[2014] FWC 3670 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
David Browne
v
Coles Group Supply Chain Pty Ltd
(U2013/15842)
VICE PRESIDENT HATCHER |
SYDNEY, 10 JUNE 2014 |
Application for relief from unfair dismissal.
Introduction
[1] Mr David Browne, the applicant in this matter, was summarily dismissed from his employment with Coles Group Supply Chain Pty Ltd (Coles) at its Goulburn Distribution Centre (GDC) on 5 November 2013. He had been employed by Coles at the GDC since April 1995 - a period of over 18 years. The reason for the dismissal was that Coles considered that Mr Browne had engaged in serious misconduct by becoming involved in a physical altercation with another employee at the GDC, Mr Ryan Hearne, on 23 October 2013. Mr Hearne was also dismissed on 5 November 2013.
[2] Mr Browne has lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). He contends that his dismissal was unfair, and he seeks the remedy of reinstatement.
Preliminary matters for determination
[3] Section 396 of the Act requires that four specified matters must be decided before the merits of Mr Browne’s application may be considered. There was no contest between the parties about any of those matters. I find that:
(a) Mr Browne’s application was made within the period required by s.394(2);
(b) Mr Browne was a person protected from unfair dismissal;
(c) Coles was not a “small business employer” as defined in s.23 of the Act, so that the Small Business Fair Dismissal Code was inapplicable; and
(d) Mr Browne’s dismissal was not a case of genuine redundancy.
The evidence
[4] Mr Browne gave evidence in support of his application, and tendered a number of documents. Coles called the following witnesses in its case:
• Stewart Kennedy, the Manager of the GDC, who made the decision to dismiss Mr Browne.
• Kirsty Williams, at the relevant time State HR Advisor, who conducted Coles’ investigation into the physical altercation.
• Sean Atkinson, Human Resources Manager.
• James Heenan, Team Member.
• Robbie Pooley, Team Member.
• Gary Wilson, Team Member.
[5] In the course of her investigation of the matter, Ms Williams interviewed Mr Browne, Mr Heenan, Mr Pooley and Mr Wilson, as well as a number of persons who did not give evidence, including Mr Hearne. Their records of interview were annexed to Ms Williams’ statement of evidence. In the case of persons who were interviewed and who gave evidence, they were able to be tested on the contents of their records of interview, and it was therefore appropriate to give weight to those records of interview. In the case of persons who were interviewed and did not give evidence, I have taken into account their records of interview, and given them weight to the extent that the matters contained therein were not in contest, or not contradicted by the witness evidence, or confirmed by the witness evidence.
[6] The evidence concerning the physical altercation was given by Mr Browne, and by three employees at the GDC who witnessed the event, Mr Heenan, Mr Wilson and Mr Pooley. I accept that each of the four witnesses gave truthful evidence based upon his best recollection of the event. In relation to the main features of what occurred, their evidence was substantially consistent. However there were differences between the witnesses as to matters of detail. This is understandable, given normal differences in memory, the fact that they viewed the incident from different perspectives, and the short space of time in which the events occurred. In describing what occurred, I will only refer specifically to the evidence of the witnesses where it is necessary to resolve a difference between them as to a matter of significance.
[7] Mr Hearne did not give evidence. No inference can be drawn against either party for not calling Mr Hearne to give evidence, since I do not think he could fairly be characterised as being within either side’s camp. The result of that is that he was not able to give his version of events on oath or affirmation or to be subject to cross-examination. As will become apparent, it has been necessary for me to make some adverse findings about Mr Hearne’s behaviour. Those findings are, of course, based on the evidence adduced by the parties at the hearing. Whether any different findings might have been made had Mr Hearne given evidence is speculative and irrelevant. 1 However Mr Hearne’s record of interview was, as earlier stated, placed into evidence by Coles, and it could therefore be tested against the other evidence. I have taken it into account for that purpose.
Employment history
[8] Mr Browne was 18 years old when he was initially employed by Coles in 1995 on a casual basis as a picker. After nine months, he was offered a permanent position. He has subsequently worked as a dispatch operator, and then as a forklift driver/picker, and was at the time of his dismissal a forklift driver.
[9] The only adverse matter on Mr Browne’s employment record was that, on 9 July 2008, he was required to attend a “coaching discussion” concerning his attendance record. There is no indication that there was any repetition of the attendance issue dealt with at the coaching discussion.
[10] I therefore accept Mr Browne’s submission that, leaving aside the physical altercation which occurred on 23 October 2013, he had a long and good record of employment.
Prior conflict involving Mr Hearne
[11] The evidence at the hearing disclosed that Mr Hearne had, well before the altercation on 23 October 2013, developed a hostility towards Mr Browne arising out of a bitterly contested election for the position of head delegate for the National Union of Workers (NUW) at the GDC. Prior to that election, Mr Brett Cotterill was the head delegate and Mr Mark Connor was a co-delegate. Disputes arose between Mr Cotterill and Mr Connor about various workplace issues which eventually led to Mr Connor challenging Mr Cotterill for the position of NUW head delegate at an election in 2012.
[12] Mr Hearne was related to Mr Cotterill, and strongly supported him. Mr Connor was a close friend of Mr Browne. A number of employees at the GDC took particular sides. Mr Cotterill won the election, but there subsisted a strong mutual hostility between Mr Connor and Mr Hearne. Mr Browne’s evidence was that, although he was a good friend of Mr Connor, he did not take sides in the affair. He said that Mr Hearne “would often treat him as someone on the opposing side”, but that he “would not have any part of his game and would not be involved”.
