[2011] FWA 6458

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joseph Murphy
v
Patrick Stevedores Holdings Pty Ltd
(U2010/15192)

COMMISSIONER HARRISON

SYDNEY, 1 NOVEMBER 2011

Application for unfair dismissal remedy.

[1] This decision arises from an application for unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act) filed by Mr Joseph Murphy (the Applicant) in respect of the termination of his employment by Patrick Stevedores Holdings Pty Ltd (the Respondent) on 6 December 2010.

[2] The matter was unable to be settled by conciliation and was listed for arbitration.

[3] In accordance with directions, both parties filed submission and witness statements. At the commencement of the proceedings on 20 June 2011 I conferred with the parties pursuant to sections 398 and 399 of the Act. The parties met in private to attempt to settle the matter but were unsuccessful.

[4] The applicant was represented by Ms L Doust of Counsel instructed by Mr W Giddins of the Maritime Union of Australia (MUA). Mr C J Murdoch of Counsel, instructed by Freehills appeared for the Respondent.

[5] Evidence in support of the application was given by the Applicant on his own behalf and by:

Mr Lance Simpson, Seafarer;

Mr Trevor Munday, Deputy Secretary, Queensland Branch, MUA.

Evidence for the Respondent was given by:

Mr Vernon Ferreira, Operations Manager, Patrick Stevedores Holdings Pty Ltd;

Ms Tamara Green, Employee Relations Manager, Patrick Stevedores Holdings Pty Ltd;

Ms Debbie Newman, Customer Services Officer, Medvet Laboratories;

Ms Vicki Wright, Safety Health & Environment Coordinator, Patrick Stevedores Holdings Pty Ltd;

Ms Rebecca Smith, Administration Assistant, POAGS;

Mr Gerald Bellis, Specimen Collector, Medvet Laboratories;

Mr Peter Runge, Manager, Patrick Stevedores Holdings Pty Ltd;

Mr Warwick Sommer, General Manager.

Background

[6] The Applicant was initially employed by the Respondent as an apprentice in 1993. He subsequently held various casual and permanent stevedore roles up to the time of his termination.

[7] According to the Applicant’s written statement 1 from late 2001 until June 2003 he was the subject of an anonymous graffiti campaign at the workplace which made him depressed and paranoid. He was off work for the next twelve months receiving psychiatric treatment. His treating psychiatrist advised him he had biological depression which could be triggered by stress or “unique circumstances”.

[8] The Respondent’s workplace is deemed Drug and Alcohol free and its policy titled “Patrick Auto Bulk & General Drug & Alcohol Free Workplace Procedure” (D&A Policy) applies to all employees.

[9] On 10 November 2010 the Applicant suffered a sprain injury to his left ankle when unloading pipes from a vessel. This caused him considerable pain and sleep disturbance for which he took medication including sleeping pills, painkillers and anti inflammatory tablets under medical supervision.

[10] The Applicant was terminated for serious misconduct arising from a series of incidents on 16 November 2010 (the incident). It was alleged by the Respondent that:

[11] Following an internal investigation the General Manager, Mr Sommer wrote to the Applicant on 6 December 2010 advising the outcome in the following terms:

“Outcome

Applicant’s Evidence

[12] It was the Applicants evidence that on Monday 15 November 2010, he telephoned Ms Tamara Green, the Respondent’s Employee Manager, to inform her his injured ankle was still painful and swollen to the extent he couldn’t wear his safety boots. Ms Green asked the Applicant to undertake office duties and he was asked to work four hours the following day.

[13] On Tuesday 16 November 2010, the Applicant presented for office duties at 7:50 am. He had taken Panadeine Forte earlier in the morning to relieve pain in his ankle. Once in the office he was asked by Ms Green to undertake a drug test. He replied by stating, “I’m going”. Ms Green chased him up the hallway calling out his name and telling him to come back.

[14] According to the Applicant’s written statement he then collected his bag from the lunch room, “... and I thought to myself I’m leaving the site without permission and I’m not submitting a sample so I’ve grabbed my bag and I went back to the door and Tamara was about 10m away. I thought I’d tell her why I’m leaving and how I felt. I said to Tamara:

I walked out in pain and distress and jumped in my car and left at around 20 past 9 on the morning of Tuesday, 16 November.” 2

[15] Later that day Mr Vernon Ferreira, Operations Manager, informed the Applicant by telephone that he was suspended on pay pending an investigation into the earlier incident.

