Raymond Gleeson v Aurora Energy Pty Ltd

[2010] FWA 2956

[2010] FWA 2956

FAIR WORK AUSTRALIA

DECISION

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

Raymond Gleeson
v
Aurora Energy Pty Ltd
(U2009/14225)

COMMISSIONER BLAIR MELBOURNE, 20 MAY 2010

S.394 – Application for unfair dismissal remedy.

[1] This is an application brought to Fair Work Australia (the Tribunal) under s.394 of the Fair Work Act 2009 by Mr Raymond Gleeson (the Applicant) against Aurora Energy Pty Ltd (the Respondent).

[2] The Applicant alleges that his termination was harsh, unjust and unreasonable.

[3] The Applicant was advised by the Respondent in person and in writing on 1 November 2009 that his employment was being terminated on the basis of serious misconduct. That serious misconduct allegedly arose on Friday 6 November 2009 where there was an altercation between the Applicant and another employee of the Respondent, Mr Trevor Duggan.

[4] The Applicant was employed by the Respondent from 4 November 1985 until 1 December 2009, a period of some 24 years. During that period it is alleged that the Applicant had an unblemished disciplinary record with the Respondent.

[5] The Tribunal notes that the alleged altercation between the Applicant and another employee on Friday 6 November 2009 arose from an earlier incident also on Friday 6 November where the Applicant and other employees were working on street light faults. There were two groups of employees, the Applicant with another worker and a second group of employees, including Mr Duggan and a person named Mr Reynolds.

[6] It is alleged that the Applicant had a series of long and arduous work days and was significantly fatigued. It was perceived by the Applicant that the second work group had caused delays to the isolation and repair of street light faults. It was the perception of the Applicant that this created unnecessary delays in rectification of the faults. It is alleged that the Applicant stated to Mr Duggan and Mr Reynolds words to the effect “get your shit together and get a plan”. The work was completed by the two crews and they returned to the New Norfolk depot.

[7] It is alleged that at or around 3.45pm, whilst at the depot, Mr Duggan whilst in the office/lunch room stated to the Applicant words to the effect “why do you have to speak to us like shit?” It is then alleged that Mr Duggan, on hearing a response from the Applicant either slammed his first or a clipboard down onto the table in front of him (Mr Duggan).

[8] It is alleged and acknowledged by the Applicant that he said words to the effect “what’s your problem?” and then walked some five metres from where the Applicant was sitting towards Mr Duggan. It is also alleged that Mr Duggan grabbed the Applicant and a scuffle ensued. During the course of the scuffle Mr Duggan incurred an injury to his left eye, being some minor bruising and a scratch. Immediately after the altercation Mr Reynolds walked into the room but did not observe any contact between the Applicant and Mr Duggan. There were no witnesses to the altercation other than the two persons involved.

[9] An investigation commenced on 6 November 2009 by the Respondent. It stated that the Applicant participated willingly and openly at all times throughout the investigation within the limits of his fatigued state. It is alleged that during the investigation the Applicant was not advised that his employment might be terminated.

[10] On 25 November 2009 the Applicant was advised by the Respondent in person and in writing that the findings of the investigation included:

(a) that the Applicant had physically assaulted Mr Duggan;

(b) that the alleged actions of the Applicant constituted serious misconduct; and

(c) that the Applicant’s employment may be terminted.

[11] It is alleged that this is the first occasion on which the Applicant was advised that his employment may be terminated as a result of the altercation.

[12] Ultimate termination occurred on 1 December 2009.

[13] It is alleged by the Applicant that there is no valid reason for dismissal; that the Respondent did not provide the Applicant with a reasonable opportunity to respond.

[14] The Respondent’s argument is that Mr Duggan, on 6 November 2009, found the approach by the Applicant in the course of a disagreement threatening and then having been punched three times causing an injury to his eye which included bruising, swelling and a scratch.

[15] The Respondent states that the Applicant engaged in serious misconduct by assaulting another employee in the course of his employment and without reasonable excuse.