[13] Mr Hearne, after the physical altercation occurred, alleged to Coles during its investigation of the process that he had been the subject of harassment by both Mr Connor and Mr Browne. However, although the evidence certainly demonstrated mutual enmity between Mr Hearne and Mr Connor, Mr Browne’s evidence that he was not involved in this was for the most part confirmed by other witnesses and a number of persons interviewed as part of the investigation process which followed the altercation. Mr Wilson, when he was asked in his interview about the previous relations between Mr Browne and Mr Hearne, said he “was not even aware there was a problem”. Mr Pooley said that he “was not aware there was an issue between David and Ryan, was only aware of the ongoing issues between Ryan and Mark Conner [sic]”. Mr Rick Dare, a Team Member who was interviewed after the physical altercation, said that he had never seen any talking or interaction between Mr Hearne and Mr Browne prior to the altercation, and further said “I did not even know that they did not like each other”. When Mr Bruce Mayberry, a Team Manager, was interviewed about alleged hostility between Mr Hearne and Mr Browne, he said: “I am confused as all my other understanding was that the issues were between Ryan and Mark Conner [sic] and nothing to do with David”.
[14] There was an incident in which Mr Hearne made a complaint about Mr Browne. The substance of the complaint appears to have been that Mr Browne had on one occasion followed Mr Hearne when driving home from work, and had driven aggressively. Mr Hearne seems to have made an associated complaint about an encounter with Mr Connor at a shopping centre. Mr Atkinson’s evidence was that the complaint was investigated by Coles and found to be unsubstantiated, noting that Mr Browne travelled home in the same direction as Mr Hearne.
[15] There was a degree of evidence that demonstrated or at least suggested a general history of problematic behaviour by Mr Hearne while at work. Mr Browne described this in the following way:
“It’s hard to describe. He would jump over each other, like, his friends acting like a monkey, like making monkey noises and just – you know, like, immature – punch people in the arm trying to – like, just going too far; just pushing things a little bit too far and he’d end up getting reprimanded by his friend; like his own friends would have to tell him to calm down and, you know, stop acting like an idiot and that’s – knowing what he was like, I just didn’t associate myself with him.”
[16] Mr Browne also said that Mr Hearne had previously threatened Mr Connor by putting a fist in his face. This had been reported to management and investigated, but there was no outcome. He also said that he had heard that Mr Hearne threatened the canteen chef Rob through the glass window of the canteen, but conceded he had not witnessed this himself.
[17] Other evidentiary material provided support for Mr Browne’s evidence that Mr Hearne had a history of engaging in problematic behaviour. Mr Pooley said about Mr Hearne: “I’ve just seen him muck around at work ... just getting in arguments ... I guess hassling a few people out”. Mr Heenan said that he knew that Mr Hearne “had other aggressions with other people” and “had records of it, trying to intimidate other people”, but that “everyone just laughs at him”. Mr Mayberry denied in his interview with Ms Williams on 30 October 2013 that Mr Hearne had ever complained about Mr Browne’s behaviour at work prior to the physical altercation (contrary to Mr Hearne’s assertions in his interview), and then went on say the following (as stated in the record of interview):
“BM - ... Ryan cannot claim innocence in his behaviour. I have seen him give it to other TM [Team Members] and then when it gets turned back on him he gets upset.
KW - Can you think other information which would be relevant to my current investigation examples?
He has done it to me he has questioned my integrity.
I have had at least 6 team members come to me and ask me to talk to Ryan about his behaviour and comments that he has made. TM do not go into much details, they say things like Ryan is being a prick can you do something about it. He teases TM and when they do it back he gets upset about it. I either go or talk to Ryan or talk to them about avoiding him for the day. They do not want to take it further; they just want something said to Ryan. That would be over the last 12 months.”
[18] Mike Deakin, the Facilities Manager at the GDC, was also interviewed. He recalled that in May 2012 he had been spoken to about conflict between Mr Hearne and Mr Connor, but could not recall Mr Browne being involved in this. He then described other issues raised about Mr Hearne’s behaviour as follows:
“Other issues that I recall being involved with Ryan included:
This is about 3 years ago - one was TM Geoffrey Grey saying he had been threatened by Ryan in the aisle, Ryan had threatened physically punch them. My general process in these circumstance would have been too conducted interviews, I would raise the paper work, from there I went and got statements or interviewed the people, when determined could not go anywhere remind them V & B EO.
On another occasion’s not sure if before or after the above - I was approached by Graham Reeves same circumstances as above, Ryan threatening Graham.
KW - Was there any paperwork relating to any of the above issues?
MD - Not sure, if did would follow up with each.”
[19] Mr Deakin was also asked about Mr Browne’s behaviour as follows:
“KW - Recall any issues David has raised to you?
MD - No issues raised by David and no issues raised to me about his behaviour towards other TM’s whilst with Coles. In Facility manager have had Security Sam Studdart raise concern.
Initially issue was investigated and related to Mark Conner and Sam having ejected someone from workers club (Sam also security and workers club)
Following this issue some time in last 12 months Sam approached me as his manager and about David to memory either staring or making noises at him. More recently in the last 6 weeks Sam hearing chook noises and David being the only one in the area.”
[20] The “chook noises” allegation involving Mr Studdart would appear not to be relevant, except that it is strikingly similar to an allegation made by Mr Hearne about Mr Browne’s behaviour on 23 October 2013 prior to the altercation. I will deal with this issue later in this decision.
The physical altercation
[21] The physical altercation occurred between 11.00 am and noon on 23 October 2013 within the warehouse structure at the GDC. This warehouse contains a large number of long rows of shelves or racks in which grocery stocks are stored and subsequently picked. The rows of shelves or racks are separated by aisles in which employees driving forklifts or operating pallet trucks can travel and perform storage or picking duties. Each aisle has been assigned a number.
[22] The altercation occurred near the receiving side of the warehouse, where trucks are docked and stock unloaded. Immediately beforehand, Mr Browne was using his forklift to transport pallets of stock which had been unloaded from trucks and placed on the floor at a location on the receiving side of the warehouse (known as the “work” area) to pick locations in the warehouse aisles. Mr Hearne initiated the incident when he began engaging in provocative behaviour towards Mr Browne. Mr Browne said that this occurred whilst he was working in aisle 15 and Mr Hearne was in the adjacent aisle 14. The other witnesses differed as to the aisle numbers in which Mr Browne and Mr Hearne were located at the relevant time, but all the witnesses agreed that Mr Hearne was in the aisle adjacent to that where Mr Browne was. At the time Mr Heenan was in the same aisle as Mr Browne, Mr Pooley was in the next aisle down from Mr Hearne, and Mr Wilson was in the “work” area. It was common ground that it was possible to see through the racking from one aisle to another.
