REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sonia Turvey
v
Roverworth Pty Ltd
(U2021/442)

Application for an unfair dismissal remedy – Physical altercation – Valid reason for dismissal – Mitigating factors not sufficient to outweigh seriousness of misconduct – Application dismissed.

Background

[1] Mrs Sonia Turvey (the Applicant) applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of her dismissal by Roverworth Pty Ltd (the Respondent/Roverworth) on 6 January 2021. The Applicant was employed by the Respondent for a period of ten years in two periods, with the last period of continuous employment being almost seven years (6 years, 11 months, 2 weeks and 6 days service) having commenced employment with the Respondent on 17 January 2014. The Applicant was employed as a Meat Process Worker in the Respondent’s meat processing department. The Applicant was dismissed for serious misconduct following a physical altercation with another employee on 22 December 2020. The other employee involved was also dismissed for serious misconduct, and will be referred to in this decision as Ms G.

[2] It is not in dispute that there was an altercation between the Applicant and Ms G during which the Applicant said that Ms G burned her arm by spraying it with hot water. The Respondent dismissed the Applicant following an investigation which concluded that the Applicant had wilfully escalated the situation by making physical contact Ms G while holding a pair of scissors in her hand. The Respondent also found that the Applicant continued the incident even after another employee intervened and pushed Ms G away. It was also determined that the Applicant had breached company policies and that the Respondent had lost trust and confidence in the Applicant on the basis that the Applicant had refused to accept any wrongdoing.

[3] The Applicant contends the dismissal was unfair as the Respondent did not consider that Ms G sprayed the Applicant’s upper arm with hot water causing a burn and that the Applicant reacted by trying to take the hose out of Ms G’s hands. The Applicant also contends that the Respondent did not have regard to mitigating factors including that the Applicant had worked for the Respondent for 10 years in total and had almost seven years of consecutive service at the time of her dismissal. The Applicant pointed to the harshness of her dismissal in the context of her personal circumstances, including her age (62 years at the time of dismissal) and contended that finding alternative employment in a regional area was an additional difficulty.

[4] Section 396 of the Act requires that four specified matters must be decided before the merits of the application may be considered. There was no contest between the parties regarding these matters, and I find that:

(a) the application was made within the period required by s.394(2);

(b) the Applicant was a person protected from unfair dismissal;

(c) the Respondent was not a “small business employer” as defined in s.23 of the FW Act; and

(d) the dismissal was not a case of genuine redundancy.

[5] A hearing was held on 12 May 2021. At the hearing, the Applicant was represented by her friend, Ms Gabrielle Smith. Ms Smith is not a lawyer or paid agent such that permission was required pursuant to s.596 of the Act. The Respondent was represented by its Human Resources Manager, Mr David Matthews. Also present at the hearing was Ms Harvey, a Solicitor in the employ of Thynne Macartney. That firm had earlier sought permission to represent the Respondent and then withdrew the application for permission. Ms Harvey sought to sit at the bar table with Mr Matthews on the basis that the firm had assisted in the preparation of the Respondent’s material. I refused the request for Ms Harvey to remain at the bar table. Ms Harvey sought to remain in the hearing room and was informed by me that I could not prevent her from remaining in the hearing room but my expectation was that she would not provide assistance to Mr Matthews during the hearing.

[6] The Applicant gave evidence on her own behalf at the hearing 1. The Applicant also tendered a statement of Ms Smith who was not required for cross examination.2 Evidence for the Respondent was given by:

•  Mr James Essery; Supervisor 3; and

•  Ms Kim Dale, Human Resources Officer 4.

[7] CCTV footage of the altercation and a written chronology setting out the timing of various events on 22 December 2020 was tendered by the Respondent through Mr Essery. 5 The footage was said to be critical evidence and was played at the hearing with the consent of the parties. Both the Applicant and Mr Essery gave oral evidence simultaneously as to what they contend the footage showed.

EVIDENCE AND SUBMISSIONS

Altercation on 22 December 2020

[8] The Applicant’s evidence was that she did not have a good working relationship with Ms G and had often ignored Ms G’s angry outbursts. The Applicant said that she had previously complained about Ms G to her leading hand Noelene and Mr Essery. In her first written statement filed on 15 March 2021, the Applicant said that on 22 December 2020, she was working beside Ms G packing boxes with product that Ms G had prepared. This shift was the last before the Christmas break. The Applicant said that close to the finishing time for work, she was told by Noelene not to pack any more boxes as the pallet was almost full and they did not want to start another one so close to the end of the day. The Applicant did not pass this information onto Ms X as Ms G was not at her workstation. When Ms X returned to her workstation, the Applicant said Ms G saw her throwing away the rest of the meat in her tray and Ms G also started throwing away the rest of the meat left in her tray. There was a discussion between the Applicant and Ms G about throwing away product.

[9] According to the Applicant, Ms G used the hot water hose to hose off her boots and waterproof clothing and then hosed the Applicant with hot water. The Applicant said that she believed this was deliberate because Ms G was angry about the meat waste which had just occurred. The hot water caused a burn to the Applicant’s arm above the elastic of her sleeve protector and the Applicant said that she reached out to grab the hose so that Ms G could not continue to burn her. Ms G would not let go of the hose and a scuffle broke out between the Applicant and Ms G. Noelene and James [Essery] heard the scuffle and came into the area and separated the Applicant and Ms G. Mr Essery applied cold water to the Applicant’s arm and the Applicant said that she was in considerable pain and was distressed and crying and that she told Mr Essery that the water was hot. The Applicant also said that she was not asked to fill out an incident report. Further, the Applicant said that she spoke to “Tony” after Christmas gifts were given to employees and was told to go to the first aid office to get a soothing lotion for the burn on her arm. The Applicant did this and was unable to locate anything except heat rub which she did not use. The Applicant then left work and went home where she applied some aloe vera lotion to the burn.

[10] In her second statement made on 5 May 2021, in response to the material filed by the Respondent, the Applicant added the following statements about the 22 December incident. The Applicant said that close to closing time, she attempted to put her knife into the sterilizer which is on a bench behind the cutting tables. Ms G had placed the scissors that she was working with into the same sterilizer and the Applicant said that there was no room for her knife. The Applicant removed the scissors and placed them on the bench next to the sterilizer. The Applicant said that it was then that Ms G sprayed her with the hot water hose that she was using to clean her boots and apron. According to the Applicant, Ms G started to scream at the Applicant asking the Applicant to give her the scissors. The Applicant said that she reached back with her right arm and felt for the scissors and found them and picked them up to give to Ms G. The Applicant did this because Ms G was screaming at her to give her the scissors and the Applicant hoped that by passing Ms G the scissors she would stop screaming and spraying hot water at the Applicant.

[11] The Applicant said that Noelene then moved up the aisle and grabbed the Applicant in a bear hug before she could pass the scissors to Ms G. Noelene turned the Applicant around and the Applicant showed Noelene her burn while holding the scissors pointing downwards. Noelene asked the Applicant for the scissors and the Applicant handed them to Noelene who placed them in a tray towards the front of the room. The Applicant also said that Ms G walked past the tray, picked up the scissors and thrust them towards the Applicant before leaving the room but was not close enough to make contact with the Applicant. Further, the Applicant said that at no time did she threaten Ms G or anyone else with the scissors and the only reason she picked the scissors up after taking them out of the sterilizer was because Ms G was screaming at the Applicant to give her the scissors.

[12] Under cross-examination the Applicant described the incident as follows:

“MS TURVEY: I put it beside and then straight away, I received the spray, hot water from her: ‘Give me my scissors.’ I couldn't understand why she is screaming, ‘Give me my scissors’, because I did not do that, the scissors, you know? She never put it all the time there but that last moment she put that there. So I couldn't understand why she screaming about the scissors. So I turn around and then when she spray me that hot water, yes, I started - I just kick her because she put her legs beside me. I nearly - she is strong enough. I did use my legs and she kick me too. That's what happened for us. Then she still screaming, ‘Give me my scissors.’ So I see the scissors, I pick it up and swing it, try to give it to her. But is someone come along - I think Noelene has come along - and then grab me, hold me, and said, ‘Can I have the scissors?’ I hand the scissors to Noelene before her. So exactly what is what happened. But over and over in my head, why is she screaming? What is wrong? Why she spray me the hot water? I do remember that scissors, I lift it up. I took it from the sterilizer because she is screaming, ‘Give me the scissors, give me the scissors’, so definitely that’s the way.” 6

[13] In response to a question as to why she did not step back and report being burned with the hot water, the Applicant said that she could not do this because if she did not give the scissors to Ms G, she would be sprayed with hot water again. At the hearing, the Applicant and I had the following exchange in relation to the altercation:

“THE DEPUTY PRESIDENT: Ms Turvey, I just want to understand what order things happened in. Do you understand? So you're saying that you tried to put your knife in the sterilizer. It wouldn't fit in because [Ms G’s] scissors were in there.

