[2012] FWA 7204

Download Word Document


FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Mr Phillip Slater
v
Patrick Port Logistics Pty Ltd
(U2012/6625)

DEPUTY PRESIDENT SAMS

SYDNEY, 11 SEPTEMBER 2012

Unfair dismissal - intimidating and abusive behaviour - duty to be frank and honest with employer - disciplinary history considered - Union delegate responsibilities - ongoing industrial issue - conflict of evidence - procedural unfairness - dismissal not harsh, unreasonable or unjust - application dismissed.

BACKGROUND

[1] Mr Phillip Slater (the ‘applicant’), a truck driver for over 20 years, was employed by Patrick Port Logistics Pty Ltd (the ‘respondent’) as a permanent truck driver at its Port Botany site until his employment was terminated on 16 March 2012. The applicant had commenced employment as a casual employee on 5 August 2006 and became a permanent driver in September 2008. At the time of his dismissal (16 March 2012) the applicant had also been the Transport Workers’ Union (the ‘Union’) co-delegate for 3 and a half years. The reasons for the applicant’s dismissal might be broadly stated as inappropriate and abusive behaviour towards another employee, Mr Donavon Hawke and dishonesty during the investigation of the applicant’s conduct, and were more specifically outlined in a ‘show cause’ letter of 2 March 2012 as follows:

[2] As the respondent also relied on the applicant’s employment history to justify his dismissal, there was some argument about the number and validity of previous warnings the applicant had received. I shall discuss the relevance of these warnings later. What is readily apparent is that the ‘trigger’ for the applicant’s dismissal was an incident involving him and Mr Hawke, an Allocator of work, on 17 February 2011, and the applicant’s conduct during the respondent’s subsequent investigation of the incident. At this juncture, I note that it was accepted that the applicant was not summarily dismissed for serious or wilful misconduct.

[3] On 29 March 2012, the applicant’s Union filed an application, on the applicant’s behalf, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) seeking a remedy for his unfair dismissal. The application sought to have Fair Work Australia (FWA) make findings that the dismissal was ‘harsh, unjust or unreasonable’ within the meaning of s 387 of the Act and to make orders for reinstatement and other ancillary matters. As the matter was not settled at a conciliation conference on the 19 April 2012, directions were issued and the application was subsequently allocated to me for hearing in the July arbitration roster of FWA in Sydney.

THE EVIDENCE

[4] The following persons gave written and/or oral evidence in the proceedings:

For the applicant

Mr Phillip Slater - Applicant and Union delegate

Mr Robert Sterling - Truck Driver and Union delegate

Mr Peter Kritikos - Truck Driver, Head Union delegate

For the respondent

Mr Donavon Hawke - Transport Allocator

Mr Rodney Thorne - Transport Manager

Mr Eric Colombara - Gatehouse Clerk

Mr Danny Mahe - Security Guard

The Warnings

[5] The applicant said that he had only received three written warnings during his period of employment. However, the respondent tendered six written warnings issued to the applicant during the same period.

[6] In cross examination, the applicant was asked about each of the six written warning letters and said he believed one was issued while he was a casual, two were about the same matter, one he did not receive and one was not relevant to him (attending a stop work meeting in his own time).

[7] The first warning concerned a conversation with the then Transport Manager, Mr Shane Gallagher, on or about 17 February 2009. Early that morning, while the applicant was still on site, he had complained to Mr Gallagher that he could not log on to the payroll system and he needed the payroll office phone number and access to his payslips because he was concerned at not being allocated his Rostered Days Off (RDOs).

[8] After going outside to his truck and returning with his paper work, he again asked Mr Gallagher for the payroll office number. He claimed Mr Gallagher rudely told him that he would give it to him when he was ‘good and ready’. The applicant protested as to why he could not give it to him ‘right now’. He added that Mr Gallagher had been stone walling him for weeks. He then said ‘when I ask you for something I want it NOW!’

[9] Mr Gallagher told him he was going to put him on day shift to keep an eye on him. When he said he could not do that, Mr Gallagher told him ‘Yes I can’. The applicant then said ‘Well if you’d given me what I wanted when I wanted, we wouldn’t be here would we’. Shortly after, Mr Gallagher gave him a first and final warning letter. The applicant signed it and took a week off unpaid as his RDOs were not properly processed. He was told the warning letter would be removed from his file after 12 months and he believed that it had been. As a result Mr Gallagher put him on day shift for a month and, in a subsequent letter extended it by a further 2 months. In oral evidence, the applicant said the two letters he received on 26 February 2009 and 4 March 2009 (where day shift was extended for two months) concerned the same matter. He believed the second letter was a record of punishment arising from the first letter.

[10] In cross examination, the applicant denied becoming more aggressive with Mr Gallagher when he did not get what he wanted. He was just frustrated and he expected a response from ‘someone who doesn’t do their job properly’. He also criticised the fact that the person who made the complaint (Mr Gallagher) decided the punishment.

Second Warning

[11] In early February 2011, the applicant attended a day shift stop work meeting after he had concluded his night shift. A few days later, Mr Trevor Woodward, Site Manager, gave him a warning letter for attending the meeting. He strongly protested that because he was not at work, his attendance was not illegal. He refused to take, sign or accept the warning letter. He said the respondent had no right to discipline him once he had ‘clocked off’.

Third Warning

[12] On 5 March 2011, the applicant said that he and other drivers were upset about being told to go home early while contract labour was being used on that shift. Out of frustration, he had said to two Gatehouse Clerks (Mr Colombara and Mr O’Connor) ‘Why are we going home and you are (sic) casual cunts are still here. You lot are useless and can’t do you (sic) your jobs, it not that hard’. They became agitated and called him names in reply. The Allocator on duty, Mr Apter, told him to calm down and go home. As he walked toward the door he had said ‘Youse all a pack of cunts, have a good weekend’. He said he later called Mr Apter to apologize and Mr Apter had told him not to worry about it. The applicant said that the term ‘casual cunts’ was commonly used on site, even by the casual employees themselves and the drivers.

[13] The applicant was required to attend a meeting with Mr Woodward on 15 March 2011. He did so together with a Union official and Union delegate. Mr Woodward called him a bully and said he wanted to sack him. After some discussion a written apology to all driver and gate house staff was agreed on. However, when the applicant said that he believed this would ‘put the matter to bed’ Mr Woodward said he was still going to ‘write him up’. As a result, he would not give an apology, because he believed it was a double punishment. When he received a second warning letter he refused to sign or take a copy and told Mr Woodward, ‘This isn’t a second warning, the first warning was removed from my file. Fix it up and we’ll talk about it’. He and the Union officials got up and walked out.

[14] In cross examination, the applicant insisted Mr Colombara and Mr O’Connor had called him names when he had only directed his comments to the other drivers, and not to them directly. He agreed he had not mentioned this in his first statement and had made a mistake which he corrected in his second statement, after receiving Mr Colombara’s statement. The applicant agreed that Mr Colombara and Mr O’Connor were not drivers (Gatehouse Clerks), so it was not the case he was being sent home because they were performing his work. He agreed that they may have been offended by his remarks.

[15] The applicant did not believe that there was a difference between swearing in conversation with colleagues and calling someone a ‘casual cunt’ followed by ‘they can’t do their jobs properly’. He said that Mr Woodward believed every bit of conduct in the yard warranted punishment of some sort. The applicant agreed that Mr Woodward had wanted to sack him, but changed his mind. The applicant denied that he had wanted to dictate his own corrective outcomes. He refused to sign the warning letter because he had not been given a proper right of reply.

[16] Mr Eric Colombara said the applicant is a bully who had intimidated him on other occasions. Mr Colombara referred to the incident in the Gatehouse involving Richard O’Connor and said that the applicant had been abusive in front of the other drivers who were laughing. Neither he nor Mr O’Connor had sworn at him in reply. He reported the incident and his supervisor asked what he wanted done in response. Mr Colombara said he had wanted an apology, but the applicant never did so.

[17] In oral evidence, the applicant said he had never received a warning letter dated 9 April 2008 about failing to call in when he was sick. However, he had been blamed when Mr Gallagher had not been given the message by an Allocator that he was sick. He noted that he had not signed the warning letter.

