Zivko Misovic v Linfox Australia Pty Ltd T/A Linfox

[2019] FWC 7771

[2019] FWC 7771

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zivko Misovic
v
Linfox Australia Pty Ltd T/A Linfox
(U2019/5779)

COMMISSIONER GREGORY MELBOURNE, 13 NOVEMBER 2019

Application for an unfair dismissal remedy.

Introduction

[1] Mr Zivko Misovic was employed by Linfox Australia Pty Ltd (Linfox) from 13 February 2017 until 10 May 2019 when his employment was terminated on grounds of serious misconduct. At the time of his dismissal he was working on a casual basis in the Transport Worker Grade 6 classification at the Coles Distribution Centre in Truganina. Linfox has a contract to deliver groceries on behalf of Coles to its supermarkets in Victoria.

[2] Mr Misovic subsequently made application claiming he was unfairly dismissed. This decision deals with that application. Mr Misovic appeared on his own behalf. Mr George Katsifolis, the National Workplace Relations Manager at Linfox, appeared on its behalf.

The Issue to be Determined

[3] Section 385 of the Fair Work Act 2009 (the Act)provides that a person has been unfairly dismissed if the Fair Work Commission (the Commission) is satisfied “the dismissal was harsh, unjust or unreasonable.” 1 Section 387 continues to provide that the Commission must take into account the following considerations in determining whether a dismissal was harsh, unjust or unreasonable. It 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 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.” 1

[4] The Commission is therefore now required to determine whether Mr Misovic’s dismissal was “harsh, unjust or unreasonable,” taking into account the matters set out in s.387.

The Applicant’s Evidence and Submissions

Mr Zivko Misovic

[5] Mr Misovic has worked in the transport industry for eight years and has been employed by Linfox since February 2017. He is of Serbian background and English is his second language.

[6] On 23 January 2019 he drove to the Parkmore Shopping Centre to make a delivery to the Coles’ supermarket at that location. While attempting to reverse into the loading dock he noticed a blue vehicle obstructing his path. The female driver appeared to be unaware he was attempting to make a delivery and called out to him, “…where are you fucking going?” He attempted to explain that he was making a delivery at the loading dock. The woman then exited her vehicle, held up her middle finger and commenced yelling.

[7] Mr Misovic then exited his vehicle and tried to explain that she needed to move her vehicle to enable him to get to the loading dock. However, she continued to yell and swear at him while he reiterated that he was just trying to do his job. A series of further exchanges then occurred until the woman called out “…go back to your country.” Mr Misovic said he was offended by this racial slur and responded by saying that she “..did not look that Aussie either.” He then spat on the ground in frustration and returned to his truck, as by then the woman had driven off. He then completed his delivery before returning to the Depot in Truganina.

[8] When he returned to the Depot he informed the Operations Manager about what had occurred, and was then told he was going to be stood down until an investigation could be carried out.

[9] On 24 January 2019 he was asked to attend a meeting on the following day, where he was asked a number of questions about what had occurred. He indicated that he had difficulty understanding some of the questions, given his limited English language skills. He was not shown any CCTV footage during the course of the meeting. At the end of the meeting he was then asked to attend a follow-up meeting on 29 January 2019. However, on that day he was not feeling well and attended his General Practitioner. He was subsequently diagnosed with work-related stress, insomnia and depression. He was also involved in a car accident on the same day and taken to hospital where he was told he had sustained extensive injuries to his back, shoulder, knee and wrist, and would need to undergo rehabilitation. He subsequently instructed his solicitors to respond to a series of questions asked of him by Linfox, and this response was provided on 30 January 2019. Mr Misovic was finally able to attend a further meeting with Linfox on 10 May 2019, although he felt pressured to do so after receiving various inquiries from Linfox asking why he had not cooperated with their investigation.

[10] On 10 May 2019 his wife drove him to the Linfox Depot for the meeting. He was informed at the outset that Linfox had decided to terminate his employment, after reviewing what had occurred and the responses that he had provided. He was asked if he had anything to add and he responded by detailing his good employment history, including the Excellent Customer Service Award that he received in 2016. He also indicated that he had often been prepared to work longer hours, when requested. The meeting then adjourned for a brief time before the Linfox representatives returned and handed him a termination letter indicating that his employment had been terminated on the grounds of serious misconduct due to serious breaches of driver behaviour. Mr Misovic was shocked and disappointed by the sudden termination of his employment and he has been financially and emotionally impacted as a result. He now feels physically and mentally incapable of performing other work, although he has been looking for other employment since the time of his termination.

