Stephen Stuart v Kalari Pty Ltd

[2013] FWC 767

[2013] FWC 767

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Stuart
v
Kalari Pty Ltd
(U2012/6922)

DEPUTY PRESIDENT BARTEL ADELAIDE, 4 FEBRUARY 2013

Termination of employment.

.

Introduction and background

[1] Stephen Stuart (the applicant) was summarily dismissed from his position of Driver by Kalari Pty Ltd (the employer or Kalari) on 26 March 2012. He has made application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy. There are no jurisdictional or preliminary issues arising from the application.

[2] The Fair Work Amendment Act 2012 was enacted in December 2012 and a number of amendments to the Act came into force on 1 January 2013. None of the amendments impact on the matters that fall for determination in this decision.

[3] Kalari is a specialized haulage provider with 550 employees nationally. The applicant was based at a depot in Ceduna, a relatively remote small town in the west coast region of South Australia. At the time of the applicant’s dismissal, Kalari employed approximately 30 employees including 25 truck drivers.

[4] The letter of termination, dated 26 March 2012 cited three incidents as the basis for the decision to terminate. The first incident occurred on 3 March 2012 (“the driving incident”). It is alleged that the applicant failed to maintain a safe distance between his triple road train and the Kalari triple road train in front of him, driven by employee David Sinclair (Sinclair). It is further alleged that that when Sinclair warned the applicant to back off over the radio, the applicant responded with verbal abuse telling Sinclair to “f*** off”‘. The employer formed the view that that the applicant was tailgating Sinclair’s vehicle in a deliberate intent to intimidate him. 1

The applicant lodged an incident report alleging that Sinclair drove in an unsafe manner earlier in the course of the same journey on 3 March 2012. This is discussed later.

[5] The second incident occurred on 14 March 2012 in the crib room (“the crib room incident”). A heated exchange took place between the applicant and Sinclair and the employer concluded that the applicant acted in a manner which threatened physical violence against Sinclair.

[6] The third incident involved the applicant and Kalari employee Nick Ferguson (Ferguson), also on 14 March 2012. Ferguson had intervened in the crib room incident between the applicant and Sinclair. The respondent concluded that after the crib room incident the applicant directed a tirade of abuse toward Ferguson, claiming that he (Ferguson) had made false allegations of racism against him in the course of an earlier investigation. The employer determined that this conduct constituted victimization of Ferguson.

[7] The earlier investigation (“the racism and harassment investigation”) resulted in the applicant being issued with a first and final warning on 20 February 2012 for “… repeated derogatory remarks about indigenous people which constituted racial vilification …” and for producing and displaying an inappropriate leaflet in the workplace. 2

[8] The applicant disputes the employer’s characterization of his actions in each of the three incidents and disputes the first and final warning.

The evidence/evidentiary issues

[9] The applicant gave his evidence in a straightforward manner. Aspects of his witness statement concerning his treatment by other employees and/or the work environment have been given no weight on the basis that it is opinion without foundation, or hearsay. 3 Ms Bingham, counsel for the employer, also objected the evidence on these topics on the basis of relevance, however I consider that this evidence is relevant to the applicant’s case.

[10] The applicant’s cross-examination was uncontroversial in the main, largely due to the fact that he was not questioned in relation to the details of the allegations against him. Where his evidence is not accepted it is dealt with in the discussion of the relevant incidents.

[11] The applicant filed witness statements from three drivers, all of whom are ex-Kalari employees who were located at the Ceduna depot: David Finn (Finn), Clive Smith (Smith) and Mark Cromwell (Cromwell). 4 The statements of these witnesses variously referred to their positive experience of the applicant; the circumstances surrounding their departure from Kalari; and/or their experience of the workplace. It is convenient to deal with their evidence at this point.

[12] For the most part their evidence was not challenged under cross-examination however, Ms Bingham, raised objections to the content of the three witness statements on the basis that it was irrelevant, hearsay evidence and/or opinion.

[13] I consider that the evidence of these three witnesses is of no probative value in determining the facts of the incidents leading to the applicant’s dismissal. Their evidence addresses their experiences at the Ceduna depot and is broadly consistent with the applicant’s evidence of the work environment and which forms part of his case. To this extent I regard their evidence as relevant.

[14] Specifically, I have taken into account that all three witnesses referred to problems they experienced with the Operations Manager, Steve Cochrane (Cochrane). Cromwell complained about Cochrane’s conduct to the Regional Manager, Phil Jennings (Jennings), and Smith sent a written complaint about Cochrane to Tanya McKenzie, Kalari’s Human Resources Advisor. Cromwell had an accepted workers compensation claim for stress and anxiety and Smith stated that he had several months off work for stress related illnesses.

[15] The employer called five witnesses. Maureen Lyons is the General Manager Human Resources. She oversaw the racism and harassment investigation and issued the first and final warning to the applicant. Ms Lyons conducted the investigation into the driving and crib room incidents and the allegation that the applicant victimized Ferguson. She concluded that the applicant should be dismissed and recommended this to the Executive General Manager, Peter O’Shannessy.