[23] While it is clear from the evidence that Mr Hearne engaged in provocative behaviour towards Mr Browne, the precise nature of that behaviour is less clear. Mr Browne described Mr Hearne as “acting in a childish and immature manner” by “calling out to me, making disparaging remarks about me and my family”. When questioned about what precisely was said and done, he identified that Mr Hearne had been putting his hands to his eyes and making noises as if he were crying. Mr Browne interpreted this as Mr Hearne teasing him about the death of his sister-in-law, who had committed suicide about three weeks earlier. He said that this had been upsetting to him, and it was well known in the GDC what had happened because he had taken time off work to attend the funeral and be with the family. Beyond this, he could not hear what Mr Hearne was yelling because of the noise of his own forklift, the radio and the PA system.
[24] Mr Pooley said that Mr Hearne was “yelling” at Mr Browne and “having a go at Dave”. When asked to specify what was said, Mr Pooley said that Mr Hearne had yelled “Your boyfriend’s not here to help you” or something similar, but that was “pretty much” all he had heard. Mr Heenan heard Mr Hearne yelling at Mr Browne, but could not hear the actual words used. Mr Wilson did not observe what the lead up to the incident was.
[25] I find that Mr Hearne was yelling at Mr Browne. I further accept Mr Browne’s evidence that Mr Hearne made crying gestures and noises towards him, but the evidence is not such as to permit any clear conclusion to be reached as to whether Mr Browne’s interpretation of this behaviour was correct. I also accept Mr Pooley’s evidence that one of the things yelled by Mr Hearne was: “Your boyfriend’s not here to help you”, or words to that effect. I infer that this homophobic remark was a reference to Mr Connor, who had left his employment at Coles about a month or so earlier. No witness suggested that Mr Browne said anything in response.
[26] This behaviour went on for some time. Mr Browne said that as he drove up and down the aisle he passed where Mr Hearne was two or three times over a period of 10 to 15 minutes, and on each occasion Mr Hearne was making “disrespectful gestures and noises”. Mr Pooley recalled that Mr Browne passed Mr Hearne on two occasions when this behaviour occurred. Mr Heenan said that it was on two or three occasions. It is clear that the behaviour was persistent and intended to provoke a response. Mr Browne said that Mr Hearne’s behaviour (as he interpreted it) made him “uncomfortable”, “like I was ashamed to be emotional over what happened to my family” and “upset”. He also agreed that he was annoyed. I consider that this wholly understandable reaction to Mr Hearne’s behaviour affected Mr Browne’s judgement in the events which immediately followed.
[27] Mr Browne initially tried to ignore Mr Hearne’s behaviour, but eventually he did respond. Upon reaching the end of the aisle he was in (at the receiving end of the warehouse), instead of continuing with his work, Mr Browne turned his forklift to the head of the adjacent aisle in which Mr Hearne was located, stopped, and got off the forklift. Mr Browne’s evidence was that he said to Mr Hearne “What’s your problem? Why are you being an idiot?” Mr Heenan confirmed that at least the first part of this was said, and I accept Mr Browne’s evidence in this respect. Mr Browne also stepped a few paces towards Mr Hearne.
[28] Having apparently observed Mr Browne stopping and getting off his forklift to speak to him, Mr Hearne, who was about one third to half way down his aisle, simultaneously stepped off the pallet truck he was operating and immediately moved quickly towards Mr Browne. The witnesses described Mr Hearne’s movement in this respect in different ways. Mr Browne said that Mr Hearne “walked aggressively towards me (approximately 15 m, or more)” and appeared to be “rushing towards me”, whilst still making the crying gesture. Mr Heenan said that Mr Hearne “started chasing” Mr Browne, and that he was “charging him pretty well at a fast pace”. Mr Pooley said that Mr Hearne was walking towards Mr Browne, and was yelling as he did so with his hand in the air making what Mr Pooley described as a “puppet” motion. I find that Mr Hearne walked at a fast pace towards Mr Browne over a distance of approximately 15 metres, and continued to gesture and yell as he did so.
[29] Mr Hearne came up very close to where Mr Browne was. Mr Browne said that “he came up to my face”. In an interview conducted by Coles a week after the incident, Mr Heenan said that “Ryan came up very close to David into personal space”, and he adhered to this in cross-examination. Mr Pooley’s evidence did not describe how close they came to each other, although he had them both moving forward towards each other at the time the altercation commenced. I accept the evidence of Mr Browne and Mr Heenan that Mr Hearne came up very close to Mr Browne’s face as he moved quickly towards him.
[30] There is no dispute that the next thing that happened is that Mr Browne moved up his hands and pushed Mr Hearne in the chest. This was characterised by Mr Heenan as Mr Browne pushing Mr Hearne “out of his space”. Mr Browne’s evidence was that Mr Hearne’s conduct in moving quickly up to him and close to his face made him fearful that Mr Hearne was going to strike him. Mr Heenan’s opinion was that, in pushing Mr Hearne as he did, Mr Browne was acting in self-defence. I accept Mr Browne’s evidence, and find that, in addition to feeling upset about Mr Hearne’s earlier behaviour, Mr Browne had a genuine apprehension at this point in time that Mr Hearne might be about to hit him. Mr Hearne’s behaviour to that point, including the yelling, the gesturing, and then the rapid approach over some distance up close to Mr Browne’s face, can fairly be characterised as confrontational and aggressive in nature and lacking in rationality. It was reasonable in those circumstances for Mr Browne to be in the state of mind that he said he was in.