[11] Mr Misovic also clarified in cross examination that he was first employed by Linfox on 13 February 2017, and prior to that time had been placed at Linfox when employed by an agency known as Zoom Recruitment. He also confirmed that he had attended various training programs with Linfox, including the three days of induction training prior to commencing his driving duties.

[12] Mr Misovic was also shown a copy of the dash cam footage provided by the other driver during the course of cross examination. He indicated that it appeared that some of the footage was missing because it did not show the woman getting out of her vehicle, gesturing at him, and being abusive during the course of the conversation they had. However, he was not able to explain how the footage might have been cut or why the full footage of the incident was not available. He also acknowledged that his version appeared to be totally inconsistent with the video footage, but that was how it was. He also indicated that he was upset at the time because the person in the vehicle was a young female, who should have showed more respect for an older person.

[13] He also indicated that he had spat at the ground and not in the direction of her vehicle, although he also acknowledged that this behaviour was inappropriate and not of a professional standard. He also acknowledged that he had not contacted his Manager about the incident when he returned to the Depot. He also stated that when he had indicated that the dash cam footage had not been shown to him previously this was also incorrect, and it was shown during the interview on 25 January 2019. He also agreed that he had first stated that he did not spit during the course of the incident, but later admitted that he had after being shown the footage of what occurred. He also agreed that he had a choice at the time but decided to get out of his vehicle and confront the other driver. He also agreed in response to a question from the Commission about the dash cam footage that when he stated in his evidence that the footage was incomplete this was because it did not show the discussion that took place between him and the other driver at a point when they were both outside of their vehicles.

The Applicant’s Submissions

[14] Mr Misovic submits that Linfox did not have a sound, defensible or well-founded reason for his dismissal. He did not gesture or swear at the other driver during the course of the incident on 23 January 2019, and it was instead the other driver who had gestured and sworn at him. He had simply tried to reason with the driver and attempted to explain that he was only trying to carry out his job.

[15] In any event his conduct did not amount to misconduct that warranted his termination. It was a one-off isolated incident and he was provoked by the behaviour of the other driver. He also had an excellent employment record during the time he was employed by Linfox, and the incident did not cause any damage to its reputation. Other more appropriate disciplinary action could have been taken, including a first and final written warning.

[16] He continues to submit that he was not notified of the reason for his dismissal until after Linfox had made the decision to terminate his employment, as he was told at the outset of the meeting on 10 May 2019 that he was to be terminated. He was also denied the opportunity to review the various materials relied upon for the decision to terminate his employment after this request was made by his solicitors in a letter dated 30 January 2019. He was also not provided with a real and meaningful opportunity to respond to the reasons for his dismissal in the meeting on 10 May 2019.

[17] He submits, in conclusion, that the decision to terminate his employment was a disproportionate response given his good employment record, the availability of alternative disciplinary action, and the harsh consequences of the decision for him.

The Respondent’s Submissions and Evidence

Ms Deborah Reich

[18] Ms Reich is employed by Linfox in the position of General Manager – Retail and has been in this role since 17 April 2017. Prior to joining Linfox, she has had long-standing experience in various roles in the supply chain and transport industry. In her current role she is responsible for delivering operational outcomes in accordance with the contractual arrangement that Linfox has with Coles. One of the sites Linfox operates from under these arrangements is the Coles Regional Distribution Centre at Truganina where it distributes groceries to Coles Supermarkets throughout Victoria.

[19] Mr Misovic was employed on a casual basis by Linfox on 13 February 2017 and worked as a Transport Worker Grade 6.

[20] On 23 January 2019 the State Manager of Linfox, Mr Alex Fisher, received an email from Coles concerning a complaint received from a member of the general public. The email contained a statement setting out the nature of the complaint, as well as dash cam footage taken at the Parkmore Shopping Centre in Keysborough. The verbatim statement from the complainant was as follows:

“I have it all on camera that this truck driver was in the wrong lane with his hazards on. He stuck his finger up and [sic] me, then drove his truck towards my car trying to hit it. He got out of his truck, came up to me and started saying racist slurs, and spat on my car and he drove off. He is in the parkmore coles now at 1.20p.m. I will happily send you the video” 2

[21] Ms Reich said she was alarmed at the behaviour of the Linfox driver who was captured in the footage. She was subsequently informed that it was Mr Zivko Misovic.