Termination Incident - 17 February 2012

[18] The applicant said that when he returned to the yard about midnight he was informed by another driver that there was another load to go out. He approached Mr Hawke and asked him who he gave the job to. Mr Hawke told him it was none of his business, but in any event, he had given the job to another permanent driver. The applicant said the following conversation ensued:

[19] The applicant said that at no time did he use offensive or abusive language; although he may have raised his voice slightly as he was walking out of the office. He claimed that as he walked out he said to another driver, Mr Robert Sterling ‘This is bullshit’.

[20] In further evidence in chief, the applicant explained that Mr Hawke had bullied and belittled him when he ordered him to go home and had said ‘I am the allocator and you are just a truck driver’. The applicant said that Mr Hawke had said ‘Do you think calling me a piece of shit is an appropriate way to behave’ and he had replied ‘I didn’t call you that’. He had no personal animosity towards Mr Hawke. The applicant deposed that it had never been an issue for drivers to enter the office to speak to the Allocator or to have meals or just socialize.

[21] In cross-examination, the applicant conceded that there were differences between his first response to Mr Thorne and his later statement as to what he had said to Mr Hawke. He accepted that on the night Mr Hawke had allocated the job he was complaining about, it was allocated to a permanent driver. In response to Mr Thorne he said he had only been asked to be brief and had not remembered Mr Hawke allegedly harassing him by ‘tracking’ his movements. He agreed in further questioning that there was no instruction from Mr Thorne to be brief (in his response).

[22] The applicant agreed that in his first response he had not mentioned Mr Sterling being in the office and saying to him ‘this is bullshit’. He did not mention him in a second response or in the ‘show cause’ meeting. When put directly to him, as to whether Mr Sterling had been present, the applicant said ‘I believe so’.

[23] On this issue, the applicant was shown a drivers report of the shift in question which disclosed that Mr Sterling arrived at the depot at 11:40pm and left at 11:50pm. The applicant had arrived at 11:55pm. The applicant said the report must be wrong because he had been speaking to Mr Sterling outside the office prior to going into the office. It was also wrong because it showed a finish time of 1am. The applicant insisted he said to Mr Sterling ‘This is bullshit’ and that he had not called Mr Hawke ‘a piece of shit’. He denied lying about this during the investigation. He now claimed he said ‘this is bullshit’ under his breath, and no one else would have heard him.

[24] By reference to a floor plan, the applicant was asked about the position of persons in the office during the incident. He said Mr Sterling, having just walked in, was between him and Mr Hawke. He said ‘this is bullshit’ as he walked out and was closing the door. He was outside the door and Mr Sterling was inside the office. In re-examination, the applicant said that Mr Hawke was sitting at the desk which was about 1.8 metres long by 0.5 metres wide with a hutch that is about chest high and running the full length of the desk. It was ‘pretty much’ a physical barrier between them. The applicant also marked the positions of the security guard Mr Mahe, Mr Colombara and Mr O’Connor.

[25] The applicant accepted that he may have raised his voice as he had left the office, but he explained that he speaks with a loud voice all the time. He also claimed that he uses his hands a lot when speaking and it was possible that he had pointed at Mr Hawke. He agreed that if he was standing over Mr Hawke, accusing him of not doing his job, raising his voice and pointing at him, that Mr Hawke may have felt intimidated. He acknowledged that the job had actually been allocated to another permanent driver. He denied just wanting the work for himself and denied getting aggressive when he did not get what he wanted. He was just frustrated. The applicant said he was not just questioning Mr Hawke about that particular job, but it was an ongoing problem with Mr Hawke because he would keep work away from permanent drivers. It was an issue raised on almost every night shift.

[26] The applicant agreed he did not go and ‘park up’, but insisted on conversing with Mr Hawke about work allocation as he expected a response. The applicant said that, at the time, Mr Hawke never said anything about his tone, body language or about him calling him a piece of shit, as being abusive. That allegation came later on. The applicant said he did say ‘if you treat people like shit, they’ll treat you the same’. He agreed he had never told the respondent that those were the words he used, yet he claims to have given the respondent a full and frank account of the incident.

[27] The applicant believed that it was only fair to get an answer from Mr Hawke as he had tried and failed before with Mr Thorne. The applicant agreed that if he is told to ‘park up’ and go home by the Allocator he should do so, if there is nothing else to do. The applicant conceded he had said something to Mr Hawke like ‘you don’t know how to do your job’ but denied using those words in a response to a question from Mr Thorne during the investigation. The applicant denied telling Mr Sterling, or anyone else, ‘that I plan to get my job back and terrorise that cunt (Mr Thorne) in there’.

[28] The applicant accepted that in late December 2011 he had viewed a training video on the respondent’s cardinal safety rules and had taken a quiz after seeing it. He did not regard this as training as everyone passed the quiz and were given the answers. Nevertheless, he agreed he was aware that the first safety rule strictly prohibited violence, horseplay, harassment or bullying, and that a breach of the rules could result in disciplinary action.

[29] At the end of his evidence, the applicant updated his personal and financial circumstances. He has had two other casual jobs since being dismissed, and is taking home about $3,200 a month less than he was being paid by the respondent. This was putting him into more debt. When working for the respondent he had been averaging around 55 hours a week, inclusive of two to three and a half hours of overtime a night.

[30] Mr Robert Sterling is a Night Delegate and has been a truck driver for 30 years; the last 9 years employed by the respondent. It was Mr Sterling’s evidence that the attitude of Allocators towards drivers is often one of contempt. As the delegate, he had often asked about the work, but was told it was not his business and to go and do your job. As a result, he had stopped asking.

[31] Mr Sterling described the allocation of work at the yard by the Allocators. He said when one job finishes, the driver approaches the Allocator to be given another job. In the case of overtime, preference should be given to permanent drivers. This has been an issue in the yard for some time and when he and the applicant would ask why casuals were being given jobs before permanents, the responses were that the casuals were there first and that the job needed to be done. The matter has become such an issue for the drivers that some have simply refused to do any overtime.

[32] In cross-examination, Mr Sterling agreed that no driver had an entitlement to overtime; however he believed there was an understanding that permanent drivers would get overtime before casual or agency drivers.

[33] Mr Sterling described an occasion in February 2012 when he had been sent home, four nights in a week, without overtime, while casuals had received overtime on those shifts. When Mr Hawke asked him to do overtime on the 5th night, he refused and they had a discussion about whether the employer or the employee was to offer the overtime. When Mr Hawke asked how he was going to get the job done, Mr Sterling said it was his problem and Mr Hawke had replied ‘Well fuck off home then’. Mr Sterling said he regularly had discussions about the allocation of overtime and Mr Hawke had done nothing to address his concerns.

[34] Mr Sterling said that offensive language was common in the yard and was used by both employees and Management. The phrase ‘casual cunts’ was a common phrase heard in the yard when agency drivers were used and in return, permanent drivers were called ‘Patrick permanent cunts’. Mr Sterling said he had never been warned about using offensive language.

[35] In oral evidence, Mr Sterling agreed that a sign on the gatehouse door which reads ‘Drivers’ not permitted’ was never adhered to. He would go in every afternoon to make a coffee. All the drivers go in to the office to have a coffee before going home.

[36] Mr Sterling deposed that he did not witness any exchange between the applicant and Mr Hawke on 17 February 2012 and he did not believe he was in the office. He could not remember any exchange between the applicant and Mr Hawke or discussing it with the applicant later. Mr Sterling said he understood the difference between bad language in the workplace and swearing at somebody in an outburst and that the latter might be considered offensive. Mr Sterling could not recall any conversation with Mr Turner about what the applicant had said about returning to the workforce (see paragraph 27). Even if it was said, it would only have been said in banter.

[37] Mr Peter Kritikos, the Union Head Delegate, with 25 years truck driving experience, said that swearing is common in the workplace, particularly by the Allocators and Gatehouse Staff, who are regularly aggressive and swear. He described an incident in which a physical threat had been made to him by a Gatehouse Clerk. They had both been disciplined over the incident.

