Shannon McLean v Nyrstar Hobart Pty Ltd T/A Nyrstar Hobart
[2020] FWC 6457
•10 DECEMBER 2020
| [2020] FWC 6457 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shannon McLean
v
Nyrstar Hobart Pty Ltd T/A Nyrstar Hobart
(U2020/10037)
COMMISSIONER WILSON | MELBOURNE, 10 DECEMBER 2020 |
Application for an unfair dismissal remedy - fighting in the workplace; whether in self-defence; whether serious misconduct.
[1] Shannon McLean was one of two people dismissed by Nyrstar Hobart Pty Ltd (Nyrstar) arising out of a fight in the workplace on Tuesday, 30 June 2020. The other person is David Mitchell, who gave evidence against Mr McLean in this matter.
[2] This decision concerns Mr McLean’s application for unfair dismissal remedy and for the reasons set out below I have found that his dismissal by Nyrstar was not an unfair dismissal.
PRELIMINARIES
[3] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. Those matters are whether the application was made within the period required in s.394(2), whether the person was protected from unfair dismissal, whether the dismissal was consistent with the Small Business Fair Dismissal Code, and whether the dismissal was a case of genuine redundancy. Neither party put forward that any of the initial matters required consideration. In relation to the elements within s.396, I find that Mr McLean’s application was lodged with the Commission within the 21 day period for making such applications, that at the relevant time he was dismissed he was a person protected from unfair dismissal, and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.
[4] The matter proceeded as a hearing, using video through Microsoft Teams.
[5] Evidence was given in these proceedings by Mr McLean on his own behalf. Evidence was given on behalf of Nyrstar by the company’s Human Resources Principal, Rebecca Wade and, after being ordered by the Commission to attend and give evidence, Mr Mitchell.
[6] Mr McLean was represented by Mr Henry Pill, solicitor, from Hall Payne Lawyers, and Nyrstar was represented by Ms Susan Zeitz, solicitor, from Zeitz Workplace Lawyers. Permission for both parties to be represented in these proceedings by a lawyer was granted by me pursuant to s.596 of the Act, with me being satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter, as well as that a matter of unfairness may arise if permission were not granted (s.596(2)(a) and (c)).
BACKGROUND
[7] Shannon McLean had worked for Nyrstar since 6 September 2002 and was dismissed with effect from 16 July 2020. At the time of his dismissal he was engaged as an operator on one of the Nyrstar’s lines in its casting department.
[8] The fight with Mr Mitchell took place on Tuesday, 30 June 2020 in a crib room slightly before the start of that evening shift.
[9] Nyrstar’s smelter is a heavy industrial plant comprising furnace and casting operations amongst other things and is classified as a major hazard facility. It operates continuously 24 hours a day for 365 days a year with employees rotating through shifts of 12 hours duration.
[10] The details of the fight are disputed between the parties in certain respects. The only direct evidence on what took place is from the protagonists themselves, as well as photographs of the injuries sustained.
[11] Mr Mitchell was a similarly long serving employee. Both men appear as somewhat heavily set and appear older than 40 years of age. Mr McLean is about 175cm tall and weighs about 115kg; for his part Mr Mitchell is around 187cm tall and weighs about 120kg. 1
[12] Mr McLean had swapped into the Tuesday, 30 June 2020 evening shift because the originally rostered employee was unable to perform the work. The swap was agreed to between the two employees concerned and approved by the relevant supervisors. 2
[13] Mr McLean arrived at the crib room at about 6:15PM for a 7PM start. He said that shortly after arriving he checked the crib room’s noticeboard and took note of his work allocation for the forthcoming shift and then sat down. He recalled that Mr Mitchell came into the room sometime later and similarly checked the noticeboard. After Mr Mitchell left and returned, he appeared to Mr McLean to be agitated. Words were said between the two. After another employee who had been in the room left, further words were sent between Mr McLean and Mr Mitchell. A physical altercation ensued between the two men involving grabbing of clothing; wrestling; and thrown punches.
THE EVIDENCE/WHAT OCCURRED IN THE FIGHT?
[14] No-one other than Mr McLean and Mr Mitchell saw how the fight came to take place or how it progressed, although one other employee observed the precursors and several others saw its aftermath. None of those individuals provided evidence in these proceedings.
[15] In addition to the witness evidence both parties relied upon numerous documents in support of their respective cases. For the Respondent’s part the investigation process it employed is largely within several letters to Mr McLean:
• 3 July 2020 – Ms Wade’s evidence included that both Mr McLean and Mr Mitchell were suspended on full pay while an investigation was conducted into their conduct. Each was sent a letter advising of the investigation and the Nyrstar Performance Improvement and Discipline Policy. 3
• The Allegations Letter, dated 7 July 2020, which summarised things discussed with and said by Mr McLean in a meeting on 3 July 2020 and advised him of discrepancies between his version and that given by Mr Mitchell, about which Nyrstar sought a response and additional information;
• The Show Cause Letter, dated 14 July 2020, which summarised not only its initial findings, but things discussed with and said by Mr McLean in a meeting on 8 July 2020. The letter also sought Mr McLean show cause why a disciplinary outcome in the form of termination of employment should not be applied; and
• The Termination Letter, dated 16 July 2020, which summarised Mr McLean’s responses given in a meeting held on 15 July 2020, and which terminated his employment with effect from 16 July 2020.
[16] In addition, for the purposes of understanding the investigation process, the Commission also has before it two letters sent by Nyrstar to Mr Mitchell about his actions and the company’s investigation of him, being the Mitchell Allegations Letter, dated 7 July 2020, and the Mitchell Show Cause Letter, dated 14 July 2020.
[17] Both Mr McLean and Mr Mitchell gave evidence in the proceedings before me, however neither was an especially striking witness, with each being prone to embellishment of their evidence. Some aspects of what Mr Mitchell had to say appears to be odd at the least; but on the other-hand Mr McLean’s evidence has either expanded or shifted from his first accounts to the time he gave his evidence in these proceedings.
[18] Both men agree they began arguing because of the work assignment given for the coming shift to Mr McLean.
[19] When Mr McLean checked the noticeboard upon arriving at the crib room, he noticed he had been allocated “to work on the feed floor for the shift” which was the same role he had performed in the previous shift. Mr McLean noted in his evidence that he had often been allocated feed floor duties because of his experience with the role when the zinc being processed had high impurities. Mr McLean’s evidence included that the feed floor function is generally perceived as being less physically arduous than other functions. 4 This allocation seemed to aggrieve Mr Mitchell:
“As David was coming through the kitchen entrance to take his seat on the eastern end of the table closest to the northern wall and on the northern side of the table in an aggitated (sic) tone he said “ We’ll have to start calling you Akko, you get put there that often”. I replied “we will have to start calling you David Tringrove McMahon, you’ve been on the spare truck that often” There was then a continuing verbal exchange for a brief period. I do recall that as part of that exchange I said “you weren’t complaining when you had three panels in a row on the spare truck” and I also asked David “did you have a go at Riseley when he was up there for the two day shifts” David replied “yeah I did but he didn’t cry like you.” I replied, “you’re the one that has come in here crying”.” 5
[20] Mr McLean recalls that a third employee, Adrian Riseley, entered the room at the end of the foregoing exchange, which in turn appeared to provoke the situation:
“… Adrian Riseley had walked from the southern wall crib room entrance through to the kitchen and returned from the kitchen to put something in the refrigerator located in the crib room. Having placed the item in the refrigerator Adrian looked at me and said something. As I have impaired hearing in my right ear and Tinnitus and Dave was continuing to verbalise me, I didn’t clearly hear the comment from Adrian. By this Time Dave had moved from the crib room to the kitchen.
