Sidney Savage v Visy Board Pty Ltd
[2013] FWC 290
•7 FEBRUARY 2013
[2013] FWC 290 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sidney Savage
v
Visy Board Pty Ltd
(U2012/9644)
COMMISSIONER LEWIN | MELBOURNE, 7 FEBRUARY 2013 |
Termination of employment - serious and wilful misconduct - verbal and physical altercation - no provocation or exculpation - previous conduct - valid reason - procedural fairness - personal circumstances and economic situation of the applicant - termination not harsh, unjust or unreasonable.
Introduction
[1] This decision concerns the termination of the employment of Mr Sidney Savage by Visy Board Pty Ltd (Visy). Mr Savage has made an application under section 394 of the Fair Work Act 2009 (the Act) for relief in relation to the termination of his employment, alleging that he was unfairly dismissed.
[2] Mr Savage was employed by Visy from 27 November 1996 to 27 August 2012. At the time the employment was terminated Mr Savage was employed as a fork lift driver in the despatch area of Visy’s Dandenong plant. The work involved loading pallets of the company’s products onto the trailers of trucks for transportation to customers. There is no issue that Visy took the initiative to terminate Mr Savage’s employment.
[3] The application was heard in Melbourne on 14 and 15 January 2013. Mr B Terzic, an employee of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (AMWU), Represented Mr Savage. Mr A Farr, a lawyer, represented Visy with the permission of the Tribunal. Mr Terzic is legally qualified and made no objection to the permission for Visy to be represented by a lawyer.
[4] There was no dispute that Mr Savage was a person protected from unfair dismissal at the time of the termination of his employment.
[5] The following persons filed witness statements in response to directions from the Tribunal and with the exception of Mr Golding gave viva voce evidence. Mr Golding’s statement was tendered without objection and he was not required for cross examination.
Mr Sidney Savage - Forklift Driver
Mr Michael Bull - Union Official, “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
Mr Steven Terray - Supervisor, Visy Board Pty Ltd
Mr Glynn Cook - Forklift Driver, Visy Board Pty Ltd
Mr Francois Pedreira - Dispatch Supervisor, Visy Board Pty Ltd
Mr Tim Husen - Dispatch Supervisor, Visy Board Pty Ltd
Mr Gabor Szabl - Forklift Driver, Visy Board Pty Ltd
Mr Robert Gajdek - Distribution Manager, Visy Board Pty Ltd
Mr Fazzil Noureddine - Operations Manager, Visy Board Pty Ltd
Mr Michael Golding - Factory Manager, Visy Board Pty Ltd
[6] After the conclusion of the hearing Mr Farr and Mr Terzic both filed written submissions on 21 January and 22 January 2013 respectively.
[7] Mr Savage was dismissed primarily by reason of an event which occurred on 16 August 2012. The event involved an interaction between Mr Savage and Mr Cook. Mr Cook made a complaint to Visy about Mr Savage’s conduct in that interaction. Visy decided that Mr Savage’s conduct in that incident was serious and wilful misconduct and terminated his employment. The content of the letter terminating Mr Savage’s employment is set out below:
“Dear Sid,
This is to advise that your recent action’s on August 16th 2012 constitutes a breach of company policy.
As you are aware we have conducted an investigation in relation to a complaint into your conduct at work on August 16th 2012.
Having considered all of the available information I write this letter to you as written confirmation of your employment termination based on gross misconduct. Your conduct is totally unsatisfactory and will not be tolerated by the company
Whilst we have concluded that your conduct is such that the company is entitled to terminate your employment summarily and with no notice, we have, however, decided to pay you in lieu of notice in accordance with the terms of your contract.
Therefore, you are hereby notified that as from 27th August 2012 your employment with the company is terminated with four (4) weeks pay in lieu of notice.
Fazzil Noureddine
Operations Manager”
[8] It is submitted on Mr Savage’s behalf that the interaction between Mr Savage and Mr Cook on 16 August 2012 was much less serious than Visy would have it and that the termination of Mr Savage’s employment in all the circumstances should be judged to be harsh.
