr Jones could initiate a fight. Even if Mr Bright referred to putting Mr Jones in the hospital, rather than referring to ‘having have a fight’, the same ambiguity arises.
In my view the following matters add context to the brief but heated conversation between Mr Bright and Mr Moseley:
(a)Mr Bright said that he had raised significant concerns about Mr Jones to supervisors. However, as far as Mr Bright saw it, neither the supervisors nor Turners Civil took any steps to investigate his concerns or address the problems he raised;
(b)Mr Bright gave evidence of three different incidents between himself and Mr Jones. In the first incident Mr Bright said “we shook hands and agreed to forget and move on”. In the second and third incidents Mr Bright, to his credit, took steps to remove himself from those situations and to avoid any physical confrontation with Mr Jones;
(c)there was no evidence of Turners Civil addressing Mr Bright’s concerns, save for a suggestion raised in cross-examination of Mr Bright that supervisors had allocated work in such a way that Mr Bright and Mr Jones would not have to work on the same site; and
(d)by December 2022 Mr Bright was significantly frustrated by the apparent inaction of Turners Civil in relation to his concerns about Mr Jones.
Consideration
Section 387 of the FW Act requires me to take into account the following matters in determining whether Mr Bright’s dismissal was harsh, unjust or unreasonable:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct (s.387(a))?
To be a valid reason, the reason for the dismissal should be sound, defensible or well founded and should not be capricious, fanciful, spiteful or prejudiced. However, in assessing the validity of the reason (s) for dismissal the Commission will not stand in the shoes of the employer and determine what the Commission would do in the same position. The test is whether, on the evidence before the Commission, there was a valid reason for dismissal connected with the employee’s capacity or conduct.
As referred to above, Mr Bright said words in his phone conversation with Mr Moseley that could reasonably have been interpreted as a threat to Mr Jones. As such, I am prepared to accept that there was a valid reason for dismissal on 5 December 2022, being that Mr Bright said words that objectively could have been interpreted as a threat.
Was the Applicant notified of the valid reason (s.387(b))?
Section 387(b) requires me to take into account whether Mr Bright “was notified of that reason.” Sections 387(b) and (c) direct the FWC’s inquiry to matters of procedural fairness. In general terms a person should not exercise legal power over another, to that person’s disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case.
In context, the inquiry to be made under s.387(b) is whether the employee was “notified” of that reason before the employer made the decision to terminate. The reference to “that reason” is a reference to the valid reason(s) found to exist under s.387(a) and the reference to being “notified” is a reference to explicitly putting the reasons to the employee in plain and clear terms.
Mr Bright was not notified of this reason for dismissal before he was dismissed. Mr Bright was dismissed either in the phone call with Mr Moseley or straight after the call, but either way he was not specifically told of the reason prior to the dismissal taking effect.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct (s.387(c))?
Mr Bright was not given a proper opportunity to respond to the allegations against him at all.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal (s.387(d))?
This factor is not a relevant consideration in this matter.
Was the Applicant warned about unsatisfactory performance before the dismissal (s.387(e))?
As the dismissal did not relate to unsatisfactory performance, strictly speaking this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal (s.387(f))?
Neither party submitted that the size of Turners Civil’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of Turners Civil’s enterprise had no such impact.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal (s.387(g))?
Turners Civil does not appear to employ or engage any a dedicated human resource management specialist. When matters rapidly escalated on the Monday morning Turners Civil would hopefully have benefitted from advice from a sensible human resource management specialist that might have averted the dismissal altogether and avoided Mr Bright’s hostile messages as he became angrier.
What other matters are relevant (s.387(h))?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
Given the above context, particularly the context in which Mr Bright had de-escalated earlier hostile encounters with Mr Jones and had asked for help from Turners Civil which had not come (at least as far as Mr Bright saw it), I am not satisfied that Mr Bright intended to make any threat against Mr Jones in his conversation with Mr Moseley.
Mr Moseley took no steps to de-escalate the situation on the Monday morning. To be fair to Mr Moseley, the hostility from Mr Bright started very quickly after the phone call ended. The SMS from Mr Moseley to Mr Bright at 7:41am is not in evidence. It seems from the evidence that Mr Bright sent an SMS to Mr Moseley at 7:52am that included the words “you lying dog”. Later messages are worse.