[31] The push initiated the physical altercation. What followed was a short period of pushing and grabbing of clothes. Mr Heenan said that Mr Browne and Mr Hearne were “both pushing each other and wrestling each other”. Mr Wilson, whose attention was now drawn to the two men for the first time, said that they were “pushing and shoving each other”. Mr Pooley gave somewhat greater detail as to the sequence of events as follows:
“Ryan pushed back and the two pushed each other a few time. Then they started grabbing at each other’s clothes in the chest and shoulder areas. They were moving around the aisle.”
[32] The altercation then took a more serious turn. At a certain point, Mr Browne fell backwards into the racking, with Mr Hearne on top of him. Putting together the evidence of Mr Pooley, Mr Heenan and Mr Wilson, it appears that Mr Hearne was pushing Mr Browne backwards - with Mr Pooley describing Mr Hearne as having “the upper hand” at this point - when Mr Browne tripped, causing him to fall backwards.
[33] Mr Wilson’s evidence was that at this point Mr Hearne punched Mr Browne at least twice and possibly thrice, with the punches connecting with Mr Browne’s face. He further said that Mr Browne at this point had his arms up in a defensive stance, and that Mr Browne at no stage threw any punches. This is substantially consistent with the evidence of Mr Browne himself, who said that Mr Hearne punched him twice - the first time on the left side of the face, and the second time on the left side of the head, near the ear. However, Mr Browne had a different order of events: his evidence was that the punches occurred before he fell backwards. Mr Heenan said that he didn’t see any punches thrown, but also said that he lost sight of the two men after Mr Browne fell back into the racking. Mr Pooley said that he did not see any punches, but he also said when he was interviewed by Coles about the incident on 29 October 2013 that “there was a time that I could not see them for part as I was blocked by a sign”. In light of Mr Wilson’s clear evidence about the matter, I find that after Mr Browne fell backwards, Mr Hearne punched him in the head twice despite Mr Browne having his arms up in a defensive stance. Mr Heenan and Mr Pooley did not see the punches because their view of the altercation was obstructed. I further find that at no time during the altercation did Mr Browne throw a punch at Mr Hearne. No witness gave evidence to the contrary.
[34] Mr Browne and Mr Hearne then got up. There was then at least one further push (by Mr Browne), if not mutual pushing, and some arguing. Mr Browne says that he called Mr Hearne a “bloody idiot”. Mr Browne then returned to his forklift and drove off. Mr Wilson estimated in his interview about the altercation that it lasted “no more than a minute”.
[35] For completeness, I note that two photographs were taken of Mr Hearne. They show bruising on the chest. Because Mr Hearne was not called as a witness by either party, there is no direct evidence that the visible bruises were the result of the altercation, although it is apparent that Mr Hearne represented to Coles that they were caused by Mr Browne. Even if they were the result of the altercation, it is difficult to identify any intended act on the part of Mr Browne which caused them. It is highly unlikely that they could have been caused by a push to the chest. The most likely explanation is that they occurred when Mr Browne fell backwards and Mr Hearne fell on top of him. Photos were also taken of Mr Browne, which show him with a black eye and a bruise behind his left ear. This is consistent with Mr Browne being punched in the way he described in his evidence.
Mr Hearne’s version
[36] As earlier stated, Mr Hearne was not called to give evidence in the proceedings. The findings I have made about the physical altercation are based on the evidence of those who actually gave evidence at the hearing. Mr Hearne’s record of interview about the altercation was placed by Coles into evidence. Coles did not however seek to rely upon it as an accurate account of what occurred; rather Coles used it to demonstrate that it had conducted a thorough investigation into the incident. Nonetheless I consider it of some relevance to assess the accuracy of his version of the incident.
[37] Mr Hearne firstly alleged that “before first smoko” (which appears to have been before 10.00 am), he heard “chook noises”, and turned around to see that Mr Browne, who was the only person who was there, “smiling and smirking” as he drove away on his forklift. In her investigation of the incident, Ms Williams made a finding that this had occurred as alleged by Mr Hearne. At the hearing however, Coles did not call any evidence to support that finding and, indeed, did not rely upon it in any way at all. Mr Browne positively denied doing this in his evidence, and he was not cross-examined upon this. On the evidence, therefore, I cannot find that the “chook noises” episode occurred, at least on the day in question, notwithstanding its remarkable similarity to the earlier allegation made to Mr Deakin by Mr Studdart.
[38] Mr Hearne then said that after the 10.00 am break, he was walking behind Mr Browne as he left the canteen, when Mr Browne saw him and began scratching himself on his arms, legs and elsewhere and said “I am so itchy”. Mr Hearne said that this was behaviour targeted at his skin allergies (eczema and psoriasis). Mr Browne denied engaging in this conduct in his record of interview. The area of the GDC in which the conduct was alleged to have occurred was covered by a CCTV camera. During its investigation, Coles looked at the footage, in which Mr Hearne and Mr Browne could be seen, but was unable to confirm Mr Hearne’s account. The CCTV footage was placed into evidence by Coles, but again only for the purpose of validating its investigation process. Coles did not have the CCTV footage played in court, and did not raise this incident with Mr Browne when he gave evidence. Coles also interviewed one of its employees, Mr David Webster, who was present at the time of the alleged conduct. He did not see what was alleged by Mr Hearne, and denied that Mr Browne had been taunting Mr Hearne. I conclude that Mr Hearne’s account in this respect was not truthful.
[39] As to the altercation itself, Mr Hearne says that between about 11.30 and 11.45 am, he noticed that Mr Browne was persistently staring at him, and then that he drove slowly past him and said “you’re a pussy”. Mr Hearne says he replied “fuck off and leave me alone, why are you doing this?” He then described the following as having occurred (as recorded in the record of interview):
“He was moving from aisle 15 towards 16 did an arch he came to the end of aisle 14, he jumped off and ran at me (he had stopped at the end of aisle about 10 meters away). I was 3 or 4 bays in aisle 14 (near the end), was picking. My truck was further down and I was picking (about a bay and a half). I was facing the end of the aisle, he was coming at me he stood there, I had no where to go. I was fearing at the time.