[16] Darren Whyte (Whyte) is the General Manager, Fleet Network. He has held several roles within Kalari and was a driver trainer in previous employment. Whyte was requested by Ms Lyons to review the Eze Trak data from the applicant’s vehicle in relation to both incidents on 3 March. 5

[17] Eze Trak is a vehicle monitoring system that gathers information from all Kalari vehicles. It collects information from the GPS and engine management system of each vehicle, including the location and movement of the vehicle, the speed travelled, the rate at which a vehicle decelerates and whether or not deceleration was executed in a safe manner. Information in relation to a particular vehicle can be accessed on-line at any time and reports are generated on a weekly basis.

[18] Eze Track data from the vehicles driven by the applicant and Sinclair on 3 March 2012 was admitted into evidence, but the data related only to the period covering the applicant’s complaint against Sinclair. 6 No reference was made to the Eze Trak data relating to the driving incident.

[19] Whyte gave evidence on the Eze Trak data as well as the in-cabin video recording from the applicant’s vehicle of both incidents on 3 March 2012. 7

[20] Peter Symonds (Symonds) is the Senior Driver Trainer at Kalari and travels to various Kalari sites around Australia providing training and coaching to drivers and other Driver Trainers. He provided advice to Ms Lyons in relation to the in-cabin video recording of the incidents on 3 March 2012.

[21] There was some conflict in the evidence of Whyte and Symonds in relation to the legal requirements and practices relating to the distances between triple road trains. Symonds’ evidence is preferred on the basis of his area of expertise and he appeared more knowledgeable in relation to certain practices. 8 However, their respective views of the Eze Trak data and the in-cabin video recording of the driving incidents were consistent.

[22] Sinclair was a driver with Kalari at all material times. He has since left Kalari and now works in Queensland. His evidence concerned the two driving incidents on 3 March and the crib room incident on 14 March and was given via video link from MacKay. As his oral evidence progressed it became apparent that the attachments to Sinclair’s witness statement that had been admitted into evidence (Ex R7 Attachments DS 1 and DS 2) were not the documents that he had before him in MacKay. DS 1 is the typed incident report on the driving incident and DS 2 is his handwritten notes of the crib room incident.

[23] Based on Sinclair’s oral evidence, it is apparent that the content of DS 1 and DS 2 and the documents before Sinclair were similar in content. There is evidence before the Tribunal on DS 1 and DS 2 being received by the employer and in these circumstances it is safe to assume that they are what they purport to be.

[24] Sinclair was not a good witness. He was at times dismissive and at other times combative in his responses under cross-examination. His evidence in relation to the relevant incidents will be discussed in due course.

[25] Ferguson is the Driver Trainer at the Ceduna depot. He undertakes induction programs for, and ongoing assessments of the drivers. His evidence addressed his involvement in the racism and harassment investigation, his driver assessment of the applicant in February 2012, his involvement in the crib room incident on 14 March 2012 and his conversation with the applicant directly afterwards.

[26] A supplementary statement of evidence was filed 9 in which Ferguson relates the circumstances of a phone conversation initiated by the solicitor for the applicant on 19 October 2012. This was the second day of the hearing and prior to Ferguson appearing as a witness.

[27] His statement includes the following passage concerning the conversation:

“I felt she was trying to verbal me … into agreeing that David Sinclair had been more aggressive than [the applicant] during [the crib room] incident. I felt that she was trying to get me to say that I had my hand on Sinclair’s chest to hold him back.” 10

[28] This evidence was not challenged by counsel for the applicant, Mr Manuel, who submitted that it was of no consequence. 11 There is no evidence of threats or improper pressure being used to illicit false evidence and in these circumstances no further comment is required.

[29] Ferguson’s supplementary statement included additional information on certain aspects of the permit held by Kalari, under which it operates road trains, and is uncontroversial. This statement also includes Ferguson’s views of the applicant’s competence to drive a heavy vehicle and his attitude to the applicant returning to the workplace. Ferguson stated that this evidence was not included in his initial statement because he now had a more comprehensive understanding of his responsibilities as a driver trainer as a result of training he had received since the time his initial statement was prepared. This evidence is relevant only to the issue of reinstatement and will be discussed in that context if necessary.

[30] I found Ferguson to be a reliable and impartial witness who was focused on his position as driver trainer and whose overriding concern was imparting and maintaining safe driving practices among the drivers.

[31] Mr Manuel raised several evidentiary matters in relation to the case conducted by the employer. Firstly, it was submitted that the employer’s case is weakened by its failure to call Mr O’Shannessy, who reviewed the material prepared by Ms Lyons and approved the decision to dismiss. Secondly, he submitted that the Tribunal should draw a negative inference in accordance with Jones v Dunkel 12 from the failure of the employer to call a number of persons whose statements were relied upon in the racism and harassment investigation. Thirdly, it was argued that the weight attaching to the employer’s case on the driving incident is diminished as a result of its failure to cross-examine the applicant in relation to this matter.

[32] In relation to the first submission, I am satisfied that Ms Lyons was in as good as or better position than Mr O’Shannessy to address the decision to dismiss and Mr Manuel has not established any detriment or prejudice to the applicant by the absence of Mr O’Shannessy.