MS TURVEY: Yes.

THE DEPUTY PRESIDENT: So you took them out.

MS TURVEY: I took it out, yes.

THE DEPUTY PRESIDENT: You put them on the sink.

MS TURVEY: I put my knife inside the sterilizer. Yes, I take it out first - - -

THE DEPUTY PRESIDENT: And put them on the bench?

MS TURVEY: Somewhere around there, yes, close to that.

THE DEPUTY PRESIDENT: Then you say it was after that that [Ms G] sprayed you with the hot water?

MS TURVEY: Yes, straight away spray me so I couldn't understand why she spray me.

THE DEPUTY PRESIDENT: Well, even though she was screaming for the scissors, why didn't you just walk away?

MS TURVEY: I had no idea because my job - my knife is still there. You know, it's still there in the area. Why should I walk away, because she just spray me? If I didn’t give the - - -

THE DEPUTY PRESIDENT: To get away from the hot water?

MS TURVEY: Yes, I am scared. I was so scared, really - maybe she spray me again. But because I hold - she is screaming about her scissors and then - - -

THE DEPUTY PRESIDENT: Ms Turvey, you could have just forgotten about the scissors and turned around and walked away from the hot water.

MS TURVEY: Yes.

THE DEPUTY PRESIDENT: Why didn’t you do that?

MS TURVEY: It’s out of my mind, out of my mind - someone hit you, what you can do?” 7

[14] The Applicant and I also had the following exchange:

“THE DEPUTY PRESIDENT: So when did you kick [Ms G] - before you reached for the scissors?

MS TURVEY: I think before I reach - because I think before I reach her.

THE DEPUTY PRESIDENT: Okay. So the sequence of events was you put your knife in the sterilizer, moved her scissors.

MS TURVEY: Yes.

THE DEPUTY PRESIDENT: She sprayed you with hot water.

MS TURVEY: Straight away, yes.

THE DEPUTY PRESIDENT: And you kicked her.

MS TURVEY: Yes.

THE DEPUTY PRESIDENT: Then she kicked you back.

MS TURVEY: She kick me back, yes.

THE DEPUTY PRESIDENT: Now, Ms Turvey, you can agree with this or disagree with this, okay? If you don’t agree with me, tell me. But I can’t see why if you were so frightened of this bigger, younger person, with the hot water, why you walked towards her and kicked her instead of walking away.

MS TURVEY: Because she was in hot water. She got the hot water and she is screaming about her knife. I had no choice. I have to grab the knife and I think - the screaming about her scissors.

THE DEPUTY PRESIDENT: Ms Turvey, you did have a choice. Choice one was to try and - was to walk towards her and kick her and then try and hand her her scissors. Choice two was to say, ‘You just sprayed me with hot water, I’m going to turn around and run away from you as fast as I can run.’ Why did’t you do that?

MS TURVEY: I have no idea.

THE DEPUTY PRESIDENT: Right.

MS TURVEY: I really have no idea because for me, if I turn around she will spray me again because she is screaming, ‘Give me my scissors’.” 8

[15] Mr Essery’s evidence is that on 22 December 2020, he was just outside the Runner Room when a worker came and waved him to the door and informed Mr Essery that the Applicant and Ms G were arguing. Mr Essery entered the Runner Room and saw the Applicant and Ms G arguing with Noelene, who informed Mr Essery that the Applicant had been burned on her arm with hot water. Mr Essery said that he got the Applicant to a cold water tap at the back of the room and applied cold water to the Applicant’s arm, telling her to keep the tap running. Mr Essery said that the Applicant was more interested in arguing with Ms G who had re-entered the room. Mr Essery left the Applicant with Noelene to keep applying water to her arm and went out with Ms G to the washroom to ask her what was going on. Ms G told Mr Essery that the Applicant had burned her arm by putting it in front of the hot water hose while Ms G was cleaning up and that the Applicant had threatened her with scissors. Mr Essery also said that Ms G told him that this had happened after Ms G went to tell Noelene that the Applicant was throwing away product.

[16] Mr Essery said that he returned to the Applicant who told him that Ms G had deliberately hosed her but could not say why. According to Mr Essery, the Applicant’s arm was a bit red but had no signs of blistering. Mr Essery attempted to obtain information from a number of other workers but was only able to ascertain that the Applicant and Ms G were arguing. Mr Essery returned to the washroom and told the Applicant and Ms G that he would be checking the CCTV footage the next day as the person who had access to the footage had gone home.

[17] In cross examination, Mr Essery accepted that after Ms G and the Applicant were separated, Ms G was also continuing to argue with the Applicant and that Ms G came back towards the Applicant while the Applicant ran cold water over her arm, and that Mr Essery was attempting to separate them. 9

[18] The Respondent tendered CCTV footage of the incident and the following chronology in which Ms G is referred to as “other worker”:

[19] The CCTV footage was viewed in the hearing with both the Applicant and Mr Essery giving evidence at the same time, and each being invited to identify the persons in the footage and to state what the footage showed. In the CCTV footage Ms G can be seen turning around from the workstation to a sink attached to the wall and starting to use the hot water hose. Mr Essery’s evidence is that Ms G is taking off her raincoat and placing the raincoat and a pair of scissors into the sink and starting to hose them down. 10 It is not disputed that the scissors in question are large scissors used to cut intestines. The Applicant is seen picking up the knife she used to undertake her work and approaching the sink where Ms G is using the hot water hose. The Applicant is then seen to put her hand in front of Ms G and then to kick Ms G. Ms G then kicks and the Applicant kicks Ms G again. The two employees also push each other.

[20] During the viewing of the video the Applicant and her representative emphasised that the Applicant put her knife down before picking it up and putting it in the sterilizer. The Applicant also stated that she kicked Ms G because she was being sprayed with hot water. Further, the Applicant maintained that she moved Ms G’s scissors out of the sterilizer to put her knife into the sterilizer. The Applicant’s representative maintained that the Applicant removed Ms G’s scissors from the steriliser and placed them on a bench so that she could put her knife into the steriliser. This was the last time that the Applicant had the scissors in her hand. There was some “argy bargy” and Ms G screamed for the scissors. The Applicant knew where the scissors were because she placed them on the bench and she handed the scissors to Ms G.

[21] Mr Essery states that at 14:47:54 the Applicant is seen on the footage to reach back to the sink and pick up a pair of scissors and to approach Ms G with the scissors in her hand. Mr Essery said that he believes that the Applicant took the scissors out of the sink because Ms G is seen on the footage putting them into the sink with her raincoat and when the Applicant takes the scissors out of the sink the raincoat (which is light and very thin) comes with them. The Applicant and Ms G continued to tussle while the Applicant had the scissors in her right hand. Another employee referred to as “Mary” is then seen to come over and get in between the Applicant and Ms G, while grabbing the Applicant’s hand holding the scissors and pushing the Applicant away. Mary takes the scissors out of the Applicant’s hand and puts them down at the end of a tray. Ms G picks up the scissors and points them back in the general direction of the Applicant and other employees. In oral evidence Mr Essery described the action on the CCTV footage as follows:

“…So, yes, once I’d seen the footage I can see, from the footage, the discussions they had between, where they leave the room, they come back into the room after they've gone and spoken to Noelene(?). I can see that they've spoken to each other, I can't tell what they’re saying. When [Ms G] comes back into the room she takes her raincoat and scissors off, as I said, and places them in front of her, on her workstation. Kind of cleans up her workstation, throws some product out, picks up the raincoat with the scissors on top, places them into the sink then sees Sonia, picks up her knife, places it into the steriliser and that looks like, at the same time, [Ms G]'s picking up the hose, [Ms G’s] turned her head back towards her workstation and at some point, as she's picking up that hose, Sonia’s got her hand in front of it and I would say that’s when the water’s come out. Sonia then kicks forward, [Ms G] kicks back, Sonia kicks forward again, they start to tussle. Sonia reaches back, grabs the scissors out of the sink. I can't really make - they're still tussling with the hot water hose and the scissors, and then you see Mary come up. She grabs the - gets around, in between Sonia and [Ms G], and grabs the arm, Sonia's hand, with the scissors, and turns her face about.” 11

[22] In response to questions from me at the hearing, Mr Essery explained his view that it was not possible for the Applicant to have retrieved the scissors from the sterilizer on the basis that the Applicant was kicking Ms G at the same time as she placed the knife into the sterilizer and had used only one hand, making it unlikely that she had removed the scissors and inserted the knife. Mr Essery maintained that the scissors were in the sink and not the sterilizer. Mr Essery agreed that the water from the hose would have been hot – around 82 degrees – and did not dispute that the Applicant’s arm had been burned. Mr Essery observed that the Applicant’s arm was red, which is why he instructed her to place it under cold water. 12 Mr Essery also said the Applicant was only wearing a plastic sleeve and gloves at the time.