He proceeded to put his hand on my chest and his forearm in lower neck, he drove me into the racking and I hit my head on the racking.”
[40] Mr Hearne then said that after some further pushing, Mr Browne tripped on a pallet, and fell backwards. According to Mr Hearne, he and Mr Browne disengaged after Mr Browne got up.
[41] It is readily apparent that Mr Hearne’s account bears very little resemblance to the independent accounts given by Mr Heenan, Mr Pooley and Mr Wilson. Mr Heenan and Mr Pooley gave very clear evidence that the behaviour which provoked the altercation was all on Mr Hearne’s side. Mr Browne did not run at Mr Hearne. It is not true that Mr Hearne had nowhere to go. Nor is it true that Mr Browne put his forearm into Mr Hearne’s neck when he pushed him and drove him into the racking. I find that Mr Hearne gave a substantially untruthful account of the incident at his interview with Coles. It is likely that he did this to conceal the degree of his culpability for the incident.
The investigation
[42] Mr Browne immediately reported the incident to Mr Wayne Blay, a manager, who then informed another manager, Mr Mick Johnson. Mr Hearne did not voluntarily report the incident; he was called into the office over the PA system after it had been reported by Mr Browne. Mr Kennedy, the Manager of the GDC, accepted that the only reason Coles became aware of the incident was because Mr Browne reported it.
[43] Both Mr Browne and Mr Hearne were then suspended, and Coles commenced an investigation into the incident. Initially the management at the GDC obtained handwritten statements about what had occurred from Mr Browne, Mr Hearne, and the witnesses to the incident. On 25 October 2013, Ms Kirsty Williams, who was at the time Coles’ State HR Advisor, was requested to undertake an investigation into the incident.
[44] Ms Williams conducted interviews with Mr Browne and Mr Hearne, as well as a wide range of other persons including those who witnessed the altercation itself (Mr Heenan, Mr Pooley and Mr Wilson) as well as others who had relevant knowledge concerning the past behaviour of and the relationship between Mr Browne and Mr Hearne. Ms Williams took notes of each interview on her laptop, and gave each interviewee an opportunity to review the notes so that any corrections could be made. Coles placed all these records of interview into evidence.
[45] The interviews took place from 29 to 31 October 2013. Ms Williams also viewed the CCTV footage to which reference has already been made. She then prepared a report entitled “Investigation Outcome Summary” which set out her findings on the matter. Those findings concerned not only the physical altercation itself, but also a number of allegations against Mr Hearne. The findings were as follows:
“FINDINGS
Allegations against David Browne
Allegation 1 |
SUBSTANTIATED |
David made inappropriate chicken sounds in David’s vicinity • On the balance of probabilities and previous similar behaviour towards another person. Breach of Code - Our Conduct |
Allegation 2 |
Unable to be SUBSTANTIATED |
David made inappropriate scratching actions targeting David’s skin allergies • No supporting evidence No Breach |
Allegations against both David Browne and Ryan Hearne
Allegation 3 |
SUBSTANTIATED |
Physical altercation between David and Ryan occurred with both parties pushing and shoving each with enough force to move around the aisle into the bay. • Evidence supported by witnesses Serious Breach of Code - Conduct, workplace behaviour and Health, Safety and Wellbeing |
SUBSTANTIATED |
Further to above these specific actions and behaviours were substantiated: • Ryan yelled at David on more than one occasion. Ryan yelled at David as he drove down the aisle next to Ryan on his forklift (unable to substantiate any specific wording used)
| |
UNSUBSTANTIATED |
Specific actions and behaviours that have been unsubstantiated: • David was staring at Ryan
|
Further allegations against David Browne
Allegation 4 & 5 |
Unable to be SUBSTANTIATED |
David has been bullying and harassing Ryan over a 20 month period • There were only limited examples of bullying and harassing behaviours provided
|
[46] The “Code” referred to as having been breached in relation to Allegation 3 above was a document issued to employees by Coles entitled simply “Our code” (the Code). The relevant parts of the Code were as follows:
Page 2:
“Workplace behaviour, diversity and equal opportunity
Coles is committed to diversity and equal opportunity. We will recognise and appreciate the value of our differences, internally amongst team members and also externally amongst customers, suppliers, contractors and anyone we interact with in our work with Coles. We will not accept harassment, sexual harassment, discrimination, bullying or any other inappropriate workplace behaviour.
I will:
• Treat everyone that I interact with in the course of my employment with dignity, courtesy and respect.
...”
Page 3:
“Safety health and wellbeing
Coles will provide a working and shopping environment where team members and customers are safe. We do not accept behaviour that risks the safety of team members, customers, suppliers, contractors or anyone we interact within our work. This includes physical and psychological violence or harm, or threats of violence or harm.”
Page 4:
“There are some breaches of this code that Coles considers serious misconduct and will not tolerate. Serious breaches are likely to result in termination of employment.
Some examples are:
...
• Serious safety breaches, including physical or psychological violence or threats of violence.
...”
[47] The report concluded with Ms Williams recommending that both Mr Hearne and Mr Browne be subject to “serious disciplinary action up to termination of employment”. Ms Williams had a telephone conference with members of Coles’ management on 1 November 2013, at which she discussed her findings and recommendations. She did not recommend any particular course of disciplinary action. She was not involved in the disciplinary process beyond this point.
The dismissal
[48] After having received Ms Williams’ report, Mr Kennedy read it together with the original statements taken from witnesses, but he did not read the records of interview. He also viewed the CCTV footage. He consulted with two other senior managers about Ms Williams’ findings. He then arranged for a meeting to occur with Mr Browne on 5 November 2013. Mr Browne was invited to, and did, bring a support person to this meeting.