[38] As to work allocation, Mr Kritikos said that in his experience, where possible, employed drivers would be asked to do overtime rather than agency drivers and that Mr Thorne had assured him that this was the case. There had been many complaints about the matter, as the drivers relied on overtime to supplement their income. He believed the applicant bore the brunt of a lot of the complaints on night shift and he could see he was upset and frustrated by not getting any changes.

[39] Mr Donavon Hawke is 23 years old and has been performing allocation duties for a number of transport companies since he was 17 years of age. He has worked for the respondent since 8 August 2011. His responsibilities were to ensure the work is performed in an efficient manner by allocating containers for pick up and delivery by the respondent’s employed drivers, casual drivers, contract and labour hire drivers. He understood that the terms of the local enterprise agreement did not prevent him from allocating the work in the most efficient manner.

[40] Mr Hawke gave his version of the incident on 17 February 2012. Mr Colombara and Mr Mahe were in the office at the time. He said that drivers are not meant to enter the office, but are allocated work through an office window. Mr Hawke said that when the applicant entered the office, the following exchange occurred:

Mr Hawke said that Mr Jenkins is an employed driver who was allocated the job because he was back in the yard before the applicant.

[41] Mr Hawke claimed that the applicant was speaking to him in a threatening and demeaning way, pointing his finger at him and standing about a metre away. After Mr Hawke told the applicant to raise his problem with Mr Thorne, the applicant repeated his previous comments about him not knowing what he was doing. When Mr Hawke said the sign on the door meant he should not be in the office, the applicant replied that he was here before the sign and he would do what he wanted.

[42] Mr Hawke said that during the conversation the security guard, Mr Mahe, came over and as the applicant was leaving he said ‘You are a piece of shit’. He believed it could only have been directed at him. The applicant returned in a few minutes and the following exchange occurred:

[43] The applicant left and came back again around 12:25 and the following exchange occurred:

[44] Mr Hawke said he then stood up, raised his voice and the following exchange occurred:

[45] Mr Hawke said he reported the incident at 2:55am and was later asked to give a more detailed account of what had happened.

[46] Mr Hawke denied ever being engaged in any inappropriate tracking or monitoring of the applicant. He maintained that the applicant’s behaviour that night was abusive and threatening. He said it was not his role to comment on issues that were properly the domain of Mr Thorne.

[47] Mr Hawke said it was not commonplace for employees to call each other ‘pieces of shit’ or otherwise be abusive or offensive towards each other. Mr Hawke said that he had overheard drivers use the expression ‘casual cunts’, but not casuals referring to themselves in that way, because it was a degrading term used by permanent drivers who seemed to view themselves as better than casual drivers.

[48] At no point, had the applicant apologized to him. Mr Hawke denied belittling or bullying the applicant and specifically denied saying ‘You are just a truck driver’. He also denied favouring non company drivers over permanent drivers.

[49] Mr Hawke denied ever swearing at Mr Sterling and while he agreed Mr Sterling had raised the overtime issue with him, he had told him that he needed to cover the work as efficiently as he could and he did his best to give everyone the most overtime. Mr Hawke accepted that he had discussions about work allocation with Mr Sterling and the applicant. However, that night he had had three conversations with the applicant. He accepted that after his initial report he had provided another one in more detail, because he was told the applicant denied being abusive or intimidatory.

[50] Mr Hawke said that on 31 May 2012, he was in the office with Mr Sterling and another Allocator, Mr Daniel Turner. He heard Mr Sterling say to Daniel that the applicant had told him he planned to get his job back and ‘terrorise that cunt in there’ while gesturing towards Mr Thorne’s office.

[51] In oral evidence, Mr Hawke repeated that he had felt threatened and demeaned by the applicant and that he felt the applicant was using his position as a Union delegate to intimidate him. He had been pointing his finger at him and standing next to the desk divider very close to him while he was seated. In cross-examination, Mr Hawke said the applicant had been standing a little bit closer to the end of his desk and that he had also been seated closer to the end of the desk.

[52] Mr Hawke accepted that the allocation of work could be raised with the Allocators and, in fact, had been regularly raised in the past. Mr Hawke denied that the conversation he described initially and then two and a half hours later were very different versions. His later version of the conversation only described the applicant as ‘carrying on’. Mr Hawke agreed that he had told the applicant that he was the Allocator and that the applicant had to do what he told him to do and that he would not speak to him about allocations. He accepted he was being dismissive of the applicant. However, he had never said ‘You are just a truck driver’.

[53] Mr Hawke agreed that in his report to his manager two and a half hours later, he had not mentioned anything about being intimidated, threatened, bullied or demeaned or that the applicant had said he would get the Union involved. He claimed that he only used these words after he knew the applicant had denied being abusive or threatening. Mr Hawke did not accept that the applicant’s finger pointing was merely an indication of his habit of talking with his hands. The applicant had been standing and pointing down to him. He denied there was a physical barrier (the hatch) separating them. Mr Hawke insisted that he was in fear of him at the time.

[54] Mr Hawke agreed that in the third conversation he had stood up, raised his voice and started to get aggressive himself. However, he still felt intimidated. Mr Hawke accepted that the only time the applicant swore at him was when he called him ‘a piece of shit’ as he left the office. He denied the words were ‘this is just bullshit’ and stated that, in fact, Mr Sterling was not even there.

[55] Mr Hawke accepted that in the second conversation the applicant was outside the building at the window. He agreed this conversation was less heated, but the applicant was still demeaning. Mr Hawke did not accept the first two conversations were nothing more than a robust exchange about allocation of work. Mr Hawke denied that in the third conversation the applicant had actually said ‘I never said you were a piece of shit but if you treat people like shit they’ll treat you the same’.

[56] In respect to the sign on the door, Mr Hawke said the applicant did not say ‘I was here before the sign and I’ll come into the office like every other driver, including subcontractors’. Mr Hawke said he told the applicant about the sign on the door because he wanted him to leave as he had been rude, threatening and intimidating. Mr Hawke conceded that drivers would often come into the office and that banning them had never been enforced. However, this was not a driver on reasonable business. Rather, the applicant came in to be rude, abusive and threatening. Complaints about how work is allocated is a matter for the manager, not him as the Allocator. Nevertheless, he accepted that on that night he had been the most senior person on site. However, the drivers can call Mr Thorne, at any time, if they have a major grievance.

[57] Mr Colombara also witnessed the incident on 17 February 2012. He generally corroborated Mr Hawke’s version of the conversation and added that he had told the security guard, Mr Mahe to listen to what was happening because the applicant was becoming aggressive, standing over Mr Hawke, pointing his finger at him and raising his voice. Mr Colombara said the applicant was becoming aggressive and was ranting about not being given the other job and that he was a Union delegate. Mr Colombara heard the applicant say ‘you’re a piece of shit’ as he left the office. Mr Colombara also heard the second conversation in which Mr Hawke asked the applicant ‘why did you call me a piece of shit?’ to which he replied ‘because you are one’. Mr Colombara claimed that Mr Hawke was visibly intimidated and shaken up and he had asked if he was ‘ok’. Mr Hawke did not say much as he was upset, but said he was going to report the incident.

[58] In cross-examination, Mr Colombara placed all the persons present on the 17th February by reference to the office diagram. Mr Colombara said that he did not volunteer a report of the incident, but Mr Thorne had asked him too, which he did six days later. He agreed he had some difficulty recalling the words used in the conversations. However, Mr Colombara said the applicant was speaking loudly, not shouting in the first conversation and he told Mr Mahe to keep an eye on the situation because Mr Mahe had not noticed himself. The applicant was saying things like: ‘You need to do your job better. You need to learn how to do your job. The permanent drivers are supposed to get preference for overtime’. He agreed it was a conversation about how work was being allocated and that the argument was about the applicant being sent home.

[59] In the second conversation he heard Mr Hawke ask the applicant why he called him ‘a piece of shit’ and the applicant replied ‘because you are one’. As to whether the applicant had said ‘I never said you were a piece of shit, but if you treat people like shit, they’ll treat you the same’, Mr Colombara could not deny that these words were said by the applicant.