At this point Adrian turned and left the crib room exiting via the kitchen passing Dave as Adrian left. My recollection is that Dave was continuing to verbalise me at that time while he was making a hot drink at the urn in the kitchen. Dave was in direct vision from where I sit.” 6
[21] What had provoked Mr Mitchell, it seems, is having had at least part of his exchange with Mr McLean overheard by another employee, Mr Riseley, providing this explanation to Nyrstar’s lawyer, Ms Zeitz in his examination-in-chief:
“You said that when you started there was the discussion around the feed floor and he just kept going and going. What were the things he was saying? Well, pretty harsh as in having a go at me for trying to be a big man. This had been put up previously before that it wasn’t shared and we’ve got young blokes there as well that need to share this job, and so I obviously hit a nerve for him, and basically it was quite continuous, so I can’t remember all the events, but it was quite aggressive and he just wouldn’t let up. I’d only simply asked a question and words to the effect of, ‘Oh, you think you’re a big man in front of everybody, blah, blah, blah’. And I’m just standing there shaking my head while he kept rattling on.” 7
[22] After this exchange the situation deteriorated, with four distinct phases to what transpired physically:
• Mr Mitchell’s hands making contact with the table;
• Wrestling and punching;
• Falling to the floor; and
• The final punches.
Mr Mitchell’s hands making contact with the table
[23] Mr McLean recalls Mr Mitchell slamming down the cup he was holding on the kitchen bench and then moved towards the table where Mr McLean was sitting. Mr Mitchell “banged his fists on the table in front of me. I was shocked and pivoted to the right away from him and began to rise from the chair”. 8
[24] One of the disputes between the parties is whether Mr Mitchell “banged his fists” on the table in front of Mr McLean 9 or whether he “slammed his hands on the table, not his fists”.10
[25] Mr Mitchell agreed he “slammed” his hand on the table and that Mr McLean’s response was to start to get up. 11 He had done this since Mr McLean was “going and going” about the former’s allocation to the feed floor. In Mr Mitchell’s mind he had asked Mr McLean a reasonable question:
“He just kept on about it trying to throw things back at me, and I just said - I’d just had all my kids come back home through this COVID-19 staying at home, so obviously I wasn’t in the right frame of mind so I went to the desk to put my hands on the desk, so I slammed them there for him to stop.” 12
[26] His motive in going to this step was, he argued, to show that he was upset and that he had had enough:
“Do you remember why you walked across to slam your hands on the table? Yes. Yes, absolutely. So that’s to let him know that obviously I’m not a - I’m upset with him. I’ve just gone, ‘Enough, I’ve had enough’, you know, ‘You can stop now’. But he just kept going on about it, kept on and he was standing up, moving around to stand up.” 13
[27] In the context of the evidence given, the distinction between fists or hands making contact with the table is largely arid. In any event, the distinction is essentially unnecessary to resolve, with Mr McLean accepting in his cross-examination that “hands are fists” meaning basically the same thing. 14
[28] Beyond the distinction, the matter is significant inasmuch as it was likely a loud, aggressive act on Mr Mitchell’s part. Mr McLean had every right to be shocked by the event.
Wrestling and punching
[29] Mr McLean recollected that after this provocation Mr Mitchell “grabbed my shirt around the collar with both hands and with his hands thrust upwards on my lower chin pushing my head back”. 15 Mr Mitchell’s explanation on the subject was that he wanted to shirt-front Mr McLean; “[h]e wouldn’t stop. As I slammed my hand on the desk in front of him on the edge of the table where he was, he went to get up, I shirted him to shake him, to shake him to stop”.16
[30] The Nyrstar Allegations Letter, dated 7 July 2020, recorded Mr McLean as having told them that Mr Mitchell grabbed his shirt around the collar area and pushed him over the chair on which he was seated. As Mr Mitchell started to push him, Mr McLean was halfway up out of the chair. 17 The summary of what Mr McLean told the investigators did not include a reference to being bent over the table, although it notes they were told the two men had progressed down the length of the crib room table during the wrestle.18
[31] In his written statement to the Commission, Mr McLean says he grabbed Mr Mitchell’s clothing around the top of his chest in an attempt to hold him off and that “[b]y this time he had me bent over the table from the southern side. He then began to punch me”. 19 Mr McLean’s evidence is that this led to wrestling for a brief period and that the two may have been attempting to exchange blows which caused the two to work their way along the table.20
[32] Mr McLean conceded in his oral evidence he may have been throwing punches at Mr Mitchell as the two moved sideways along the table and before falling to the ground. 21 The evidence introduced an altogether different version of events to that provided to the investigators. Mr McLean was asked a question about his evidence that having begun to rise from his chair, Mr Mitchell grabbed his shirt and “with his hands thrust upwards on my lower chin pushing my head back”; how was that consistent with being approached from the side? Mr McLean responded that he was being pushed laying back over the table:
“So what I’m still struggling with is how he has grabbed you and put his hands up and under your chin and forced your head back in that as opposed to coming from the side and you both wrestling along and going to the floor?---Mostly as he’s grabbed me he was at the end of the table.
Yes?---He’s grabbed me as I’m getting up, he’s pushed while I’m sitting at the table. I’m getting up this way, and he’s pushed back, so I’m bent up over the table. I’m trying to wrestle him off. I’m laying back over the table, and we’ve wrestled the longer distance of the table before we’ve gone to ground.
You didn’t at any time suggest you ended up on the table in your explanation to Mr Daley and Ms Wade, did you?---I wasn’t on the table, but I was bent over the table.
You didn’t mention that either, did you?---I’m not 100 per cent certain if I did or not.” 22 (underlining added)
[33] The impression given from Mr McLean’s statements as summarised in the Allegations Letter; the Show Cause Letter of 14 July 2020; and the Termination Letter of 16 July 2020, is not of being bent over the table, or laying back over the table. Instead the impression is of an unprovoked attack by Mr Mitchell, certainly, but not one featured by an imbalance of strength or power. While at first Mr McLean was trying to protect his face, the two wrestled and progressed down the length of the crib room table, with both throwing punches and holding each other. 23
[34] In contrast, Mr McLean’s oral evidence is that he was semi-standing, but partially bent over the table backwards by Mr Mitchell. The impression given is that the latter was standing, using Mr McLean’s bending against the table to his physical advantage. Mr McLean’s evidence of “laying back over the table” is an appreciably different pose to mutual, but antagonistic wrestling along the boundary of a table. It implies a victim in a position of substantial weakness.
[35] Mr McLean’s evidence is that these matters caused the two to move from one end of the table to the other, and “it may have been about two to three metres before we fell”. 24 He suffered a bloody nose before he fell to the floor, leading to blood spatter near the door.25
[36] The Allegations Letter put to Mr McLean that he had told Ms Wade, the company’s HR Principal and Mr Tristen Daly, its Production Superintendent, that he was being pushed by Mr Mitchell when only half-way out of his chair; that Mr Mitchell punched him first and that his nose began to bleed only after falling to the ground and standing up and then being hit to the nose. Further, the summary set out that Mr McLean had initially said his glasses were dislodged only after falling to the ground and standing up and being hit again. The Allegations Letter summary included the following:
“• David grabbed a hold of your shirt around the collar area and pushed you over the chair you were seated on.
