Steve Kotsidis v Toyota Motor Corporation Australia Limited

[2012] FWA 8720

[2012] FWA 8720

The attached document replaces the document previously issued on 5 October 2012.

The Decision has been refiled to correct the MNC and print number.

Jo Gibbon

Associate to Commissioner Gay

Dated 11 October 2012

[2012] FWA 8720

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steve Kotsidis
v
Toyota Motor Corporation Australia Limited
(U2011/12866)

COMMISSIONER GAY MELBOURNE, 5 OCTOBER 2012

Termination of employment - arbitration.

[1] The following decision, now edited, was given in transcript at the conclusion of proceedings in Melbourne on 22 August 2012.

[2] “In giving my reasons in this matter now, I do wish to thank the advocates for the way in which the case was presented, and it remains only to be able to read these quickly prepared reasons, and I do reserve the right to, in some small fashion, edit these reasons. As I have advised the parties, I propose to set out my decision and reasons now rather than reserve judgment with the attendant delay. That strikes me as most undesirable. As a consequence of taking this action, my reasons will not be as detailed as would otherwise be the case, with some important evidence not yet transcribed, and that of course, is a difficulty also shared by the advocates.

[3] It is possible, however, to come to a view and to give expurgated reasons by virtue of the systematic way in which the case has been argued by Mr A Sachinidis of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) initially, and latterly Mr E Burgio, by permission, for Mr Steve Kotsidis (the applicant), and Mr S Pill, by permission, appearing with Ms J Romano and Ms C Slattery, for Toyota Motor Corporation Australia Limited (Toyota). The case has been detailed and hard-fought with many contested issues over a complex narrative, even though the events leading up to the termination cover a short period. The case has occupied eight sitting days, with some of those days lengthy.

[4] I will not repeat the parties’ submissions. The narrative is well-known to them, and I do hope that it will be appreciated that a close Fair Work Australia involvement or engagement in this case has characterised this proceeding. All the arguments and contentions have been considered. That is often said and the parties can rely on it in this case; indeed many if not most of the principal contentions have been discussed and teased out with the advocates. To permit the reasons which follow to be understood, I will set out an essential chronology of the case, and this will take some time, but it is not a case without its own difficulties.

[5] Mr Kotsidis had been employed by Toyota since 10 October 1994 at Port Melbourne until his resignation in 1996, and then again from March 1997 until his employment was terminated for serious misconduct on 24 September 2011. The applicant had been working at Altona on day shift in Chassis 2 and had, since 2003 been employed as a Team Leader, Toyota’s first level of authority, a working hands-on leader of a work group, sometimes called a natural work group, of about five or seven or so employees. Amongst the Team Leader roles - and there are many other functions I will not give - is the replenishment of the stock supply baskets, the doki dasha of employees in their group. This is to keep the line functioning smoothly, and to relieve team members who come away from their station, particularly for comfort breaks, and by the Team Leader’s involvement thereby ensure the team’s productivity is optimised and the operation continues.

[6] The applicant has also relieved, as Acting Group Leader in charge of a number of Team Leaders, and it is accepted that Mr Kotsidis was well familiar with company policies, production methods, and had attended a wide range of company training courses, familiarising staff with Toyota policy, including as to the policies to be considered in this case. The applicant was a member of the AMWU. The AMWU initially represented the applicant over the first few days of the hearing per medium of Mr Sachinidis, until a pressing necessity required Mr Burgio, solicitor of Maurice Blackburn, to advocate over the final three days of the hearing. An interval of several weeks separated this representational change, and no disadvantage in my view accrued to the applicant, other than of course the delay itself.