Statutory Provisions
[9] For a dismissal of an employee from their employment to have been unfair the Tribunal must have be satisfied the termination was harsh, unjust or unreasonable.
[10] In arriving at its determination of whether it is so satisfied the Tribunal must take into account matters set out in s. 387 of the Act. Those matters are as set out below:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
Valid reason
[11] In order to determine whether or not there was a valid reason for the termination of Mr Savage’s employment it will be necessary to make a number of findings in relation to contested issues of fact. There are aspects of the interaction on 16 August 2012 and other incidents of Mr Savage’s conduct during his employment which are the subject of conflicting evidence.
[12] Before proceeding to deal with those matters it is useful to note certain features of the evidence overall. It will have been noted that three witnesses gave evidence who were called by Mr Terzic in support of Mr Savage’s case. Mr Savage gave evidence first, Mr Bull second and Mr Terray third.
[13] On my consideration of the evidence of Mr Bull he is unable to testify directly to any matters of fact concerning Mr Savage’s conduct on 16 August 2012 or at other times during Mr Savage’s employment at Visy.
[14] Mr Terray gave evidence of his observation of the event of 16 August. Mr Terray did not visually observe any physical dimension of the interaction between Mr Savage and Mr Cook on that day, which is of critical importance to the validity of the reason for the termination of Mr Savage’s employment. Moreover, while Mr Terray was within hearing of the verbal interaction between Mr Savage and Mr Cook, his evidence does not describe what was said by Mr Savage or Mr Cook or, in any meaningful way, how it was said by either Mr Savage or Mr Cook. Overall, at the most, I find Mr Terray’s evidence of extremely limited utility for the purpose of determining the factual issues concerning that interaction.
[15] Further, Mr Terray worked on afternoon shift. Mr Savage and Mr Cook worked on day shift. Mr Terray stated that he was unable to give evidence concerning the working relationship between Mr Savage and Mr Cook because he did not work with them due to the different shifts of work they performed. Mr Terray’s evidence is also of no utility in relation to any issues concerning specific incidents of Mr Savage’s conduct at work prior to 16 August 2012.
[16] As a consequence of the above the fundamental conflict in the evidence is Mr Savage’s denial in whole or in part of assertions of fact in the evidence of various of the witnesses called by Mr Farr in support of Visy’s case concerning events on 16 August 2012 and other incidents of his conduct over the time of his employment. In particular, denial of critical aspects of Mr Cook’s evidence of the events on 16 August 2012.
[17] It is appropriate to note at this point that the decision to terminate Mr Savage’s employment was primarily based on the events of 16 August 2012. However, the evidence refers to other aspects of Mr Savage’s previous conduct at work which I will refer to in due course.
16 August 2012
[18] I will deal first with the events of 16 August 2012. For my purposes the period of time during that day when the reason for the termination of Mr Savage’s employment in relation to the interaction with Mr Cook arose is between 3.20 pm and a period sometime after 3.30 pm. I will divide my consideration between 3.20 pm and 3.30 pm and the period thereafter.
[19] The day shift arrangements in the despatch area for Mr Savage and Mr Cook and other employees is for a shift finishing at 1.30 pm after which overtime may be required of employees, depending upon the work to be completed, up until 4.30 pm. It is possible for employees in the despatch area to finish work earlier that 4.30 pm with the permission of their supervisor. A 3.30 pm finish is within this arrangement. On 16 August the work was such that Mr Savage and Mr Cook both elected to finish at 3.30 pm and had the permission of their supervisor to do so. Ten minutes before the finishing of a shift of work is allowed for employees to wash and to prepare for departure from the plant. Mr Savage and Mr Cook proceeded to the relevant area where, among other things, their lockers, the toilets and the time clock are located. The interaction which took place between them occurred in this area.
[20] Mr Savage’s and Mr Cook’s lockers are in a section of lockers situated in a row in what is appropriately described as a corridor and to which I will refer to as the locker corridor.
[21] This area is adjacent to the toilets, the time clock, and some administration offices, in which some of the witnesses who gave evidence were present between 3.20 pm and 3.30 pm on 16 August 2012.