• As David started to push you, you were halfway up out of your chair.
• David started throwing multiple punches at you. These punches from David connected with your head and body.
• These punches from David did not connect with your face as you had your arms up in front of your face trying to protect your face, like a guard.
• You did not throw any punches towards David, you continued to hold David off with your arms on David’s chest area.
• You wrestled with David and you both ended up on the ground.
• During the wrestle, that progressed down the length of the crib room table, you were both throwing punches and holding each other off.
• There was no one else present in the crib room at this stage.
• You and David got back up from the ground and whilst getting up from the ground David still had hold of you.
• You both got back up to your feet and were standing opposite each other, you were closest to the crib room door and David was closest to the corner of the crib room.
• Once standing you both backed up and stopped for a little bit.
• After stopping David punched you and this punch connected with your nose. You were still wearing your prescription glasses and this punch knocked your glasses off your face.
• Your nose began to bleed.
• You retaliated and threw punches back at David. You threw multiple punches at David but you don’t know how many punches.
• Your punches connected with David’s face and David’s nose and lip started bleeding.” 26 (underling added)
[37] The matter of when Mr McLean’s nose began to bleed was addressed by him in cross-examination, initially putting forward a supposition on the subject, rather than a firm recollection:
“… I didn’t recall being punched in the nose earlier, but from the evidence that they provided me that - and David’s account and thinking I do recall my nose was bleeding when we went to the ground, so I had copped a blow earlier than what I actually first thought, which was my blood from the end of the white board and rolled down the length of the table.”
That’s not the account you’ve provided to Ms Wade or Mr Daley either, is it?---That’s what I’m saying now, what I do recall since what had happened. I wasn’t sure - well, I didn’t recall any punches landing, but then as time has gone on I do recall being punched in the nose early which has caused the nose to bleed, and I do recall bleeding when I’ve gone to ground.
Isn’t it the case, Mr McLean, that you’re simply adding to the original account to make your self-defence sustainable?---No.” 27
[38] As the cross-examination progressed, Mr McLean’s recollection of when his nose first began to bleed became stronger:
“And you’re both exchanging - attempting to exchange blows?---I’m trying to get him off me, yes.
So in that respect to that point where - that you finish wresting, as I understand it, you’ve both - there’s been a wrestle, you’ve both sort of got to the floor, neither of you have been able to or have landed a punch that’s caused injury; that’s the case, isn’t it?---No. My nose was actually bleeding before we’ve gone to the floor, which is what caused the blood splatter at the boards, around the end near the door.
That’s simply not true, is it, Mr McLean, because - - -?---Yes, it is.
- - -that’s not the account you’ve provided?---That’s how I recall it. At the time I didn’t recall the nose bleeding when we went to the ground. I knew when we got back up and I got hit in the nose that’s what caused the blood splatter on the wall, but I do recall having a bleeding nose when we’ve gone to the floor.” 28
[39] Mr Mitchell disputed in his oral evidence that punches were thrown by him before the two contacted the ground, giving these answers in his examination-in-chief when being asked about discrepancies in the two men’s versions of events:
“… I slammed my hands on the table in front of him and that response was him starting to get up, and I met him around the table and put my hands as - collar as he’s getting up and started shaking him and that’s when we went over the chair.
That he said that you threw punches towards him before you actually got onto the ground? -No.
He said he didn’t throw any punches before being on the ground? -Before being on the ground?
Yes? -No, he had hold of me, we’d shirted each other. So we’ve both fallen over. I’d shaken him. I grabbed him by the shirt, he’s grabbed - and so I’ve met him around. I’ve scruffed him, give him the shake to stop and we’re over the - fallen over the chair, so, no, no one could throw a punch then at all.” 29
[40] Evidence was given about a notice board, or whiteboard, being located on the southern wall of the crib room and that the table at which the altercation took place is the closest table to the board. The notice board was spattered with blood. The evidence about the notice board though does not assist in resolving whether it was more likely that Mr McLean’s blood nose occurred before or after the two men wrestled to the floor.
Falling to the floor
[41] Mr McLean recollected in his written witness statement that after moving along the table, bent up or laying back over the table, for about two to three metres, the two fell to the floor; “grabbing each other and we continued to wrestle as he attempted to continue punching me and I continued to try to get him off me”. 30
[42] Mr Mitchell described the matter of falling to the floor differently, and recollected that the cause of falling to the floor had been that his hip had locked, as well as that a right hook had connected with Mr McLean’s nose after the two had fallen to the floor:
“As I slammed my hand on the desk in front of him on the edge of the table where he was, he went to get up, I shirted him to shake him, to shake him to stop, and I’ve had a hip replacement and basically what’s happened it’s locked in and we’ve fallen over the stool together and I’ve ended up on top of him, and then we’ve had a wrestle and he’s ended up on top of me, and then basically I’ve turned around, he’s standing up at the other end of the table where it started.” 31
[43] According to Mr Mitchell, instead of him throwing the first punches, the antagonist was Mr McLean, who started punching after the two contacted the floor:
“I had him by the shirt at the start to give him a shake to say, ‘Enough. I’ve had enough’. We’ve gone over. Obviously he’s panicked thinking, you know, I’ve thrown him over, but what’s happened is we’ve gone over the chair, and he’s started throwing punches, I’ve started throwing punches but no one is hitting anyone at all because basically the close proximity everyone has got their arms either side. He’s got his arm on me, I’ve got his arms on him, and nothing is landing at all. All it really was wrestling, trying to throw punches but no punches were landing. He ended up on top of me, same event still wrestling, trying to throw punches but nothing landing at all.” 32
[44] This evidence gives the clear impression that the two were wrestling and most likely had been punching each other before they got to the end of the table; for Mr McLean’s nose to be bleeding before they fell to the floor he must have received a blow to the nose before falling to the floor.. Whether for reason of the two wrestling and punching or something else they fell to the floor and the fighting continued on the floor. This is not a circumstance in which the two were shocked by the physical event of the fall with an attempt then being made to immediately stand and release.
The final punches
[45] Mr McLean’s evidence in his written witness statement was that after standing the two continued to grapple with each other with a further punch being directed to his face by Mr Mitchell. It was that punch which caused blood to splatter:
“As we were attempting to get up I recall he still had hold of me but by the time we got to our feet he had lost grip. Once on our feet I recall being punched in the side of the nose causing blood to splatter over the notice boards and I responded by punching him in the face. In the heat of the moment I didn’t think I had any choice but to defend myself. Dave then threw two more punches but I don’t recall if they connected or not.” 33 (underlining added)
[46] Mr Mitchell’s evidence both to the investigation and to the Commission included that once they were standing again he had invited Mr McLean to “have a free hit” at him, which led to Mr McLean punching Mr Mitchell in the face multiple times. 34
[47] Mr McLean did not recall being offered to “have a free hit” or that he was the first person to respond, and doing so by punching Mr Mitchell in the face. 35 He explained in cross-examination that he did not leave the room since he felt he was still under threat; further, having got to their feet, there was no step back by Mr Mitchell who threw the next punch:
“… You said that you both got up, backed up and stopped for a bit. In the second account you’ve said that. I come back to, why didn’t you walk out of the room?---I still felt under threat. I don’t believe that I had any opportunity to get out of that room, that was right behind. So if I’d got up and ran I probably could have got out of the room, but it was something that’s happened so quickly that I didn’t really have time to think of what the options were. You both got to your feet, you both stepped back, you could have taken another step back, couldn’t you? He could have missed?---There was no real step back there. There was get to your feet, (indistinct), we got up, he’s punched me and I’ve thrown punches, then there was the step back.