[23] Mr Essery said that he spoke to Mary after the incident who told him that she had not witnessed it but had heard the commotion. In response to a question as to whether Mary stated that she had taken the scissors out of the Applicant’s hand, Mr Essery said that Mary did not say that this was the case and that she stated that she told the Applicant to drop the scissors or she would get into trouble. Mr Essery accepted that he did not ask Mary whether she had taken the scissors off the Applicant and conceded that the Applicant may have handed the scissors to Mary. The CCTV shows that Mary ended up with the scissors in her hand and dropped them into a tray.

[24] Mr Essery was questioned in cross-examination about inconsistences in his statement in relation to whether Noelene or Mary was involved in the altercation. Mr Essery clarified that Noelene was involved at some points of the altercation between the Applicant and Ms G and that Mary was involved at other points. Mr Essery also maintained that when Ms G re-entered the Runner Room, and was told by Mr Essery to leave, the Applicant attempted to follow and Mr Essery told Noelene to keep the Applicant at the cold water tap.

[25] In response to the proposition under cross-examination that he was not qualified to determine that the Applicant’s arm was red but was not blistering, Mr Essery said that he is a qualified first aid person. Mr Essery also said that the Applicant left the cold water tap several times and seemed more interested in arguing with Ms G than keeping the cold water on her arm. Mr Essery agreed that he did not complete an incident report and said that this was because it was late in the afternoon before the Christmas close down, he had placed the matter in the hands of HR and he had not yet viewed the CCTV footage to understand exactly what had happened.

[26] It was also put to Mr Essery in cross-examination that the Applicant had not been aggressive with the scissors. Mr Essery said in response that the Applicant had kicked Ms G first and was pushing her arm forward with the scissors were in her hand. Mr Essery also said that the Applicant was holding the scissors by the handle and the blades were pointing away from her. Mr Essery observed that although the scissors are not visible in the Applicant’s hand at this point, it did not look like the Applicant was trying to get away from Ms G. Further, Mr Essery pointed to the fact that Mary can be seen in the footage pulling the Applicant’s arm in which the scissors were held before taking the scissors from the Applicant. Mr Smith agreed under cross-examination that Ms G had picked up the scissors out of the tray where Mary had placed them and pointed the scissors in the direction of the Applicant. Mr Smith also agreed that this is an aggressive gesture by Ms G directed to the Applicant.

[27] In response to questions from me, Mr Essery said that Mary was still employed by the Respondent and it had been decided not to call her to give evidence as she had not witnessed the altercation. Mr Essery accepted that Mary could have given evidence about what the Applicant was doing with the scissors at the point they were removed from her hand. Mr Essery also said that Noelene no longer works for the Respondent. Further, Mr Essery said that his view of the incident was that Mary was holding the Applicant back while the Applicant was holding scissors and trying to push forward towards Ms G when the Applicant could easily have turned and walked the other way.

Investigation into the altercation

[28] On 23 December 2020, Mr Essery asked “Warren” from HR to check the footage and was told 15 minutes later that he should come and view the footage. Mr Essery went to HR and viewed the footage. He later reported the incident to HR for their consideration on the basis of his view that it was a serious incident. Mr Essery said that until he viewed the CCTV footage, he was not aware that the incident between the Applicant and Ms G was anything more than a verbal argument.

[29] It was put to Mr Essery in cross examination that his evidence that Ms G had told him immediately after the altercation that the Applicant had threatened her with scissors was inconsistent with Mr Essery’s evidence that he did not realise the severity of the altercation until viewing the footage the following day. In response Mr Essery said he often took things Ms G told him “with a grain of salt” and wanted to view the footage first. 13

[30] Ms Dale also viewed the CCTV footage and on Monday 4 January 2021, following the Respondent’s annual shut down, the Applicant was asked to attend a meeting in the Respondent’s HR office. In attendance were Ms Dale, Mr Essery and Mr Matthews. Ms Dale’s evidence was that the Applicant was asked about whether she was aware of an incident on 22 December and the Applicant said that she was. The Applicant was asked by Mr Matthews whether she wanted a support person and declined the offer. Ms Dale said that Mr Matthews asked the Applicant to recount her version of events, and that the Applicant spoke about what happened and answered questions that Ms Dale, Mr Essery or Mr Matthews asked. The Applicant was then asked to leave the room while Ms Dale, Mr Essery and Mr Matthews discussed her responses.

[31] Ms Dale said that the Applicant’s version of events did not align with the CCTV footage and it was decided to play the CCTV footage to the Applicant for her to comment on. The Applicant was invited back into the room and viewed the CCTV footage. The Applicant was asked again if she wanted a support person present but declined. Ms Dale’s evidence was the Applicant was asked questions about her recollection of the incident after having viewed the footage again, but that the Applicant did not provide any further explanation for her conduct and said: “it’s bullshit mate.” 14 In cross examination, Ms Dale said she was positive that the CCTV footage was played once, and possibly twice.15

[32] At the hearing, the Applicant said that she recalled being shown the footage but that it was too quick and that she had difficulty identifying herself on the footage and when she asked, it was not explained to her where she was on the footage. 16 Under cross-examination the Applicant agreed that she attended meetings on 4 and 6 January 2021 to discuss the incident and was shown the CCTV footage but maintained that it was too quick and too short and she had to ask where she was in the footage. In response to the proposition that she said that the footage was “bullshit” after viewing it, the Applicant said that she made this comment because she was being pushed to write a letter and cannot spell or explain properly. The Applicant agreed that she was told that spelling did not matter and the letter should be in her own words and that she should get someone to assist her to prepare the letter.

[33] In response to a question from me Mr Essery accepted that the Applicant had shown them her arm at the meeting and that it appeared to be red, but said this could come from rubbing the arm, and it did not appear to be blistered. 17 Mr Essery also maintained that after viewing the footage, the Applicant’s only comments were words to the effect of “that didn’t happen.”18

[34] Ms Dale said that Mr Matthews finished up the meeting by advising the Applicant that she was going to be issued with a Show Cause letter. The Applicant stated she did not know what that meant, and Ms Dale evidence is that either herself or Mr Matthews explained the process to the Applicant and that she needed to provide a response that explained why her employment should not be terminated for serious misconduct. The Applicant said she struggled writing in English and Mr Matthews advised the Applicant that she was able to use a support person to help her write what she wanted to say. The Applicant was advised that she was being suspended and was to return on Wednesday to attend a Show Cause meeting.

The show cause process

[35] The Show Cause letter was signed by Mr Matthews and stated as follows:

“On the 22nd of December you and another worker were seen on CCTV having a physical altercation. Fighting, as you are aware is behaviour we cannot condone and will not accept in the workplace.

There may be circumstances that the company is not aware of that could be a contributing factor to the incident. The company would like to give you the opportunity to put forward in writing by Wednesday,6 January 2021 any such contributing factors; these will be taken into consideration in making its decision on your future employment with company.

You are now notified that you will be stood down without pay until 8am Wednesday,6 January 2021 when a decision will be made on your future an employment with the company.”

[36] The Applicant sought assistance from Ms Smith on the same day, and Ms Smith assisted the Applicant to write a letter in response. Ms Smith also stated that the Applicant showed Ms Smith her upper arm and she observed a red mark on the Applicant’s arm, which was two weeks after the incident.

[37] The Applicant attended the meeting on 6 January 2021 which was attended by Ms Dale, Mr Matthews and Mr Essery. The Applicant was informed that she could have a support person present but declined. The Applicant handed Mr Matthews the letter she had prepared which was in the following terms:

“Dear Sir,

I refer to your letter ‘SHOW CAUSE – Misconduct’.