[7] The period over July to September 2011 was eventful for the applicant, as his statement (Exhibit AMWU1) sets out under “Dismissal from Toyota”. The applicant had a verbal dispute with a fellow employee, following which Toyota advised of its intention to issue the applicant with a written warning and to move him to another area. Following discussions with the AMWU senior site coordinator Mr Marmara, the compulsory transfer was withdrawn. Exhibit T1 sets out the warning letter where the applicant was warned for having breached the Toyota Motor Corporation (TMCA) Workplace (Altona) Agreement 2010 [AE879426] (the Agreement) at clause 33.5, “Work Habits and Performance Standards of Behaviour”, and “Toyota Workplace Relationship Policy”. The applicant was specifically required to strictly observe the following performance obligations; that he conduct himself in a professional manner at all times; that he ensure the Toyota way, the value of respect, is followed at all times, and that he work to the required standards at all times.

[8] From about 5 September 2011 the applicant took bereavement leave for one week following the death of his father-in-law with whom he said he was close. The applicant a short time previously had travelled to Greece to bring his ailing father-in-law to Australia. In the applicant’s account, which I have accepted in this regard, the death had had a serious impact upon him. It can, I have concluded, be expected that the applicant was suffering from stress as he dealt with his family’s loss. It is common ground that the applicant’s bereavement was widely known by his workmates. The exception is said to be the working colleague within Chassis 2 with whom the applicant had the encounter which led directly to his dismissal, Mr Gareth Cadwallander.

[9] On 14 September, several days following the applicant’s return to duty, he and Mr Cadwallander were involved in an argument during working time. The applicant’s account is that Mr Cadwallander had pulled his Andon, the alarm which calls the Team Leader, and signifies that a team member has a pressing difficulty. On the morning in question, Mr Cadwallander complained that his doki dasha, the basket of materials required to be used by a worker to maintain the line, the operation, was insufficiently supplied with parts to permit Mr Cadwallander to complete his duties that day. The applicant rejected Mr Cadwallander’s entreaties to get him further parts. I add, it will be appreciated that the moving line is operating during this time.

[10] After Mr Cadwallander had vocally disagreed several times with the applicant as to the adequacy of his supplies and the applicant had released the Andon, Mr Cadwallander again pulled the Andon. In Mr Cadwallander’s account, he was highly critical of the applicant’s position - he certainly was in his viva voce evidence as well - in not replenishing his, Mr Cadwallander’s, doki dasha, and upbraided the applicant for not doing his job properly by not giving support to the members of his team. This account reflected the poor regard Mr Cadwallander had for the applicant which it seems mirrored the applicant’s view of Mr Cadwallander.

[11] The AMWU position was that when the applicant told Mr Cadwallander that he, the applicant, had to go to get tools for someone else on the line, Mr Cadwallander commenced yelling at the applicant saying words to the effect of, “You are an f...ing d...head. Go f... yourself.” (Exhibit AMWU1, paragraph 9). In the applicant’s account, he sought the assistance of Mr Da Costa Lay, the area’s Group Leader and next senior authority figure. Mr Da Costa Lay is said by the applicant to have told the applicant that he, Mr Da Costa Lay, would go and speak with Mr Cadwallander. The applicant’s account is that, very shortly thereafter, as he was walking past Mr Cadwallander, he saw Mr Da Costa Lay was speaking with Mr Cadwallander. The applicant’s account is that Mr Cadwallander then recommenced yelling and swearing at the applicant.

[12] Only a short time later, as the applicant was passing near Mr Cadwallander, Mr Cadwallander yelled at him words to the effect of, “F... you and your dead father-in-law.” (Exhibit AMWU1 paragraph 9(d)). What is said is variously rendered and includes an alternative version “Suck s..t and your dead step-father”. The applicant says that he then pushed Mr Cadwallander on the chest and told him to never say that again. The applicant’s statement goes on to note that:

“As soon as I pushed him, I noticed he was falling back towards the rack. So I reached out and grabbed him by the jumper to stop him from falling. Gareth then apologised for what he had said. I then helped him to stand up.” (Exhibit AMWU1, paragraph 9(e)).

[13] It was the applicant’s position that he very much regretted what had occurred, indicating he had been under a great deal of stress, and had remained in a severe emotional state after the bereavement.