[16] The Respondent states that they engaged in a properly conducted investigation and that all parties that is, the Applicant, Mr Reynolds and Mr Duggan, were interviewed immediately and notes were taken. A formal investigation commenced with appropriate management and HR assistance (ie. Mr Darren Riley and Ms Shae Beswick) to interview relevant persons and to document their responses and prepare a report for consideration.

[17] The Respondent states that the Applicant was advised of this process.

[18] The Respondent also states that the Applicant was provided with an opportunity at all times to have a representative with him. Save for the first interview, the Applicant did in fact have a representative from the CEPU (the Union) with him.

[19] The Respondent states that the report was properly provided in that:

(a) it did not make findings where the authors personally were of the view that evidence was unclear, eg. the Applicant was of the view that Mr Duggan was the instigator because he slammed the desk, which Mr Duggan acknowledged, but Mr Duggan was of view that the Applicant was the instigator by refusing to acknowledge his inappropriate behaviour.

(b) no findings that the authors could be reasonably satisfied of, including that the Applicant assaulted Mr Duggan without reasonable excuse in that the Applicant’s conduct was excessive, inappropriate and unjustified.

(c) based on the findings identified dismissal as the appropriate, unless significant mitigating circumstances existed.

[20] It is alleged by the Respondent that the report identified that no extenuating circumstances existed or had been proved as to the circumstances of the assault but identified the Applicant’s employment history as a mitigating circumstance.

[21] It is also stated by the Respondent that, as part of the investigation, Mr Kingsley, who had the ultimate decision as to whether the Applicant’s employment would be terminated, interviewed the Applicant in the presence of his chosen Union representative, following which he concluded that the complaint of assault was proven and dismissal was appropriate.

[22] At the conclusion of the investigation there was a “show cause” process during which the Applicant was afforded all procedural fairness and Mr Kingsley obtained the endorsement of the General Manager, People and Culture (who separately reviewed the investigation, its outcome and recommendations) before the decision to dismiss was taken.

[23] A number of witnesses were provided by both the Applicant and the Respondent.

[24] Having considered the material available to the Tribunal, the Tribunal will first determine who the agitator was in this matter.

[25] The Tribunal is satisfied that the agitator in this matter is the Applicant. It is satisfied because, although the Applicant states that Mr Duggan was the agitator, all Mr Duggan did was bang the table with either his fist or a clipboard to indicate some frustration that the Applicant was not listening to the point that Mr Duggan was trying to make. Mr Duggan was approximately five metres from where the Applicant was sitting and posed no threat to the Applicant at all. The Applicant then got up out of his chair and walked approximately five metres towards Mr Duggan. The Applicant does concede, as part of his evidence, that Mr Duggan could have been threatened by the approach of the Applicant and saying words to the effect “what’s your problem?”. In that instance, it is clear that the Applicant is the agitator.

[26] Secondly, the Tribunal believes that, on the balance of probability, that there was no flailing of the arms by both the Applicant and Mr Duggan and as part of that flailing of the arms accidental contact was made to Mr Duggan’s eye creating a cut under the eye and a black eye.

[27] The Tribunal is satisfied that if Mr Duggan’s arms were stretched out it was simply in order to prevent the Applicant from getting too close to Mr Duggan. It is also very clear to the Tribunal that contact was made to Mr Duggan’s eye.

[28] Having considered the evidence of Dr David Flecker, both his statement and his verbal evidence, the Tribunal is satisfied that the contact made to Mr Duggan’s eye was deliberate on the part of the Applicant.

[29] The Tribunal comes to that conclusion when considering point 6 of Dr Flecker’s statement, which states as follows:

“During the past 36 years that I have practised medicine, I would have examined and treated several hundred cases of bruising to the body. In my experience, the injury to Trevor Duggan’s face was entirely consistent with and most probably caused by having received a punch with a fist or some other blunt object. In my opinion, it was unlikely to be consistent with force from an open hand because it was unlikely to sustain enough localised contact/pressure to rupture a blood vessel, which leads to bruising. Also with a closed fist the point of contact is on the knuckle of the fist. Compared with a fist, the pressure from a blow from an open hand is not as localised.”