[49] The 5 November 2013 meeting was conducted in accordance with a standard meeting protocol developed by Coles and embodied in a document entitled “Discussion Record”. Mr Kennedy attended the meeting for Coles together with Mr Sean Atkinson, the Zone HR Manager. Initially, Mr Browne was informed of the adverse findings that had been made against him in Ms Williams’ report, and told that as a result he was at risk of dismissal. After a break, the formal meeting then commenced. Mr Browne was given the opportunity to provide a written response to the findings, which he did. This response was handwritten into the relevant section of the Discussion Record. It read as follows:
“Its false that I made chicken noises at Ryan. Its Coles duty to provide a safe workplace. Coles did not provide my safety on 23/10/13. Ryan was harassing me for 20 mins over loss of family member, I asked what is your problem. My only contact with him was to stop him getting closer. The accusation that I made noises was false, I was working in the next aisle making no noise to Ryan.”
[50] There was then a break to allow consideration of the response. The meeting then resumed, and there was further discussion. There was then a further break, and when the meeting resumed, Mr Atkinson’s notes of the meeting disclosed that Mr Kennedy said:
“After reviewing decision and points you need to convince me why I can trust you in the future to handle the situation differently should it arise; am considering terminating your employment. You had 20 minutes to raise this to a manager; could've done. Why should I not consider terminating your employment? How can I trust that you would not behave in a similar way should this occur in the future? From what I have in front of me is that you were copping abuse for 20 minutes. Rather than approach a manager you parked your machine at the end of the aisle, stepped off, ‘What's your problem?’. When he got in your face, you pushed him away.”
[51] Mr Browne then responded to this. His response was recorded in summary form by Mr Atkinson in the Discussion Record as follows:
“Never been in this situation before. Don’t have issues with any other team member. Didn’t confront him to have any sort of violence. Wanted to know what was going on. Receive incentive every week. Mark Foon doesn’t have an issue with my performance. I would be the first to raise an issue should it arise in the future. Feeling on floor is that if you raise this, nothing happens.”
[52] There was then a further break during which Mr Kennedy consulted with some other managers and then made the decision to dismiss Mr Browne. When the meeting resumed, Mr Atkinson’s notes recorded that the following exchange occurred:
“Kennedy: Can't tolerate any type of violence within my site. My view from what you told me was that you had every chance to avoid what happened; probably [didn’t] think it would get to where it has but bottom line it did. How do I have any confidence that this wouldn't occur in the future. You had chance to stop this. You touched a TM [team member] first. Those are facts that are agreed. You're certainly aware of what the processes are, you spoke of.
Browne: Won't happen again; can't guarantee Ryan won't but I won't,
Kennedy: I can't tolerate physical altercation on my site. Result is a serious breach which equates to gross misconduct; terminate your employment effective today.
Browne: Terrible; won't happen again.
Kennedy: It's gross misconduct effective today. I can't tolerate physical violence. Dreadful message to rest of business. I can't tolerate physical violence on site and employment terminated.”
[53] The meeting then ended. Mr Hearne was also dismissed later that day.
[54] Mr Browne was subsequently sent a letter dated 11 November 2013 which confirmed that he had been terminated with immediate effect on 5 November 2013.
Aftermath
[55] Mr Browne has been unemployed since he was dismissed. His evidence was that he had looked for work but had been unsuccessful, noting that Coles was the biggest employer in town and his job with Coles had been the only job he had had since leaving high school. His earnings with Coles supported his lifestyle and mortgage. He had been fortunate to be ahead in his mortgage payments, but had had to access his savings to support himself.
Was Mr Browne’s dismissal unfair?
[56] Section 387 of the Act requires the Commission, in considering whether a dismissal was harsh, unjust or unreasonable, to take into account a number of matters specified in paragraphs (a) to (h) of the section. I will deal with each of these matters in turn below.
Paragraph 387(a)
[57] I have earlier set out relevant portions of the Code, which sets out Coles’ policy as to workplace behaviour. The document includes clear references to the propositions that “inappropriate workplace behaviour” was not acceptable, that employees were to be treated with “dignity, courtesy and respect”, and that “physical violence” was regarded as a serious safety breach which was likely to result in termination of employment. There was no issue that the contents of the Code had been communicated to Mr Browne and that he was aware of its contents.
[58] Mr Browne submitted that the initial pushing away of Mr Hearne constituted an act of self-defence, in that he had a reasonable apprehension that Mr Hearne might strike him, thus giving rise to the need to defend himself, and that his response to this was a reasonable one in all the circumstances. By “self-defence”, Mr Browne meant the defence of self-defence under the criminal law. 2 I am not sure that analysing the altercation in terms of the criminal law is a particularly useful course because we are not here dealing with a defence to a criminal charge that must be proven beyond a reasonable doubt. The real issue is whether Mr Browne was put in a position where it became impossible for him to comply with the requirements of the Code.
[59] Coles submitted that while he was being subjected to taunting and harassing behaviour by Mr Hearne, Mr Browne had the opportunity to complain to management about it rather than confronting Mr Hearne. This is strictly speaking correct, but I do not consider it unreasonable for Mr Browne to have initially tried to sort the issue out himself by inquiring of Mr Hearne why he was behaving the way he was rather than going straight to management. Mr Browne said, and I accept, that he had no idea that a physical altercation was going to result from him doing this. I consider that adult employees are entitled to try to resolve peacefully interpersonal issues in the workplace between themselves before going to management. The alternative would be to reduce the workplace to the level of the schoolyard.
[60] Mr Hearne’s reaction was unexpected: he approached Mr Browne very quickly and came up close to his face in a way which made Mr Browne apprehend that Mr Hearne was going to strike him. That caused Mr Browne to push him in the chest. The question is: did Mr Browne have an alternative? Although it may sound like a counsel of perfection, I consider that it would have been reasonably possible for Mr Browne to retreat and immediately seek the assistance of other employees or management. That he did not do so, but chose to deal with the situation by physical means constituted a breach of the Code.