[14] The applicant was critical of the way in which the post-incident treatment was handled by the local area supervision, when he had been escorted to the Chassis 2 group room. The applicant suggested that Mr Asciak, then a General Foreperson (and the next in charge after the Group Leader) who gave evidence in these proceedings, had behaved excitedly - that is my term - in telling the applicant in the immediate aftermath that he - the applicant - was “f...ed”, and that, “You’re f...ing gone now.”.

[15] Mr Asciak was said by the applicant to have harassed him (Exhibit AMWU1, paragraph 13). The applicant complained that the Group Leaders and General Forepersons, Messrs Spiteri and Asciak, had not offered the applicant assistance:

“. . . such as, for example, taking me to the medical centre, because I was under stress due to the recent passing of my father-in-law.” (Exhibit AMWU1, paragraph 15).

[16] Against this is Mr Cadwallander’s account. Some background is necessary to recount that Mr Cadwallander has a medical complaint, not here detailed, except to say it was the subject of a two-page explanatory note from Mr Cadwallander’s treating specialist gastroenterologist requesting that special consideration be given to Mr Cadwallander. It was Mr Cadwallander’s evidence that the applicant had long mistreated him by mocking him, by mocking his medical complaint, and particularly by telling staff members of difficulties said to have been experienced by Mr Cadwallander. Those difficulties relate to a gastroenterological problem which in a workplace such as Toyota is likely to be readily imagined. I do not propose to essay into that in any detail except to note that for employees working on the moving line being relieved by their team leader in a timely fashion is important.

[17] Mr Cadwallander’s account was that on the morning of 14 September, in addition to failing to fill his basket with parts, ultimately filled by Mr Da Costa Lay, the applicant had continued on his hazing ways or teasing ways, having called Mr Cadwallander a “crybaby” and “s-h-i-t-t-y-pants”, saying, “Have a cry,” and holding out a packet of tissues, and pretending to cry at Mr Cadwallander. Mr Cadwallander freely conceded that he responded to the applicant’s behaviour, saying that he tried to give as good as he got or as good as he could. Mr Cadwallander acknowledged saying, “Yeah, whatever, d...head,” and:

“You never say things to people’s faces. You say it behind their backs or in your own language.” (Exhibit T3, paragraph 7).

[18] The latter reference is in relation to a vulgar Greek swearword used by Mr Kotsidis, in Mr Cadwallander’s account, to describe Mr Cadwallander. It seems this unedifying dialogue continued for some 30 minutes in Mr Cadwallander’s estimation when Mr Cadwallander says he had had enough, and said something like, “Suck s-h-i-t about your stepfather.” As I have earlier said, that is rendered differently at various times in the proceeding. Mr Cadwallander said he did not know why he said this; that it just ‘came out’. Mr Cadwallander’s evidence was that the applicant then grabbed him around the neck and pushed him against some nearby racking saying, “You’ve got no f...ing right to say that” (Exhibit T3, paragraph 8), to which Mr Cadwallander says he replied, “But it’s okay for you to bully me for years, call me names and spread rumours”. Mr Cadwallander’s statement was that:

“When Steve grabbed me by the neck and pushed me, I couldn’t stop him as I still had parts in both my hands. Steve grabbed my neck with quite a bit of force, and it felt like he was choking me. I managed to get myself up off the racking. Steve did not help me up.” (Exhibit T3, paragraph 10).

[19] It is not my intention to set out the remainder of the evidence and contentions stemming from these events in as much detail as I have just done. There is a range of evidence from many witnesses who gave evidence at Fair Work Australia.

[20] In large part, the evidence permits an understanding to be gained of what occurred, although there are the entirely normative differences in recollections and of course of perspectives. I have generally accepted the evidence of Mr Landells and Mr Bacarac.

[21] It is of course necessary in a preliminary sense to make findings as to whether the applicant is a person protected from unfair dismissal as provided for in Division 2 and 3 of Part 3(2) of the Fair Work Act 2009 (the Act). I am satisfied that the applicant is in this category, having concluded that s.382(b)(i), (ii) and (iii) apply, and having regard also to the operation of s.385. There is no bar to jurisdiction. I also record that I gave attention to s.398(3) and (4), and considered, pursuant to s.399, that a hearing was necessary.