[60] Mr Danny Mahe also witnessed the incident on 17 February 2012 and said that the applicant had been abusing Mr Hawke and said ‘you don’t know how to do your job, you shouldn’t be here’. Mr Mahe said he moved over to stand between the two of them and as the applicant proceeded to go out the door, he had said, ‘You’re a piece of shit’.

[61] Mr Mahe said about 4 or 5 minutes later the applicant returned to the window and continued his abuse. Mr Hawke told the applicant if he had a problem to talk to Mr Thorne. As the applicant continued his abuse, Mr Mahe walked up to him and told him he needed to go home now. At 1am, Mr Mahe typed an incident report, in like terms to his statement evidence. Mr Mahe said that this was not the first time he had heard the applicant abusing staff.

[62] In cross-examination, Mr Mahe said that the applicant was about a metre from Mr Hawke towards the end of the desk. He heard an argument, ‘sort of abusing type’. The applicant was angry and telling Mr Hawke how to do his job. He interrupted them and the applicant walked away. As he did so, he heard him say ‘You are a piece of shit’. In the next conversation, the applicant came to the window. It was a shorter conversation, but still an argument with the applicant using a loud voice. He was saying things like ‘you need to learn how to do your job’. However, he agreed he was not physically threatening Mr Hawke. On the third occasion, Mr Mahe said he told him ‘You better go home now’.

The investigation

[63] The applicant was stood down on 20 February 2012 and requested to attend a meeting on 21 February with Mr Thorne. Also present were Mr Pirc, Union official, Mr Kritikos and Mr Michael Kennan, Workplace Health and Safety Officer. Mr Pirc and Mr Kritikos had a discussion with Mr Thorne. The applicant said he remained silent except for saying ‘I deny the allegation, this is a storm in a teacup’. He later provided a written response which I reproduce in full:

[64] Mr Thorne requested the ‘without prejudice’ heading on the letter be removed, but the applicant did not do so. On 24 February, Mr Thorne requested further particulars from the applicant about the incident by responding to eight questions as follows:

[65] The applicant received the ‘show cause’ letter (see para 1) and attended a further meeting on 7 March 2012 with the same participants as the first meeting. While the applicant remained silent throughout, Mr Pirc said that the company did not have enough evidence to justify the applicant’s dimissal and the allegation against the applicant could be considered defamatory.

[66] Both the applicant (on the 11 March 2012) and Mr Pirc (on the 15 March 2012) wrote to Mr Allan Mitchell, Divisional General Manager, expressing concerns over the conduct of the investigation. In particular, it was alleged that Mr Thorne:

[67] On 16 March 2012, Mr Mitchell replied as follows:

[68] On 16 March, when the applicant did not attend a final meeting, Mr Thorne rang him and inquired where he was. He said that he was awaiting Mr Mitchell’s response before deciding whether to attend another meeting. Mr Thorne said that that was not going to happen and he was to be terminated. When the applicant asked what for, Mr Thorne said it was all in the termination letter which he would send to him. The applicant replied ‘I’m sure we’ll discuss it further’.

[69] In cross-examination, the applicant acknowledged he had been given two opportunities to respond to the allegations (21 February and 24 February 2012). He gave a full and frank account of the incident but conceded that he had not mentioned Mr Sterling being present in the office. He agreed he was invited to raise any matter he wished the respondent to consider before it made a final decision. He chose to remain mainly silent during the meeting after being advised to do so by the Union. He said he did not believe he should have been given a ‘show cause’ letter.

[70] Mr Kritikos assisted the applicant during the investigation of the incident. Around 17 February 2012, Mr Thorne had told him that the applicant was in a bit of strife and he may have to put him on day shift to keep an eye on him. Mr Kritikos attended the meeting of 21 February and 7 March in which Mr Thorne lead the meeting and requested the applicant to provide a written response to the allegations in a timely manner and to provide reasons why his employment should not be terminated.

[71] Mr Kritikos also described an incident on 8 May 2012 in which Mr Thorne had told him to ‘fuck off’. Mr Thorne later apologized and blamed his outburst on a recent break up with his wife.

[72] Mr Kritikos said that the applicant had never made a threat of defamation against the respondent. He denied that the applicant was aggressive, a bully or threatening and, in fact, while he is a big guy, he is known as something of a gentle giant. He had never heard the applicant raise his voice or become arrogant in the more than 20 meetings he and the applicant had been involved in with Management.

[73] Mr Rodney Thorne has worked in the transport industry for 23 years and from 16 May 2011, has been the respondent’s Transport Manager, NSW.

[74] Mr Thorne was advised by email of allegations made by Mr Hawke arising from an incident with the applicant. Mr Thorne said he believed it was not the first time an allegation of this type had been made against the applicant and he referred to an incident in March 2011, in which the applicant received a second written warning, regarding intimidating behaviour towards Mr Colombara and Mr O’Connor. This letter made clear that the matter was serious and any recurrence of similar behaviour might result in disciplinary action, including dismissal. Mr Thorne believed the applicant had attended ‘cardinal rules’ training on 20 December 2011, where it has been made clear that bullying and other inappropriate conduct, would not be tolerated.

[75] On 20th February, after the applicant had been stood down, he was advised of the allegations and required to attend a meeting and provide an explanation. He was invited to bring a support person of his choice. Mr Thorne said the applicant offered no verbal explanation, but provided a ‘without prejudice’ written response which was inconsistent with the version of the incident provided by Mr Hawke. In particular, the applicant:

[76] Mr Thorne said that in light of these inconsistencies, he required more time to investigate the matter. He advised the Union Organiser and had asked him to have the ‘without prejudice’ status of the applicant’s response removed, so it could be relied upon. He then sought further details from Mr Hawke and two other witnesses - Mr Colombara and Mr Mahe. These statements did not corroborate the applicant’s assertions or suggest anything about Mr Hawke bullying or belittling the applicant. Rather their evidence supported the reverse. He then required the applicant to answer a series of direct questions. The applicant replied with again marking his response ‘without prejudice’. He basically maintained his first response was a true and accurate account of the incident and insisted that Mr Hawke had bullied him.

[77] Mr Thorne said he, Michael Keenan and the State Manager, Jim Elder, considered all the material and made the findings outlined in the ‘show cause’ letter (see para 1). He believed each of the findings justified the applicant’s dismissal.

[78] Mr Thorne said that during the ‘show cause’ meeting (7 March 2012) the following exchange had occurred.

Mr Thorne also said Mr Pirc threatened him with defamation for calling the applicant a liar.

[79] Mr Thorne said he then met again with Mr Keenan and Mr Elder on 9 March and they decided that the applicant’s employment should be terminated. Mr Thorne arranged a meeting for 16 March 2012, but he received a voice mail message from Mr Pirc stating that he and the applicant would not be attending the meeting as they were awaiting a response from Mr Alan Mitchell, Divisional General Manager. However, Mr Thorne was aware that Mr Mitchell had told the Union he supported the decision to dismiss the applicant. Mr Thorne called the applicant and the following exchange occurred:

[80] Mr Thorne denied that the applicant had merely been raising issues related to the advancement of his members’ interests, as he knew that such matters were to be raised with him, and not an Allocator.

[81] Mr Thorne believed the applicant had received six written warnings (not three) and three of these concerned aggressive and threatening behaviour. However, the respondent only took account of the more recent warning of 15 March 2011 in respect to the same conduct. In cross-examination, Mr Thorne agreed he had not been personally responsible for any of the warnings issued to the applicant.

[82] Mr Thorne denied the applicant was not kept informed of developments in the investigation as he was advised of progress during meetings and through his Organiser. Mr Thorne said that, at no point, in the three opportunities the applicant had to respond to the allegations did the applicant mention Mr Sterling or having said ‘this is bullshit’.

[83] In response to Mr Kritikos’ evidence as to an incident between himself and Mr Kritikos, Mr Thorne agreed he had used the words attributed to him, but he walked away and later apologized because his outburst arose from personal circumstances. He had reported the incident and took the next day off.