He says:
We got to our feet, there was a gap between us. I said something like, ‘Take a free hit’.
Because he knew he’d done the wrong thing, and you then punched him three times and he retaliated. Are you saying that that’s just not what occurred?---Yes, that’s not what occurred. Like I don’t recall David saying anything.
Isn’t it the case that when you got to your feet the first person to land the punch was you?---No.” 36
[48] Mr McLean’s oral evidence was that this punch was to his nose, and it was thrown before he had time to react. 37 It was at this time that his nose started to bleed, with him retaliating:
“Did you think about calling out for help?---No.
When David - if your account’s accepted, when David punched you that second time, so when you’ve stood up and David’s thrown a punch towards you, glasses are knocked off your face, you say your nose began to bleed, you said you retaliated?---Yes.
Why didn’t you back away?---Well, I’d just been punched in the nose, I felt under threat.
That’s not what you described doing, you said you retaliated. You never suggested you felt that he was going to keep throwing punches at you, you said you retaliated, that was the language you used?---Okay.” 38
[49] The construct that Mr McLean’s nose began to bleed at this time is consistent with the summary of his statements to the company’s investigators, as recorded in the Allegations Letter. 39
[50] Mr Mitchell stated, repeatedly to the investigators and the Commission that he said to Mr McLean words to the effect of “[l]ook mate have a free hit”. In doing so he rationalised this was a way to mend things, being himself a country boy. He couldn’t pick himself up quickly and he was angry with himself; 40 he made the offer to restore the balance, as a form of taking responsibility for his own actions;41 and received three punches to his face for his trouble:
“And how did you go about getting up? Was that something you could do quickly or did it take you some time?---No, I’ve had my hip replaced, and when I had my hip replaced last - a couple of years ago, they damaged my lung as well, so I was breathing pretty heavy as well, so it took me a bit of time to get up. I mean, at any stage he could’ve left the room if he wanted to. But when I faced him, like I said, I could only do what I could do to try and mend something being a country boy, and I said to him, I said, ‘Have a free hit’, you know, hoping - you know, ‘Be a man, take the hit, let us both sit down and let’s not bloody lose our jobs over this’, but, no, he took the hit and he was happy with that, pretty chuffed with himself, and then he threw a couple more in on me and I sort of looked at him and I just went, ‘No, you’re not going to get another one in’, and that’s when I went with the right. I missed him with the right, and with a left hook that’s when I got him on the nose and that sat him back down at the start on the table. So he sat on the table and then bounced pretty well straight up again, and wanted to have another go at me, and I went, ‘No, enough’, well, hands out, ‘Enough’. And that’s when he sat down and started clearing his nostrils, started blowing blood everywhere.
And did your nose get injured?---My lip did and my cheek. So the three blows that he hit me with was, the first one hit me in the temple, the second one knocked me on the cheek bone on the lip, and then the third one got me in the head or the skull.” 42
[51] According to Mr Mitchell, he expected a single punch in response to his offer. When he received more than he expected, he reciprocated with further violence, stating the following in cross-examination from Mr McLean’s solicitor, Mr Pill:
“… so the chain of events once again for you, I stood up, ‘Take a free hit,’ he took the hit. As he came forward I was expecting that would be it, we would sit down, but he threw another two in straightaway so I’ve got one on the temple, the first one, the second one on the cheekbone and the lip, third one on the head. Then I wasn’t going to let him hit me again, so then I gave him a right which missed him and then a left that got him on the nose which put him back o the table - sitting on the table. Then he went to get up again off the table to have another go and that’s when I put my hands up and said, ‘Enough?’
So your evidence is that you got him a punch with your right hand. Is that right?---No, right miss, left got him.
Right miss, left got him, then he stepped back and you say it put him against the table; with his back to the table. Is that right?---No, he went - the punch - because he was avoiding the right. So he avoided the right, the left was a left hook and then that connected, and then he sat down on the table, come back.
He sat down on the table and then he came back at you?---Yes, correct.” 43
[52] No matter how odd it may seem that one grown man may say to another “[l]ook mate have a free hit” Mr Mitchell has been steadfast that he issued the invitation framed in those words. The Allegations Letter recorded that he had said that to the investigators of his conduct; 44 Mr Mitchell’s Show Cause Letter recorded that he was adamant he had said those words, and had explained the matter thus:
“You said this as you knew you had done the wrong thing, it had gone further than you thought it would and you were hoping that Shannon would take the hit and the altercation would be resolved before getting any further in trouble.” 45
[53] Mr Mitchell’s adamant explanation continued in his oral evidence, with these responses to Mr Pill for the Applicant:
“You said you fell over because you had an injury to your hip. Is that right?---I’ve had a hip replacement. That’s correct, yes.
Yes, okay. You said that you were breathing pretty hard?---Yes, both of us, but me more so.
Because you had been - - -?---I ended up with an infection in my lung through the hip replacement.
Okay?---It makes me breathe heavier.
You said you were kind of exhausted. Is that right?---Both of us, yes.
Yes, okay. Then you say that at that point you turned to him and said, ‘Have a free hit’?---Absolutely.
Now, I put it to you that that never happened?---Well, that’s wrong. That did happen. I wanted him to man up, be a man, have a hit, sit down, because being the union rep he should know that we’re both going to get sacked. So I was expecting him - take the hit, sit down both of us and get on with it, but he didn’t. He kept -- -
I will put it to you that that shows an incredible amount of composure - sorry, I put it to you that that seems like the actions of a very calm person. Wouldn’t you agree?---It’s a country boy thing. I don’t expect you to understand.
Standing back and letting someone punch you in the face, is that a country boy thing, is it?---Yes. Absolutely, yes.” 46
[54] When it was put to Mr McLean by the Nyrstar investigators there was a discrepancy in the responses they had received with Mr Mitchell having offered him to have a free hit, they recorded Mr McLean as having responded “don’t recall if David said words to the effect of ‘look mate have a free hit’ or ‘enough’ during the altercation”. This was because he did not “listen to things being said in a fight”. 47 Mr McLean’s oral evidence to the Commission maintained that he did not recall the invitation.48
[55] Mr McLean gave evidence in his witness statement that after the above, and having had two further punches directed at him by Mr Mitchell, possibly without making contact, Mr Mitchell then took stock and the heat of the fight passed:
“He then took a step back. He was puffing and short of breathe (sic) and no longer coming at me even though he was still shaped up. After a brief pause I believed the threat to my safety had now passed and I walked away towards the kitchen. As he was short of breath he did not follow or pursue me any further. I walked towards the kitchen along the southern wall past that entrance door and along the western wall to the to the Kitchen.” 49
[56] An incidental matter is that Mr McLean’s prescription glasses were knocked off his face at some time during the altercation. His recollection was that they were knocked off when he was getting up from the floor, however he was advised by Nyrstar that in the second interview with Mr Mitchell he put forward that his glasses were knocked off before going to floor. 50
After the fight had passed
[57] Mr McLean recollected that he then left the crib room to go toward the kitchen when he was seen by another employee, who spoke to him. Mr McLean was bleeding, as was Mr Mitchell. The two cleaned themselves up and shortly afterward other employees started entering the crib room in preparation for the evening’s shift. One of those was David King, the team leader who asked a question about what had happened. Noting that Mr King did not give evidence in these proceedings, Mr McLean recalls Mr Mitchell briefly responding, but did not clearly hear the response. 51
[58] Mr King separated the two and after some brief discussions directed them to the Nyrstar Fire and Watch Department. In Mr McLean’s case this was at least partly because he thought he had a broken nose. After attending the Fire and Watch Department Mr McLean was directed to attend the Calvary Hospital, where he was “cleared of any structural damage or concussion”. He then returned to Nyrstar and was stood down on pay by Mr King while an investigation was conducted into what had occurred. 52
[59] The investigation consisted of a number of steps by Nyrstar including two interviews with Mr McLean on 3 and 7 or 8 July 2020. In the meeting on 3 July 2020 Mr McLean advised Nyrstar that while Calvary Hospital assessed that he did not have a broken nose, he had sustained bruising, including two black eyes. 53 Detailed allegations were put by Nyrstar to Mr McLean on 7 July 2020, which included allegations of misconduct and that he had given inconsistent responses to his employer about what took place. The allegations indicated disciplinary action may result from Nyrstar’s consideration of the events with an indication that such action may include termination of Mr McLean’s employment.