[22] After Mr Misovic returned to the Distribution Centre at Truganina on 23 January 2019, he provided a statement claiming provocation as the cause of the incident, however, he was suspended from duties pending further investigation. A copy of a record of interview taken on 23 January 2019 with Mr Misovic was attached to Ms Reich’s witness statement 3. He was subsequently interviewed again on 25 January 2019. When asked why he didn’t ignore the hand signal and continue with his work he responded by indicating that he had been given “the middle finger” by another female driver the day before and was annoyed by what occurred. He also admitted to swearing at the driver of the other car, but, denied spitting on the car. However, after being shown the dash cam footage he agreed that he had spat in the direction of the complainant’s vehicle.

[23] Ms Reich then made a check of the training Mr Misovic had participated which confirmed he had completed the Linfox induction program on 20 January 2017. It involves a three-day course that employees are required to attend before carrying out any of their normal work duties. He had also completed what is described as the “Redbook training” on 20 January 2017. He was also the subject of an in-house assessment on 26 September 2017 and was deemed “competent” as an outcome from that process.

[24] After reviewing Mr Misovic’s responses in the interview and the dash cam footage, together with the Linfox training he had participated in, Ms Reich concluded that his conduct was unprofessional, wilful and highly inappropriate. She also considered that it had caused embarrassment to Linfox’s customer and damaged its reputation. He had driven towards the complainant’s vehicle in a dangerous manner, wilfully exited his vehicle so as to engage in an argument with the driver, and then wilfully spat at the complainant’s car. Ms Reich stated: “Road rage is unacceptable and I found the act of spitting reprehensible. 4” She also concluded that Mr Misovic “…had not provided a defensible reason for his behaviour during the record of interview 25 January 2019 and therefore there was basis to terminate his employment for serious misconduct.5”

[25] Ms Reich therefore decided to contact HR in order to arrange a meeting with Mr Misovic to inform him of the preliminary decision to terminate his employment. However, she was subsequently informed that he was unable to attend the scheduled meeting, and Linfox then received a letter dated 30 January 2019 from Solicitors acting on his behalf. Ms Reich said that after reading the letter she was still of the view that his employment should be terminated. However, some further delays then occurred as he was apparently unable to meet due to medical incapacity. Eventually, a meeting was arranged for 7 May 2019. Ms Reich was not able to attend that meeting but was informed that Mr Misovic attended with his wife as a support person.

[26] Mr Misovic was informed at the outset of that meeting of the preliminary decision to terminate his employment due to a serious breach of driver behaviour arising from the incident on 23 January 2019 and was then given the opportunity to explain why his employment should not be terminated. He responded by indicating that he had a good employment record over an extended period of time and had never been in any trouble before.

[27] There was then a break in the meeting while Ms Reich was contacted by the Linfox representatives who had met with Mr Misovic. Prior to the meeting she had formed the view that unless he was able to provide a reasonable explanation for his misconduct then his employment should be terminated. She subsequently decided that the reasons he provided in the meeting were not compelling enough to alter her decision and informed the Linfox representatives to proceed to terminate his employment. She was later informed that he had then been provided with a letter, dated 10 May 2019, terminating his employment for serious misconduct. She also indicated in her witness statement that Mr Misovic had never been awarded an Excellent Customer Service Award, together with a $200 gift card from Linfox. He was not, in fact, employed by Linfox at the time he claimed to have received this award, but was instead employed by an agency that supplied labour to Linfox.

Mr John Saggers

[28] Mr Saggers is employed by Linfox as a Transport Worker Grade 6 and has been with the business since August 1979. He worked at the Distribution Centre at Truganina until 26 February 2019 when he was redeployed to another contract held by Linfox at another location. He was also a Union delegate for the Transport Workers’ Union (TWU) for around 30 years until he stepped down from this role on 26 February 2019.

[29] On 25 January 2019 he was informed by Linfox Management about the incident at the Parkmore Shopping Centre, and Mr Misovic subsequently requested him to be his support person at the meeting on 25 January 2019. Mr Saggers indicated that a number of questions were asked of Mr Misovic about the incident during the course of the interview, and he didn’t appear to have difficulty understanding the questions. He was also asked if he had spat at the car but denied having done so. He was also taken through the dash cam footage during the course of the interview and asked various questions while the footage was being shown. At the end of the interview both he and Mr Misovic signed the record of interview, after reading the responses that had been recorded, confirming they were satisfied it reflected what had been said in the interview.