[84] Mr Thorne denied the respondent had breached the Agreement. There is no entitlement to overtime and no restrictions as to how the respondent allocates work and no requirement for the Union to be provided with overtime sheets. He had often explained to the applicant that work has to be allocated as efficiently as possible. Mr Thorne added that issues about overtime needed to be raised with him, not the Allocator. Mr Thorne denied ever giving any guarantees about overtime or work allocation to permanent drivers.

[85] In cross examination, Mr Thorne reiterated that he had asked Mr Hawke, Mr Colombara and Mr Mahe to give further details of the 17 February incident through an incident notification form, which they had not filled out previously. Mr Thorne agreed that in the eight questions asked of the applicant there was nothing mentioned about him being dishonest or contrived in his responses and it was not until the ‘show cause’ letter that those allegations emerged. Mr Thorne conceded that it was not explained to the applicant how his answers were dishonest or contrived. He agreed the applicant’s representative had asked to see all the witness statements and a finding of dishonesty and contrivance had been made without the applicant being able to respond. Mr Thorne insisted the applicant was never accused of being a liar, but he believed he had been dishonest. Mr Thorne accepted that it was not the applicant who raised defamation, but the Union Organiser. However, it was reasonable to assume he was doing so on instructions.

SUBMISSIONS

For the applicant

[86] Mr A Howell, of Counsel, submitted that if the Tribunal found that there was a valid reason for the applicant’s dismissal, the dismissal, in all the circumstances, was nevertheless ‘harsh, unjust and unreasonable’. He said the applicant’s conduct did not transgress the boundaries of a robust and heated debate between a workplace delegate and the person who allocated the work. Moreover, the applicant was not dishonest in his communications with the respondent. The applicant seeks reinstatement and continuity of employment, but no back pay as recognition that his conduct was, in part, responsible for him being dismissed. Mr Howell opposed any further hearing on remedy as the respondent has had its opportunity to put its entire case and should not be given another chance to prove their case.

[87] Mr Howell reviewed the evidence which, he submitted, established that for some considerable time there has been an ongoing industrial issue at the yard about how work was being allocated and its impact on the permanent drivers’ overtime earnings. Mr Howell put the incident within this context and three short conversations between the applicant and Mr Hawke. The applicant was told there was no further work and there was a number of agency drivers on site. It was entirely indicative of a dispute which had been bubbling away for some time. Even Mr Hawke had accepted that their conversations centred on the general issue of allocation of work. Mr Howell said an argument, with raised voices, could not be abuse. Mr Mahe had incorrectly described it as abuse while Mr Colombara and Mr Mahe both said that the applicant was not yelling. In addition, the applicant had denied standing over Mr Hawke, pointing at him or swearing at him.

[88] Mr Howell dealt with the evidence describing what the applicant said when he left the office and put that, on one view, was unnecessary to resolve the conflict of evidence, because it was a parting gesture and not some standover or bullying behaviour. In any event, it was nothing more than common language used at the workplace, including by staff and managers. Such language included the use of swear words in aggression. Even if the applicant had called Mr Hawke ‘a piece of shit’ it did not warrant dismissal, as the earlier incident (15 March 2011) had only warranted a warning. The applicant had apologized on that occasion before any disciplinary process had even begun.

[89] Mr Howell referred to the proximity of the applicant to Mr Hawke during the incident of about a metre. However, there was a physical barrier of a 4 feet high hutch between them. It would not be accepted that the applicant had ‘stepped into his personal space’. Nor would it be accepted that the applicant was pointing at him. The applicant said he talks with his hands. The worst that could be said of the first conversation was that it was a heated conversation with raised voices, about the allocation of work, and the applicant may have sworn as he left the office. It was not bullying or abuse. The second conversation was similar in content to the first, but Mr Hawke acknowledged he had been dismissive of the applicant. The conversation was at the window and was not bullying or intimidating conduct.

[90] Mr Howell noted that the third conversation was 15 minutes later when the applicant was delivering his paperwork for the end of shift. While there is a dispute about what was said, the Tribunal would accept that the applicant’s version of the conversation, as it was entirely consistent with what he had said about Mr Hawke belittling him and Mr Hawke agreeing he had done so. Further, Mr Hawke could not deny that he may have said ‘you’re just a truck driver’. Mr Hawke was being sarcastic and it offended the applicant after 20 years of experience.

[91] Mr Howell noted that in the first complaint email to Mr Thorne two and a half hours after the incident, Mr Hawke did not say anything about being threatened, intimidated, abused or scared. He spoke only of the applicant ‘carrying on’. Accordingly, the Tribunal would view Mr Hawke’s evidence with scepticism because:

[92] Mr Howell referred again to the email to Mr Thorne in which Mr Hawke had said ‘he started to get abusive’ in the third conversation. This was entirely inconsistent with abusive behaviour before that time during the first and second conversations.

[93] Whether there was a valid reason for the applicant’s dismissal (s 387(a)) must be considered in a practical common sense way, involving a common exchange between a union delegate and an employer. See: IGA Distribution v Nguyen 212 IR 141 at 14; Re Dispute at Broken Hill Pty Co Ltd Steel Works, Newcastle (No 2) [1961] AR 48, Barber v Commonwealth 212 IR 1 and Leadbetter v Qantas 179 AR 135 (‘Qantas’). In this case, two people arguing about how work is done, does not amount to bullying, abuse or intimidation and is not a valid reason for termination.

[94] As to the allegation of dishonesty, there was no explanation in the applicant’s letter of termination as to how it was said he had been ‘dishonest’ or that his answers were ‘contrived’. Even if the applicant was less than frank during the investigation, it would not serve as a reason for dismissal. The applicant responded as he was asked to do, in respect to the first conversation. There is a distinction between deliberate untruthfulness and ‘playing one’s cards close to one’s chest’. Moreover, there was no allegation, nor was the applicant cross-examined, as to whether he was being deliberately untruthful. As to each of the respondent’s findings, Mr Howell said that none of them, on their own, could possibly constitute a valid reason for termination.

[95] Mr Howell criticised the inquiries made by the respondent when Mr Thorne asked the applicant eight questions. It would have been fairer to give him the witness statements and ask him to respond. In addition, the applicant was given no opportunity to respond to the allegations of dishonesty and contrivance, before these findings had been made.

[96] Mr Howell said that subsections (d), (e), (f) and (g) the Act are not relevant to this case, except to note that the termination was made more seriously unfair considering the respondent is well resourced. Mr Howell submitted that other matters relevant to s 387 of the Act are the applicant’s employment history, the fact the applicant was a Union delegate and the respondent’s policy on performance and conduct counselling which was not followed.

[97] As to the warnings Mr Howell argued that the first, on 16 April 2008, was too old and non specific to be relevant to this case, and in any event, related to when the applicant was a casual employee. The next warning in February 2009, 3 years before the incident, was simply an argument in which the applicant became frustrated with not getting any answers from Mr Gallagher, who turned out to be the ‘judge, jury and executioner’. The applicant did not recall receiving the April 9, 2009 warning letter and was irrelevant to the issues in this case. The 22 February 2011 warning for attending a stop work meeting was entirely inappropriate when the applicant was not even at work at the time. In fact, Mr Howell put that it may have constituted adverse action.

[98] The last warning on 15 March 2011 for intimidating behaviour towards two Gatehouse Clerks arose from the same industrial issue underlying this case - the unfair allocation of work. The applicant had apologized to Mr Apter, but not to Mr Colombara or Mr O’Connor in circumstances where he was going to receive a warning anyway.

[99] Mr Howell said that there was evidence the applicant was under pressure from members about the allocation of work and lack of overtime and his behaviour did not demonstrate some pattern of abusive or intimidating conduct. It shows two incidents about a significant industrial issue, involving a Union delegate. Nevertheless, the applicant, if reinstated, would not seek to remain as a Union delegate or seek back pay; See: Hornsby Shire Council v Hunt 115 IR 461.