[60] Through correspondence dated 14 July 2020, Nyrstar disclosed its investigation findings to Mr McLean and advised him that it considered disciplinary action for the termination of employment was warranted. The letter required Mr McLean to attend a meeting with Nyrstar on Wednesday, 15 July 2020 “to show cause why it should not be the disciplinary outcome”.
[61] Mr McLean attended the meeting as directed and responded to Nyrstar’s disclosed position, including putting forward alternative disciplinary outcomes through his representative. Mr McLean was dismissed the day after in a letter from Nyrstar which included the following:
“Nyrstar has carefully considered your response and the matters that you have put to both explain your actions at the time of the incident and at the meeting where you provided the reasons why you believe that your employment should not be terminated.
Nyrstar has concluded that you fundamentally breached your employment obligations. After considering the incident and the findings from the investigation, your responses to the allegations put to you and all the available information the Company has determined to terminate your employment. Further, noting the seriousness of the incident and your misconduct, Nyrstar has lost confidence and trust in you adhering to and complying with the Nyrstar Code of Business Conduct and your workplace health and safety obligations to others.
Your employment is terminated with effect from today’s date. While Nyrstar has concluded that your misconduct in this incident is sufficient to dismiss without notice, we have taken in to account your length of service with Nyrstar and your employment history and record. You will receive four weeks pay in lieu of notice as well as your accrued leave entitlements.” 54
[62] Mr Mitchell’s conduct was also investigated, and he too was dismissed for having committed serious misconduct. 55
LEGISLATION
[63] The legislative provisions relevant to this matter are set out in s.387 of the Act, which is as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the 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 the FWC considers relevant.”
[64] Determination of whether the Applicant’s dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.
[65] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way: 56
“[28]The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:
• a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced; 57
• a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour); 58
• it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal; 59
• the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss 60 (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and
• the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct).” 61 (original references)
WAS MR MCLEAN UNFAIRLY DISMISSED?
[66] A dismissal is unfair in the case of a person protected from unfair dismissal, dismissed by the employer which is not a small business employer and for reasons other than genuine redundancy, if it was harsh unjust or unreasonable, taking into account the criteria within s.387. I will deal with each of the criteria within s.387 in turn.
(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)
Valid reason – general principles
[67] To be a valid reason the reason must be “… sound, defensible or well-founded.” A reason which is “… capricious, fanciful, spiteful or prejudiced …” cannot be a valid reason. 62 The reason for termination must be defensible or justifiable on an objective analysis of the relevant facts.63 The valid reason for termination is not to be judged by legal entitlement to terminate an employee, “… but [by] the existence of a reason for the exercise of that right” related to the facts of the matter.64 Ascertainment of a valid reason involves a consideration of the overall context of the “practical sphere” of the employment relationship.65
“Capacity”
[68] Mr McLean was not dismissed for reasons of capacity, but instead because of misconduct.
“Conduct”
[69] Where an employee has been dismissed without notice (summary dismissal) for serious misconduct the Commission may find that, although there was a valid reason for the dismissal, the dismissal was harsh because summary dismissal was a disproportionate response. Where the conduct involves serious misconduct, the principle established in Briginshaw v Briginshaw 66 may be relevant. While an “elevated standard”,67 the standard of proof remains the balance of probabilities but “the nature of the issue necessarily affects the process by which reasonable satisfaction is attained” and such satisfaction “should not be produced by inexact proofs, indefinite testimony, or indirect inferences” or “by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion”.68
[70] It is not the Commission’s role to “stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court.”69 However, the Commission “must consider the entire factual matrix in determining whether an employee’s termination was for a valid reason.”70
[71] For there to be a valid reason related to the Applicant’s conduct, it must be found that the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed.71 Further, “[t]he 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. 72
[72] It has been said by the Full Bench with reference to the definition of “serious misconduct” within the Fair Work Regulations 2009 that “the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct).” 73 The Full Bench has also found there is not a “clear rule of law defining the degree of misconduct justifying summary dismissal”,74 and that it “is certainly well established that, for the purposes of s.387(a), it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).”75
[73] The Commission when determining whether there was a valid reason for dismissal, must assess whether the conduct was of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well-founded response to the conduct. 76 In its assessment of whether there was a valid reason for dismissal, the Commission is not limited to the reason relied on by the employer for dismissing the employee.
[74] In matters involving an employer’s workplace investigation, it has been observed that employers are not required to have the investigative skills of police or legal investigators, but are expected to take reasonable steps to investigate allegations, and give employees an opportunity to respond. 77
[75] In AWU-FIME v Queensland Alumina Limited Moore J when considering decisions of industrial tribunals involving employees who had been dismissed for fighting in the workplace remarked:
“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 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.” 78
[76] Mr McLean contends firmly that his part in the fight was the product of actions in self-defence. He seemingly had no alternative with Mr Mitchell being presented to the Commission as against an angry, violent and unrelenting aggressor. His opinion of the aggression of the opponent he faced and his need for self-defence is best summarised in his closing submissions:
• On the subject of Mr Mitchell’s aggression:
“Mr Mitchell’s evidence was that he was extremely angry, that he ‘lost it’ and attacked the Applicant by grabbing him by both hands on his shirt and starting to ‘shake him’. He felt his ‘blood boil’. He also gave evidence that his intention in doing this was to calm the Applicant down.” 79 (references omitted)
• On the matter of self-defence:
“Mr Mitchell initiated a physical attack on him by grabbing him around the shirt collar. The Applicant then stood up, and was bent backwards over the table as Mr Mitchell threw punches at him. The Applicant gave evidence that both parties worked their way down the table, before falling to the floor. Both parties then went to ground, and upon standing up, Mr Mitchell struck the Applicant in the face, upon which the Applicant threw further punches in self defence.” 80
And in the Applicant’s own words:
“He’s grabbed me as I’m getting up, he’s pushed while I’m sitting at the table. I’m getting up this way, and he’s pushed back, so I’m bent up over the table. I’m trying to wrestle him off. I’m laying back over the table, and we’ve wrestled the longer distance of the table before we’ve gone to ground.” 81 (underlining added)
[77] The self-defence argument appears to also include the timing of when Mr McLean sustained a blow to the nose, causing bleeding, with it being argued this was before the two fell to the ground.
