Travis Richard Brown v Famios Pty Ltd
[2023] FWC 2674
•13 OCTOBER 2023
| [2023] FWC 2674 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Travis Richard Brown
v
Famios Pty Ltd
(U2023/4958)
| COMMISSIONER SIMPSON | BRISBANE, 13 OCTOBER 2023 |
Application for an unfair dismissal remedy
On 6 June 2023, Mr Travis Brown (the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with Famios Pty Ltd (the Respondent).
I listed the matter for an initial directions hearing by telephone on 21 August 2023. The matter was listed for hearing of the merits of the application by video using Microsoft Teams on 10 October 2023.
The Applicant appeared on his own behalf. Respondent sought leave to be represented by Mr James Catchpole of Edge Legal. The Applicant did not oppose the granting of leave and leave was granted on the basis that I was satisfied the criteria in subsection 596(2)(a) was met.
The Applicant filed written material in support of his application on 5 September 2023. The Respondent filed submissions on 18 September 2023 and sought to rely on the witness statements of Mr Mark Snowden, Factory Manager and Ms Georgia Gray, Human Resources Officer.
The Applicant was summarily dismissed from his employment on the Respondent’s initiative on 17 May 2023. The application was filed on 6 June 2023, within 21 days of the dismissal. The Applicant commenced employment with the Respondent on 18 May 2021 as a casual employee and on 1 July 2022 as a permanent employee and completed a period of employment in excess of the minimum employment period.
The Applicant made clear that he did not seek reinstatement but instead sought compensation as a remedy.
Legislation
Section 385 of the Act states that a person has been unfairly dismissed if:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
The question for determination is whether Mr Brown’s dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act, which states:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Regulation 1.07 of the Fair Work Regulations 2009 (the Regulations) provides the definition of serious misconduct:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i)the health or safety of a person; or
(ii)the reputation, viability or profitability of the employer’s business.
Regulation 1.07 further provides that serious misconduct includes an employee, in the course of their employment, engaging in theft, fraud, assault or sexual harassment.
Background
The Applicant was summarily dismissed for serious misconduct arising from two separate incidents which took place on 11 and 12 May 2023. To a large extent the facts as determined by the Respondent concerning the incidents on both 11 and 12 May were not disputed by the Applicant.
On 11 May 2023, The Applicant’s coworker and brother, Mr Tobias Herbert, had been involved in a physical altercation with another coworker, Mr Jakob Organ, in which Mr Herbert assaulted Mr Organ. The Applicant intervened in this altercation and moved Mr Herbert away from Mr Organ and outside the Respondent’s building. After re-entering the building, Mr Herbert pushed Mr Organ. The Applicant again attempted to remove Mr Herbert from the situation, at which point Mr Herbert pushed him. The Applicant responded by placing Mr Herbert “in a standing guillotine choke” and attempting to punch him.
On 12 May 2023, the Applicant was approached by a coworker, Mr John Barnes, who accused the Applicant’s brother Mr Herbert of being a rapist and sexually assaulting Mr Barnes’s daughter and threatened to contact the police. The Applicant responded by threatening to kill Mr Barnes, shouting in the office and at Mr Barnes, approaching Mr Barnes face-to-face, and moving outside and punching a pallet.
Following these incidents, the Applicant was stood down while the Respondent conducted an investigation. The Applicant was invited to provide a written statement in relation to the incidents, which he did on 15 May 2023. On 17 May 2023, the Respondent provided the Applicant with a termination letter, effective the same day. The Applicant was advised that his employment had been terminated for serious misconduct. The Applicant was paid for the time he had been stood down, his accrued entitlements, and any outstanding pay.
Applicant’s Submissions and Evidence
The Applicant did not dispute that the events of 11 and 12 May 2023 occurred. The Applicant’s primary submission was that his dismissal was harsh, as it was disproportionate to the Applicant’s conduct, given that he was provoked by his coworkers. He stated that it was unfair that he was dismissed, while the Respondent took no action to discipline his coworkers.
