Rodney James Rodgers v Hunter Valley Earthmoving Company Pty Ltd

[2009] FWA 877

[2009] FWA 877

FAIR WORK AUSTRALIA

DECISION

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

Rodney James Rodgers
v
Hunter Valley Earthmoving Company Pty Ltd
(U2009/10533)

COMMISSIONER HARRISON SYDNEY, 18 DECEMBER 2009

Termination of employment – unfair dismissal.

[1] This decision arises from an application made pursuant to s.394 of the Fair Work Act 2009 (the Act) by Rodney James Rodgers following the termination of his employment by Hunter Valley Earthmoving Company Pty Ltd (HVE).

[2] Mr Rodgers was employed as a Plant Operator at the Liddell Open Cut Mining Operations for 14 years. He was summarily terminated on 15 July 2009 following a verbal and physical altercation with another employee on 9 July 2009 (the incident).

[3] At the outset of proceedings on 14 October the parties made submissions concerning the options for conducting the matter. Pursuant to s.399 of the Act I considered the most effective and efficient way in which to deal with the matter was to hold a hearing and weigh the evidence accordingly.

[4] Mr Rogers was represented by Mr K Endacott, Industrial Officer of the Construction, Forestry, Mining and Energy Union (Mining & Energy Division). HVE were represented by Mr R McPherson, Group Employment Relations Manager, Thiess. Evidence was given by Mr Rodgers on his own behalf and Mr L Roberts, Union Lodge President. HVE adduced evidence from Mr M Little – Mine Manager, Mr J Miller – Production Superintendent and Mr P Grosvenor – Project Manager.

[5] It was not contested that an incident occurred on 9 July between Mr Rogers and a Mr Carter in the crib room of the mine site at approximately 11pm. Mr Rodgers’s action were described as a push with an open hand to the side Mr Carter’s face or head.

[6] Mr Rodger’s submissions can be summarised as follows:

• In considering extenuating circumstances, the termination of Mr Rodgers for the incident was harsh, unjust or unreasonable.

The factors that were either extenuating circumstances and/or mitigating circumstances against the summary termination include but are not limited to:-

• Mr Rodgers is a long term employee, having worked for HVE for 14 years;



• Mr Rodgers has never been formally counselled with respect to his conduct or performance throughout his employment;



• he has never been previously warned with respect to his conduct or performance throughout his employment;



• the conduct of Mr Rodgers was out of character and could be described as a one-off incident and not reflective of his previous employment with HVE;



• Mr Rodgers had been under pressure and/or some stress and anxiety which contributed to the incident;



• shortly before the incident there had been a death of a family member;



• Mr Rodgers had been suffering ongoing difficulties associated with the reoccurrence of his work related back injury and family circumstances, including ongoing symptoms and feelings of frustration and other related symptoms;



• there was not a valid reason for the termination related to Mr Rodgers’s capacity or conduct when considering the extenuating and/or mitigating circumstances cited above;



• Mr Rodgers seeks an order for reinstatement to his former position with lost pay and continuity of service.

[7] HVE’s outline of submissions can be summarised as follows:

• on the nightshift of 9 July 2009, there was a verbal and physical altercation between Mr Rodgers and Mr Adam Carter;



• despite his reluctance to detail the incident in the witness statement dated 22 September 2009, Mr Rodgers admitted in the statement which he hand wrote and provided to HVE that, during a break in the crib room, he made a very offensive and humiliating comment to Mr Carter about Mr Carter’s personal sexual activities, then physically assaulted Mr Carter and then victimised and threatened him by asking him to continue the altercation outside.



• the incident resulting in Mr Rodgers’s termination was a serious incident. HVE has implemented policies to ensure employees are not harassed, bullied or subject to violence at work. Mr Rodgers was well aware of his obligations in this regard and admitted to the seriousness of the breach.



• the application should be dismissed because:

- the termination was not unfair within the meaning of s.385 of the Act;

- Mr Rodgers was afforded procedural fairness at all times including immediately following the incident of 10 July 2009, during the investigation and following the termination of his employment;

- Mr Rodgers was given the opportunity to respond to the allegations which were ultimately found to be substantiated and led to the termination of his employment;

- HVE considered all relevant circumstances including those described by Mr Rodgers as “extenuating” or “mitigating” circumstances however determined that the allegations of serious misconduct were established and required summary dismissal in accordance with the terms of Mr Rodgers’s employment contract, the Agreement and HVE’s policies and procedures.