The occasion which you refer to was (sic) the culmination of an on-going disagreement with the other party over her work procedures. This was drawn to the attention of my supervisor, James and also to Tony. There is a long and documented history of the difficulties I had with the work procedures of this worker.

On the 22^nd December the other party sprayed my upper arm with hot water. This caused a burn to my upper arm which was extremely painful. The pain from the burn caused a perfectly natural ‘flight or fight’ response. My supervisor sprayed the area with cold water to reduce the burn. This should have been documented as a ‘Workplace Health & Safety Incident’.

I very much regret my re-action to the burn but I believe that it would be inappropriate to terminate my employment based on this incident. I have worked for Roverworth Pty Ltd for approximately 7 years without incident. I believe that it would be harsh and unreasonable for my employment to be terminated based on this incident alone. I am prepared to apologise to the other party if need be. I am prepared to be re-located to another line position if need be. I am prepared to work with you and with my supervisors to do whatever it takes for me to maintain my employment as I really want to continue to work for this company as I really love my job.”

[38] The Applicant was asked to leave the room while Mr Matthews, Mr Essery and Ms Dale read the contents of the Applicant’s letter. Mr Matthews, Mr Essery and Ms Dale discussed the contents of the letter. Ms Dale’s evidence is that they came to the conclusion that the Applicant did not acknowledge that she was in the wrong, did not provide a reasonable explanation for her actions on 22 December and that her actions on that day were considered serious.

[39] The Applicant was asked back into the meeting. Mr Matthews advised the Applicant that himself, Ms Dale and Mr Essery had considered all of the facts including her response letter and that the decision had been made to terminate her employment due to serious misconduct. Ms Dale’s evidence was that the Applicant’s response to the termination was “that's bullshit and why did you make me write all this shit”, and the Applicant left the HR office shortly afterwards.

The decision to dismiss the Applicant

[40] The Applicant was issued with a letter terminating her employment. The letter is dated 7 January 2021 and is signed by Mr Matthews. The letter states as follows:

“Dear Sonia,

RE: Termination of Employment for Serious Misconduct

We are writing this letter to confirm your termination of employment for serious misconduct after having a physical altercation with a co worker on 22 December 2020, your last day of work before the Christmas - new year break.

On 4 January 202l, you were issued a show cause to enable you the opportunity to provide the Company with a written version of events that occurred on 22 December 2020 in the running room. You were provided the opportunity to then return to the Company by 8 am on Wednesday 6 January 202I to go over any information you provided for consideration.

On 6 January 2021 you meet (sic) with David Matthews, Kim Dale & James Essery (your Supervisor). We provided you (sic) the opportunity to have a support person with you, but you decline (sic) the offer of a support person and were happy to proceed. We asked you again to explain the events that occurred on the 22 December in your own words and in conjunction with your written information. We listened to your version of events and also asked you further questions, which you answered. We then made you aware that the area was covered by CCTV and showed you the images that were captured. After seeing the images, you declined to accept that the images on the video clearly demonstrated your actions and you continued to deny you did anything that was shown on the images.

We accept that prior to the incident on the 22nd December you had some verbal issues with the other employee which were reported to and dealt with at the time by your Supervisor (James), We also are taking into account your length of service before making any determination on the outcome of the show cause process. After our discussion we then asked you to leave the room so that we could further discuss you provided information provided both in written and verbal form. You left the room for us to discuss your provided information and then also consider information from your coworker who was also involved in the incident.

We spoke with your coworker and then we asked you to return to the room after we had further time to consider all information and give weight to all circumstances, information, and CCTV images. After careful consideration regarding all information we formed the following conclusions.

After careful consideration of all information from relevant parties and CCTV images, both you and the other worker had opportunity to deescalate the situation at any time by stopping and walking away or reporting it to the Supervisor, you both equally choose not to do this but rather to willfully (sic) escalate the situation by making physical contact with each other. Your actions in the willful (sic) escalation of the incident to becoming a physical alteration was totally unacceptable and in breach of Company polices (sic) and is being treated as serious misconduct. During your alteration, a hot water hose (held by the other worker) and a very sharpe (sic) pair of scissors were in your hand, both of these items could have caused serious injuries to either one of you. Also, if you were to have fallen or slipped during your physical altercation with each other, serious injuries could have been sustained. It was only after another worker intervened and restrained you, did things started (sic) to deescalate, but you also attempted to continue the incident by attempting to push the 3rd worker out of the way to get at your other coworker.

For the reason listed above a decision has been made to formally terminate your employment effective from today 6 January 2021 for serious misconduct for engaging in a physical altercation with another worker in a high-risk work area. We understand that this is a very concerning time for you and if you feel that you need to talk with someone about your feelings then please contact any of the providers listed …”

[41] As previously stated, Ms G’s employment was also terminated for serious misconduct. In response to a question from me regarding whether the Respondent had formed a view as to whether Ms G sprayed the Applicant with the hot water hose deliberately Mr Essery said:

“Personally, I don’t believe she did deliberately do it, because she wasn’t even - she - as she’s picking up the hose she’s turning towards her workstation, she’s looking at her workstation and she’s picking up the hose at the same time. So to me, it would be what they do of an afternoon, where they pick up the hose and wash down the workstation …” 19

[42] At the hearing, Ms Dale was asked to explain the Respondent’s approach to physical altercations in the workplace and Ms Dale’s evidence was as follows:

“It’s a zero tolerance. Always has been, always will be. I think our employees are aware of that. There's never been comeback, people know that. There have been other people that have been terminated for physical altercations with other employees. It’s a laydown misère, it’s a – it’s a – there’s no comeback from physical altercation with another employee is instant dismissal.” 20

[43] The Respondent tendered a copy of its Safe Work Procedures (SWP) annexed to a supplementary statement of Ms Dale which also appended a number of counselling or warning letters relating to the Applicant. The Respondent did not lead evidence about whether it relied on these previous warnings in its decision to dismiss the Applicant and Ms Dale accepted in cross examination that none of these warnings related to physical altercations.

[44] The SWP is signed by Ms Turvey and dated 16 March 2020. Point 12 of the SWP states:

“The Company has zero tolerance policy to any form of physical confrontation or aggression, regardless of provocation or retaliation. This includes throwing of meat, fat, objects or equipment at a team member.”

[45] In response to questions from me, Ms Dale accepted that the Show Cause letter given to the Applicant made no mention of the Applicant holding sharp scissors during the altercation, but maintained that this was put to the Applicant at the meeting on 4 January 2021. I had the following exchange with Ms Dale:

“So, during the discussion surrounding the show cause, was the incident, to the extent it involved scissors, was that put to the applicant in those discussions? --- Yes, I believe it was.

Were you present? --- In the initial - not where the altercation occurred.

No? --- But in the initial conversation that we did have with Ms Turvey when - on that 4 January, because we had already - or had seen the footage, yes, I believe that we had spoken that the fact that Ms Turvey was holding a pair of scissors.

Again, you knew that when the show cause letter was written you knew that scissors were involved. The company knew that? --- Yes.

So, can you explain why it wasn't mentioned in the show cause letter? --- No, I can't explain that.” 21

[46] Ms Dale also accepted at the hearing that the Respondent did not take any statements from any other employees who were present at the time of the altercation, such as Noelene or the employee who restrained the Applicant following the altercation. Ms Dale also said that minutes of the show cause meeting would have been taken by Mr Matthews in a diary. 22 These notes were not tendered by the Respondent in these proceedings.

[47] I put to Ms Dale that the Applicant was terminated for serious misconduct which was described as including the fact that she had a pair of sharp scissors in her hand, but it appeared the Respondent was also asserting at the hearing that the Applicant was brandishing the scissors in an aggressive manner. I had the following exchange with Ms Dale on this point:

“With respect to the scissors, again, as I understand it, the reason for the termination was there was a physical altercation in which the applicant was holding a pair of scissors. That’s the extent of the finding, which could have caused an injury. So, again, you can agree or disagree, the reasons for the termination didn’t include ‘she waved them threateningly’, ‘she brandished them at the other person’ or anything like that, just that she was holding them? --- Yes.

And that could’ve caused serious injury? --- Yes.

Yes. So, there wasn’t actually a finding at the termination point of aggression with the scissors? --- Not - no, it was purely the actual physical altercation of the incident.