Mr Catchpole advised the Commission that the Respondent did not intend to cross examine the Applicant on his witness statement on the basis that there was no dispute on the facts. The Applicant adopted his statement contained in the Digital Court Book at pages 8 and 9.[1]
The Applicant was offered to provide any further evidence he wished to on the witness statement of Mr Snowden. The Applicant said in response to paragraph 15 of the statement of Mr Snowden that Mr Herbert pushed him and he retaliated. The Applicant was invited to say anything further in response to the statement of Ms Gray. The Applicant said in relation to the incident of 11 May 2023 he was instructed to drive his brother Mr Herbert home. The Applicant said in relation to paragraph 13 of the statement of Ms Gray in relation to 12 May 2023, Mr Barnes was not trying to walk away from him, and the Applicant claimed he said to Mr Barnes ‘lets go and get the bosses’.
The Applicant also said he had never received any warnings.
In relation to the 11 May 2023 incident, the Applicant stated that he had been provoked by his brother who pushed him. The Applicant conceded that his actions may have been excessive but stated that he had a “documented anger management problem”. The Applicant also stated that immediately following the incident, he complied with Mr Snowden’s instruction to drive Mr Herbert home to allow Mr Organ to get to his car.
In relation to the 12 May 2023 incident, the Applicant submitted that he was highly emotional and acted out of frustration. He also pointed to the fact that he did not touch Mr Barnes. The Applicant maintained that he was subject to “the highest form of provocation”, particularly as what he considered to be an “out of work matter” was inappropriately raised with him during work hours. The Applicant stated that he was “in a fit of rage” because of Mr Barnes’ “defamation of character”.
Applicant’s closing submissions
The Applicant said in closing that Mr Herbert was his brother and they lived at the same premises. The Applicant said in relation to the incident of 11 May 2023 that the reason he swung at his brother and put him into a constrictive hold was because his brother pushed him, he believed that physical assault is warranted as a response to physical assault.
The Applicant submitted in relation to the incident of 12 May 2023, the Applicant referred to provocation under the Criminal Code Act of 1899 (Qld). The Applicant submitted Mr Barnes provoked him. The Applicant did not agree that his response was disproportionate to the conduct directed at him. The Applicant confirmed he was a Team Leader in Production and supervised approximately 10 people.
Respondent’s Submissions and Evidence
The Applicant said that he did not require to cross examine either of the witnesses of the Respondent.
The Respondent submitted that the Applicant was dismissed for his involvement in the incidents of 11 and 12 May 2023. The Respondent stated that the Applicant’s conduct amounted to serious misconduct, as it was wilful or deliberate behaviour inconsistent with the continuation of his employment and caused a serious and imminent risk to the health and safety of Mr Herbert and Mr Barnes. The conduct therefore justified summary dismissal in the Respondent’s view.
The Respondent contended that the dismissal was not unfair, as the Applicant engaged in serious misconduct (being an assault), demonstrated a lack of remorse by attempting to shift the blame to other employees and by minimising his actions. The Respondent submitted that the Applicant’s response to any provocation was disproportionate, and that provocation does not mean that there was no valid reason for the dismissal.
Three valid reasons for dismissal were advanced by the Respondent. The first reason was the Applicant’s conduct on 11 May 2023, which the Respondent argued amounted to serious misconduct. The Respondent argued that the Applicant assaulted Mr Herbert, which is an example of serious misconduct under the Regulations. Therefore, the conduct was of sufficient seriousness to justify dismissal. The Respondent submitted that this was so, despite any provocation by Mr Herbert, as the Applicant contributed significantly to the conflict becoming a fight, showed no discipline or self-restraint and far exceeded the necessary use of force to restrain Mr Herbert.