[22] The interaction between Mr Savage and Mr Cook can be divided into two dimensions for the purposes of analysis. There was a verbal and a physical dimension to the interaction.
[23] I will commence with the verbal dimension. In this regard, on the evidence before me, I find that Mr Savage verbally abused Mr Cook aggressively for between five and ten minutes between 3.20 pm and 3.30 pm in the locker corridor and in the area adjacent to the time clock. I find that this abuse did not arise from provocation on Mr Cook’s part but was initiated by Mr Savage for what I consider to be a most peculiar reason, to which I shall return later.
[24] In the course of this abuse Mr Savage made aggressive, expletive and personally demeaning remarks about Mr Cook and his level of and propensity to care for members of his family.
[25] I now turn to the physical dimension of the interaction.
[26] As Mr Terzic put it “some physical contact is admitted” 1. It was submitted that physical contact was initiated by Mr Cook passing or attempting to pass Mr Savage who was standing in front of his locker in the locker corridor.
[27] I find that prior to the physical contact between Mr Savage and Mr Cook Mr Savage had been verbally abusing Mr Cook for the reason to which I will return and is alluded to in the following passage from Mr Cook’s witness statement 2:
“Thursday 16 August
16. On Thursday, 16 August 2012, I asked my manager Tim Husen (Tim) whether 1 could clock off early to go pick up my grand children from school. My son’s car had broken down and he had asked whether I could pick up the kids.
17. We weren’t particularly busy that afternoon so Tim said he was happy for me to leave early.
18. I parked my forklift and walked into the locker area to wash up and put my stuff away.
19. As I walked past the coke machine and into the locker area. Sid was walking out of the toilet. The second he saw me he looked instantly furious. He said words to the effect of:
You fucking copy cat. You are finishing Now! You are copying me!
20. Ithought that this was such a bizarre and childish thing to say. I was leaving early in order to pick up my grandchildren from school. My son’s car had broken down and he needed me to pick up the kids.
21. I told Sid to settle down and that I don’t have to ask his permission to pick up my grandchildren.
22. Sid then walked out of the toilets and to his locker. I entered the toilets so I could wash my hands. I then returned to the locker area so I could put my gloves and clipboard in my locker and leave.
23. Sid kept yelling at me things like:
‘You fucking copy cat! You are leaving at the same time as me.’
24. I told him to calm down and that he was acting like he was in a kindergarten.
25. I then said ‘excuse me’ as I attempted to walk past him to go to my locker. The corridor that our lockers are located in is not a wide corridor. People are able to walk past others while they are accessing their lockers however this requires some courtesy. Sid moved his body so that he was standing directly in the middle of the corridor between the wall and the locker, blocking my way. He then shouted at me:
“You can fucking go around!”
26. I told Sid I would like to go to my locker and put my things away.”
[28] I accept this evidence. To the extent it conflicts with the evidence of Mr Savage I reject that evidence. I find that Mr Cook’s evidence is broadly corroborated by the evidence of Mr Pedreira.
[29] Mr Cook then sought to pass Mr Savage in the locker corridor. There is some debate over whether it is possible for two persons to pass in the corridor and if so in what circumstances.
[30] On the evidence before me, I find that it is possible for two people, who behave co-operatively, to pass one another without the need for physical contact or with minimal incidental contact.
[31] Mr Cook said he sought to pass Mr Savage politely. I accept this evidence. I find that had Mr Savage agreeably co-operated with this request, more probably than not, it would have been possible for Mr Cook to pass Mr Savage without physical contact or at the most with minimal incidental contact.
[32] However, I find that, on the contrary, Mr Savage in a hostile and deliberate manner stood in an obstructive position in the locker corridor.
[33] I find that this made it difficult if not impossible for Mr Cook to pass Mr Savage in order to reach his locker prior to clocking off for the day without physical contact. When Mr Cook sought to pass Mr Savage he did so passively.