That scissors were being held? --- Yes. Yes.

by one of the protagonists at the time? --- Yes.

It seems that in the case, as it’s being conducted, that there's now a suggestion that the scissors were held blade out and there was aggression, is that your understanding? --- I believe there was some aggression, yes. From - If I, as a person, as a human looking at footage of what I did look at, I believe that there was aggression in the way that the scissors were being held.

Could you explain, because that’s - would you agree that's a pretty serious allegation? --- I think it's a very serious allegation, yes.

Kicking is one thing, and I accept that's a form of physical contact, and that alone would've been a breach of your policy? --- Mm-hm.

But holding a pair of scissors in a threatening way is a serious allegation? --- It is.

So can you explain why it wasn’t put in the show cause letter? --- Again, I’m sorry, no, I can’t explain that.” 23

[48] Ms Dale also said that the same process was undertaken with Ms G, who was called to the office to discuss the incident, provided with a show cause letter and stood down. Ms G’s response was also not accepted by the Respondent and she was dismissed. Ms Dale was asked in cross examination whether she took into account the mitigating circumstances outlined by the Applicant in her Show Cause response, including that the Applicant was retaliating to being burnt by the hot water hose. Ms Dale said it was not just her decision to dismiss the Applicant and referred to the SWP regarding zero tolerance. Ms Dale also said that the fact that the Applicant was retaliating did not cause her to view the Applicant’s conduct differently. 24 Further, Ms Dale said that she did not consider that it made a difference that the Applicant was reacting to being burnt compared to instances of employees who had been dismissed for getting into physical altercations with other employees.25

[49] Ms Dale did not accept that the Applicant would not have understood what was said to her at the meeting, despite English not being the Applicant’s first language. Ms Dale rejected the proposition that the Applicant’s comment that it was “bullshit” was because she did not have sufficient time to view the CCTV footage and did not understand what the footage was showing. Ms Dale agreed that the previous warnings the Applicant received were not for physical altercations and that she was aware that the Applicant had previously had verbal altercations with Ms G. Ms Dale agreed that the Company has a zero tolerance for physical altercations and that such conduct will result in instant dismissal regardless of provocation. In response to the proposition that if this was the case a show cause process was pointless, Ms Dale said that the FW Act requires a process to be undertaken. Ms Dale also said that it did not make a difference that the Applicant was injured during the altercation by Ms G burning her with hot water.

[50] I had the following exchange with Ms Dale about the show cause process and whether Ms Dale considered there was anything that the Applicant could have said that would have changed the outcome:

“THE DEPUTY PRESIDENT: Well, I think what Ms Smith is getting at is really were you just going through the motions, because regardless of what Ms Turvey said, you’d already formed the view that she physically assaulted a co-worker and there was nothing that she was going to be capable of saying that would have changed the outcome of this. That's really the proposition that’s being put? --- Yes. I guess, you know, my answer to that is would Ms Turvey have been happier if, on the 4th, we said, ‘Ms Turvey, Sonia, sorry, we're terminating you’, without any come down, you know, ‘Come and sit down, come and have a chat about what happened’, is that what you’re saying, we should’ve just cut it off right there?

No, the proposition is nothing she could have said was going to change this outcome, was it? ---- No.” 26

SUBMISSIONS

Applicant

[51] The Applicant submitted that her dismissal was unfair for the following reasons. The Applicant was reacting to being burned by Ms G by trying to get the hot water hose from Ms G to prevent further burning. The Applicant had a long employment history without any other fighting incidents. The Applicant also refers to the fact that there was no incident report completed and asserted that if the incident was not serious enough for the Respondent to ask the parties involved to file an incident report then it was not reasonable or fair for Mr Matthews to terminate the Applicant’s employment for this reason. Further, the Applicant points out that she had been given several warnings and counselling in the years prior to her termination, including a final warning and counselling after the final warning, which indicates that a final warning is not really “final”.

[52] The Applicant relied on her previous experience with the Respondent and did not expect to be terminated for an incident in which she was the injured party. The Applicant asserted it is not reasonable or fair to treat someone in one way for a long period time and then suddenly change the rules.

[53] The Applicant submitted she has worked for the Respondent for over 10 years, in two periods including a period of 3 years and then more recently for 7 years. The Applicant also submitted that she was in placed in a position of checking Ms G’s work before its final packaging and that the Applicant had issues with Ms G’s work previously. The Applicant took these issues to management but nothing was done about it, and the hot water burn was the last straw for the Applicant. On that basis the Applicant contended it is not fair or reasonable to terminate her employment for one short lived “last straw” incident.

[54] In oral submissions, Ms Smith for the Applicant said that the Applicant was injured by a co-worker and reacted to this injury with a natural and instinctive “fight” rather than “flight” response. It is not reasonable after the event to say that the Applicant could have chosen not to fight. It was also submitted that the Applicant’s response was not provoked by a sly word or an insult or a shove, but rather a burn to her upper arm through, and held in, by her clothing. While the Applicant and Ms G were engaged in the exchange of two or three kicks Ms G was screaming for her scissors. This evidence has not been contradicted by any witness to the events and should be accepted. The Applicant has also maintained that she picked up the scissors to pass them to Ms G and not to threaten Ms G or any other person.

[55] The Applicant did not refer to the scissors in her original statement to the Commission because she is required to handle scissors and knives in the normal course of her work, and therefore the passing of such items from one worker to another, is not worthy of mention and should be equated to passing a pen between office workers. It was submitted that the Commission should note that the scissors were not mentioned in the show cause letter and were mentioned only in passing in the termination letter. It was not until Mr Essery made his statement for these proceedings that the Applicant was aware that it was alleged that she had threatened Ms G with scissors and under cross-examination Mr Essery conceded that he did not believe Ms G.

[56] It was also submitted that the Applicant was only given one or two views of the CCTV footage with no real explanation of what it showed, and that this would be difficult for anyone to understand, let alone “a frightened elderly woman” whose first language is not English and whose job is in jeopardy. The Respondent followed the rules without any consideration for the Applicant as a person and without regard for the fact that she was injured by a co-worker who the Respondent knew the Applicant had issues with. Further it was submitted that the Applicant should not be used by the Respondent as an example of its zero tolerance policy.

[57] In conclusion it was submitted that the Applicant is 63 years of age and frail and has worked in the meat industry for 20 years, including for a total 10 years with the Respondent and for six years, 11 months and three weeks in her most recent period of continuous employment. The Applicant has attempted to find another processing job in the local area but has failed and is unable to travel far from her home as she is not a confident driver and has care responsibilities for a family member.

Respondent

[58] The Respondent submitted that the Applicant was not unfairly dismissed because there
was a legitimate reason for the dismissal and it carried out the termination with due process. It was also submitted that the dismissal was proportionate to the seriousness of the conduct and its potential consequences. From the initial investigation, Mr Essery understood the incident to be a verbal altercation and an accidental (and minor) burn to the applicant. Mr Essery advised the applicant and the other worker involved in the altercation that he would review the CCTV footage to check that this was the case and this is the reason that an incident report was not completed.

[59] Following review of the CCTV footage it became apparent that there had been a physical altercation between the applicant and other worker. This triggered the further investigation of the incident on 4 January 2021 and subsequent dismissal of the applicant and other worker on 6 January 2021.

[60] The Respondent submitted the Applicant was notified of the reason for her dismissal and was given an opportunity to respond to it at the meetings on 4 and 6 January 2021 and to respond to the show cause letter. The Respondent also submitted that it offered the Applicant a support person at both the meetings on 4 and 6 January 2021 and the Applicant declined on both occasions.

[61] The Respondent submitted that reinstatement, should the Applicant be found to have been unfairly dismissed, is an inappropriate remedy in the circumstances. There is a clear safety and liability risk to the employer through ongoing employment of the applicant, and there has been a loss of trust and confidence such that it would not be feasible to reinstate the Applicant or appoint the applicant to another position. This was submitted to be for the following reasons:

•  The Applicant’s misconduct was so serious that it constituted a complete breakdown of the employment relationship and the relationship cannot reasonably be expected to continue;

•  The Applicant has been given several opportunities to provide an explanation to justify her conduct and has not only failed to provide a reasonable explanation but has continued to deny that she picked up the industrial scissors during the physical altercation;

•  The Applicant cannot be trusted to not repeat the same behaviour with such behaviour not being tolerated in the workplace especially where sharp knives and industrial scissors are used daily; and

•  The Respondent should not be made to put its other employees and itself at physical and legal risk respectively, from the Applicant.