[100] In summary, Mr Howell submitted that:

For the respondent

[101] In written submissions, the respondent outlined the background to this case, the warnings and the training provided to the applicant, prior to the incident on 17 February 2012. It highlighted the complaint raised by Mr Hawke, the subsequent investigation, including three meetings with the applicant, the reliance on other witness statements and the applicant’s responses to the allegations against him. It made findings against him (see para 1) and determined that each finding would justify the applicant’s dismissal. When asked to show cause why his employment should not be terminated, the applicant continued to deny the allegations, was neither apologetic or contrite and instead, through his representatives, made allegations of unlawful or defamatory conduct against the respondent.

[102] The respondent asserted that the reasons for the applicant’s dismissal, namely inappropriate, abusive and bullying workplace conduct and dishonesty were valid reasons for his dismissal. It cannot be accepted that the applicant was merely raising issues relevant to his members when the person he addressed his concerns to was the Allocator, and not the person responsible, Mr Thorne.

[103] The respondent was very concerned that in the face of witness statements to the contrary, the applicant continued to insist on not having called Mr Hawke a ‘piece of shit’ and despite being given three opportunities to be honest about his conduct, he chose not to do so. The applicant had been placed on notice for similar conduct in 2011 and this incident demonstrated a pattern of conduct in blatant disregard for the respondent’s policies and expectations of him.

[104] The respondent relied on a number of authorities which distinguished conversational swearing and outbursts of swearing; See: Elanor Jalea v Sunstate Airlines (Queensland) Pty Ltd t/a Qantas Link [2012] FWA 1360 (‘Jalea’) and put that the applicant’s conduct fell into the later category which would constitute a valid reason for termination of employment. Reference was also made to cases involving an employee’s dishonesty and behaviour during investigations; See: Dickenson v Calstores [2011] FWA 6858 and Streeter v Telstra [2007] AIRC 679 (‘Streeter’). It was put that the requisite level of trust and confidence in the employment relationship had been destroyed and was no better reinforced by what the applicant was alleged to have said about his intentions when he got his job back (see para 27).

[105] In oral submissions, Ms C Fielding, Solicitor, said this was not a case of an employee being dismissed because of their position as a Union delegate. In fact, the applicant was not even acting properly as a Union delegate on the night in question, because the issue said to be the underlying industrial issue on site was not even in evidence that night. The job complained about had been allocated to a permanent driver. Nor was Mr Hawke the appropriate person to whom the concerns needed to be put. Mr Hawke had acted perfectly within his authority to send the applicant home - not once, but five times.

[106] The applicant had stood about a metre away from Mr Hawke, pointed his finger and made abusive and demeaning comments to him in a loud voice. It was bullying behaviour. The applicant was now attempting to use his role as a Union delegate to ‘cloak’ his inappropriate conduct on that night and he had done so before. There was a disputes process to follow and the applicant knew of it and what it required. At no time did he escalate the dispute through the procedure.

[107] Ms Fielding highlighted the consistent evidence of Mr Hawke, Mr Colombara and Mr Mahe as to what had occurred that night and they had identified similar conduct on other occasions. The applicant did not provide a full and frank account of what had occurred and changed his story during the investigation and now before the Tribunal in respect to Mr Sterling’s involvement. He had never mentioned Mr Sterling previously. He had used Mr Sterling to try and save himself.

[108] Ms Fielding put that it was irrelevant that the applicant had said it was not his intention to bully or abuse Mr Hawke. The issue was how Mr Hawke had felt. Mr Mahe gave evidence of the applicant’s loud and abusive language which had caused him to intervene. The applicant has shown himself to have engaged in abusive and inappropriate conduct; he was dismissive of management and had little regard for the truth. He was aware of the respondent’s policies and that their breach could result in dismissal. Moreover, he had received a specific warning for similar behaviour on 15 March 2011.

[109] Ms Fielding dealt with the allegation of dishonesty. She said that in the face of contrary incident reports from other witnesses, the applicant chose to flatly deny the allegations, so the respondent put eight direct questions to him. He chose not to fully and properly answer those questions, either then or subsequently. In fact, he decided to remain silent at the 21 February 2012 meeting. Ms Fielding said to claim that the applicant did not know what the allegations of dishonesty were about, was ridiculous. It was plainly obvious by the questions which were put and the way he chose to answer them. Ms Fielding noted that despite this, he was given another opportunity to ‘come clean’, but declined to do so. Moreover, the applicant then chose to make unsubstantiated allegations against the respondent and Mr Hawke.

[110] Ms Fielding submitted that Mr Hawke’s initial email and the Union’s interpretation of it, cannot be used to assume how Mr Hawke felt. The applicant was a delegate; he was standing over Mr Hawke; it was late at night; the applicant had a history of being abusive and Mr Hawke had tried to ring Mr Thorne. In any event, she noted that victims of such conduct, particularly men, do not always came forward and an initial complaint often requires further explanation and detail so that it can be properly investigated.

[111] Ms Fielding said that Mr Kritikos’ reference to a Company Policy and Procedures document did not apply at the site and had never been applied. Even so, the clause dealing with gross misconduct dealt squarely with the applicant’s conduct, notwithstanding he was not dismissed for serious or wilful misconduct. In any event, Ms Fielding submitted that all of the appropriate procedures dealing with ensuring the applicant was aware of the allegations and could respond appropriately had been followed through, including him being represented at all times by the Union. He had shown no contrition or remorse.

[112] Ms Fielding argued that the applicant was the ‘architect of his own demise’. He was an experienced driver, he had received training and was aware of his obligations. He was on notice for similar conduct. Referring to the Qantas case, Ms Fielding put that the applicant here was not involved in conversational swearing. He was told five times to go home. He knew full well that Mr Hawke was not authorised to deal with his complaint. This outburst of swearing was abusive and intimidating. Ms Fielding also relied on Carrick v Patrick Stevedores [2012] FWA 4480 where a breach of the same cardinal rules and an overall poor disciplinary record resulted in a finding that the applicant’s dismissal was not ‘harsh, unreasonable or unjust’.

[113] Finally, Ms Fielding submitted that the applicant had demonstrated that he is not a credible witness. The evidence shows a history of intimidating and abusive behaviour. He had been shown to be dishonest. She said that if the Tribunal made a finding that the dismissal was unfair, the respondent would want an opportunity to be heard on remedy.

Applicant’s submissions in reply

[114] As to Ms Fielding’s last point, Mr Howell said the respondent has had an opportunity to put whatever it wished and call whatever evidence it considered appropriate and its opportunity has now passed.

[115] Mr Howell rejected any suggestions that the applicant had been dishonest and it was improper to submit he had been. It had never been put to him in the witness box and this a necessary precondition for such a finding; See: Smith v NSW Bar Association [1992] CLR 176. Streeter was in a different category to this case, because a positive finding of untruthfulness had been made in that case. Mr Howell emphasized that there was no evidence of any kind as to the applicant’s dishonesty, until the findings were made and reduced to writing.

[116] Mr Howell disputed Ms Fielding’s submissions as to where witnesses were located and noted the fact of a physical barrier between the applicant and Mr Hawke, which Mr Hawke had not mentioned until his evidence in the Tribunal. As to who was the senior person on duty that night, Mr Howell said there could be no argument it was Mr Hawke and the applicant could quite correctly raise concerns with him. In any event there is nothing to prevent a delegate talking to an Allocator about how work is allocated. The general industrial issue had immediately affected the applicant.

[117] Mr Howell reiterated his submission in respect to Mr Hawke’s initial email as indicating no abuse or intimidating behaviour. It was not until the third conversation, that Mr Hawke uses the word ‘abuse’. Mr Hawke’s evidence was less than satisfactory in this respect.

[118] Finally, Mr Howell submitted that this was not a workplace where one could legitimately draw a distinction between conversational swearing and aggressive swearing. The evidence was that there was both. Ultimately, the applicant was dealing with a workplace issue in the context of a heated and robust debate. Mr Howell stressed that not even Mr Thorne, described the applicant’s dishonesty as lying or giving a version of events which the applicant knew to be untrue. In any event, a finding of dishonesty was not open on the evidence.