[22] I propose to make the necessary findings of fact as to the key contested matters in this case, principally the events constituting the acts for which the applicant was dismissed. While there are elements of Mr Cadwallander’s evidence that I have not acted upon and consider unreliable, I have accepted generally his description of the events leading up to and constituting the physical encounter. At no stage have I lost sight of Mr Cadwallander’s concession, against his interests it must be said, that he was serving it right back to a rude and bombastic Mr Kotsidis, by no doubt, being argumentative, by swearing, and very possibly by being loud.

[23] Against this I have not accepted the applicant’s account of the surrounding circumstances and of the event. The applicant’s evidence was, for example that, he had not sworn at Mr Cadwallander and had not teased Mr Cadwallander prior to the incident by waggling or proffering the tissue box or making reference to Mr Cadwallander as a crybaby and s-h-i-t-t-y-pants. As to the physical encounter, I have noted the applicant’s varying descriptions of his actions and his evidence directed at creating the impression of Mr Cadwallander as having approached or moved towards the applicant, and that the applicant may have reasonably had some concerns in this regard. I have not accepted that latter depiction and in fact, I do not think a submission was ultimately pressed on his behalf that he was acting in self-defence.

[24] I now turn to consider the physical interaction initiated on 14 September 2011 by the applicant. It is said for the applicant that Mr Kotsidis’ act must be understood in the context of it being provoked by a malicious remark by Mr Cadwallander; a remark intended to cause hurt. It is put that it must be understood in the atmosphere of that morning when a calm-tempered, non-swearing and non-teasing Mr Kotsidis had been subject to a hail of abuse from Mr Cadwallander. The applicant’s counsel’s written submission is that the applicant:

“. . . reacted and pushed Mr Cadwallander. Mr Cadwallander fell back into the rackings. Mr Kotsidis then grabbed Mr Cadwallander with one hand on his shirt. He said words to the effect of, ‘Don’t talk about my family like that,’ and then let Mr Cadwallander go. He then pulled up Mr Cadwallander upright”.

[25] Against this it is submitted for Toyota that there was a verbal disagreement between the two about parts, that the applicant was not, by virtue of the exchanges and his actions, an innocent party to the escalation because the applicant did swear too at Mr Cadwallander. He did call him s-h-i-t-t-y-pants and crybaby, did brandish the tissue box and swear at Mr Cadwallander in Greek. All these activities were given as inimical to the activities that should be engaged in by a first-level supervisor. I do appreciate that the Team Leader position is not a particularly exalted position, but it is nevertheless a position of authority.

[26] The Toyota position goes on, in relation to an understanding of the encounter, that it was in this environment that there then occurred the statement about the applicant’s relative. The applicant then became physically violent as, in an angry frame of mind, Mr Kotsidis moved towards Mr Cadwallander thereby initiating the physical contact which was to follow. Toyota also advanced that the action was not in self-defence, with Mr Cadwallander at no time physically threatening the applicant, that the applicant grabbed Mr Cadwallander around the neck, and pushed him backward into the metal racking, that the applicant said to Mr Cadwallander words to the effect, “Don’t ever f...ing say anything about my family again.” In the Toyota perspective, that was put, possibly with an implied warning attaching to it.

[27] I have accepted that Mr Cadwallander apologised to the applicant, and I have noted equivalently the applicant’s subsequent general apology and explanation for his actions given to Toyota. Finally, it is put for Toyota that Mr Cadwallander’s evidence that his neck was grabbed with ‘quite a bit’ of force is to be accepted, and that he was shocked. To be clear, I have accepted some, but not all of Mr Cadwallander’s evidence. I have not accepted that Mr Cadwallander made the remark as to the applicant’s relative as part of a frequent, presumably innocent, use of the term “stepfather”.