[33] As to the second submission, the issue before the Tribunal is whether the dismissal of the applicant was harsh, unjust or unreasonable. The first and final warning given to the applicant as a result of the racism and harassment investigation was a factor in the decision to dismiss and was, albeit belatedly, challenged by the applicant. This matter is therefore relevant to these proceedings and it is appropriate that the Tribunal reach a view in relation to it.

[34] However, the statements relied upon by the employer are in evidence, as is the detail of the investigation process. The Tribunal is in a position to form a view on the reasonableness of the employer’s decision to issue a warning to the applicant and that is what is required in the circumstances of this case.

[35] As to Mr Manuel’s third submission, the applicant was well aware that his credibility in relation to the driving incident was in issue as a result of the process leading to his dismissal, the letter of termination and the employer’s case as filed. It cannot be said that he was taken by surprise and/or denied an opportunity to put his version of events in response to the employer’s case. 13 In fact, he chose not to give any evidence-in-chief on this incident and was content to rely upon the employer’s evidence under cross-examination and the documentary material before the Tribunal. The Tribunal will rely on the evidence before it and will not apportion weight as submitted by Mr Manuel.

The respondent bears the onus of proof to establish that the applicant committed serious and wilful misconduct. In North v Television Corporation Ltd 14  the Australian Industrial Court cited with approval the following passage concerning the degree of proof required:

“The burden of proof is discharged if the misconduct is proved on the whole of the evidence to the Court’s reasonable satisfaction having regard to the gravity of the issues involved.”

Factual background 15

[36] After commencing employment as a Driver on 16 June 2010, the applicant was appointed to the position of Operations Supervisor in February 2011. He replaced Cochrane, who was appointed Operations Manager at that time. In late April 2011 the applicant resigned this position and in early May sought to withdraw his resignation. This was declined by management.

[37] The applicant was absent from work between 17 and 26 September 2011 and between 31 October and 14 November 2011, suffering reactive depressive symptoms which he had attributed to victimization and harassment at work. 16

[38] On 16 November 2011, the applicant’s solicitor filed an application to the Tribunal to deal with a general protections dispute pursuant to s.372 of the Act. The application contended that the applicant was harassed by management in response to complaints he made on 26 July and 4 August 2011 concerning the recording of sound by in-cabin cameras and further, that the employer had failed to deal with the complaints.

[39] In fact, the issue of sound recording on the in-cabin cameras had already been resolved by management in August 2011 when they were replaced with non-sound recording cameras. 17

[40] When the employer sought details of the alleged harassment, the applicant provided copies of emails sent to him by Cochrane and Jennings in February and March 2011, when the applicant held the Operations Supervisor position. 18 These emails include sexist and racist content and content likely to offend people of a particular faith. The applicant also alleged that Cochrane had made an offensive remark to him which included reference to “a black c***”.

[41] An investigation into the offending emails was undertaken by Ms McKenzie and a number of employees, including the applicant, were interviewed during December 2011 and January 2012.

[42] In the course of these interviews Cochrane and Jennings made specific allegations that the applicant had made racist and derogatory remarks about indigenous people. Cochrane’s allegations included the following: 19

“Steve also referred to dirty black women. He told me about a time that his wife arrested a black woman and she was so disgusting. When they strip searched her they found a piece of steak underneath her boob. He has made several comments in relation to ‘dirty black women’.

…

Steve told me directly that he had to move house because he’s going to end up killing one of those black ... (often used black c***, black bastards or filthy black bastards)”

[43] Jennings’ statement refers to comments allegedly made by the applicant in very similar terms. He also stated that the applicant related the ‘chop’ story on many occasions and seemed to obtain pleasure telling it. Another employee who was interviewed indicated that the applicant did not have a high opinion of indigenous people and another was equivocal as to whether he witnessed the applicant make derogatory comments. 20 One employee stated that she had not witnessed any racist or derogatory comments by the applicant.

[44] In addition to the allegations of racist comments by the applicant, a further matter fed into the investigation. A leaflet had appeared in the workplace in late 2010 headed “The Ceduna Tribune” which was written as a parody of a newspaper article and concerned an employee of Kalari who had obtained permanency after passing his probationary period. It contained references to bestiality and sexual acts in what apparently passed for humour to the author. The matter was investigated at the time with no apparent outcome as to authorship.

[45] It is unclear why this matter was re-opened some 12 months later, but Ms McKenzie sought further information on this issue and obtained statements from several employees.

[46] On 20 February the applicant was issued with a first and final warning, on the basis that he lied about his authorship of the Ceduna Tribune leaflet and that his comments about indigenous people “… constitute offensive behaviour of a significant kind, based on racial hatred. This is contrary to both the Racial Discrimination Act 1975 (Cth) and also the Racial Vilification Act 1996 (SA).” 21

[47] Jennings admitted sending the offending emails to the applicant and was formally counselled for this and for failing to shut down racist comments in the workplace. He was required to attend equal employment opportunity (EEO) training. 22

[48] Cochrane denied sending the emails to the applicant. Due to a lack of security in relation to computer log-in details the employer concluded that it was not possible to identify who sent the emails. Cochrane was also formally counselled for failing to shut down racist comments in the workplace and was required to attend EEO training. 23

Was the first and final warning reasonable?