The Respondent’s Submissions

[30] Linfox indicated in its submissions that Mr Misovic was employed under the terms and conditions contained in the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2018 6(the Agreement). It made specific reference to clause 22 “Employees Duties” and clause 71 “Counselling and Discipline” which both set out what is expected of employees and make clear that Linfox has the right to discipline an employee who acts in breach of those obligations.

[31] Linfox submits, in summary, that Mr Misovic engaged in inappropriate behaviour during an altercation with a member of the public which culminated in a serious breach of driver behaviour. In particular, he drove his vehicle in an intimidating manner towards the complainant’s car, engaged in road rage by exiting his vehicle, and then verbally abused the complainant and spat in the direction of her car. It continues to submit that these actions constituted a valid reason for the termination of his employment, and it was not harsh, unjust or unreasonable in all the circumstances.

[32] It also emphasises that Mr Misovic has now sought to provide a different version of events to what is depicted in the dash cam footage, and it does not accept his evidence when he states that at one point the other driver got out of her vehicle, and then gestured and swore at him. It emphasises that this is clearly not depicted in the dash cam footage, and there is no evidence suggesting the footage was either doctored or does not provide a complete version of what occurred at the time.

[33] It also makes specific reference to clause 25 in the Agreement “Customer Service and Interpersonal Relationships” and clause 29 “Driver Behaviour Policy”. It also emphasises that Linfox places great importance on delivering service excellence to its customers, and an inherent part of this involves employees acting professionally.

[34] It continues to submit that it had a “valid reason” to dismiss Mr Misovic as the evidence confirms he drove towards the complainant’s vehicle and exited wilfully as seen on the dash cam footage. He also admitted to swearing at the complainant, when interviewed on 25 January 2019, and the dash cam footage captures him spitting at the complainant’s car. His behaviour constituted serious misconduct as it was deliberate behaviour that caused a serious and imminent risk to Linfox’s reputation, and went to the heart of the employment relationship between Linfox and Mr Misovic. He was also well aware of the relevant company policies concerning professional and safe driving practices, and he had acknowledged that he had been inducted in relation to these policies. It also now believed it could not be certain he would not be involved in the same behaviour again if confronted with similar circumstances in the future.

[35] It continues to submit that he was notified of the reason for his termination in the meeting on 10 May 2019 and provided with an opportunity at the same time to respond. It also submits that the decision to terminate his employment was a proportionate response to his behaviour. It submits, in conclusion, that his conduct was unacceptable and constituted a “valid reason” for his dismissal. He was also provided with procedural fairness during the processes that led up to his employment being terminated.

Consideration

[36] The circumstances in which an employee’s dismissal can be considered to be “harsh, unjust or unreasonable” have been considered in a number of previous decisions. The decision in Byrne v Australian Airlines Ltd 7 is often cited in this context. The joint judgement of McHugh and Gummow JJ concluded:

“...It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 8

[37] The decision of the Full Bench of Fair Work Australia in L. Sayer v Melsteel Pty Ltd 9 also provides guidance about the Commission’s role in regard to each of the matters in s.387 that must be taken into account in determining whether an employee’s dismissal was “harsh unjust or unreasonable.” The Full Bench concluded:

“…Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.” 10

[38] I turn now to deal with each of the considerations in s.387, and those authorities that I consider relevant to the determination of this matter.

(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)

[39] Before coming to the particular circumstances involved in this matter it is noted again that previous decisions have had regard to what is required in order to conclude that there was “a valid reason for the dismissal related to the person’s capacity or conduct.” The judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd 11 is often referred to in this context. His Honour came to the following conclusions:

“The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason. This is the rationale for the onus of proof provisions contained in s 170EDA.