THE APPLICANT’S EVIDENCE

Rodney Rodgers

[8] In a statement tendered as Exhibit E1, Mr Rodgers set out the events surrounding the incident which are relevantly summarised below:

• on the night in question the weather conditions were such that he took an early crib break at about 11pm. Seated in the crib room were four HVE employees and two contractors including Mr Carter:

“A discussion commenced between Mr Carter and myself. Mr Carter did not appreciate a comment I made to him and he said words to me to the following effect: “What did you say?”. I repeated my comment. Mr Carter then said: “Do you want to take it further?” I pushed Mr Carter with an open hand in the side of the head. I did not swing a slap or punch to Mr Carter. There were some words exchanged between Mr Carter and myself. The contact made was my open handed push to the side of Mr Carter’s head. After this I made a cup of coffee and left the crib room.” 1

• at the end of his shift he was asked to stay back to attend a meeting with the shift superintendent, Mr Miller, regarding the incident. It was Mr Rodgers’s evidence that at this meeting he was asked to give his version of events and provide a written statement. He was advised he was stood down until further notice whilst further investigations were conducted by HVE;



• a further meeting was held on 15 July 2009 with Mr Little and a HR officer. Mr Les Roberts, CFMEU Lodge President, was also in attendance:

“I understood the meeting was for the further investigation of the incident with myself and Mr Carter. Mr Little asked me at the commencement of the meeting did I understand what I was here for. I informed him that I understood that he was continuing with the investigation of the incident between myself and Mr Carter. Mr Little informed me that they had been investigating the incident and that they had taken statements from Mr Carter and other employees that were present. Mr Little did not name, other than Mr Carter, the other employees who had given statements. Mr Roberts asked Mr Little who had provided statements and could I be provided with a copy of those statements, so that I could respond to them. Mr Little said, in response to Mr Roberts’s request, that he could not provide a copy of any of the statements for privacy reasons.” 2

• During the meeting Mr Rodgers expressed remorse for his actions and made reference to personal pressures he was experiencing.



• Following a 20 minute adjournment, Mr Little resumed the meeting and advised that he had not offered Mr Carter “outside” the matter would not have progressed so far and that HVE regarded the incident seriously. At that point Mr Rodgers was summarily dismissed.

[9] In cross examination Mr Rogers agreed he had been educated on the issues of bullying and harassment at toolbox talks in 2004 and 2009.

[10] In regard to the actual incident with Mr Carter, Mr Rogers agreed he had no business in asking why Mr Carter was in the crib room at the time. He concurred that the question he asked Mr Carter was “I heard you’re rooting Casey” and admitted he made forced open hand contact with Mr Carter’s head.

[11] Mr Rogers stated that his contact with Mr Carter’s head was of little force but sufficient to move it 45 degrees. He subsequently asked him to “come outside” but denied the request was for the purpose of continuing the assault:

“I want to take you back for a moment to the incident in the crib shed, so on your version of it you’ve gone over and pushed Mr Carter’s head 45 degrees?---That’s correct.

You’ve then asked him, am I right in saying this, that you’ve then asked him to come outside into the car park?---Outside. It wasn’t the car park, it was just outside.

What was the point of that comment, “come outside”, what was that an invitation to?---Just a spur of the moment thing that popped up.

But you weren’t asking him to come outside for a debate, were you, Mr Rodgers, you wanted to get into fisticuffs with him, you wanted to further the assault?---I wouldn’t go to that extent, no.

No, I’m sure you wouldn’t, but typically if you’re asking some [sic] outside, you’re not asking them outside other than to continue the assault that you’ve had inside?---Well, if I wanted to continue the assault I would’ve did it inside if I was going to go any further with it.

So you assaulted him inside, you accept that but you say that the asking him to come outside wasn’t to continue that?---No.

But what was it for?---It was just a thing that popped up.

Just a thing?---Yes.

Just a thing that was – but it wasn’t to continue the assault?---No.” 3

[12] As can be seen by Mr Rogers’s evidence there are few factual differences between the parties in this matter. The incident on 9 July is not denied by Mr Rogers and in fact he agreed to its characterisation as an assault.