[62] The Respondent also referred to the Applicant’s submission that she has been involved in incidents before and has had several warnings and counselling in relation to these incidents but none of these have led to termination, and that the Applicant argues this means she reasonably assumed such warnings would not lead to termination. In response, it was contended that while the Applicant has been involved in other incidents during her employment, these other incidents have not been so serious as the current incident and could not reasonably have led her to believe that her conduct could not result in termination. This incident is distinguishable from the other incidents. The Applicant's disregard for the Respondent's policies and procedures (which she has viewed and signed) poses a significant risk to herself and other employees.

[63] The Applicant and the other worker involved in the incident were afforded the same due process prior to dismissal and were both subsequently dismissed on 6 January 2021. The Respondent submitted it would be unfair for only the Applicant to be reinstated when the other worker was dismissed. In oral submissions at the hearing, it was submitted that the valid reason for the dismissal was the Applicant engaging in a physical altercation with another person and the initial denial of her conduct as detailed in Ms Dale’s evidence.

[64] In relation to why statements were not taken from other witnesses to the incident and tendered in these proceedings, Mr Matthews for the Respondent said that the Company’s view was that the CCTV footage provided sufficient evidence as to the seriousness of the incident and statements were not required. It was also submitted that while the fact that the Applicant had scissors in her hand was a factor in the decision, the primary consideration was the physical altercation and the potential danger posed by the scissors being in the Applicant’s hand during the altercation. It was not contended that the Applicant pointed the scissors at Ms G or any other employee, in an aggressive manner. In relation to remedy, it was submitted that reinstatement would undermine the Company’s policies which are directed at managing risks associated with physical altercations.

LEGISLATIVE PROVISIONS CONCERNING UNFAIR DISMISSAL

[65] In deciding whether a dismissal was unfair on the grounds that it was harsh, unjust or unreasonable, the Commission is required to consider the criteria in s.387 of the Act, as follows:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FW Commission considers relevant.

[66] The employer bears the onus of establishing that there was a valid reason for a dismissal.²⁷ A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”²⁸ The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts,²⁹ and validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.³⁰

[67] To determine whether there was a valid reason for a dismissal relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred, on the basis of the evidence before the Commission. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. Further, to constitute a valid reason for dismissal, the Commission must assess whether the conduct was of sufficient gravity or seriousness to justify dismissal as a sound, defensible or well-founded response.³¹ In finding that there was a valid reason for dismissal, the Commission is not limited to the reason relied on by the employer.³² Nor is the employer limited to relying on the reason given to the employee at the time of the dismissal to establish a valid reason for a dismissal although this may have implications for the considerations in s. 387 going to procedural fairness.

[68] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:

Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;

Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or

Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer.³³

[69] As a Full Bench of the Commission observed in Harbour Cities Ferries v Toms the public interest is not automatically attracted to any appeal involving dismissal for workplace health and safety issues. 34 Consistent with this observation there is no species of unfair dismissal case involving safety issues and no presumption that a safety breach will automatically be found to constitute a valid reason for dismissal or outweigh the other criteria in s. 387 of the FW Act, which must be considered and balanced in deciding whether a dismissal is unfair.

[70] Notwithstanding this, establishing and maintaining safety procedures and policies is an important obligation placed on employers and breach can lead to serious consequences. In DP World v Lambley 35 a Full Bench of the Commission made the following observation, which is relevant in the present case:

“…In circumstances where a valid reason is found to exist, and procedural fairness has been afforded, significant mitigating circumstances are required in order to lead to a conclusion that the termination is nevertheless harsh, unjust or unreasonable. In order to give those factors appropriate weight, they need to be seen as such and balanced against factors that might otherwise lead to the characterisation of the dismissal as harsh, unjust or unreasonable. The balancing of factors involves discretion, but a conclusion must be reached after giving full effect to the findings on all relevant circumstances. Different employers may approach a misconduct matter differently and take different disciplinary actions. A tribunal member determining whether a dismissal is harsh, unjust or unreasonable does not stand in the shoes of the employer and determine what action they would take in the circumstances. Only if the employer’s disciplinary actions are judged to lie outside the description of a reasonable and just response to the relevant conduct and are disproportionate, should a finding of unreasonableness or injustice be made.” 36

[71] In relation to unfair dismissal cases involving safety breaches, a Full Bench in BHP Coal Pty Ltd T/A BMA v Schmidt 37 stated:

“The criteria for assessing fairness, although not exhaustive, are clearly intended by the legislature to guide the decision as to the overall finding of fairness of the dismissal and are essential to the notion of ensuring that there is “a fair go all round”. This is particularly important in relation to safety issues because the employer has obligations to ensure the safety of its employees, and commitment and adherence to safety standards is an essential obligation of employees – especially in inherently dangerous workplaces. The notion of a fair go all round in relation to breaches of safety procedures needs to consider the employer’s obligations and the need to enforce safety standards to ensure safe work practices are applied generally at the workplace.” 38

[72] In relation to unfair dismissal cases involving a substantial or wilful breach of policy, as was stated by a Full Bench majority in B, C and D v Australian Postal Corporation, while “a substantial and wilful breach of a policy will often, if not usually, 39 constitute a ‘valid reason’ for dismissal”, nevertheless “[a]ny notion that a clear and knowing breach of policy will always provide a valid reason for a dismissal that will not be harsh, unjust or unreasonable, no matter the employee’s length of service and other circumstances, is inconsistent with basic principle. Every case must be assessed by reference to its particular circumstances.”40

[73] I have applied these principles in the present case and turn now to consider whether the Applicant’s dismissal was unfair having regard to the matters in s. 387 of the FW Act.

CONSIDERATION

Was there a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)?

[74] There were deficiencies in the Respondent’s evidentiary case, particularly its failure to call evidence from Mary or other workers who may have seen at least some of the altercation between the Applicant and Ms G. Notwithstanding this, the video footage alone is sufficient to establish that there was a valid reason for the Applicant’s dismissal. The footage clearly shows Ms G approaching a sink and placing a bundled up white raincoat into the sink. It is not clear at this point whether Ms G places her scissors into the sink with the raincoat. The footage shows Ms G commencing to use the hot water hose and the Applicant approaching the sink and reaching across Ms G as she uses the hot water hose. The time stamp on the CCTV at which the Applicant leans across Ms G is 14:47:38.

[75] Almost immediately – at 14:47:40 the Applicant kicks Ms G who kicks the Applicant in return and the two workers push each other. The Applicant again appears to kick Ms G. During this part of the altercation the Applicant pushes Ms G backwards and Ms G pushes the Applicant backwards in the opposite direction to the direction in which the Applicant had pushed Ms G. I accept the Applicant is diminutive and 62 years of age, and that Ms G appears to be taller and of more solid build than the Applicant. However, to put it in the vernacular, the Applicant appears to give as good as she gets at this stage of the altercation and Ms G is seen to be moving backwards while being pushed by the Applicant, before moving forwards as she pushes the Applicant backwards.

[76] At 14:47:54, while being pushed backwards, the Applicant reaches in the direction of the sink and brings up her hand with scissors in it. The scissors are obviously large and I accept that they are industrial scissors used to cut intestines and that they are sharp. It is beyond doubt that the Applicant is holding the scissors by the handle and that the sharp ends of the scissors are pointed away from the Applicant. It is more probable than not that the scissors are pointed in the direction of Ms G. At 14:47:57 another worker approaches the Applicant and restrains her. The Applicant has the scissors in her right hand and lowered at her side. The other worker is behind the scissors attempting to hold the Applicant’s arm. The Applicant is clearly attempting to break away from the worker restraining her and to again advance in the direction of Ms G while still holding the scissors in her right hand with the sharp end pointing away from the Applicant. At 14.48.43 the scissors are either taken from the Applicant or she hands them to another employee. That employee then places them in a tray at the end of the room away from the Applicant. The Applicant can be seen holding up her arm with the skin exposed to other workers and gesturing at her arm while continuing to engage in a verbal altercation with Ms G who is seen walking away from the Applicant towards the tray where the scissors have been placed. Ms G picks up the scissors and points them in the direction of the Applicant, in proximity to at least one other person, who appears to be shepherding Ms G away from the Applicant.