Section 170DE(1) refers to ‘‘a valid reason, or valid reasons’’, but the Act does not give a meaning to those phrases or the adjective ‘‘valid’’. A reference to dictionaries shows that the word ‘‘valid’’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: ‘‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’’ In the Macquarie Dictionary the relevant meaning is ‘‘sound, just, or well founded; a valid reason’’

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly…” 12

[40] In Parmalat Food Products Pty Ltd v Wililo 13 the Full Bench also concluded that:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.” 14

[41] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 15 (Australian Postal Corporation) also provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered:

“Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission Is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.” 16

[42] It is also clear that the reason must be valid when viewed objectively. It is not sufficient that the Employer believed it had a valid reason for termination. This was made clear in the Full Bench decision in Rode v Burwood Mitsubishi 17 at paragraph 19 when it stated:

“…the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” 18

[43] These authorities make clear that the existence of a “valid reason” is often the most important consideration of the matters in s.387 that the Commission must have regard to. It is also clear that a “valid reason” must be one that is “sound defensible and well founded” as opposed to one that is capricious, spiteful or prejudiced. It must also be valid in the context of both the employee’s capacity or conduct, and the operational requirements of the business. The test must also be applied in a practical, common sense way to ensure the parties are treated fairly in circumstances where each has rights and privileges, but duties and obligations as well.

[44] It has also been made clear that the Commission’s task in determining an unfair dismissal application, is not to stand in the shoes of the employer, and to decide whether the decision made by the employer was the decision that would have been made by the Commission. Its role is, instead, to determine whether on the basis of the available evidence circumstances existed at the time that can be said to have justified the decision to terminate the employee’s employment. I have sought to adopt the approach of these authorities in coming to a decision in this matter.

[45] The circumstances involved have been set out in some detail already and are not restated now. In summary, Linfox submits that it had a valid reason to dismiss Mr Misovic. It places significant emphasis on the maintenance of its reputation, and on its drivers acting in a courteous and professional manner at all times. It detailed at length the training provided to drivers in this regard, including the three day induction program that occurs before they begin to carry out their driving activities. It notes that Mr Misovic acknowledged in cross examination that he had completed this training and was aware of what was expected of him.

[46] It continues to submit that his actions on the day in question were completely inconsistent with what it expects and could have seriously damaged its reputation with its client. It is unclear about the extent to which this occurred, although it is noted that the complaint from the driver was originally made to Coles and then passed on to Linfox, so Coles was obviously aware of what occurred.

[47] In terms of the behaviour involved Linfox points to Mr Misovic driving his vehicle aggressively towards the other driver, gesturing and directing comments at her, exiting his vehicle, and spitting in the direction of her vehicle. It submits that this occurred in circumstances where there is no evidence of Mr Misovic being provoked in any way, and he deliberately embarked on a course of action when he clearly had other choices.

[48] It also highlights what occurred after the incident. There is no record of Mr Miscovic reporting the incident on his return to the Depot at Truganina, despite the requirement to do so. He also denied having spat during the course of the incident until he was shown the dash cam footage. He also claimed in his witness statement that he had not been shown this footage at any time, though this was incorrect. He also indicated in the interview on 25 January 2019, and in his answers in cross examination, that the other driver had got out of her vehicle and gestured and swore at him. However, this was not depicted in the footage, and there is no evidence to support Mr Misovic’s assertion that the full footage had not been provided, or it had somehow been “doctored.”

[49] Mr Misovic relies, in response, on his good record of service over an extended period of employment with Linfox. While he acknowledged in the interview on 25 January 2019 that his behaviour was inappropriate, and not in accordance with what was expected of him, it was a “one-off” incident. He also claims that he was provoked at the time, and the other driver got out of her vehicle, gestured at him, directed abuse at him, as well as a racial slur. However, he acknowledges that this is not depicted in the footage, and again claims that the entire footage has not been provided. However, he was unable to provide any explanation about how or why this might have occurred.

[50] He submits, in conclusion, that the termination of his employment was a disproportionate response and a lesser sanction, such as a warning, would have been a more proportionate response.

[51] Mr Misovic was clearly involved in difficult and demanding work during the time that he was employed by Linfox. The evidence indicates that he worked long hours on occasions, often over six days a week. In addition, drivers obviously often have to deal with significant traffic congestion, and other road users who don’t always do the right thing. They are also required to exercise a significant degree of skill and expertise at times when accessing certain delivery locations. Mr Misovic also appears to have had a relatively good employment record over the time he worked with Linfox, which included both a period of time when he was directly employed, as well as a period when he was placed in the business by an agency.

[52] However, it is also clear that he acted inappropriately in the incident that occurred on 23 January 2019, and his behaviour was not in accordance with the various policies and procedures that Linfox has laid down and expects its drivers to comply with. Mr Misovic claims he was provoked into acting in the way that he did, but the evidence does not reveal any provocation from the other person involved. Mr Misovic also claims the available evidence does not provide a full picture of what actually occurred, but it is again difficult to point to anything that can support this claim.