CONSIDERATION

[119] There is no doubt that the applicant is a person protected from unfair dismissal in that:

[120] Whether the applicant was unfairly dismissed will be determined by considering the four criteria found at s 385 of the Act which are expressed as follows:

[121] Plainly, the applicant was dismissed by the respondent on 16 March 2012. Subsection (c) and (d) of s 385 have no application to the present case. Consequently, the applicant invokes subsection (b) of s 385 to claim that his dismissal was ‘harsh, unreasonable or unjust’. In this respect, as the applicant was not dismissed for serious or wilful misconduct, the onus rests on him to satisfy FWA that this finding is open on the evidence presented during the proceedings. The applicant also asserts certain procedural unfairness issues which requires the Tribunal to consider whether the circumstances surrounding the dismissal were procedurally unfair.

[122] As mentioned above, the specific statutory framework which underpins FWA’s consideration of unfair dismissal applications is to be found at s 387 of the Act, which is expressed as follows:

[123] The frequently quoted authority as to the meaning of ‘harsh, unjust and unreasonable’ is that of the High Court in Byrne & Frew v Australian Airlines Ltd [1995] HCA 24, where McHugh and Gummow JJ said at para [128]:

[124] As referred to me by both parties, the generally accepted meaning of the adjective ‘valid’ in s 387(a) of the Act derives from what North J said in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373:

[125] Subsections (b), (c), (d) and (e) of s 387 are matters relevantly dealing with whether a dismissed employee was afforded procedural fairness. The High Court in Byrne & Frew v Australian Airlines Ltd also described the distinction between procedure and substance in the following way at paras [129-130]:

[126] The applicant insisted that he had been denied procedural fairness. At this juncture, I refer to the decision of Moore J in Wadey v YMCA Canberra [1996] IRCA 568, 12 November 1996, as to the right of an employee to appropriately defend him or herself in respect to allegations made by the employer:

[127] Nevertheless, it must be steadily borne in mind that not all procedural defects, either singularly, or in combination, will result in the Tribunal finding that a particular dismissal is procedurally ‘harsh, unreasonable or unjust’. Put another way, the seriousness of the proven misconduct will not always be outweighed by any identified procedural fault/s. In this respect, I refer to a decision of the Full Bench of the AIRC in Farquharson v Qantas Airways Limited [2006] AIRC 488 at par [41]:

[128] In deciding to dismiss an employee, an employer is entitled to have regard to a number of warnings for breaches of the employer’s policies. In this respect, I highlight a number of passages in Aperio Group (Australia) Pty Ltd T/a Aperio Finewrap v Sulemanovski [2011] FWAFB 1436 where the Full Bench said at paras [30, 31, 32, 54, 58]:

[129] Lest there be any doubt that an employer is entitled to have regard to an employee’s past performance when considering whether to dismiss the employee, I also refer to the following two authorities:

[130] In Re Clarke and Metropolitan Meat Industry Board [1967] AR (NSW) 16, Cook J said at page 27:

[131] In John Lysaght (Australia) Limited and Federated Ironworkers’ Association of Australia, New South Wales Division & Ors (unreported Sheppard J, Matter 259 of 1972, 14 September 1972) His Honour said:

[132] In addition, a fundamental overarching consideration for FWA in unfair dismissal applications such as this, is to apply the principle of a ‘fair go all round’. This notion is embodied in s 381(2) of the Act:

The Union delegate

[133] During the course of the proceedings, much attention was paid to a defence that the applicant had merely been engaged in a robust discussion with Mr Hawke about an issue relevant to his members’ interests. In this respect, reference was made to the much celebrated quote of the Full Bench of the Industrial Commission of New South Wales in Court Session in Re Dispute at Broken Hill Pty Co Ltd Steel Works, Newcastle (No 2) concerning the rights and obligation of union delegates. At page 66 the Full Bench said:

[134] In Leadbetter v Qantas Airways Ltd, Senior Deputy President Richards referred to the above case and said at paragraph 119 and 120:

[135] In a recent case, not too dissimilar to the present one, Thatcher C in Barber v Commonwealth [2011] FWA 4092 (212 IR) said at paragraph 183 -184:

Consideration of the evidence

[136] At this point, I propose to make some observations and findings on the evidence adduced in this case. This will serve as a backdrop to my specific findings on the relevant statutory requirements set out under s 387 of the Act.

[137] It is trite to observe that the workplace culture in a trucking yard is hardly comparable to the workplace culture in a convent. Mr Howell was correct in submitting that the Tribunal would apply to this workplace the standard one expected ‘of men and not of angels’. This notion derives from the judgment of The Jupiter General Insurance Co Ltd v Ardeshir Bomanji Shroff (1937) 39 BOMLR 997, where one finds the following passage:

[138] However, that proposition is an entirely different one to the use of swearing or foul language in an aggressive or abusive manner with an intent to threaten or intimidate another employee. This distinction was expressed by Bissett C in Jalea (see para 104 above) at paragraph 116:

This decision of Bissett C was confirmed on appeal by the Full Bench of FWA in Jalea v Sunstate Airlines (Queensland) Pty Ltd T/A Qantas Link [2012] FWAFB 7267. Senior Deputy President Richards also referred to this principle in Leadbetter v Qantas. At paragraph 112, His Honour said:

[139] That said, this is not a case involving harmless banter in the workplace where swearing is commonplace in conversations between employees. The fact that such a culture does exist in this workplace, misses the point entirely. In my view, this culture has been utilized by the applicant as a convenient means of deflecting from the real nature of his behaviour. I do not accept that the exchanges between the applicant and Mr Hawke were in the ordinary course of robust, heated or forceful dialogue between a Union delegate and a manager. Nor was it just workplace banter.

[140] In any event, the applicant was not, in my opinion, pursuing a general industrial complaint on behalf of his members. While I have no doubt that the allocation of work between permanent and casual drivers was an issue of ongoing complaint at the workplace, the applicant was again covering his personal complaint by the general industrial one. It seems plain enough that the applicant was pressing his own grievance of not being allocated work, despite knowing another permanent driver had been given the job. Moreover, Mr Hawke was not in a true management role and the applicant knew this to be so. Mr Hawke was entirely within his rights to refer the applicant to Mr Thorne, if he had any grievance. The applicant was hardly a novice delegate and, to my mind, would have been well familiar with the correct protocols.

[141] In one sense, it is difficult to understand what the applicant expected Mr Hawke to do in respect to his complaint. Mr Hawke was neither a manager, in the relevant sense, nor was he a policy maker. It was late at night. The applicant had finished his shift. Even putting aside the conversations themselves, one might reasonably ask, why would the applicant find it necessary to engage Mr Hawke three times, in an argument on the same matter when Mr Hawke had told him from the outset that he did not want to discuss it? I believe his intended purpose was to cause some grief for Mr Hawke.

[142] In addition, I do not consider the applicant was merely following the disputes procedure in the Agreement, nor was the procedure relevant to the applicant’s conduct. At no stage had he elevated the alleged dispute through the levels of the procedure. This argument was a ‘red herring’.

The ‘piece of shit’ comment

[143] The applicant claims that he did not call Mr Hawke a piece of shit but merely said, as an aside to Mr Sterling, ‘this is bullshit’. For the following reasons, I find the applicant’s evidence in this respect to be disingenuous and untrue.

[144] Calling Mr Hawke a piece of shit is entirely consistent with the applicant’s own evidence as to what he had earlier said about Mr Hawke not knowing how to do his job. Two other witnesses, Mr Colombara and Mr Mahe gave unshakeable evidence that they had heard the applicant call Mr Hawke a piece of shit. It seems to me that Mr Mahe, the security guard, had ‘no axe to grind’. He was an impressive witness, whose evidence was calmly and dispassionately delivered. He recorded this exact comment in a report he prepared at 1am that night; obviously not knowing the critical significance it would later become. Moreover, Mr Mahe said the applicant was angry and cranky. He described the applicant’s tone as ‘abusive’. One might also ponder why a security guard would feel the necessity to place himself between two employees if this was just workplace banter or the ordinary conduct between a Union delegate and Management? It is difficult to accept that the applicant said ‘this is bullshit’ under his breath when three witnesses say they clearly heard the applicant’s comment directed towards Mr Hawke.