Further, and again in fairness to Mr Moseley, he had taken steps in his phone conversation with Mr Bright on Friday, 2 December 2022 to de-escalate the situation when he urged Mr Bright not to resign and to let Mr Moseley sort out the situation.
However, after Mr Bright made the statement that was interpreted to be a threat, and before Mr Bright had burned all the bridges with his hostile messages, Mr Moseley should have interjected and attempted to calm Mr Bright down. He should have given Mr Bright the same assurances that he gave him three days before that, he would sort the matter out with Mr Jones without the need for Mr Bright to leave his employment.
Most relevantly, Mr Moseley should have talked to Mr Bright and clarified his earlier statement about there being a fight if he returned to work.
Mr Moseley did not do any of these things. Instead, he cut Mr Bright loose from employment without any warning and without clarifying Mr Bright’s words.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.
Mr Bright was agitated about the incident that took place on Friday 2 December 2022. He was obviously still agitated about it on the Monday morning. He had told his employer a number of times that another employee was threatening to fight him and he was frustrated by the employer’s inaction.
It is very likely that Mr Bright spoke aggressively to Mr Moseley however Mr Moseley did not appear to understand the context in which this aggression appeared. In the three incidents on site over the previous six months Mr Bright had not engaged in any violence towards Mr Jones and had in fact done exactly what he should have done – de-escalated each situation and reported it to someone in authority in the expectation that they would intervene to prevent actual violence. Mr Bright did not call Mr Moseley in order to threaten workplace violence, he rang Mr Moseley to prevent workplace violence.
In this context, and even though Mr Bright spoke aggressively to Mr Moseley, his dismissal was harsh and unreasonable.
Mr Bright’s unsatisfactory behaviour after he was advised of his dismissal by SMS cannot and does not justify the dismissal. Mr Bright’s behaviour meant that he could never return to his employment, but it does not prove that he should have been dismissed.
Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Mr Bright was harsh, unjust and unreasonable.
Remedy
Under the Act I have the discretion to order that Mr Bright be reinstated, or to order that Turners Civil pay compensation to him, or I can choose to make no order at all.
Mr Bright did not seek reinstatement and it would not be appropriate in any event.
In all the circumstances, I consider that an order for payment of compensation is appropriate to compensate Mr Bright for financial losses he has suffered arising from being unfairly dismissed.
Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation in lieu of reinstatement including:
(a)the effect of the order on the viability of the Respondent’s enterprise;
(b)the length of the Applicant’s service;
(c)the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;
(d)the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;
(e)the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;
(f)the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and
(g)any other matter that the Commission considers relevant.
I will consider these factors in sequence:
a)there is no dispute and I am satisfied that an order for compensation would not have an effect on the viability of the employer’s enterprise;
b)Mr Bright’s length of service was more than one year, which is not insubstantial and slightly favours a greater amount of compensation;
c)if Mr Bright had not been dismissed on 5 December his employment would have finished on 17 December 2022 in accordance with the two weeks’ notice he gave on 3 December 2022. Mr Bright probably hoped that his resignation would prompt some more decisive action from Turners Civil and lead to him staying on, however I am not prepared to assume that the employment would have in fact lasted any longer than the notice period given by Mr Bright;
d)Mr Bright found work in the new year but was not able to mitigate his loss of two weeks’ pay;
e)the amount of income reasonably likely to be earned by Mr Bright between the making of the order for compensation and the payment of compensation is not directly relevant; and
f)there are no other directly relevant matters.
By application of the well-established “Sprigg formula” (see Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21) Mr Bright should be paid two weeks’ compensation for the two weeks he would have otherwise worked except for the fact that he was unfairly dismissed.
I am satisfied that two weeks’ compensation takes into account all the circumstances of the case as required by s.392(2) of the FW Act and that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case” (per Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206 at [17]).
In this matter the amount of the order for compensation is not to be reduced on account of misconduct (per s.392(3)).
In light of the above, I will make an order that Turners Civil pay $2,800 gross less taxation as required by law to Mr Bright in lieu of reinstatement within 21 days of the date of this decision, plus an additional component for superannuation (PR761185).
DEPUTY PRESIDENT
Appearances:
Mr P Bright, Applicant
Ms P Iori and Mr B Moseley for the Respondent
Hearing details:
2023.
Sydney (By Video using Microsoft Teams)
March 16.
Printed by authority of the Commonwealth Government Printer
<PR761184>
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