[49] There was no consultation with the applicant on the expanded scope of the investigation and this had the effect of undermining the transparency and, from the applicant’s point of view at least, the integrity of the employer’s process. Nonetheless I am satisfied that the allegations were put to the applicant through his solicitor and he had the opportunity to respond to them.

[50] For reasons that were not adequately explained at the hearing, the applicant failed to take advantage of this opportunity, so the employer proceeded without the applicant’s final view on the allegations against him. 24 The allegations of Cochrane and Jennings were consistent as to the nature of comments made and the specific language used by the applicant. On the evidence before the Tribunal I am satisfied that the applicant made the comments as alleged.

[51] However, the applicant’s comments did not amount to racial discrimination or vilification under either of the statutes cited by the employer because the comments were not made in public. 25 There is no breach of the employer’s Working Together (Harassment, Discrimination & EEO) policy,26 which refers to unlawful discrimination and vilification. Vilification is defined in the policy as a public act which incites hatred, contempt or ridicule.

[52] I am also satisfied that the allegations and counter allegations of racist and derogatory emails and comments were not raised because of any offense taken but were an attempt by employees to inflict damage on each other. Cochrane and Jennings raised the allegations against the applicant in response to the applicant’s complaints against them.

[53] The applicant’s allegations were raised for the first time some nine months after the event. According to his witness statement, part of the reason he resigned the Operations Supervisor position was because he “felt like an outsider” and was extremely uncomfortable with the “constant racism and harassment” of Cochrane and his “inner group”. 27 However the email chain between the applicant and Jennings at the time of his resignation paints a different picture. The issue that led the applicant to resign on 27 April 2011 was cited by him as a matter “that came to a head” that morning. The email chain reflects a cordial relationship between the applicant and Jennings at the time. On 4 May 2011, when the applicant sought to withdraw his resignation in a lengthy email to Jennings, he levels certain complaints against Cochrane, such as the extent of the duties Cochrane expected him to perform, but there is no mention of racist or offensive comments or emails.28

[54] As repugnant as the applicant’s comments were, I am unable to identify any employer policy or statute that has been contravened. In reality, it is the applicant’s views that are offensive to most reasonable minded people however the circumstances in which he expressed those views mean that the basis of the warning is unsound.

[55] There is no evidence before the Tribunal to justify the reopening of the Ceduna Tribune leaflet, and having concluded the initial investigation some twelve months earlier the applicant was entitled to view this matter as at an end. It follows that the first and final warning in relation to this matter is also unsound.

[56] The employer’s response to the actions of Jennings and Cochrane was surprising. They held senior positions within the workplace and their inaction on the applicant’s comments amounted to condoning them in circumstances where the employer believed the comments to be in breach of its policy, unlawful and tantamount to serious misconduct. Both breached the Working Together policy by failing to report the comments at the time.

The driver reassessment in February 2012

[57] Ferguson provided evidence, which was unchallenged, of an in-cabin assessment he conducted with the applicant on 23 February 2012. 29 In explaining the correct emergency procedures in the event of a fire in the brake or tyre of the vehicle, Ferguson stated that the applicant was dismissive and sarcastic, and stated that the policy was stupid and only an idiot would come up with it.

The driving complaint against Sinclair

[58] The applicant lodged an incident report on 3 March 30 in the following terms:

“As I was driving through Penong, truck 776 driven by David Sinclair pulled out of a parking bay in front of me, causing me to brake to avoid a collision.”

[59] Both the applicant and Sinclair were driving triple road trains. I have reached the following view having regard to the in-cabin video, the Eze Trak data and the evidence of the applicant, Whyte, Symonds and Sinclair.

[60] The in-cabin video shows a bend in the stretch of road before the parking bay, although it is inconclusive as to whether Sinclair’s vision was restricted at the point that he left the parking bay. Sinclair pulled into the left hand lane in a 50 kph zone. The Eze Trak data confirms that the applicant had to brake, but there is no evidence of harsh braking. His vehicle slowed from 46kph to 31kph over approximately 50 seconds. The applicant’s vehicle correctly moved into the right hand lane and he drew almost level with Sinclair’s vehicle before a reasonable distance between the vehicles could be established.

[61] The potential consequences of Sinclair’s action in pulling out of the parking bay needs to be considered in context - this was a double lane stretch of road, it was in a 50 kph speed zone and there was sufficient distance between the two vehicles at the point the applicant sighted Sinclair’s vehicle in order to avoid harsh braking. Nonetheless the applicant was entitled to be concerned over the fact that his vehicle was compromised.

[62] There is insufficient evidence to conclude that Sinclair sighted the applicant’s vehicle before he pulled out or that he failed to check his rear vision mirrors. I am confident that the applicant genuinely believed that Sinclair’s actions were deliberate, but it is possible, and in my view likely that the applicant’s perception of events was skewed by his animosity toward Sinclair. The source of this animosity is not clear, but the evidence tends to indicate that it was borne of the perceived friendship between Sinclair and Cochrane. 31

[63] The employer found that the applicant’s allegation that Sinclair engaged in unsafe driving was not substantiated. On the basis of the in-cabin video and the evidence of Whyte and Symonds I am satisfied that an undesirable situation arose but I cannot conclude that Sinclair drove in an unsafe manner.