The Applicant’s actions on 12 May 2023 formed the second reason for his dismissal, which the Respondent stated also amounted to serious misconduct. The Respondent submitted that the Applicant’s behaviour was wilful and deliberate, inconsistent with the continuation of his employment has he threatened another employee and placed the safety of others at risk, thereby causing a serious and imminent risk to the health and safety of others. Again, the Respondent submitted that the Applicant’s conduct was sufficiently serious to justify dismissal.
Finally, the Respondent alternatively submitted that the Respondent’s actions on 12 May 2023 amounted to workplace violence, which is a valid reason for dismissal. The Respondent submitted that the Applicant’s conduct in abusing and threatening to kill Mr Barnes while coming face-to-face with him amounted to workplace violence, and therefore justified dismissal. The Respondent argued that any provocation faced by the Applicant was insufficient to justify his conduct, especially as the Applicant prolonged the confrontation by following Mr Barnes and escalated the confrontation by threatening to kill him.
The Respondent acknowledged that the Applicant was only notified of the reason for his dismissal after the dismissal decision had been made. However, the Respondent argued that if there was any procedural deficiency, given the Applicant’s serious misconduct, it does not render the dismissal harsh, unjust or unreasonable.
The Respondent submitted that the Applicant was given an opportunity to respond, as evidenced by the Applicant’s written response, as well as discussions he had with Ms Gray. The Respondent stated that the decision to dismiss the Applicant was not taken until after the Applicant’s response had been received, and the response was taken into account in the decision-making process.
It was finally submitted by the Respondent that the seriousness of the Applicant’s conduct, as well as his lack of insight or remorse, weigh against a finding of unfairness. The Respondent submitted that the Applicant’s description of his conduct being “in the traits of a human and … [a] flight or fight response”, demonstrated that he had no understanding of the gravity of, or remorse for, his actions.
Statement of Mark Snowden
As stated above, Mr Snowden’s statement of 18 September 2023 was not challenged by the Applicant and it was admitted into evidence without the need for cross examination. [2] Mr Snowden gave evidence that on 11 May 2023 he was speaking with Mr Brown when another employee informed them that Mr Herbert was “trying to fight” Mr Organ. He stated he heard Mr Herbert yelling and observed him standing very close to Mr Organ. Mr Snowden said that he told the Applicant to remove Mr Herbert from the factory, as he considered that Mr Herbert would be more likely to listen to the Applicant than himself.
After the confrontation escalated, Mr Snowden stated that he observed the Applicant preventing Mr Herbert from reaching Mr Organ, which resulted in Mr Herbert pushing Mr Brown. Mr Snowden stated that a fight between Mr Brown and Mr Herbert ensued, and punches were thrown, but that he was unsure who threw the first punch.
In relation to the 12 May 2023 incident, Mr Snowden stated that Ms Gray informed him that Mr Barnes and the Applicant were yelling at each other in the office. Mr Snowden went to investigate the situation and stated that he witnessed Mr Barnes and the Applicant yelling at each other but could not recall what was being said. Mr Snowden said that he attempted to defuse the situation, after which the Applicant punched a pallet that was leaning against a wall.
Statement of Georgia Gray
Ms Gray’s statement of 18 September 2023 was admitted into evidence on the same basis as Mr Snowden’s as unchallenged evidence.[3] Ms Gray stated that she first became aware of the 11 May 2023 incident when she was told by Mr Snowden, who recalled to her his observations that he described in his evidence. Following this, Ms Gray said that she spoke with the Applicant, Mr Herbert and Mr Organ, and stood Mr Herbert down pending further investigations and interviews.
Ms Gray stated that at 10:30am on 12 May 2023, Mr Barnes walked into her office closely followed by the Applicant. She said that she observed the Applicant behaving in an angry manner, and after asking him to calm down, he replied by threatening to kill Mr Barnes and sliding the back of his thumb across his throat. She took this gesture to be a threat to kill.