[30] Also, under examination and cross-examination and questioning from the Tribunal Dr Flecker, in response to a question about whether flailing would have the same results, made it clear, in his view, that is any contact made to the eye by way of flailing of the arms would not have the same precise impact or effect as a direct punch to the eye with a knuckle.

[31] The Tribunal would therefore determine that there was a valid reason for the termination of the Applicant.

[32] Firstly, on the Applicant’s own evidence he walked approximately five metres towards Mr Duggan and acknowledges that had he not done so the incident would not have occurred.

[33] Secondly, on the evidence of Dr Flecker there was a direct punch to the eye, a deliberate punch to the eye, by the Applicant and it was not due to the flailing of the arms in order for the Applicant to protect himself from Mr Duggan whom he alleges was the instigator.

[34] In determining that there was a valid reason for the Applicant’s termination the Tribunal turns its mind to s387 of the Act, which sets out the criteria for considering harshness etc.

[35] In regards to s.387(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, the Tribunal has already stated that there was a valid reason due to the Applicant’s conduct.

[36] The Tribunal would have a concern about what might happen if the Applicant, given that he assaulted a fellow employee over a trivial matter, continued with employment and a serious issue arose.

[37] In regards to s.387(b), whether the person was notified of that reason, the Tribunal finds that there is no issue that the Applicant was notified of the reasons for his termination and in fact was provided with ample opportunity to show cause why termination of employment should not occur, the Applicant mainly relied on his employment record and the years of services with the Respondent.

[38] In regards to s.387(c), whether the person was given an opportunity to respond to any reasons related to the capacity of the person, the Tribunal finds that again the Applicant was provided with every opportunity to respond during the entire process of the investigation conducted by Mr Riley and Ms Beswick.

[39] The Applicant was also provided with the interview statement provided by Mr Duggan and Mr Reynolds in order to assist the Applicant in the presentation of his case.

[40] In regards to s.387(d), any unreasonable refusal by the employer to have a support person present to assist at any discussions relating to dismissal, the Tribunal is satisfied that, other than the first meeting where the Applicant was advised that he could have a support person in attendance and chose not to do so, there was a support person at every step of the process up until and including the advice by the Respondent to the Applicant that his services were being terminated.

[41] In regards to s.387(e), if a dismissal related to unsatisfactory performance by the person, whether the person had been warned about that unsatisfactory performance before the dismissal, the Tribunal is satisfied that that is not an issue in this matter as it did not relate to the Applicant’s performance but related to his conduct.

[42] In regards to s.387(f), the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed and in effecting the dismissal, the Tribunal is satisfied that this provision is not relevant.

[43] In regards to s.387(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, again the Tribunal is satisfied that this matter is not relevant.

[44] In regards to s.387(h), any other matters that Fair Work Australia, the Tribunal is satisfied that the Applicant’s length of service and his satisfactory employment record were mitigating factors that where seriously considered by the Respondent.

[45] The Tribunal is satisfied that it has been made abundantly clear over the years that fighting on the premises, particularly where one of those involved in the fighting has proved to be the instigator and the factors of length of service and satisfactory employment should not inhibit an employer from terminating the services of the employee.

[46] The Tribunal did seriously consider the submissions on behalf of the Applicant concerning the culture within the Respondents workforce and several incidents that have been referred to as part of the evidence provided.

[47] The Tribunal does not intend to endorse such a culture that the Applicant insists exists and which the Respondent acknowledges to some degree that there have been past incidents, by reinstating or providing some form of compensation to the Applicant when it has found that the Applicant was the instigator of the incident and deliberately made contact by way of a punch to Mr Duggan’s eye. To do so would be irresponsible on the part of this Tribunal.

COMMISSIONER

Appearances:

Mr M Wright, on behalf of the CEPU, for the Applicant

Mr R Collinson, Solicitor, for the Respondent

Hearing details:

2010

Hobart

May 3, 4, 5

Printed by authority of the Commonwealth Government Printer

<Price code C, PR997203>