[78] Taken together, Mr McLean’s narrative on these matters is that he had to defend himself by hitting Mr Mitchell. He was being wrestled along the table, trying to wrestle Mr Mitchell off him, all while bent up and laying over the table. Further, at that time before falling to the floor, he was bleeding from his nose. This, it appears, is designed to say two things – he was without an option to move away, and it was apparent he was already hurt, thus aggravating the seriousness of Mr Mitchell’s assault. Those two things are, it appears, designed to say that a return assault by Mr McLean upon Mr Mitchell was not only reasonable in the face of an unreasonable and unrelenting aggressor, but that he had no choice other than to retaliate.
[79] Further, it is argued by Mr McLean that, having stood up again, there was no pause in the fighting. Mr Mitchell did not pause in his attack with the punch that caused Mr McLean’s blood nose being thrown before he had time to react. Mr McLean retaliated, it is said, because he felt under threat.
[80] Against this view are the conclusions drawn by Nyrstar; Mr McLean was himself aggressive and had the opportunity to extract himself from the fight. Ms Wade’s evidence on the subject included the conclusion that Mr McLean’s “account that he had no other choice but to engage in a fight in the workplace was at best a selective account of what had occurred and, at worst, misleading and untruthful”. 82
[81] While Mr Mitchell had instigated the fight, Mr McLean’s participation was not entirely or sufficiently self-defence. To the extent that Mr McLean’s participation may have been provoked, such was reasonably only at the early stages of the fight, and not in the latter. Nyrstar relied on several matters in this regard; while Mr Mitchell accepted in an interview with its investigators he had initiated the altercation, 83 each man was an active participant in the latter stages of the fight. Having got up from the floor and being invited to take a free hit, Mr McLean did so, punching Mr Mitchell three times at his face and head, with him sustaining a split lip. Nyrstar submitted that Mr McLean’s version of events changed markedly in these proceedings; he had not claimed earlier that he had been injured before falling to the floor,84 and neither had he raised being bent over the table in his earlier accounts.85
[82] The substance of the differences in the evidence include whether Mr McLean or Mr Mitchell were the initial aggressor; who moved the wrestling from shirt-fronting to punching; the point at which Mr McLean’s nose began to bleed; and whether Mr Mitchell was punched in the face after offering a “free hit” to Mr McLean.
Who was the initial aggressor?
[83] Mr McLean’s statements, both to the investigators and to the Commission, use language that implies Mr Mitchell to have been the greater aggressor. Mr Mitchell’s own statements about what he did though make it unnecessary to decide which of the competing evidence on this point should be accepted. That evidence shows him being annoyed about what was being said by Mr McLean, responding by slamming his hands or fists on the table in front of Mr McLean and then grabbing his clothing. There is no question that these were highly provocative acts. In some situations that may be enough to intimidate the other party into dropping their taunts; but that was a most unlikely outcome in this case. Mr Mitchell’s own evidence was that there was some level of animus between the two; “we’ve got a bit of history both of us. We just - I guess he’s just one of those people that he just wants to pick a fight, and that’s all he’s always been like. I have avoided a fight with him when we all went out for Christmas drinks.” 86
Acting in self-defence
[84] Mr McLean responded to numerous allegations during Nyrstar’s investigation, including one that his punches had connected with Mr Mitchell’s face. Mr McLean conceded to the investigation that he had “physically assaulted David, but in self-defence” and that “he did not think there was any other option than to hit David back”. 87
[85] Therein lies the Applicant’s explanation to Nyrstar for how the confrontation moved from verbal niggling and hand-slamming to fisticuffs.
[86] Mr McLean’s self-defence argument comes through to an extent in his first statements to the Nyrstar investigators, but has moved in the course of successive retellings, including in his oral evidence. The Allegations Letter recorded him having told the investigators that Mr Mitchell started throwing punches:
“• These punches from David did not connect with your face as you had your arms up in front of your face trying to protect your face, like a guard.
• You did not throw any punches towards David, you continued to hold David off with your arms on David’s chest area.” 88
[87] He also told the investigators that “[d]uring the wrestle, that progressed down the length of the crib room table, you were both throwing punches and holding each other off”. 89 No mention was made of being bent over the table.
[88] The Allegations Letter informed Mr McLean of a number of discrepancies between the responses he and Mr Mitchell had given to the investigators. Some of those went to the subject of who was the aggressor:
“1. That prior to the altercation becoming physical your voice was raised in your communication with David Mitchell and you appeared agitated.
2. That you stood up out of your seat when David slammed his hands on the crib table in front of you and you were both standing facing each other in close proximity.
3. That you threw punches towards David some of which connected with him and prior to the physical altercation being on the ground.
4. That you did not raise your arms in a defensive or protective manner. Rather your behaviour is described as you physically attempting to hold or holding on to David while throwing punches at him, some of which connected.
5. That the punch thrown by David that struck your face and knocked your prescription glasses off your face happened prior to the physical altercation that took place between you on the ground.” 90 (underlining added)
[89] On 8 July 2020, Mr McLean was asked to respond to those indicated discrepancies. In that meeting, with his responses summarised in the 14 July 2020 Show Cause Letter, he maintained he was the victim of Mr Mitchell’s assault and that he assaulted Mr Mitchell, but in self-defence. No mention was recorded by the investigators that he had said he had been bent up or laying back over the table by Mr Mitchell (and thereby unable to escape). The Show Cause Letter advised Mr McLean that his explanation of self-defence was not accepted:
“Nyrstar has considered all of the available information and the key issues and findings are as follows:
• You engaged in conduct that constitutes serious misconduct in the workplace in the form of physical assault of another worker; and
• Your explanation that you were acting in self-defence is not accepted; and
• Your conduct resulted in injury to another worker; and
• We do not accept that you have provided an honest account around what has occurred - in that your actions occurred in self-defense in that you had no other choice but to engage in a fight in the workplace - this account is at best selective and at worst, misleading and untruthful.” 91
[90] Mr McLean continued to maintain he had acted in self-defence in the meeting on 15 July 2020, immediately before his dismissal, however that did not persuade Nyrstar. The Termination Letter dated 16 July 2020 summarised certain things mentioned in the meeting by Mr McLean, however those matters do not extend to being “forced” into self-defence by not having any means of escape.
[91] The photographs taken by the Fire and Watch Department do not greatly assist resolution of any of these matters. They were taken after the men had cleaned themselves up, and in Mr Mitchell’s case, several days after the event. Some bruising and swelling appears evident in the case of each man, however that which may be seen does not compellingly suggest one was more the aggressor than the other.
[92] As referred to earlier, it is necessary to determine whether the conduct alleged against Mr McLean actually occurred and if so, whether it amounted to a valid reason for dismissal. 92
[93] As the first key step in this determination, I am satisfied the following findings may be made from the evidence before the Commission:
• That Mr Mitchell initiated the aggression.
• Both Mr McLean and Mr Mitchell were most likely attempting to punch each other before falling to the ground. Mr McLean’s mention to the investigators of when he threw punches is within the context of a wrestle on the floor. Mr McLean’s witness statement does not directly mention him punching or attempting to punch before falling to the ground, but conceded that at the time the two “may have been attempting to exchange blows”. 93 Mr McLean conceded in his oral evidence that as the two progressed down the length of the crib table both were throwing punches, with Mr McLean trying to hold off Mr Mitchell.94 For his part, Mr Mitchell is reported as having stated to the investigators on 3 July 2020 that before falling to the ground “each grabbed the other and threw multiple punches towards each other but the punches were not connecting with the other person”.95
• Mr McLean’s evidence about the sequence of events in which he and Mr Mitchell moved along the table included Mr McLean being “bent up over the table” or being pushed “laying back over the table” is likely an embellishment on the part of Mr McLean. The evidence is inconsistent with his earlier statements to Nyrstar investigators and is likely an endeavour to persuade the Commission that he was, from that point at least, somehow a passive participant in the fight, thereby assisting his claim of self-defence.