The driving incident

[64] Sinclair also lodged a report on 3 March 2012 in respect of an incident which occurred approximately three minutes later in the same journey. He identified the nature of the incident as “abuse over the radio”, but expanded on the incident with the following details:

● That Stuart’s vehicle came within approximately 15 metres of his vehicle travelling out of Penong.

● That when Sinclair suggested to the applicant over the radio that he remember the 200 metre rule, the applicant became aggressive, although Sinclair said he couldn’t understand everything he said. Sinclair told the applicant that he thought that he would have stopped at Penong for a 15 minute break.

● The applicant said that he (Sinclair) was boring the s*** out of him and he should f*** off. 32

[65] The reference to the “200 metre rule” is a reference to the distance to be maintained by a triple road train when following another vehicle of more than 7.5 metres in length and where the speed limit is in excess of 60kph. 33 It is agreed that the vehicles were travelling in a 100kph zone (90kph for the road trains) at the time. The applicant concedes that the distance between the vehicles was less than 200 metres, although he maintains that it was a safe distance. The vehicles are 37 metres in length and were fully loaded at the time. .

[66] The relevant passage of the in-cabin video shows Stuart’s vehicle move progressively closer to Sinclair’s vehicle as they travel along an inclining section of the road. For a short period of time it appears that he is approximately 25 - 45 metres behind Sinclair’s vehicle, before the gap again widens.

[67] In the meeting with management on 19 March to discuss this and other incidents (“the 19 March interview”), the applicant maintained that Sinclair deliberately slowed down and this caused the distance between the trucks to be reduced. He stated that there was radio contact with Sinclair but that Sinclair did not mention the 200 metre rule. However under cross-examination the applicant denied that there was any radio contact at all between the two of them. 34

[68] I find that there was radio contact between Sinclair and the applicant during which the applicant was aggressive toward Sinclair, most likely as a result of the previous incident. I do not discount the possibility Sinclair’s comments to the applicant over the radio were not as measured as portrayed in his incident report.

[69] The second vehicle is responsible for maintaining the required distance between the two vehicles and the applicant’s failure to maintain a safe distance is a serious matter. The breach of the 200 metre rule was significant given the distance between the vehicles, even if they were travelling well below 90 kph. 35 The distance between the vehicles in the relevant period did not allow adequate stopping space for the applicant’s vehicle and was unsafe for other road users.

[70] There is no evidence that Kalari enquired into the applicant’s allegation that Sinclair was slowing down. Sinclair strenuously denied this in his evidence to the Tribunal. The evidence of Whyte and Symonds suggested that it was the applicant’s actions that led to the unsafe gap between the vehicles.

[71] As noted earlier, the applicant gave no evidence on this incident. In my view the applicant accelerated to move close to Sinclair’s truck in an attempt to intimidate him, most probably out of anger or frustration arising from the previous incident. Reason prevailed and an appropriate distance between the vehicles was re-established relatively quickly.

[72] The respondent described the applicant’s actions as tailgating, which is identified as a dismissible offence in Kalari’s Driver Operator Manual. Tailgating is not defined, but the Manual states that “You should never travel closely behind another vehicle, particularly cars” and “While travelling on the open highway with no intention to overtake, you must maintain a safe distance behind the vehicle.” 36

[73] Whether the applicant’s conduct constitutes tailgating is debatable, but I am satisfied that his actions were deliberate and that they breached the respondent’s Driver Operator Manual.

The crib room incident

[74] It is common ground that there was an incident in the crib room between the applicant and Sinclair at approximately 12.45pm on 14 March 2012. I have had regard to the evidence of the applicant, Sinclair, and Ferguson, the respective statements on the incident and the notes of the 19 March interview.

[75] Sinclair’s statement on the incident was in the following terms: 37

“… Steve enters crib-room says g’day I said g’day mate. Steve says don’t call me mate. I said why’s that reply I’m not your mate. I said yer (sic) your right about that they must be getting few around here. On my way out of the room I said just keep stirring Steve. He implied at this stage I was a mouth. I said what you reckon I’m a mouth (surprised) At this time he was of (sic) his chair at me in a threatening manner asking if I had some thing (sic) to say to him. Surprised again I said what are you guna (sic) have a go are you? At this stage Nick Ferguson intervened. I called Stave a low c*** and left.”

[76] The applicant sent an email to Ms Lyons in the following terms: 38

“This afternoon I was verbally assaulted and physically threatened by another driver - David Sinclair. It was an unprovoked attack which left me feeling extremely upset and unsafe.

This man - along with his wife … have, allegedly, previously made death threats towards an Aboriginal driver, and I do not feel this is a safe work environment for me at the present time.

I am presently under review by my doctor, and I will be making an appointment to see him as soon as possible.

I obviously know that Kalari will not take any action against this individual, even though this afternoon’s incident was witnessed by Nick Ferguson and another driver, and this is not the first incident involving this individual since I returned to work.”

[77] Both the applicant and Sinclair were stood down with pay after this matter came to the attention of management.