[61] As I have earlier found, Mr Hearne initially responded to Mr Browne’s push in the chest by pushing him back. Mr Browne had not been punched at this point. Again, I consider that it would have been reasonably possible for Mr Browne to disengage and retreat at this point, his fear of being struck by Mr Hearne not yet having eventuated. However, he did not do so; instead mutual pushing followed until the altercation reached a point where Mr Browne could not disengage until after having fallen backwards and been punched twice in the face. This continuation of a physical response to Mr Hearne by pushing him again also constituted a breach of the Code.
[62] The Full Bench majority (Lawler VP and Cribb C) in B, C and D v Australian Postal Corporation T/A Australia Post 3 discussed the significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal in the following way:
“[35] ... as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a “valid reason” should not impose a severe barrier to the right of an employer to dismiss an employee”.
[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”
[63] I respectfully adopt the above reasoning. There could be no doubt that any act of physical violence (which would include pushing someone) would be a substantial breach of the Code. Mr Browne’s conduct was “wilful” in the sense of being intentional. As I have found, his sense of judgment would have been affected by Mr Hearne’s earlier harassing behaviour and his apprehension that Mr Hearne might strike him. However, that is a matter which I consider (consistent with the reasoning in B, C and D) should be considered in the context of s.387(h) as a relevant matter going to whether the dismissal was harsh, unjust or unreasonable rather than under s.387(a). I therefore find that there was a valid reason for Mr Browne’s dismissal.
Paragraph 387(b)
[64] Mr Browne was notified of the reason for dismissal at the meeting with Coles’ management which occurred on 5 November 2013.
Paragraph 387(c)
[65] Mr Browne was given an opportunity to respond to the reason for dismissal relating to his conduct at the meeting with management which occurred on 5 November 2013.
Paragraph 387(d)
[66] Mr Browne was allowed to and did have a support person present at the meeting with management which occurred on 5 November 2013.
Paragraph 387(e)
[67] The dismissal did not relate to unsatisfactory performance, so the issue of prior warnings for unsatisfactory performance is not relevant.
Paragraph 387(f)
[68] Coles is a major Australian business enterprise, so that its size was not likely to impact on the procedures followed in effecting the dismissal.
Paragraph 387(g)
[69] Coles has dedicated human resource management specialists and expertise, so this consideration is not relevant.
Paragraph 387(h)
[70] The considerations which may be relevant under s.387(h) to the consideration of whether the dismissal of a person for involvement in a physical altercation in the workplace was harsh, unjust or unreasonable were discussed by the Full Bench majority (Catanzariti VP and Cambridge C) in DP World Sydney Limited v Lambley 4 as follows:
“[44] It is well established and accepted that a dismissal may still be harsh notwithstanding that there exists a valid reason for dismissal. In Byrne v Australian Airlines Ltd [(1995) 185 CLR 410 at 465], McHugh and Gummow JJ said:
“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.”
[45] Much has been said in the decision at first instance, and in the decision of the first Full Bench, about the principles surrounding fighting in the workplace. In one of the leading authorities on the issue, AWU-FIME Union v Queensland Alumina Ltd [(1995) 62 IR 385 at 393], Moore J observed that:
“What emerges from these decisions is that whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self defence.”
[46] Although dismissal of an employee due to fighting in the workplace may very well be viewed as not harsh, unjust or unreasonable, the circumstances surrounding the fight and the employee’s personal circumstances must be considered prior to such a conclusion being drawn.”
[71] I consider that the following matters are relevant to the determination of Mr Browne’s application under s.387(h) and favour the conclusion that his dismissal was harsh:
(1) Mr Browne had a good 18 year record of employment with Coles.
(2) The situation which occurred on 23 October 2013 was initiated by the harassing and taunting behaviour of Mr Hearne. But for that behaviour, the altercation would never have happened.
(3) Mr Hearne’s behaviour caused Mr Browne, understandably, to feel upset, annoyed and uncomfortable. Further, when Mr Hearne rushed at him and came up close to his face, Mr Browne apprehended that Mr Hearne might be about to strike him. Therefore, as I have earlier found, Mr Browne’s sense of judgment was critically affected at the time when he had to make the virtually instantaneous decision as to how to respond to Mr Hearne’s behaviour.
(4) Mr Browne’s conduct during the altercation was confined to pushing and grappling. He at no stage punched or otherwise struck Mr Hearne, despite being punched himself at least twice in the face.
(5) It was Mr Browne who reported the incident to management. But for him doing that, Coles’ management may never have become aware of the incident at all.
(6) Mr Kennedy indicated during the meeting on 5 November 2013, immediately before he made the decision to dismiss Mr Browne, that he needed to be convinced that Mr Browne would not behave in a similar way in the future. It was reasonable for Mr Kennedy to identify this as a critical question, particularly as an issue of employee safety was involved. However, the answer to that question should have been that it was very unlikely there would ever be any repetition of the behaviour on the part of Mr Browne if he was not dismissed. His 18-year history of employment, the circumstances in which the altercation came about, and the salutary effect of the disciplinary process itself, should have led to the conclusion that Mr Browne’s conduct on 23 October 2013 was aberrant, out of character and “one-off” in nature.
(7) The consequences of the dismissal for Mr Browne have been severe. He remains unemployed six months after the event. In circumstances where he lives in a regional town, has lost the only job he has ever had since leaving school, has been dismissed by the largest employer in the town, and has limited skills, his future employment prospects must be assessed as limited.
Conclusion
[72] Notwithstanding that there was a valid reason for his dismissal, I find that Mr Browne’s dismissal was harsh in both the senses discussed by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd: it was harsh in its consequences for his personal and economic situation, and it was disproportionate to the gravity of his misconduct.
Remedy
[73] Mr Browne seeks the remedy of an order for reinstatement to his former employment with Coles under s.391 of the Act, together with ancillary orders to maintain the continuity of his employment and to compensate him for the remuneration he has lost. In the alternative, he seeks an order for compensation under s.392.