[28] Not all of one person’s evidence must be rejected when one part of the witness’s evidence is unable to be relied upon, and I rely for that proposition on the Full Bench authority of Hanna v Manshiel Pacific trading as Boncel, Giudice J, O’Callaghan SDP, Gay C (PR967467, at paragraph 27). I have accepted that when Mr Cadwallander made his grossly offensive comment, that the applicant approached Mr Cadwallander, grabbing him around or by the neck or upper throat, and that this action included a forceful push or thrust such as to send Mr Cadwallander down into the nearby racking. I have accepted from the viva voce evidence and the tendered photographs, that there were red marks around Mr Cadwallander’s neck as a result of the applicant’s grasp. I have already said that Mr Cadwallander’s evidence that his neck was grabbed with ‘quite a bit’ of force is to be accepted.

[29] Having made this finding, generally consistent with that made by Toyota, I must turn to the statutory framework, and particularly s.387. This is because it is necessary for me to form a view based on all the information available at arbitration as to whether the termination was harsh, unjust or unreasonable. As is well appreciated, I must have regard for the act complained of, providing or not providing a valid reason, together with the other necessary criteria. Mr Burgio, in his tightly argued case, contends for the negative because of Mr Cadwallander’s clear provocation, that the act was intended to hurt, was conceded by Toyota to have been highly offensive and causative in the sense that, had it not been made, the act would not have occurred.

[30] Relied upon also was the applicant’s contrition, his apology to Toyota, an absence of previously violent conduct, that his behaviour was uncharacteristic, and that he was under stress at the relevant time in the wake of his bereavement some week or so, possibly a little longer, prior. It was put by Mr Burgio that the applicant’s act was in the heat of the moment and causing him to lose self-control (Exhibit AMWU8, clause 40(a) of AMWU’s final written submissions).

[31] Toyota relies on the parties’ essentially joint position as to behaviour control, deriving from the Agreement and the policy at Toyota of “hands-off”; said, unlike many corporate policies, to be known to all in the workplace at Toyota and to be applied, that is, to have actual effect in the workplace. Obviously all in large or small workplaces benefit from a violence-free, harassment-free workplace. The AMWU and other unions at Toyota, the shop stewards and Toyota itself have taken active measures to legislate for a workplace free of violence, free of the threat of violence or intimidation and, further, a workplace free of sexual harassment; a true “hands-off” diktat. I have been told of Toyota’s approach of zero tolerance and that there are said to be no exceptions to these rules. To avoid any doubt, I have not approached a consideration of seriousness from the perspective of zero tolerance. I have not approached the necessary consideration of s.387(a), the valid reason consideration, from the basis of zero tolerance.

[32] I am mindful of the parties’ detailed depiction of various practices in the Agreement and that physical contacts, various forms of conduct that are ‘in’ or ‘out’, are described and examples given in the Agreement; that accordingly some are acceptable in the workplace and some are not. Naturally, a policy with such important ambitions should not be undermined, but the exercise here is: can the applicant’s conduct be said to provide a valid reason for his termination, given the most unusual provocation and his personal circumstance, which naturally one is sympathetic to. Service, age and family circumstances must also be borne in mind, as I was reminded.

[33] I will now deal with the application of the behavioural policy. It is true that the applicant, as I have earlier recorded, had only weeks before been reminded by Toyota’s written instrument of the need for he, as a supervisory Team Leader to maintain proper standards arising from his having, as I am satisfied, made a truly disgraceful remark to a person under his authority; a remark in the specially repellent category that should be reserved also for that of Mr Cadwallander. While the policy application aspect is of itself not determinative, I have accepted the Toyota submission that grabbing someone by or around the throat or upper neck was a clear breach of the hands-off policy that regulates the permissibility of personal contact at Toyota, and that clear breaches were known to result in dismissal. I have accepted the evidence given in this case that that is widely known in the workplace.

[34] I have not thought the applicant’s evidence in relation to the physical encounter to be reliable. It has been unhelpful to him that his evidence did not explain from his perspective what actually happened, what had actually occurred. I want to make it clear that the finding I have made a moment ago is that I have accepted Toyota’s submission as to grabbing someone by or around the throat or upper neck was a clear breach of the “hands-off” policy and that clear breaches were known to result in dismissal as a general proposition. The prohibition of violence effected by the ‘hands off’ policy protects employees, including those who may lose their temper or consider themselves, rightly or wrongly, to have been provoked, such as to permit them to initiate some responsive act, violent or otherwise.