[78] At the 19 March interview, the applicant and his solicitor provided further detail of the incident to the effect that Sinclair said “how you doing mate” to which the applicant said we’re not really mates. It was alleged that Sinclair threw a stapler on the table, intimidating the applicant. Sinclair then allegedly said “come on lets sort this out, I’ll lay you out.” At this point Ferguson intervened. According to the applicant, Ferguson put his hand on Sinclair’s chest and told him to calm down and leave.

[79] In the applicant’s witness statement he set out a different version of how the altercation commenced, recording that “I was in the crib room doing my end of shift paperwork. Sinclair approached me and was swearing at me in a loud voice.” 39

[80] Ferguson stated that when the altercation commenced he was in his office, which opened into the crib room. He saw Sinclair enter the crib room and soon after his and Stuart’s voices became raised and aggressive. He saw Stuart get to his feet and say do you want to take this outside, and Sinclair agreeing, saying he won’t back down. Ferguson became concerned that the matter would escalate, and entered the crib room and stood between the two men. According to Ferguson there was a fair gap between the two men but it was narrowing. He denies placing his hand on Sinclair’s chest. He cannot recall what Sinclair said to the applicant but recalls that he swore at him as he left. It is Ferguson’s view that both men were equally to blame. 40

[81] Another employee, Jason Perry, witnessed the incident and lodged an incident report which did not shed any further light on the details of the incident, other than it stated that Sinclair got up to leave the crib room and the applicant got up to follow him out. 41 This is consistent with the position of the men at the point that Ferguson intervened.

[82] The employer concluded that the applicant threatened physical violence against Sinclair and that the applicant’s allegations against Sinclair were not substantiated.

[83] I consider that Ferguson’s evidence of the incident is more reliable than that of the applicant or Sinclair, although he did not witness the initial stages. The applicant has not maintained a consistent version of events and I find his evidence on this incident to be self serving. For example the applicant says he stood up when Sinclair approached him so as to avoid being hit while sitting down, 42 but fails to explain why he followed Sinclair as he went to leave the crib room.

[84] I find that both the applicant and Sinclair engaged in dialogue which escalated into threats and goading to ‘take the matter outside’, notwithstanding that both claim to have been intimidated by the other’s threats. I also find that the applicant sought to continue the altercation by following Sinclair as he left the crib room.

[85] I am unable to discern a rational basis for the employer’s conclusions on the respective actions of the applicant or Sinclair. In particular, Sinclair does not allege that the applicant threatened physical violence against him and Ferguson’s view was that both men were engaging in threats to ‘take the matter outside’. Sinclair received a verbal warning on 22 March 2012 but the record of the warning does not indicate why it was issued. 43 That it was issued at all is puzzling given the employer’s conclusion that the applicant’s allegations against Sinclair were not substantiated.

The discussion between the applicant and Ferguson

[86] A discussion between the applicant and Ferguson directly after the crib room incident resulted in the allegation that the applicant had victimized Ferguson because of his statement to the racism and harassment investigation. The report of the incident provided by Ferguson was not challenged by the applicant and he provided no evidence on the incident other than to deny the allegation of victimisation.

[87] The relevant portions of Ferguson’s statement are as follows: 44

“I had a good talk with Steve Stuart after the event. He told me that I won’t do anything about this and that an incident report wouldn’t be lodged or acted upon. I told him that I’ve put up with this kind of s*** in other jobs and I won’t tolerate it here in this job that’s why I avoided any scuffle. I told Steve that I have an obligation to put in an incident report on this matter and will be doing so. He then dragged up lots of things from his past experiences with our systems and procedures.

…

Steve told me that he felt I couldn’t be trusted and that’s why no one talks to me with anything going on, ... He told me I make up bullshit statements and label him a racist and he’s sick of it all.”

…

My main concern with this situation is what’s next, this is the second time these two have clashed, …”

[88] In the termination letter, the employer ‘summarized’ Ferguson’s allegations as the applicant commencing “a tirade of abuse” toward him and claiming that he had made up “bullshit statements of racism”. The employer then concluded that “… on balance of probabilities the complaint of victimization by Mr Ferguson [is] substantiated.” 45

[89] I find that in his discussion with Ferguson, the applicant used intemperate language. 46 His reference to Ferguson’s statement, made in the course of the racism and harassment investigation, constituted a breach of the employer’s directive that he maintains confidentiality of the material forwarded to him. His actions warranted censure on this basis.

[90] The employer’s allegation that the applicant victimized and directed a tirade of abuse toward Ferguson were, at best, a complete misinterpretation of Ferguson’s statement and reflect a lack of care and diligence in its framing of the allegations. While Ferguson was understandably displeased at the applicant’s attitude, he did not complain that he felt victimized. Ferguson’s overriding concern, as he made clear, was the relationship between the applicant and Sinclair.

The termination

[91] The applicant and his solicitor participated in the 19 March interview by phone. The employer was represented by Ms Lyons, Mr O’Shannessy and Chris Harrison, Manager, Safety Development. At the commencement of the interview the applicant was given time to provide instructions to his solicitor. At the conclusion of the interview the applicant’s solicitor requested, and it was agreed that the further details of the allegations would be provided by Ms Lyons. 47

[92] Ms Lyons wrote to the applicant’s solicitor later that day, requesting that the applicant nominate any witnesses in respect to the incidents of 3 and 14 March and enclosing summaries of Sinclair’s complaints relating to 3 and 14 March and Ferguson’s and Perry’s notes regarding 14 March. 48 For reasons unknown the applicant did not respond.