Concerned that the Applicant was going to physically attack Mr Barnes, Ms Gray stated that she sought the assistance of Mr Brad Henderson, Chief Executive Officer of the Respondent. Moving outside to where the Applicant was located, Ms Gray said that she observed the Applicant yelling “this cunt is accusing my brother of raping his daughter! That’s defamation of character!” while pointing at Mr Barnes. After being convinced to leave the workplace by Mr Henderson, Ms Gray stated that she observed the Applicant punch a pallet that was leaning against a building.
Ms Gray stated she called and spoke to the Applicant at approximately 3:00pm on the same day, and after receiving his version of events, informed him that he had been stood down while an investigation took place, that he would be informed of the outcome of that investigation on 15 May 2023, and that he could provide further information by calling or emailing Ms Gray.
The Applicant provided a sealed letter on 15 or 16 May 2023 containing his response to the events of 11 and 12 May 2023. Ms Gray stated she discussed her version of events, including the Applicant’s response letter, with Ms Jayne Crow, Human Resources Manager. Ms Gray stated that she and Ms Crow formed a view that the Applicant had engaged in serious misconduct, based on the assault of Mr Herbert and the threat to kill Mr Barnes.
Ms Gray’s evidence was that, as the Human Resources Manager, Ms Crow was responsible for making the disciplinary recommendation to Mr Henderson. After speaking with Ms Crow and Mr Henderson, Ms Gray said she became aware that Ms Crow recommended termination and that Mr Henderson accepted this. Ms Gray stated that Ms Crow had told her that she had decided that Mr Snowden, as the Applicant’s manager, should inform the Applicant of his termination, and that this should occur by way of a phone meeting due to safety concerns arising out of the Applicant’s behaviour.
Ms Gray stated that on 17 May 2023, she and Mr Snowden called the Applicant and informed him of his termination. Ms Gray stated that she offered the Applicant an opportunity to have a support person present for the call, but that the Applicant declined. Ms Gray stated that Mr Snowden then read out the termination letter to the Applicant. According to Ms Gray, the Applicant expressed that he was unhappy, saying words to the effect of “this is ridiculous”, and the phone call ended shortly afterwards.
In response to the Applicant’s contention in his evidence that “the rights of the perpetrator have more value [than] the victim”, Ms Gray stated that the disciplinary proceedings in relation to Mr Barnes were private, but that he had been subject to some disciplinary outcome in relation to the 12 May 2023 incident.
Respondent’s closing submissions
The Respondent submitted that it accepted there was some provocation, however the Applicant went far beyond any reasonable response. The Respondent submitted in relation to the incident of 11 May 2023 that attempting to choke someone and attempting to punch them is not a reasonable response to being pushed.
In relation to the incident of 12 May 2023 the Respondent submitted that it accepts that Mr Barnes did make inflammatory comments about the Applicant’s brother, but the Respondent submits that the Applicant chose to prolong and escalate the incident, and that by following Mr Barnes, yelling at him and threatening to kill him, calling him a cunt, and sliding the back of his thumb across his throat was far beyond reasonably responding.
The Respondent submitted that in both instances the Applicant’s response to those two incidents was far beyond reasonable. The Respondent submitted that even if the Commission was to form a view that there was harshness in the decision to dismiss arising from the Applicant being provoked (which the Respondent does not accept), it is submitted that any harshness is outweighed by the seriousness of the Applicant’s actions, and his refusal to acknowledge that seriousness or demonstrate any remorse. The Respondent referred to the Applicant’s submission on page 7 of the Digital Court Book where he said as follows: “I disagree with the firing of myself (Travis Brown) as it was unfair as I was provoked with the intention to get me angry. As I only acted in the traits of a human and that is fight or flight response this is why it is unfair…” This Respondent submitted that submission of the Applicant accurately demonstrates the Applicant’s attitude to the matter, and he doesn’t see an issue with what he did, and its human nature to act that way.