[145] Faced with the corroborative evidence of Mr Hawke, Mr Colombara and Mr Mahe, the applicant had a problem. He realised he needed someone to support his version of the words he used; so he created one - the person most likely to support him, the Union delegate. However, Mr Sterling was not even present in the office during the incident. No other witness mentioned Mr Sterling as being in the office. Notably, the applicant did not mention him in his first and second responses or in the ‘show cause’ response he provided to the respondent. While the time sheet tendered in the proceedings was subject to some dispute as to its accuracy, it does tend to support the conclusion that, even if Mr Sterling was on site at the relevant time (although it shows him leaving at 11.50pm) there is no plausible reason why Mr Sterling would even be in the office at the critical time. Even Mr Sterling was unsure if he was in the office at the time.

[146] Curiously, Mr Sterling could not recall anything about the exchange when it was obviously loud and must have at least appeared a little unusual. I believe the applicant improperly sought to use Mr Sterling as a ‘cover’ to minimize the seriousness of his own behaviour. This finding gives me reasonable cause to doubt much of his other evidence, particularly where it conflicts with that of the respondents’ witnesses.

[147] Of course, had the incident, (even if he had called Mr Hawke a piece of shit) been the only transgression in the applicant’s five and a half years of service, I doubt whether his dismissal would have been found to be fair and reasonable in the absence of anything else. However, this was not the first occasion the applicant’s overbearing and antagonistic personality was exhibited in the workplace. This history includes the following: on the 15 March 2011, the applicant displayed the same abusive and contemptible manner by referring to Mr Colombara and Mr O’Connor as casual cunts. He did so to belittle and intimidate them. Ironically, neither of them were even drivers, so the motivation and alleged common usage of the term did not even apply. Unbelievably, during his evidence, the applicant did not even accept there was any difference between conversational swearing in the workplace and directly using the term ‘casual cunts’ to Gatehouse Clerks and then telling them they did not know how to do their jobs. The applicant also had a bizarre view of this incident when he would not apologize and accept a written warning because it was a ‘double penalty’. This is nonsense. There was good reason to have expected he apologize and that he should receive a written warning for his conduct. In my view, these responses were indicative of an employee who believed he could dictate his own terms as to what disciplinary outcome should apply to him, no matter the seriousness of his transgressions.

[148] It may be seen from the applicant’s own evidence that he was dismissive, condescending and sarcastic. His evidence is littered with bold, demanding and insistent language. For example, in his response to the 17th February incident he said about Mr Hawke - ‘with the right mentoring and attitude, he could be a good manager’. This was an incredible comment to make in light of the applicant’s own conduct and behaviour. It is entirely consistent with his evidence that Mr Hawke and the Allocators did not know how to do their job and that they had an obligation to give preference to permanent drivers, when they clearly did not. So much so is evident from the relevant clause in the Agreement Cl. 23 1 and 2 which reads as follows:

I do not think it was Mr Hawke who needed to have read the enterprise agreement (see para 40)!

[149] The applicant would not accept written warnings. In his view, they were all unwarranted and unfair. He was contemptible of authority and challenged anyone who did not do as he wanted. In the first warning incident, in his own words, he said to Mr Gallagher ‘When I ask you for something I want it NOW!’ As to the six warnings the respondent says the applicant received, I only accept that one of those warnings - the one dealing with attending a stop work meeting in his own time - was not justified. Three of the others are indicative of an employee who displays aggressive and abusive behaviour and who is not prepared to accept even a skerrick of responsibility for his actions.

[150] The applicant’s contempt for local management was no better demonstrated than when he decided not to attend the final termination meeting with Mr Thorne because he had gone over Mr Thorne’s head and expected to be vindicated by the State Manager, Mr Allan Mitchell. Of course, Mr Mitchell supported his local management. However, the applicant did not even have the courtesy to inform Mr Thorne why he would not be attending the meeting.

[151] Finally, while I do not place significant weight on what the applicant is alleged to have said about getting his job back and ‘terrorising that cunt (Mr Thorne)’, as it was hearsay, considering the applicant’s general contempt for management, it would seem to be a comment that the applicant was likely to have made.

[152] As to the specifics of the 17th February incident, the applicant gave a number of other explanations such as:

[153] I find these explanations to be unconvincing, disingenuous and designed to deflect attention away from his own unacceptable behaviour. While Mr Hawke accepted he was dismissive of the applicant, he denied saying ‘you are just a driver’. I accept Mr Hawke’s version of these conversations.

[154] I also accept that the respondent was correct when it found that the applicant was less than open and frank in his responses during the investigation. He had a positive obligation to do so. It is not acceptable, as Mr Howell contended, that the applicant was merely ‘keeping his cards close to his chest.’ As the majority said in Streeter at paragraph 20:

[155] The applicant was given three opportunities to ‘come clean’ as more evidence was found to contradict his version of events. When something new was raised, he changed or added to his earlier responses to fit with the new evidence. He had another opportunity during these proceedings and chose not to do so, in the face of plausible evidence to the contrary. What particularly troubles me is that the applicant displayed not a jot of contrition; let alone an acknowledgment that his behaviour was even slightly inappropriate (although I note his Counsel did not seek orders for backpayment should he be reinstated). His responses changed as the evidence was built against his explanations. His excuses were cleverly crafted and contrived to deflect attention from his own shortcomings.

[156] The applicant has consistently maintained that he had done nothing wrong during the incident. As I have said earlier, he explained that he had a naturally loud voice and would often use his hands in conversation and, in any event, it was nothing more than a robust conversation. Even accepting these explanations at face value, the test is not whether the applicant believed he was not abusive or acting aggressively; rather it is how the targets of his conduct felt by his behaviour, and whether a reasonable person might likewise feel intimidated and abused. I am satisfied that Mr Hawke was entitled to feel intimidated and fearful of the applicant’s threatening and abusive behaviour. I accept his evidence in this respect. In any event, it is instructive that one of the applicant’s explanations was that he and Mr Hawke were separated by a physical barrier - the hutch on the desk. Mr Howell went to painstaking lengths to identify where all of the witnesses were located and what separated Mr Hawke and the applicant. I ask rhetorically, why would you need to stress the physical barrier between them, if this was nothing more than a robust conversation with loud voices and innocent hand gesticulations?

[157] In addition, I do not accept that Mr Hawke had said to the applicant ‘You are just a truck driver’. In my view, this was just another attempt by the applicant to deflect attention from his own conduct. It follows that I reject the applicant’s evidence that Mr Hawke had belittled or demeaned him.

[158] In the end, the applicant’s collection of explanations became a farrago of implausible and unlikely responses to a sound and defensible case validating his dismissal.

[159] There was really only one aspect of the applicant’s procedural unfairness claims which is worthy of comment. Mr Howell submitted that the first the applicant knew that his dismissal was based, inter alia, on findings of dishonesty and contriving his responses, was after the findings had actually been made (in the show cause letter). It was said that this was a denial of procedural fairness. Putting aside that the applicant had an opportunity to question the allegations and respond in the ‘show cause’ meeting, in my view, these findings were natural and self evident conclusions from the applicant’s own responses to what he knew to be the allegations against him.

[160] While it may well have been preferable for the respondent to specifically identify how it was that he had been dishonest or contrived his answers, this small shortcoming (if it really be one) was not the essential basis for the applicant’s dismissal; it was his aggressive and abusive conduct on the 17th February following from his similar conduct on the 15th March 2011, which justified his dismissal. In any event, this claim of procedural unfairness was so inconsequential as to go nowhere near to constituting a denial of procedural fairness or natural justice. It was little more than ‘clutching at one last straw’.

[161] Turning then to the specific requirements of s 387 of the Act, I make the following findings.

[162] For all the forgoing reasons, FWA can find no basis for a conclusion that the applicant’s dismissal on 16 March 2012 was ‘harsh, unreasonable or unjust’, either substantively or procedurally, within the meaning of s 387 of the Act. It follows that application U2012/6625 must be dismissed. An order to that effect will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Mr A Howell Counsel for the applicant

Ms C Fielding Solicitor for the respondent

Hearing details:

2012

Sydney

6-7 August

Printed by authority of the Commonwealth Government Printer

<Price code G, PR528219>