[74] Reinstatement is the primary remedy provided for in respect of unfair dismissals under the Act, in the sense that there must be a finding that reinstatement is inappropriate before any power exists to make an order for compensation. 5 Accordingly, in relation to remedy, the primary issue which must be considered is whether it would be appropriate to make an order for Mr Browne’s reinstatement.
[75] From Mr Browne’s perspective, it is clear that reinstatement would be the remedy most appropriate to the situation in which he currently finds himself - that is, removed from his long-term job, unemployed, and with poor prospects for obtaining further employment in the near future.
[76] Coles submitted that reinstatement would not be an appropriate remedy because the relationship between Coles and Mr Browne had irretrievably broken down, Coles could not tolerate physical violence in its workplace and needed to establish and maintain discipline in the workplace, Coles had an obligation to provide its employees with a safe and healthy workplace, and it needed to ensure that its employees used the established mechanisms to resolve workplace issues rather than resorting to physical violence. In support of this submission, it relied on the following evidence from Mr Kennedy’s witness statement:
“I am aware that David is seeking reinstatement to the DC. This would be entirely inappropriate. He assaulted another team member which constitutes a serious breach of our values and our Code of Conduct. I have obligations to protect the safety of all of our team members at the DC. Safety is a big issue for us at the DC with the machinery we work with etc. Both Coles and I personally do not tolerate physical violence at the DC.”
[77] Coles’ position that the employment relationship cannot be re-established needs to be scrutinised carefully. There must be a sound and rational basis for such a proposition; it is not sufficient that Coles’ management subjectively holds that view, however strongly it may be held. 6 I consider that two matters are of significance in this connection which tell against this aspect of Coles’ case. Firstly, as I have earlier found, Mr Browne’s conduct on 23 October 2013 was aberrant, out of character and “one-off” in nature, and any recurrence of that type of behaviour is most unlikely. Secondly, Mr Hearne was also dismissed and will not be returning to the GDC, so there is no possibility of any conflict between him and Mr Browne recurring at the GDC if Mr Browne is reinstated.
[78] Mr Kennedy gave evidence that some employees at the GDC had expressed a concern about Mr Browne and Mr Hearne returning to the GDC. This was raised as an issue at Mr Hearne’s dismissal interview, but not at Mr Browne’s. However, Mr Kennedy’s evidence about this was confusing and somewhat contradictory, and it was somewhat unclear who had raised this, when they had raised it, and what the nature of their concern actually was. 7 Certainly, as earlier stated, there is no suggestion of both men returning, which may resolve any concern that the two might fight again sometime in the future. In any event, I give greater weight to the evidence of Mr Heenan, Mr Pooley and Mr Wilson, all of whom said in cross-examination that they would have no difficulty with Mr Browne being reinstated.
[79] It should be clear that the reinstatement of Mr Browne does not involve any suggestion of condonation of the use of physical means to resolve interpersonal workplace issues. Coles has internal mechanisms to deal with such issues, and employees can be expected to utilise those mechanisms if they cannot resolve issues in a civilised fashion between themselves.
[80] I note that in DP World Sydney Limited v Lambley 8 the Full Bench majority expressed a concern that a finding in favour of Mr Lambley, who had been dismissed for participating in a fight at the workplace, might be taken as condonation of fighting in the workplace. The majority said:
“[57] Finally, it is also relevant to briefly mention the issue involving broader policy implications that might follow with any finding in favour of Mr Lambley. The suggestion that a finding in favour of Mr Lambley which was accompanied by some significant financial penalty, would not offer implicit condonation of fighting in the workplace, is with respect, a proposition based upon the erroneous assumption that such an outcome would be subject to detailed and rational examination in the workplace. Unfortunately, those who intimidate and perpetrate physical violence in the workplace are generally disinclined to undertaking detailed examination of issues and instead act and react to very basic concepts and communications.”
[81] I do not regard that passage as indicating that any reinstatement of an employee involved in a physical altercation would involve the implicit condonation of workplace fighting. Otherwise, an applicant in such a case could never be successful. That this was not the majority’s position was made clear in the passage in their decision quoted in paragraph [70] above, in which it was stated that the outcome of each such case depended on its particular circumstances. Rather, the above passage is to be read as directed to the specific circumstances of Mr Lambley’s case. In that case, as the majority found, Mr Lambley participated in a pre-arranged fight with another employee, despite having had 20 minutes to consider the alternatives, and during the fight threw his opponent on the ground and kicked him in the head as he lay there with the intention of doing as much harm as he could. 9 The circumstances of Mr Browne’s case are entirely different.
[82] Accordingly I consider that it is appropriate to order that Mr Browne be reinstated to his former employment with Coles under ss.390(1) and 391(1) of the Act. I also consider it appropriate to make an order under s.391(2)(a) to maintain the continuity of Mr Browne’s employment. However, in order for it clearly to be recognised that any willing participation in a physical altercation at the workplace is unacceptable and cannot escape sanction, I decline to make any order for lost remuneration under s.391(3). The effect of that upon Mr Browne is a very significant financial penalty for his involvement in the physical altercation on 23 October 2013.
[83] A separate order will issue giving effect to this decision.
VICE PRESIDENT
Appearances:
C. Santone solicitor for David Browne
C. Berry solicitor with J. Kembry for Coles Group Supply Chain Pty Ltd
Hearing details:
2014.
Sydney:
6 and 7 May.
1 See Naidu v Group 4 Securitas Pty Ltd and Anor [2005] NSWSC 618 at [12]
2 Crimes Act 1900 (NSW), s.418
5 Melanie Millington v Traders International Pty Ltd [2014] FWCFB 888 at [66]
6 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 17-18; Fletcher v Commonwealth of Australia (Australian Federal Police) [2007] AIRCFB 466 at [24]-[25].
7 See transcript PNs 2119-2145
9 Ibid at [52]-[53]
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