[77] From the CCTV footage and evidence, I draw the following conclusions. The Applicant sustained a burn to her right arm when she reached across Ms G while Ms G was using the hot water hose. I assume from the Applicant’s reaction to this event, that she concluded that Ms G’s conduct was deliberate. There is insufficient evidence for me to accept that this view is correct. On the one hand there is a history of issues between the Applicant and Ms G (albeit there had not previously been a physical altercation) and on the other hand, Ms G appears not to have been looking in the direction of the Applicant when the incident occurred and is simply placing her white raincoat in the sink and commencing to hose it.

[78] Assuming that Ms G’s conduct was deliberate, the Applicant’s reaction was completely inappropriate. While I do not doubt that the burn caused pain, there is no evidence of any blistering or significant injury. The Applicant was able to react very quickly and kick Ms G and to push her backwards using both arms and later held the scissors in her right hand while advancing on Ms G. It is only after the scissors are taken from the Applicant or handed by her to another worker, that the Applicant draws attention to her arm.

[79] It is more probable than not that the Applicant took the scissors from the sink. This is because the white raincoat that Ms G bundled up and placed into the sink came out of the sink at the same time as the Applicant reached in the direction of the sink and is then seen with the scissors in her hand. It was contended by her representative that the Applicant had placed the scissors on a bench after removing them from the steriliser where Ms G had left them, so that the Applicant could place her knife in the steriliser and it was for this reason that the Applicant could reach behind her body without looking at the location of the scissors and pick them up.

[80] The fact that the Applicant took the scissors from the steriliser before placing them in or near the sink in my view is either immaterial or makes her conduct even more serious. If the Applicant knew where the scissors were when she reached for them, it follows that the Applicant knowingly reached for a large and sharp pair of scissors in circumstances where she was engaging in a physical altercation with the owner of the scissors (Ms G) during which each had pushed and kicked the other. At the point the Applicant reached for the scissors she had been pushed backwards by Ms G after having pushed Ms G backwards. In short, while she was scuffling with Ms G the Applicant deliberately picked up the scissors by the handles with the sharp ends facing away from the Applicant. The Applicant did so at a time when she had been pushed away by Ms G and could have kept retreating. Even after being restrained by another worker the Applicant continued to hold the scissors with the sharp end away from her body and attempted to break away from the person holding her and again advance on Ms G or at least, in her direction.

[81] The Applicant’s conduct with the scissors is entirely inconsistent with her assertion that she was attempting to return them to Ms G to avoid being sprayed with hot water from the hose. If the Applicant was so concerned about being sprayed with hot water by Ms G she would have walked away from Ms G instead of kicking her, or at least after kicking Ms G. Instead, the Applicant pushed Ms G backwards while moving in her direction and only reached for the scissors when she was pushed back by Ms G. Rather than reaching for the scissors the Applicant could have retreated in the direction in which she was being pushed. Even allowing for the heat of the moment, I am satisfied that the Applicant well knew that engaging in a physical altercation with a co-worker, much less holding a large and sharp pair of scissors by the handle while she did so, was an extremely serious matter about which the Respondent would have zero tolerance regardless of provocation.

[82] Even if provocation is considered, I do not accept that the Applicant’s conduct with the scissors was proportionate when considered in light of Ms G’s conduct. The Applicant put her own safety at significant risk and also risked the safety of workers in her vicinity. The worker who restrained the Applicant was at risk of being injured by the scissors as were those who walked past the Applicant while she was holding the scissors and attempting to advance on Ms G particularly when she was angry and distressed.

[83] The seriousness of the conduct was exacerbated by the dangerous environment in which the Applicant worked, the fact that she worked in close quarters with other persons and by the fact that the Applicant was clearly angry and/or distressed at the time. The Applicant’s anger and distress is evidenced by her attempting to break away while physically restrained by another worker while at the same time the Applicant was holding large and sharp scissors and attempting to advance on a person she claims to have been afraid would spray her with hot water.

[84] It is clear that the Respondent has a Safe Work Procedure stating that it has a zero tolerance policy to any form or physical confrontation or aggression, regardless of provocation. The Applicant conceded that she knew this to be the case and evidence was tendered that she had been provided with training in relation to this policy. While such a policy will not preclude a dismissal because of a breach of this policy from being found to be unfair, the policy is reasonable and consistent with the employer’s obligations to ensure the safety of its employees. It is also consistent with the obligation of employees to adhere to safety standards.

[85] Employees engaged in the processing of meat are working in an inherently dangerous environment including risks identified in the Respondent’s Safe Work Procedure such as: slips/trips/falls; the presence of fat, blood and water; compressed air; electricity; hot water and high pressure water; and pinch points and or moving plant/parts of plant. Employees are also working with sharp implements such as knives and scissors which are capable of cutting animal intestines. It goes without saying that employees who point sharp implements towards other employees during a physical altercation, are engaging in conduct which will generally provide a valid reason for dismissal.

[86] The Applicant’s conduct was completely inconsistent with her obligations to comply with the Respondent’s policies and endangered her co-workers and herself. Furthermore, the Applicant’s conduct is not excused by the conduct of Ms G, even if that conduct was deliberate.

[87] For these reasons, I am satisfied and find that the Applicant’s conduct on 22 December 2020 was a valid reason for the Applicant’s dismissal.

Was the Applicant notified of that reason?

[88] As a Full Bench of the Commission observed in Crozier v Palazzo Corporation Pty Ltd 41 procedural fairness requires that an employee be notified of a valid reason for dismissal before any decision to dismiss is taken, so that the employee is provided with an opportunity to respond to the reason identified.

[89] In the present case, the reasons for the Applicant’s dismissal included the fact that she was holding a large pair of sharp scissors in her hand during the altercation. That this was a matter which formed part of the reasons for dismissal is apparent from the fact that it was included in the Applicant’s termination letter. There was no reference to the Applicant having scissors in her hand in the show cause letter and this was a significant omission. While I accept that the Respondent did not consider that the Applicant had threatened Ms G with the scissors, the Applicant should have been notified before attending the show cause meeting, that her conduct in relation to the scissors was one of the issues that could result in the termination of her employment.

[90] Having watched the CCTV footage of the incident on multiple occasions, I am also of the view that at very least, as part of the show cause process, the Applicant should have been provided with a chronology of the footage, similar to the document that was tendered with the footage in these proceedings. The CCTV footage is confusing because of the background noise and the number of workers moving around the room. At most, the Applicant was allowed to view the footage twice during the show cause interview. A chronology of events would have assisted the Applicant to understand the allegations before she attended the meeting and viewed the footage. Accordingly, I am not satisfied that the Applicant was notified of the reason for her dismissal in a manner consistent with s. 387(b) of the FW Act.

Was the Applicant given an opportunity to respond to any reason related to capacity or conduct?

[91] The failure of the Respondent to notify the Applicant of the reason for dismissal before the decision to dismiss her was taken, resulted in further failure to give the Applicant an opportunity to respond to the reason for her dismissal. The Applicant was therefore denied a proper opportunity to respond to the allegations, and in particular, the allegation relating to the scissors.

Was there an unreasonable refusal by the employer to allow the Applicant to have a support person to assist at any discussions relating to dismissal?

[92] The Applicant was offered a support person at the show cause meeting and declined that offer. This consideration is not relevant in the circumstances of the present case.

If the dismissal related to unsatisfactory performance by the Applicant—whether the Applicant was warned about that unsatisfactory performance before the dismissal?

[93] The Applicant’s dismissal related to her conduct and not to unsatisfactory performance. This consideration is also not relevant in the circumstances of the present case.

What was the degree to which the size of the employer’s enterprise was likely to have impacted on the procedures followed in effecting the dismissal?

[94] The Respondent is a large employer and the size of the Respondent’s enterprise is not likely to have impacted on the procedures followed in effecting the dismissal. Further, there is no evidence of any such impact.

What was the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal?

[95] The Respondent has dedicated human resource management and the absence of such expertise is not likely to have impacted on the procedures followed in effecting the dismissal. There is no evidence of any such impact.

Are there any other matters that the FW Commission considers relevant?

[96] I consider that the following matters are relevant to whether the dismissal was unfair. The Respondent failed to deal with the fact that the Applicant was injured during the altercation with Ms G and suffered a burn to her arm caused by hot water. The Applicant’s physical build is smaller than that of Ms G and it is not disputed that Ms G is younger than the Applicant. On Mr Essery’s evidence, the Applicant’s arm was red and the water in the hose was very hot. Whether the burn was accidentally or deliberately inflicted, it was a significant matter and should have been reported and investigated. There was no incident report completed and the Respondent did not record the Applicant’s injury by photographing it. Notwithstanding the seriousness of the Applicant’s conduct, this omission is surprising.