[34] When Mr Savage was giving his viva voce evidence he made a physical demonstration of the physical contact he says occurred when Mr Cook attempted to pass him. That demonstration included the raising of his left arm to chest height, the horizontal cocking of his elbow and a rapid forceful twist of his torso to the left while seated in the witness box. It should be noted however that during the event on 16 August 2012 and when executing this action Mr Savage would have been standing.
[35] Consequently, the contentious aspect of the physical contact is whether Mr Savage turned and pushed Mr Cook. I have found that he did because I prefer the evidence of Mr Cook and Mr Pedreira, the latter of whom observed the event and gave evidence accordingly.
[36] I find that when Mr Cook attempted to pass him Mr Savage quickly and sharply turned his body to the left with his elbow raised which more probably than not struck Mr Cook in the body, continued to turn as Mr Cook moved backwards behind Mr Savage and pushed him against the wall.
[37] I find that Mr Cook absorbed the contact from Mr Savage’s elbow and the push, did not respond in any way and proceeded to his locker. Mr Savage nevertheless continued to abuse Mr Cook verbally using obscene language.
[38] I find that after Mr Cook clocked off at 3.30 pm and proceeded to the car park Mr Savage continued to verbally abuse him and behave aggressively, including circumstances in which he drove his car towards Mr Cook’s car.
[39] It is now appropriate to refer to the reason for this conduct on Mr Savage’s part. However, before doing so I will refer to certain authoritative principles referred to by Mr Terzic in relation to the proper consideration by the Commission of circumstances where employees are involved in physical altercations in the workplace.
[40] The authority referred to is an extract from a decision of the Australian Industrial Relations Commission in the case of Tenix Defence Systems Pty Ltd v Fearnley 3, included in Applicant’s submissions in reply4 as follows:
“An assessment of the Applicants behaviour, other factors and “valid reason” considerations
14. At some juncture in proceedings FWA will need to decide whether there was a “valid reason’ to terminate the applicant. In this regard a broad inquiry is required. In respect of the physical contact between the applicant and Mr Cook, this extract from Tenix Defence Systems Pty Ltd v Fearnley (2000) Print S6238 per Ross VP, Polites SDP and Smith C is apposite:
[22] Before dealing with each of these submissions we wish to make some brief observations on the approach taken by industrial tribunals when fighting or an assault has been established. 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.”11
[23] 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.”12
[24] The above passages were cited with approval by a Full Bench of the Commission in Mobil Oil v Giuffrida.13 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.”14
[25] 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.”
[41] Mr Savage gave evidence that he had arrived at a state of mind that Mr Cook was acting in a copycat way on 16 August by finishing work at 3.30 pm as he himself did. Indeed, it seems Mr Savage had formed the view that Mr Cook was a “copycat” prior to 16 August for reasons which I found unconvincing, if not mysterious.
[42] When one reflects on this explanation it is impossible to identify any form of provocation for the obscene verbal abuse of Mr Cook and the physical contact composed of a sharp elbow in the ribs and the push against the wall on 16 August 2012. Moreover, there was no physical retaliation by Mr Cook.
[43] In examining and having regard to all of the circumstances in which the physical altercation between Mr Savage and Mr Cook took place on 16 August 2012 I can find no rational explanation let alone any matters of exculpation for that conduct.
[44] All of the behaviour of Mr Savage on 16 August 2012 taken separately or together is unacceptable in the workplace, in my judgement. Moreover, the surrounding circumstances do not mitigate the behaviour in any way.
[45] The nature and extent of the verbal abuse of Mr Cook by Mr Savage during the event alone, in my judgement, would constitute a valid reason for the termination of Mr Savage’s employment. It was plainly bullying and harassing behaviour.
[46] Even without that verbal abuse the action of Mr Savage elbowing Mr Cook as demonstrated to me in the witness box would constitute an unprovoked physical assault upon Mr Cook and be a valid reason itself for the termination of Mr Savage’s employment, even if I had found that Mr Savage did not push Mr Cook.
[47] The question of whether or not there is a valid reason for the termination of an employee’s employment, as posed in the relevant statutory provisions, includes consideration of the effect of an employee’s conduct on the safety and welfare of other employees.