[35] If violent acts, forceful throat-grabbing with pushing into a racking, can be excused because of an employee’s loss of control in the heat of the moment, the level of safety, the standard of behaviour is reduced and, possibly, without there being a concern as to the consequence for their employment. It must, I think, also be borne in mind that in many, perhaps a great majority of instances of workplace violence, there will be said to exist elements of provocation. All involved in this case will share the regret that the event happened. I must conclude that this was a highly dangerous event, and is such as to constitute a valid reason for the termination. I am also of the view that the act of fierce or forceful throat grabbing with accompanying pushing, is likely in any workplace to constitute a valid reason because an employer is entitled to take the view that angry employees must not resort to violence in the heat of the moment without consequence. The policy is about prohibition and consequence.

[36] I have been mindful also that the applicant is Mr Cadwallander’s supervisor and can be expected to exercise restraint when dealing with his charges, those under his authority, and particularly someone, as I am sure the applicant would have me conclude, is a difficult charge, a difficult employee prone to abuse and offensive swearing, while of course the applicant is said to have not sworn. As to s.387(b), the applicant was advised of the reason, acknowledging that reference was initially made to the ultimately excised recent written warning. I have thought the investigation was thorough. It may not have been without its imperfections, but I cannot say that to any extent during the course of the investigation the applicant had been disadvantaged or that Toyota had not made earnest efforts to establish the events that had occurred.

[37] I consider as to s.387(c) that the applicant was given a chance to respond, and I have noted Mr Kotsidis’ experienced advisers throughout the stages of the process. There was no s.387(d) refusal. As to s.387(f) and (g), I accept that they do not bear on my considerations. Section 387(h) which is the catch-all, “Any other matters that Fair Work Australia considers relevant” is invoked by Mr Burgio as to harshness particularly and consequence. I have been taken to other cases which have, on the basis of the particular facts of those cases, led to conclusions which favoured that for which Mr Burgio was contending.

[38] I have endeavoured to deal with these points in weighing up the conclusions that I have reached. I am most mindful of the difficult effects of the termination upon Mr Kotsidis, and if it is not already clear, I wish to make it clear, that I disregarded the decision maker, Mr Smith’s ‘zero tolerance’ approach for a less-mechanistic understanding of the real situations which arise in the workplace. So, it should not be thought that I am viewing the events here solely through the prism of the company policy. It informs behaviour at Toyota, and no doubt managerial responses. It does not condition conclusively my estimation of the criteria under s.387.

[39] As to s.387(h), Other Matters, I have also had regard to the evidence of Messrs Landells, Bacarac and Cadwallander as to the way in which the applicant as supervisor had treated him, including divulging Mr Cadwallander’s most personal medical condition to make it a joke in the workplace, to tease Mr Cadwallander, and absurdly, accuse him of forging the specialist’s plea for gastroenterological understanding of someone in Mr Cadwallander’s medical predicament. I have thought this relevant to the background to the case and as forming an example of actions which invite provocative reaction.

[40] Finally, it will hopefully be clear from this case that a locally applied policy - or practice for local supervisory and departmental officers to perpetually contain behavioural deficiencies in Team Leaders or others charged with supervisory responsibilities is not always effective. For all these reasons, I will dismiss the application, and an order for that effect will issue shortly. I now adjourn.”

[41] An order to that effect is found in PR530090 dated 5 October 2012.

COMMISSIONER

Appearances:

 A Sachinidis of the “Automotive, Food, Metals, Engineering, Printing and Kindred

Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

and E Burgio, by permission, for S Kotsidis (the applicant).

S Pill, by permission, with J Romano and C Slattery, for Toyota Motor Corporation

Australia Limited (the respondent).

Hearing details:

2012.

Melbourne:

June 4, 5;

July 18, 19, 20;

August 20, 21, 22.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR530089>