[97] I have also had regard to the following matters. The Applicant had previously reported issues with Ms G to her supervisors. Notwithstanding this, the Applicant was stationed beside Ms G in the workplace. The Applicant was 62 years of age at the time the incident occurred and English is not her first language. The Applicant is unlikely to find comparable employment and had not done so at the time this application was heard. The work the Applicant had obtained is in the agricultural injury and is unlikely to be suitable to a person of the Applicant’s age and physical condition.

[98] The Applicant had worked for the Respondent for a continuous period of one week short of seven years at the time she was dismissed. The Applicant’s financial position and obligations as a carer do not appear to have been considered by the Respondent before deciding to dismiss her. No consideration appears to have been given to the impact that the termination of her employment one week short of a pro rata entitlement to long service leave (albeit in limited circumstances) would have had on the Applicant’s financial position. I am also of the view that the Respondent’s stated zero tolerance policy in relation to physical altercations may have resulted in its failure to properly consider all relevant matters before deciding to dismiss the Applicant.

Was the Applicant unfairly dismissed?

[99] After weighing the matters in s. 387 of the Act I have concluded that the Applicant’s dismissal was not unfair. The Applicant engaged in a physical altercation in the workplace while holding a large and sharp pair of scissors. The Applicant’s explanation for having the scissors in her hand is highly improbable when the CCTV footage of the incident is considered. I do not accept the Applicant’s assertion that she reacted with an instinctive “fight or flight” response. The fact that the Applicant kicked the other worker engaged in the altercation may be explained by the fact that the Applicant had been burned with a hot water hose and was attempting to compel Ms G to desist from hosing her arm with hot water. However, the Applicant’s conduct after this was aggressive and completely inappropriate. The Applicant pushed Ms G backwards and when Ms G pushed the Applicant, the Applicant picked up a pair of sharp industrial scissors and held them with the pointed end extended towards Ms G.

[100] Despite being held back by a work colleague, the Applicant attempted to again advance on Ms G holding the scissors. The Applicant’s conduct was entirely inconsistent with her claim to have been concerned that Ms G would again spray her with the hot water hose and that she wanted to stop her from doing so. By engaging in this conduct, the Applicant endangered Ms G and herself and work colleagues who intervened in the altercation. It is improbable that the Applicant did not know that she had scissors in her hand for a large part of the altercation. While I accept that the Applicant was not informed that her conduct with respect to the scissors was an issue during the show cause process, at the hearing of her application, the Applicant knew that this was the case. The scissors were referred to in the termination letter, the Respondent’s F3 Response to her unfair dismissal application and the material filed by the Respondent. Notwithstanding this, the Applicant did not address the scissors in her first witness statement and only referred to them in her reply statement.

[101] In her evidence in the hearing, the Applicant attempted to justify her conduct with the scissors and did not appear to have any understanding of the serious implications of her behaviour and the danger she had placed herself and others in.

[102] While I have some concerns about the procedure followed by the Respondent in effecting the dismissal, I am of the view that had the Respondent informed the Applicant in the show cause letter that her conduct in relation to the scissors was a reason for dismissal and provided a chronology of the CCTV footage to the Applicant so that she could view it in a comprehensible manner, these steps would not have changed the outcome.

[103] Even at the hearing, where the CCTV footage was viewed with the benefit of a chronology, the Applicant was unable to provide a reasonable explanation for her conduct and continued with improbable explanations of what had occurred. In particular, the Applicant did not consider that the location of the scissors when she picked them up, and the fact that the Applicant may have placed the scissors in that location, did not explain or mitigate the seriousness of her conduct. The fact that the Applicant knew where the scissors were located when she picked them up makes her conduct more reprehensible given that at the point the Applicant did this she was engaged in a physical altercation involving kicking and pushing and immediately upon picking up the scissors again advanced on Ms G.

[104] Had the Applicant’s conduct been limited to kicking Ms G, my view may have been different. The Respondent’s mantra of zero tolerance for physical altercations may have been found to be inconsistent with the approach set out by a Full Bench of the Commission in B, C and D v Australian Postal Corporation 42 on the basis that there were mitigating circumstances including the length of the Applicant’s service, the Applicant’s age, her lack of English language skills, the unlikely prospect of her obtaining equivalent employment and the fact that the Applicant was very close to a pro rata entitlement to long service leave. In short, such significant mitigating circumstances may have led to a conclusion that the Applicant’s dismissal was harsh, if weighed against less serious conduct coupled with the procedural failings identified in my consideration of the provisions in s. 387(a) and (b) in relation to notification of reason for dismissal and opportunity to respond.

[105] However, in the circumstances of this case, any procedural failings in relation to the manner in which the dismissal was effected and the mitigating circumstances, do not outweigh the valid reason for dismissal given the nature of the Applicant’s misconduct. Even if I made a finding that the Applicant had been unfairly dismissed, I would not have reinstated the Applicant given her conduct and her failure to accept its seriousness. I also consider that the Applicant would not be entitled to pro rata long service leave even if I made a finding that she had been unfairly dismissed, on the basis that she did not have seven years’ service at the time of her dismissal.

CONCLUSION

[106] For these reasons, I issued an Order 43 dismissing the Applicant’s unfair dismissal application.

DEPUTY PRESIDENT

Appearances:

Ms G Smith for the Applicant.

Mr D Mathews for the Respondent.

Hearing details:

12 May.

2021.

Brisbane.

Printed by authority of the Commonwealth Government Printer

<PR732267>

 1   Exhibit A1 Witness Statement of Sonia Turvey dated 15 March 2021; Exhibit A2 Supplementary Witness Statement of Sonia Turvey dated 5 May 2021.

 2   Exhibit A3 Statement of Gabrielle Smith dated 15 March 2021.

 3   Exhibit R1 Statement of James Essery dated 29 March 2021.

 4   Exhibit R2 Statement of Kim Dale dated 29 March 2021; Exhibit R3 Supplementary Statement of Kim Dale dated 5 May 2021.

 5   Exhibit A CCTV Footage of Runner Room 22 December 2020 and Chronology.

 6   Transcript 12 May 2021 at PN354.

 7   Transcript 12 May 2021 at PN386 to PN403.

 8   Transcript 12 May 2021 at PN404 to PN419.

 9   Transcript 12 May 2021 at PN519 to PN521.

 10   Transcript 12 May 2021 at PN174.

 11   Transcript 12 may 2021 at PN478.

 12   Transcript 12 May 2021 at PN482 to PN485.

 13   Transcript 12 May 2021 at PN540 to PN544.

 14   Exhibit R2 at paragraph 6.

 15   Transcript 12 May 2021 at PN801.

 16   Transcript 12 May 2021 at PN360 – PN364.

 17   Transcript 12 May 2021 at PN488 – PN489.

 18   Transcript 12 May 2021 at PN499 to PN500.

 19   Transcript 12 May 2021 at PN494.

 20   Transcript 12 May 2021 at PN744.

 21   Transcript 12 May 2021 at PN755 to 759.

 22   Transcript 12 May 2021 at PN920 to PN921.

 23   Transcript 12 May 2021 at PN760 to PN769.

 24   Transcript 12 May 2021 at PN877 to PN880.

 25   Transcript 12 May 2021 at PN914 to PN915.

 26   Transcript 12 May 2021 at PN901 to PN902.

27 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.

28 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

29 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

30 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

31 Bista v Glad Group Pty Ltd [2016] FWC 3009.

32 Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744 at [15] per Acton, SDP, Sams DP and Hampton C citing MM Cables (a Division of Metal Manufacturers Ltd v Zammit AIRC (FB) S8106 17 July 2000.

33 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR  410 at 465-8 per McHugh and Gummow JJ.

 34   [2014] FWCFB 6249 at [16].

 35   [2012] FWAFB 4810.

 36   Ibid at [26].

 37   [2016] FWCFB 1540.

 38   Ibid at [8].

 39   Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 at 537 53 See Restaurant and Catering Association of Victoria [2014] FWCFB 1996 at [58] and the authorities cited there.

 40   [2013] FWCFB 6191.

 41   (2000) 98 IR 137.

 42   [2013] FWCFB 6191.

 43   PR732610.