[13] It was submitted that the Tribunal should consider extenuating and mitigating circumstances which led to the termination being harsh, unjust and unreasonable. The approach taken by tribunals when an assault or fighting has taken place on a worksite was considered by the Full Bench review of the authorities in Tenix Defence Systems Pty Ltd & Fearnley: 4

“In AWU-FIME Amalgamated Union v Queensland Alumina Limited Moore J summarised the relevant decisions in the following passage:

‘What emerges from these decisions is that whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self defence.’

Not dissimilar views, albeit in a different statutory context, have been expressed by a Full Bench of the Industrial Commission of South Australia in Torbet v Commissioner for Public Employment as follows:

‘In considering what was the appropriate remedy for the misconduct a strong push on the chest where both participants were screaming at each other, the employer seems to have regarded dismissal as the only remedy. The evidence of Mr. Keeley strongly suggests that the committee of enquiry, having reached the conclusion that an assault had taken place, thought it had no alternative than to dismiss the employee. But what this employer needed to consider was whether, upon weighing up the seriousness of the assault against the mitigating or extenuating circumstances, dismissal should occur, or whether some other and less serious punishment was appropriate. In reaching that decision the employer would also need to take into account the competing necessity to establish and retain discipline amongst its employees.’

The above passages were cited with approval by a Full Bench of the Australian Industrial Relations Commission in Mobil Oil v Giuffrida. We also note the following observation by the Federal Court, in another fighting case, Qantas Airways Limited v Cornwall:

‘We accept that in this case ... it is necessary to examine the circumstances surrounding the conduct relied on, which constitute the "relevant factual matrix", to decide whether the termination was supported, in the words of the statute, by "a valid reason ... connected with the employee's ... conduct". As was said in Cosco Holdings and in Allied Express Transport, a valid reason is one which is "sound, defensible, or well-founded". But it is important to remember that the governing words are those of the statute, and that attempts at judicial explanation should not be substituted for the statutory provision. The question remains whether, the employer having terminated the employee's employment, there was a valid reason connected with the employee's conduct.’

We have already stated that the respondent, in the present case, struck his supervisor. That is not now in dispute. Nor is it in dispute that Qantas acted on this conduct as a reason when it terminated the respondent's employment. The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.

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.”

[14] In this matter there is no evidence of provocation. This mitigates against Mr Rodgers.

[15] In regard to “the employer’s need to establish and retain discipline…”, HVE’s policies and objectives in ensuring the workforce is free from harassment and abuse are reasonable policies and they were well known to Mr Rodgers.

[16] The service and work record of Mr Rodgers over 14 years was impeccable which mitigates in his favour. In this regard I note the evidence of Mr Little, the Mine Manager, that Mr Rogers’s behaviour at the time was “out of the ordinary”. 5

[17] I have considered the submissions on extenuating and mitigating circumstances and am not persuaded that, to the extent that they were a factor, they outweigh the seriousness of the misconduct.

[18] A termination of employment can arise from a single incident notwithstanding the employee’s previous good service and loyalty. This is one such case.

[19] Mr Rodgers’s assault was an unprovoked act of intimidation. To describe it as at the lower level of violence followed by a “hollow invitation” to carry it further outside only seeks to place a qualification on serious workplace misconduct which, in my view, is untenable. There can be no acceptable level of unprovoked violence in the workplace.

[20] On the basis of the submissions and evidence before me, including that of Messrs Roberts, Little, Miller and Grosvenor, on balance I am satisfied there was a valid reason for the termination.

[21] Even though Mr Rodgers believed he was participating in an ongoing investigation at the time of his termination I am satisfied he was afforded the opportunity to respond to the allegations by providing a witness statement and at interviews on 10 and 15 July 2009.

[22] For these reasons I am of the view that the termination of Mr Rodgers’s employment was not harsh, unjust or unreasonable.

COMMISSIONER

Appearances:

K Endacott, Construction, Forestry, Mining and Energy Union, Mining and Energy Division, for Mr R J Rodgers

R McPherson, Hunter Valley Earthmoving Company Pty Ltd

Hearing details:

2009.

Toronto:

14 October.

 1   Exhibit E1, PN11.

 2   Exhibit E1, PN15.

 3   Transcript PN248-256.

 4   Print S6238, 22 May 2000.

 5   Transcript PN602.

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