The Respondent submitted that put simply, the Applicant admitted to assaulting one employee, and threatened to kill another employee and this is at the higher end of seriousness. The Respondent submitted the incident on 12 May occurred very early in the shift and when it happened the Applicant was sent home. The Respondent submitted that fact that it did not stand the Applicant down immediately on 11 May does not absolve the Applicant of responsibility for his conduct that day, or lessen the seriousness of it.
Consideration
Section 387(a) Valid reason
I have considered the evidence in this case and I am not satisfied that the provocation that the Applicant relies on to defend his actions on either 11 or 12 May 2023 was a reasonable justification for the way he retaliated. The extent of his retaliation on 11 May 2023 of attempting to punch Mr Herbert and then placing him in a choke hold at the workplace was disproportionate to his brother having pushed him. His actions of yelling at Mr Barnes and threatening to kill him, calling him a cunt, and sliding the back of his thumb across his throat was far beyond reasonable retaliation to the verbal statements made by Mr Barnes making serious allegations about the conduct of his brother.
It is not disputed that the Applicant was a Team Leader supervising approximately 10 other employees. I accept the Respondent’s submission that the seriousness of this conduct across 11 and 12 May 2023, (the second incident occurring the day immediately following the first), outweighs the Applicant’s argument that the Respondent’s decision was harsh. Equally important is that the Applicant gave evidence, and has made submissions in defence of his actions, in a manner that does not indicate an awareness on his part that his conduct was disproportionate and was serious. To the contrary the Applicant has adopted the view that his responses in both incidents were justified on the basis that he had been provoked. That lack of remorse supports the Respondent’s position that having considered his response to the two incidents as part of its investigation that it had a valid reason to dismiss the Applicant. I am satisfied on the basis of the evidence that the Respondent did have a valid reason for dismissal based on the Applicant’s conduct.
Section 387(b) Was the Applicant notified of the reason
The Applicant accepted that he was notified of the reason for his dismissal on 17 May 2023.
Section 387(c) Was the Applicant given an opportunity to respond to any reason
The Applicant held discussions with Ms Gray about the issues and agreed that he was given an opportunity to provide a statement in response to the alleged incidents.
Section 387(d) any unreasonable refusal by the employer to allow the Applicant to have a support person
The Applicant agreed he was offered a support person in the discussion over the phone on the day he was dismissed and was content to proceed without a support person. The Applicant did not indicate there had been any refusal by the Respondent to allow him to have a support person at any other point in the process.
Section 387(e) was the Applicant warned about unsatisfactory performance
The termination did not relate to unsatisfactory performance and this is a neutral consideration.
Section 387(f) and (g) the degree the size of the employer and the absence of human resources expertise was likely to impact on the procedures followed
The Respondent is not a small business and had access to human resources expertise. This is a neutral consideration.
Section 387(h) any other matters
The Applicant’s actions were serious. The Applicant has demonstrated a lack remorse or insight into his behaviour. The Applicant gave evidence that he has suffered financial hardship as a result of the termination, however his evidence also tended to indicate he had not made extensive efforts to obtain other employment. His period of employment with the Respondent was not particularly lengthy at approximately two years.
Conclusion
I have weighed each of the matters that are required to be taken into account in section 387 of the Act. I have found that the Respondent had a valid reason for dismissal. The Respondent determined to terminate the Applicant summarily on the basis of serious misconduct, however before doing so followed a procedure that afforded the Applicant an opportunity to respond to the reasons for termination before arriving at its decision. Weighing those matters and the other criteria to be considered I have concluded that the dismissal was not harsh, unjust or unreasonable. On that basis the application is dismissed. An order to that effect will be issued separately and concurrently with this decision.
COMMISSIONER
Appearances:
Mr Travis Richard Brown on his own behalf.
Mr James Catchpole of Edge Legal for the Respondent.
Hearing details:
2023
By Microsoft Teams Video
10 October
[1] Exhibit 1
[2] Exhibit 2
[3] Exhibit 3
Printed by authority of the Commonwealth Government Printer
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