[93] Ms Lyons delivered her findings and a recommendation that the applicant be dismissed to Mr O’Shannessy, who agreed with her recommendation. A further conference was convened on 26 March 2012, with the same people present as per the previous meeting. The applicant and his solicitor again participated by phone. The applicant was advised that his employment was terminated, effective immediately.

The submissions

[94] Mr Manuel submitted that the employer has not met the onus of proof to establish that the applicant engaged in serious and wilful misconduct. He contended that:

● The employer’s interview and investigation processes were arbitrary;

● The employer had predetermined to dismiss the applicant because he had made complaints; and

● The employer failed to take all the relevant circumstances into account. These circumstances included the work environment and the inappropriate actions of other employees and officers of the employer.

[95] It was argued that the employer’s approach to the incidents resulted in unfair treatment of the applicant compared to other employees who were involved in similar conduct and/or the same incidents. Further, Mr Manuel submitted that the employer was wrong in issuing the first and final warning and its reliance upon it in the decision to dismiss caused the process to miscarry on that ground alone.

[96] Ms Bingham submitted that the Tribunal should have particular regard to the following contextual matters in considering whether the dismissal was harsh, unjust or unreasonable:

● Tailgating is a dismissible offence under the employer’s Driver Operator Manual and under the law;

● The applicant undertook driver reassessment in February 2012;

● The employer terminated another employee for tailgating prior to March 2012; and

● The applicant was interviewed regarding his conduct in the presence of his solicitor at all times.

[97] In addressing the matters to which the Tribunal must have regard, Ms Bingham submitted that:

● The termination was for a valid reason as the applicant’s conduct in tailgating Sinclair’s vehicle and victimizing another employee constituted serious and wilful misconduct. His actions in tailgating Sinclair’s vehicle endangered the applicant, Sinclair and other road users.

● The applicant was given an opportunity to respond to the allegations. The employer took into account the information provided by the applicant and other employees in reaching a decision to dismiss.

● The applicant was notified of the reasons for his dismissal.

● Even if there were defects in procedure, which is denied, any such defects do not automatically render the dismissal procedurally inadequate in the circumstances of this case.

● The contextual matters outlined above are relevant matters to be considered.

Consideration

[98] There is no dispute that the application was filed within the 14 day period specified in s.394(2) of the Act; that the applicant is a person protected from unfair dismissal and that the dismissal was not a case of genuine redundancy. The employer is a large employer and the Small Business Fair Dismissal Code does not apply.

[99] Section 387 of the Act sets out the matters to be taken into account by the Tribunal in assessing whether a dismissal is harsh, unjust or unreasonable, as follows:

“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.”

[100] The termination letter relies on 4 separate matters, all related to the conduct of the applicant, which it is argued, collectively, justified dismissal for serious and wilful misconduct and it is submitted that the driving incident alone justified summary dismissal.

[101] In determining whether there was a valid reason for the termination of employment, the Tribunal must decide, on the basis of the evidence before it, whether the alleged conduct occurred. 49 It is not necessary to show that the applicant committed serious and wilful misconduct in order to establish that there was a valid reason for the termination.50

[102] On the evidence before the Tribunal I have found that the applicant:

● Made racist and derogatory comments about indigenous people;

● Engaged in driving a triple road train in a manner inconsistent with safe road practices, regulatory requirements and the employer’s policy;

● Engaged in inappropriate conduct in an incident in the crib room on 14 March 2012, in which the applicant exhibited aggressive behavior and sought to extend an altercation with Sinclair; and

● Breached the employer’s confidentiality requirements by raising with Ferguson the statements he had made in the racism and harassment investigation.

[103] The employer’s conclusions that the applicant victimized Ferguson and that he threatened violence against Sinclair in the crib room incident are not made out on the evidence, and were not open to the employer on the information it had before it. The allegation of racist and derogatory comments was made out, but did not justify disciplinary action on the basis contended by the employer.

[104] The driving incident is the most serious of the incidents involving the applicant. He placed himself and others at risk by his actions, and most concerning is that the incident arose because his emotions compromised his ability to undertake his driving duties in a safe and professional manner. This lack of ‘cool-headedness’ is a feature of other incidents that led to his dismissal.

[105] I conclude that there was a valid reason for the termination of the applicant’s employment.

[106] As noted in Byrne and Frew v Australian Airlines Ltd, the distinction between procedure and substance is elusive. 51 In reaching my conclusions on the applicant’s conduct I have taken into account the procedural aspects of the investigations conducted by the employer. The first and final warning given to the applicant was not justified and consequently I have placed no weight on it or the conduct, or alleged conduct that gave rise to it.

[107] The applicant was represented throughout the investigation leading to his dismissal and was provided with an opportunity to respond to the allegations against him. He was notified of the reasons for dismissal.

[108] Kalari is a national employer with dedicated human resource personnel. Any defects in procedure cannot be attributed to the employer’s size or lack of resources.