• I also do not accept that Mr McLean’s nose was bleeding before falling to the ground. His evidence on these matters is not consistent with his earlier statements on the subject. It also appears to be an endeavour to persuade the Commission that he was a passive participant in the fight, at least from the time his nose began to bleed, also for the purposes of assisting his claim of self-defence.
• Mr McLean lost his glasses either when he stood up after being on the floor or shortly afterward when punched by Mr Mitchell. Neither circumstance leads to an adverse finding be made against Mr McLean on the subject at least.
[94] Mr McLean’s relevant conduct therefore includes that he was wrestling and attempting to punch Mr Mitchell before falling to the floor. Not all of that conduct can be attributed to being set upon by an aggressor. The conduct includes Mr McLean’s participation in the wrestling and attempted punching which continued as the two moved along the table and then fell to the ground. It also includes Mr McLean’s active participation in what happened after the two stood up.
[95] I am satisfied that Mr Mitchell said words to the effect of “take a free hit”. Odd though that invitation may be, it has been Mr Mitchell’s consistent case that he said those words. Mr McLean does not deny that they were said, just that he does not recall hearing them. Whether or not the words were spoken is not relevant to my findings; if they were spoken, it would hardly justify Mr McLean taking a swing and hitting Mr Mitchell; such would be in itself a dangerous act with serious and imminent risk to the health or safety of a person.
[96] Finally, in relation to Mr McLean’s conduct, I am satisfied that after standing up he viciously punched Mr Mitchell, three times.
[97] I am also satisfied on the evidence that Mr McLean shifting responses to Nyrstar and the Commission demonstrates a lack of candour as to what happened; how the fight moved from its initial to final stages; and Mr McLean’s full participation in the fight. He may have been provoked; however his participation went a long way beyond self-defence.
[98] When considering whether a dismissal 96 was a fair dismissal under the Act, I must also consider whether the conduct alleged was serious misconduct. Serious misconduct is attributed a meaning under regulation 1.07 of the Fair Work Regulations 2009 which provides:
“Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.” 97
[99] I find that each of these elements of established conduct is misconduct and is together serious misconduct. Each element had the potential for serious harm to be caused to Mr Mitchell and had the potential to provoke him further.
[100] The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 98:
“[35]... as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a “valid reason”should not impose a severe barrier to the right of an employer to dismiss an employee.
[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”
[101] The established conduct outlined above was contrary to Nyrstar’s policies and had the potential to irreparably damage the relationship between two trusted employees. Mr McLean was bound to comply with the company policies but did not. He had an obligation to be candid to his employer about what took place, but was not candid. Given his conduct, I am satisfied there was a valid reason to dismiss him.
[102] Mr McLean’s self-defence argument is not well made out, and I find it hard to accept both within the context of the evidence given. The fight involved two middle-aged men each apparently some way from the peak fitness of youth. No weapons were involved other than fists. Mr McLean’s argument that offence was the only available self-defence disregards that turning around and leaving the room was clearly an option.
[103] Because Mr McLean’s conduct was serious misconduct, I am satisfied that when Nyrstar dismissed Mr McLean it had a valid reason for doing so, being a “sound, defensible or well founded” reason within the overall context of the employment relationship.
(b) whether the person was notified of that reason
[104] The evidence is that Mr McLean was notified of his dismissal through a letter from Nyrstar dated 16 July 2020. The letter comprehensively set out the reasons for his termination, set out above, recording that because of the fight Nyrstar believed Mr McLean had fundamentally breached his employment obligations and that it no longer had confidence and trust in him adhering to and complying either with the Nyrstar Code of Business Conduct or his workplace health and safety obligations to others. 99
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[105] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal there needs to be a finding that there is a valid reason for dismissal. 100 While so, it is also accepted that “an opportunity to respond” amounts to an opportunity to provide reasoning to a decision maker that would, all things being equal, allow a reasoned explanation to cause the decision maker to accept what is proffered and to change from their foreshadowed path.101
[106] A provision in predecessor legislation requiring there not be dismissal until “the employee has been given an opportunity to defend himself or herself against the allegations made” has been held to be a requirement not needing any particular formality, being “intended to be applied in a practical, common sense way so as to ensure that the affected employee is treated fairly. 102 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section”.103
[107] Mr McLean’s closing submissions included the proposition that his responses to Nyrstar were rejected and the responses of Mr Mitchell were preferred instead. Further it was argued that Nyrstar had plainly predetermined to dismiss Mr McLean and then ensure that the investigation supported that outcome. The fact that Mr McLean supposes this to be the situation is not analogous with it being established in evidence before the Commission. The submission is rejected. Instead of the characterisation put forward by Mr McLean, the evidence allows the finding that Nyrstar carefully put to Mr McLean as well as Mr Mitchell its grave concern about the situation that most obviously had taken place – fighting in the workplace – and sought to obtain an explanation not only from the direct protagonists but also others who may have been nearby. Nyrstar then discussed with each man its preliminary observations and invited them to respond. After it received responses the Respondent pointed out to each where there were discrepancies. And later after receiving further responses Nyrstar advised Mr McLean it did not accept his argument of self-defence and put him on notice that it considered a significant disciplinary action was warranted and foreshadowed to him that it considered the appropriate outcome was termination of his employment. Those steps do not indicate that there was a lack of preparedness to outline to Mr McLean the case against him or to consider his response. Far more is required in the way of evidence to establish a lack of preparedness to consider his response than to merely say that such was the case.
[108] I am satisfied from the evidence Mr McLean was given multiple opportunities to explain his situation and to respond to the allegations made against him as well as to put forward alternatives to dismissal for Nyrstar’s consideration.
(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
[109] There was no unreasonable refusal by Nyrstar to allow Mr McLean to have a support person present to assist at any discussions relating to his dismissal. To the contrary, the evidence includes that he was able to bring with him an appropriate representative from his union. 104
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[110] Mr McLean was not dismissed for reason of unsatisfactory work performance. Accordingly, consideration of this criterion is a neutral factor in my decision.
(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
[111] There is no evidence before the Commission that the size of the employer’s enterprise impacted on the procedures it followed in effecting Mr McLean’s dismissal. Consideration of this criterion is therefore a neutral factor in my decision.
(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
[112] There is no evidence before the Commission that there may have been an absence of dedicated human resource management specialists or expertise in Nyrstar. To the contrary the Respondent appears to have been assisted in its decision-making through its internal human resource management specialists. Consideration of this criterion is a neutral factor in my decision.
(h) any other matters that the FWC considers relevant
[113] Mr McLean submitted to the Commission that a number of factors should lead to a finding by the Commission that termination of his employment was harsh.
[114] In this regard he points to the absence of any previous disciplinary action which may lead to a finding that termination was disproportionate to the relevant conduct. Mr McLean also argues that his family circumstances should lead to a finding that dismissal was harsh. In that regard he has a young daughter with his former wife, with whom he would coordinate work rosters so that they could provide care for their daughter on their respective days off. Termination of Mr McLean’s employment would also diminish his ability to make child support payments to his former wife whose own financial commitments would mean that she would have to work additional shifts to cover her loss of income.