[48] I find that Mr Savage’s conduct in all the circumstances to be deeply perplexing. For Mr Savage to conduct himself in the manner he did for no other reason than that Mr Cook chose to finish work at the same time gives rise to reasonable concern about the safety and welfare of other employees in Mr Savage’s presence.
[49] The unfathomable relationship between the cause and the consequences of Mr Savage’s thoughts and actions on 16 August 2012 cannot be considered as anything other than an indication of a risk of a potential physical threat to the safety and welfare of other employees, without rational explanation.
[50] As observed previously, there were other matters of conduct in the history of Mr Savage’s employment history brought into evidence. There was conflict in the evidence about these matters. However, I find that Mr Savage on one occasion refused an instruction from his supervisor to dismount from his forklift. The forklift was stationary. There was no good reason why the supervisor’s direction could not or should not have been complied with. I find that Mr Savage refused to do so and that Mr Savage then deliberately decided to drive around the dispatch area, with no purpose or direction, constituting a hazardous risk to the safety of other employees. It is true to say that Mr Savage made a spectacle of himself at that time, which lead to various persons, including a manager, a union delegate and finally the Dandenong plant manager himself all having to intervene until Mr Savage finally ceased this inexplicable conduct.
[51] Mr Husen’s evidence was that he observed and experienced aggressive behaviour and that he had privately counselled Mr Savage about this as a friend5,6. Mr Savage seems oblivious to the expectation that conduct at work must be constrained within reasonable bounds.
[52] In addition I find that Mr Savage grabbed a fellow worker, Mr Szabl, by the arms and shook him while verbally abusing him. This conduct also constituted a risk to the safety and welfare of another Visy employee.
[53] I therefore further consider that the conduct of Mr Savage on 16 August 2012 particularly in light of previous conduct of a nature which posed a threat to the safety and welfare of other employees constitutes a valid reason for the termination of Mr Savage’s employment.
Notice
[54] It was conceded by Mr Terzic that Mr Savage was notified of the reason which led to the termination of his employment prior to Visy’s decision to dismiss him. The evidence is clear and incontrovertible that this is so and I find accordingly.
Opportunity to respond
[55] Mr Terzic also conceded that Mr Savage was provided with an opportunity to respond to the reason for the termination of his employment prior to the decision to do so being made. As with the question of notice the evidence is clear and incontrovertible that this was so and I find accordingly.
Support person
[56] Mr Savage was assisted by Mr Bull, an organiser of the AMWU in discussions in relation to the dismissal. There was no refusal of such assistance by Visy.
Performance/warnings
[57] The dismissal did not relate to unsatisfactory performance but rather to Mr Savage’s conduct.
Size of the employer
[58] Visy is a large employer. This did not impact in any negative way for Mr Savage on the procedures followed in effecting the dismissal. Rather, the procedures followed by Visy afforded procedural fairness to Mr Savage, which was conceded by Mr Terzic.
Human Resources Management
[59] There was no impact on the procedures followed by Visy in effecting the dismissal of Mr Savage caused by any absence of human resource management specialists or expertise. As above, Mr Terzic conceded that Mr Savage was afforded procedural fairness in the course of Visy arriving at the decision to terminate his employment. On the evidence, I judge that the procedures followed by Visy in effecting the dismissal were consistent with good human resource management practice.
Other relevant matters
[60] I consider all of the following to be relevant to my consideration of whether the termination of Mr Savage’s employment was harsh, unjust or unreasonable:
- warnings and verbal counselling; both formal and informal Mr Savage had received prior to the 16 August 2012
- Mr Savage’s long employment and generally satisfactory performance of his duties as a fork lift driver
- the effects of the termination on Mr Savage’s personal circumstances and economic situation
- the procedures followed in effecting the termination of Mr Savage’s employment in so far as they includeda period of suspension on pay while Visy considered the events of 16 August 2012 and other relevant matters before deciding to terminate Mr Savage’s employment
- the fact that, notwithstanding Mr Savage’s employment could have been terminated summarily for serious and wilful misconduct, he was paid four weeks pay in lieu of notice.