Other relevant matters

[109] I have reached the view that the applicant’s discontent with Cochrane’s supervision escalated to a broader dissatisfaction when management refused to accept the withdrawal of his resignation from the Operations Supervisor position. Relationships in the workplace became progressively worse from this time and the applicant was a contributor to this situation.

[110] The evidence indicates that, at the least, there was a high turnover of staff, absences due to stress and complaints against Cochrane’s management style from other employees, with no appropriate response from management.

[111] When head office personnel became involved the focus was on the applicant’s conduct to the exclusion of, or with insufficient regard to the work environment and the behaviour of others. The result of this approach was to exacerbate the applicant’s sense of grievance and to contribute to a further deterioration in the employment relationship.

[112] Also relevant is that the applicant was unable or unwilling to accept any responsibility for his actions. He tended to portray himself as the victim in the various incidents in which he was involved and refused to concede any wrong doing on his part.

[113] Serious misconduct has been described as

“Conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involvers an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee …” 52

“… conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment.” 53

[114] None of the incidents of misconduct in isolation would warrant summary dismissal. Taken collectively and viewed in the context of the applicant’s conduct generally I am satisfied that his actions were destructive of the necessary confidence between himself and the employer. The inescapable conclusion is that the relationship between the applicant and Kalari had become untenable and was beyond repair.

[115] I have considered whether the employer’s failings, as outlined earlier, militate against a finding of serious and wilful misconduct. However, in the circumstances of this case there is no need for a final conclusion on this point.

[116] Failure to provide notice of termination where the conduct did not justify summary dismissal (but where the dismissal was otherwise justified) may render the dismissal harsh because the employee has been deprived of payments to which he/she was entitled. In the present case the applicant was under a prescribed medical certificate at the date of termination and has been in receipt of income maintenance payments pursuant to workers compensation legislation since his dismissal. He has suffered no economic loss as a result of the manner of his termination.

[117] I conclude that the termination of employment was not harsh, unjust or unreasonable. The application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

R Manuel of Counsel for Mr Stuart

Ms Bingham of Counsel for Kalari Pty Ltd

Hearing details:

2012.

Adelaide:

October 18 - 19 and December 10

 1   Ex R5 Attachment ML 58

 2   Ex R5 attachment ML 44

 3   Ex A1, concerning aspects of paras 2, 4, 6, 7, 8, 10, 15, 16, 17 and 21.

 4   Finn: Ex A2; Smith: Ex A3; Cromwell: Ex A5

 5   Ex R1 at paras 6 and 7

 6   Ex R1 DW 1

 7   Ex R5 Attachment 47

 8   For example, Whyte’s evidence at tr pn 281 - 2 that drivers use the ‘2 second rule’ as a means of measuring the distance between trucks is clearly incorrect.

 9   Ex R9

 10   Ex A9 at para 8

 11   At tr pn 2022

 12 (1959) 101 CLR 298

 13   Browne v Dunn [1894] 6 R 67, at 71 per Lord Herschell LC

 14 (1976) 11 ALR 599 at 603

 15   I have taken into account the submissions of the parties in the findings made.

 16   Ex R5 attachment ML 21, Ex A1 attachment SS 3

 17   Ex R5 attachment ML 20

 18   Ex A1 attachment SS 8

 19   Ex R5 attachment ML 27

 20   Ibid, attachment ML 30 and 31

 21   Ex R5 attachment ML 44

 22   Ibid, at para 44.1

 23   Ibid, at paras 43, 44.2

 24   The applicant indicated that he was aware of the allegations made against him at tr pn 987.

 25   See APS Group (Placements) Pty Ltd v O’Loughlin[2011] FWAFB 5230, where the meaning of “public” in the context of alleged racial vilification in the workplace, is discussed.

 26   Ex R5 attachment ML 1

 27   Ex A1 at para10

 28   Ex R5 attachment ML 8 and 9

 29   Ex R8 attachment NF 2

 30   Ex R4

 31   Cromwell, Finn and Smith each made specific mention that Sinclair was a friend of Cochrane and the applicant also referred to Sinclair being within Cochrane’s “inner group”: Ex A1 at para 15

 32   Ex R7 attachment DS 1

 33   Ex R 11 Permit to operate a long combination vehicle issued to Kalari by the Government of South Australia.

 34   Ex R5 attachment ML 56; at tr pn 1050

 35   At tr pn 271, 2507

 36   Ex R5 attachment ML 3

 37   Ibid attachment ML51

 38   Ibid attachment ML52

 39   Ex A1 at para 40

 40   Ex R8; tr pn 2479 - 2486; tr pn 2532

 41   Ex R5 attachment ML 54

 42   Ex R5 attachment ML 56

 43   Ex R14

 44   Ex R8 paras 3, 5 and 8

 45   Ex R5 at ML 58

 46   This may have been due to the incident with Sinclair which had only just concluded

 47   Ex R5 attachment 56

 48   Ex R5 attachment ML 57

 49   Edwards v Justice Guidice and others (1999) FCA 1836 at pn 7; King v Freshmore (Vic) Pty Ltd Print S4213 at pn24

 50   T Potter v WorkCover Corporation PR948009 at pn 53

 51 (1995) 185 CLR 410 at para 129

 52   Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66 at 81

 53   North v Television Corporation Limited, supra, at 608, 609

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