[53] Exiting a large vehicle, directing comments at another driver, spitting in the direction of the other vehicle, and driving one’s vehicle aggressively towards another vehicle, are clearly inappropriate and totally unacceptable forms of behaviour, particularly in the absence of any evidence of provocation. They must have conveyed a significant degree of alarm to the other driver involved, although in terms of broader reputational damage it appears that she was the only person who witnessed what occurred. However, she did initially make her complaint to Coles so they were put on notice about what had occurred.

[54] I accept that Linfox could have imposed a different outcome on Mr Misovic. However, I also accept that it places great store on its reputation in what is a highly competitive market in which it operates. It accordingly expects that its drivers will at all times act in a professional manner. It is clear that this did not occur in terms of Mr Misovic’s actions on 23 January 2019. It is also clear that he was less than totally frank and forthcoming in the discussions that took place as part of the investigation after that time. There is no evidence of him having reported the incident to the relevant person, as he was required to do, and he appeared to have changed his version of what occurred after being shown the available footage of the incident. I accept that Linfox could have decided to impose a different outcome on Mr Misovic, however I also accept that the authorities make clear that the Commission does not stand in the shoes of the employer when evaluating its actions. I am satisfied, in response, that in all the circumstances Linfox can be said to have had a valid reason to dismiss Mr Misovic on grounds of serious misconduct, in the sense that that reason was sound, defensible and well founded.

(b) whether the person was notified of that reason.

[55] Mr Misovic was notified of the reason for his dismissal in the meeting that took place on 11 May 2019. He had been previously put on notice prior to this time that a preliminary decision had been made to terminate his employment in the absence of anything that he wished to provide in response

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[56] Mr Misovic was provided with an opportunity to respond to the allegations made about him, both immediately following the incident in the interview that took place on 25 January 2019, and then later in May 2019 after he had been informed that a preliminary decision had been made to terminate his employment. His solicitors also provided a letter on his behalf on 30 January 2019.

(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

[57] There is no evidence of any unreasonable refusal by Linfox to allow Mr Misovic to have a support person present in any discussions relating to his dismissal. The TWU delegate attended a meeting with him on 25 January 2019, and in the final meeting in May 2019 he was accompanied by his partner as his support person.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[58] This consideration is not relevant in the context of this matter.

(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

[59] No submissions were made

(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

[60] I am satisfied that it is appropriate to deal with the above matters together. Linfox is clearly a large employer and can be expected to be aware of the appropriate procedures to be followed in dealing with disciplinary matters, including the termination of an employee’s employment.

(h) any other matters that the FWC considers relevant

[61] Mr Misovic is clearly upset by what has occurred and submits that it has caused him significant anxiety and impacted upon his mental health, although he did not provide any evidence in support of this. However, I have no reason to doubt his evidence in this regard. It has also impacted him financially. These outcomes are clearly unfortunate, but at the same time are regrettably often encountered in conjunction with the termination of an employee’s employment

Conclusion

[62] I have had regard to all the submissions and evidence provided in regard to this matter, and the various matters in s.387 that the Commission is required to take into account. I am not satisfied that Mr Misovic can be said to have been unfairly dismissed in the sense that his dismissal was harsh, unjust or unreasonable. In coming to this decision, I have had particular regard to the conclusions reached in regard to the issue of “valid reason.” It follows from this decision that Mr Misovic’s application must be dismissed. An order giving effect to this decision is now separately issued.

COMMISSIONER

Appearances:

Z Misovic, Applicant.

G Katsifolis for the Respondent.

Hearing details:

2019.

Melbourne:

August 30.

Printed by authority of the Commonwealth Government Printer

<PR714256>

 1   Fair Work Act 2009, s.387.

 2   Witness statement of Deborah Reich at attachment DR-4.

 3   Ibid attachment DR-7.

 4   Ibid paragraph 47.

 5   Ibid at paragraph 48.

 6   AE429372.

 7 (1995) 185 CLR 410.

 8   Ibid, 465.

 9   [2011] FWAFB 7498.

 10 Ibid at [20].

 11 (1995) 62 IR 371.

 12   Ibid, 373.

 13   [2011] FWAFB 1166.

 14 Ibid at [24].

 15   [2013] FWCFB 6191.

 16 Ibid at [58].

 17   Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999).

 18 Ibid at [19].