[115] It is also to be noted that Mr McLean worked for Nyrstar for more than 18 years.
[116] The matters put forward by Mr McLean of family and length of service are clearly important considerations to him and in some cases may assist an applicant for unfair dismissal remedy. However, in this case they do not steer toward a finding that dismissal was a disproportionate response by Nyrstar. This is chiefly because of several factors; Mr Mclean was an active participant in the fight beyond the provocation and initial stages and his final assault on Mr Mitchell was vicious. Further, he was not candid to Nyrstar about his participation in the fight, or that he could have extracted himself at an earlier opportunity. Had those factors not been demonstrated – perhaps in a scenario in which his participation was much less, more closely aligned with self-defence and not featured by aggressive assault, and in which his participation was admitted at the earliest possible time – it may be that dismissal could be seen as a disproportionate response. In this case though, the matters submitted by Mr McLean are not persuasive.
[117] I do not consider there to be any further matters requiring consideration under s.387(h).
Conclusion on the s.387 criteria
[118] After considering each of the criteria within s.387, I am satisfied that there was a valid reason for Nyrstar’s dismissal of Mr McLean and that there were no substantial procedural defects or other matters which would cause me to find that notwithstanding there being a valid reason for his dismissal the dismissal was otherwise unfair.
[119] As a result, I am unable to find that Mr McLean was unfairly dismissed.
[120] The application for unfair dismissal made by Mr McLean is dismissed and an order to that effect is issued at the same time as this decision.
COMMISSIONER
Appearances:
Mr H. Pill for the Applicant
Ms. S. Zeitz for the Respondent
Hearing details:
2020
Melbourne (via video conference);
14 October.
Final written submissions:
Applicant’s Closing Submissions 30 October 2020;
Respondent’s Closing Submissions 6 November 2020;
Applicant’s Closing Submissions in Reply 13 November 2020.
Printed by authority of the Commonwealth Government Printer
<PR725042>
1 Transcript, PN 62 – 63; 847 – 851.
2 Exhibit A1, Witness Statement of Shannon McLean, 8 September 2020, [6].
3 Exhibit R1, Witness Statement of Rebecca Wade, 29 September 2020, [12] – [13].
4 Exhibit A1, [30].
5 Ibid, [32].
6 Ibid, [33] – [34].
7 Transcript, PN 720.
8 Exhibit A1, [37].
9 Ibid.
10 Transcript, PN 206.
11 Ibid, PN 740.
12 Ibid, PN 718.
13 Ibid, PN 721.
14 Ibid, PN 206 – 207.
15 Exhibit A1, [37].
16 Transcript, PN 718.
17 Exhibit R1, Attachment RW – 10.
18 Ibid
19 Exhibit A1, [38].
20 Ibid.
21 Transcript, PN 164 – 165.
22 Ibid, PN 166 – 169.
23 Exhibit R1, Attachment RW – 10.
24 Transcript, PN 231.
25 Ibid, PN 232 – 235.
26 Exhibit R1, Attachment RW – 10.
27 Transcript, PN 174 – 176.
28 Ibid, PN 232 – 235.
29 Ibid, PN 740 – 743.
30 Exhibit A1, [38].
31 Transcript, PN 718.
32 Ibid, PN 723.
33 Exhibit A1, [39].
34 Exhibit R1, RW – 10.
35 Transcript, PN 317 – 321.
36 Ibid, PN 315 – 321.
37 Ibid, PN 322 – 323.
38 Ibid, PN 328 – 331.
39 Exhibit R1, Attachment RW – 10.
40 Transcript, PN 838.
41 Ibid, PN 846.
42 Ibid, PN 726 – 727.
43 Ibid, PN 864 – 867.
44 Exhibit R1, Attachments RW -10; RW – 12.
45 Exhibit R1, Attachment RW – 14.
46 Transcript, PN 820 – 828.
47 Exhibit R1, Attachment RW – 13.
48 Transcript, PN 123, 320.
49 Exhibit A1, [39].
50 Ibid, [39].
51 Ibid, [42].
52 Ibid, [48] – [49].
53 Exhibit R1, [14].
54 Exhibit R1, Attachment RW – 15.
55 Ibid, [37].
56 Titan Plant Hire Pty Ltd v Shaun Van Malsen[2016] FWCFB 5520.
57 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
58 Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6] - [7].
59 Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9] - [10].
60 Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].
61 Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22] - [23].
62 Selvachandran v Peteron Plastics (1995) 62 IR 371 at 373.
63 Robe v Burwood Mitsubishi [Print R4471].
64 Miller v UNSW [2003] FCAFC 180 per Gray J at [13].
65 Selvachandran v Peteron Plastics (1995) 62 IR 371 at 373.
66 [1938] HCA 34; (1938) 60 CLR 336.
67 Wong v Taitung Australia Pty Ltd[2017] FWCFB 990 at [11].
68 [1938] HCA 34; (1938) 60 CLR 336 at 350, 363.
69 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir[2016] FWCFB 4185 at [46] citing Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.
70 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir[2016] FWCFB 4185 at [46] citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 413.
71 Edwards v Giudice [1999] FCA 1836 at [7].
72 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) at [23] - [24].
73 Titan Plant Hire Pty Ltd v Malsen[2016] FWCFB 5520 at [28].
74 Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [36].
75 Ibid, [32].
76 Bista v Glad Group Pty Ltd[2016] FWC 3009.
77 AWU-FIME v QLD Alumina Limited [1995] IRCA 346; (1995) 62 IR 385 at 391.
78 Ibid.
79 Applicant’s Closing Submissions, 30 October 2020, [12]
80 Ibid, [10].
81 Transcript, PN 166 – 169.
82 Exhibit R1, [27].
83 Ibid, Attachment RW – 4.
84 Respondent’s Closing Submissions, 6 November 2020, 3(k)(ii); 6(b).
85 Ibid, 3(k)(iii).
86 Transcript, PN 729.
87 Exhibit R1, Attachment RW – 13.
88 Exhibit R1, Attachment RW – 10.
89 Ibid.
90 Exhibit R1, Attachment RW – 10.
91 Exhibit R1, Attachment RW – 13.
92 King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019.
93 Exhibit A1, [38].
94 Transcript, PN 163 – 165.
95 Exhibit R1, Attachment 12.
96 Nyrstar concluded the incident was sufficient to dismiss without notice, they took into account the length of Mr McLean’s employment and his employment history and record and provided four weeks’ pay in lieu of notice.
97 See Fair Work Act 2009, s.12 Dictionary “serious misconduct” has the meaning prescribed by the regulations.
98 [2013] FWCFB 6191.
99 Exhibit R1, Attachment RW – 15.
100 Chubb Security Australia Pty Ltd v Thomas (2000), unreported, AIRCFB, Print S2679 at [41].
101 Wadey v YMCA Canberra [1996] IRCA 568 cited in Dover-Ray v Real Insurance Pty Ltd[2010] FWA 8544; (2010) 204 IR 399 at [85].
102 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1; [2010] FWAFB 1200 at [26] citing Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1 at 7 (Wilcox CJ).
103 Gibson v Bosmac Pty Ltd [1995] IRCA 222 (5 May 1995); (1995) 60 IR 1 at 7 (Wilcox CJ).
104 Exhibit R1, [17], [22].
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