Harsh, unjust or unreasonable
[61] The High Court of Australia in the case of Byrne v Australian Airlines Ltd 7 provides guidance in the approach to be taken to consideration of what may constitute a dismissal which is harsh, unjust or unreasonable as follows:
“[128]
...
It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[62] I have found that Mr Savage was guilty of serious and wilful misconduct on 16 August 2012 upon which Visy acted. In my view there was no injustice in Visy doing so, any conclusions or inferences which were made by Visy in relation to this conduct were available from material before Visy in the form of Mr Cook’s complaint and Mr Pedreira’s visual observation of the event of 16 August 2012 which corroborated Mr Cook’s complaint. Mr Savage was afforded procedural fairness. In this respect I see nothing unreasonable either substantively or procedurally in Visy’s reasons to dismiss Mr Savage from his employment.
[63] I will now turn to consider whether in light of the consequences for Mr Savage’s personal circumstances and economic situation there was any disproportionality between the decision to dismiss him and the gravity of the misconduct for which that decision was taken.
[64] After 16 August 2012 and Mr Cook’s complaint about Mr Savage’s conduct in the interaction between them that day Visy suspended both Mr Savage and Mr Cook in order to conduct a thorough investigation and fair procedure to deal with the complaint and consider what action, if any, should be taken. That investigation established, on a sound basis of evidence, that Mr Savage had been guilty of serious and wilful misconduct. Mr Savage benefited from Visy’s attention to a fair procedure and received payment for the week during which he was not required to work while his conduct on 16 August 2012 was under consideration and discussions were held about it. Moreover, notwithstanding this and Visy’s sound conclusion that Mr Savage was guilty of serious and wilful misconduct on that day Mr Savage was also paid four weeks pay in lieu of notice of termination. Taken together Mr Savage received a total of five weeks pay as a result of those actions of Visy after his serious and wilful misconduct on 16 August 2012.
[65] Mr Savage obtained alternative employment on 3 December 2012. Consequently Mr Savage was without employment and wages between 27 September and 3 December except for a small number of casual engagements. Mr Savage brought no evidence concerning his personal and economic circumstances upon which I could conclude that the effect of the termination of his employment was so disproportionate to the gravity of his misconduct as to make the termination of his employment harsh.
[66] I have weighed Mr Savage’s long employment against the serious and wilful misconduct of 16 August 2012. I have also weighed the previous incidents of misconduct to which I have earlier referred. While Mr Savage is a competent forklift driver the evidence demonstrates that his conduct had been highly problematic before 16 August 2012. Mr Savage had benefitted from a patient approach to his conduct by Visy.
[67] Although it was conceded by several witnesses that Mr Savage does tend to express regret after incidents of misconduct I cannot ignore or diminish the serious and hazardous nature of Mr Savage’s misconduct when objectively determining whether I am satisfied that the termination of Mt Savage’s employment was harsh, unjust or unreasonable.
[68] The dismissal of Mr Savage by Visy and the circumstances of the dismissal must be “looked at all round”. I have carefully weighed all of the matters as I have found them and considered whether Mr Savage received less than “a fair go all round” 8. I cannot be satisfied that this was the case.
[69] I am not satisfied that the termination of Mr Savage’s employment was harsh, unjust or unreasonable. In particular I have given careful consideration to whether the termination of Mr Savage’s employment was harsh and have concluded that on the evidence and material before me, in my discretionary judgement, it was not.
[70] For these reasons an order will be issued dismissing the application.
COMMISSIONER
Appearances:
Mr Terzic of “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) for the Applicant.
Mr Farr of Lander & Rogers for the Respondent.
Hearing details:
2013.
Melbourne:
January 14, 15.
1 Transcript at PN2302.
2 Exhibit R2.
3 Tenix Defence Systems Pty Ltd v Fearnley, Print S6238, 22 May 2000 per Ross VP, Polites SDP and Smith C.
4 Exhibit A5.
5 Exhibit R4
6 Transcript at PN1981
7 [1995] HCA 24, per McHugh and Gummow JJ
8 Lambley v DP World Sydney Limited [2013] FCA
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