[16] On 17 November 2010, the Applicant was placed on WorkCover for stress and anxiety and was referred back to Dr Ivan Holm, psychiatrist. He received further prescriptions of Effexor and Temazepam.

[17] On 29 November 2010, the Applicant received written advice saying he was to attend a meeting on 30 November 2010 at 1 pm to explain four charges:

[18] The meeting lasted for about 1 hour 20 minutes involving the Applicant; Peter Runge, Manager; Vernon Ferreira, Operations Manager and Trevor Munday, Assistant Secretary of the Queensland Branch of the MUA.

[19] On Monday, 6 December 2010, the Applicant received a letter via registered post advising him of his termination.

[20] Under cross examination, the Applicant agreed he was cognisant of the Respondent’s drug and alcohol free workplace procedures but stated he had not seen the Performance Consequence Matrix until after the incident. He stated he had concerns that the medication he was taking could potentially fail him in a drug test and agreed he did not advise management in accordance with the D&A Policy.

[21] The Applicant confirmed he had concerns the Respondent was setting him up to fail a drug test prior to and after he commenced work on 16 November 2010.

[22] The Applicant denies swearing at Ms Green after she requested he undertake a drug test and stated he shouted words to the effect of “I’m not going to take this anymore” as he felt he was being harassed.

[23] He stated he had not earned any income since the termination because of the medication he was taking for depression and insomnia, prescribed by his general practitioner and psychiatrist, which made him drowsy. He is currently receiving treatment from his long standing general practitioner and a psychiatrist.

[24] In summary, under further cross examination, the Applicant:

[25] Mr Lance Simpson’s evidence concerned events after the Applicant left the Respondent’s worksite on 16 November 2010, particularly his recollection of the telephone conversation between the Applicant and Mr Ferreira. Mr Simpson stated the Applicant was crying during the conversation and denied he was screaming, swearing and shouting.

[26] Mr Trevor Munday of the MUA gave evidence of his involvement and support of the Applicant prior to and since his dismissal. He disputed several matters referred to in the termination letter of 6 December 2010, specifically:

Respondent’s Evidence

[27] Mr Vernon Ferreira is the Operations Manager for the Respondent. After the alleged incident on 16 November 2010, Mr Ferreira telephoned the Applicant to advise him he was being placed on paid leave pending an investigation into the events which occurred earlier in the day. He stated the conversation lasted approximately two minutes during which the Applicant became extremely agitated, shouted and screamed “--- a demonic scream. Then for no apparent reason he spoke very calm for a short while, then continued to scream”. 4

[28] During cross-examination Mr Ferreira stated he did not regard the Applicant’s swearing as being directed at him and it didn’t bother him. He was more concerned at the screaming and thought he needed counselling for mental health issues. He accepted the Applicant’s apology to him during a meeting on 30 November 2010 as sincere and stated he had never had a problem with the Applicant in the past.

[29] Ms Tamara Green is responsible for compliance with the Respondent’s D&A Policy. Her evidence regarding the incident on 16 November 2010 was that the Applicant was randomly selected from a list of employees submitted to an outsourced testing agency, MedVet. Two operational employees and two administration employees and the Applicant were listed.

[30] According to Ms Green’s witness statement:

[31] Ms Green stated she was very shaken for some time after the incident and it took several hours before she could resume her normal work. In the following two weeks she requested an escort to and from her car as she felt frightened.

[32] In cross examination Ms Green acknowledged the Applicant recorded a negative drug test result on 10 November.

[33] She conceded the possibility that the random selection process conducted by MedVet had not been correctly carried out but would have to take it in good faith that it had been so. She agreed the selection process conducted for the 10 November and 16 November tests was not in accord with the Drug and Alcohol Policy. When asked “can you understand why someone looking at that from the outside might be very suspicious about the selection process that’s been carried out?” Ms Green replied “yes”. 5

[34] Ms Green was questioned about the impact the Applicant’s language and demeanour had upon her. She stated she was not intimidated and that nothing he said or did made her feel fearful. She regarded the Applicant’s critical tone and attitude as unacceptable.

[35] Ms Vicki Wright gave evidence that she heard the Applicant raise his voice when he was first approached by Ms Green. She heard a “second outburst” coming from the reception area and became concerned for Ms Green’s safety. When she got to reception she observed the Applicant’s body was very stiff and tensed up.

[36] Ms Wright further described a “third outburst” and of her concern that the Applicant’s aggression has escalated.

[37] Ms Wright was cross examined and asked whether the Applicant used his arms in any threatening manner or used offensive language to which she replied in the negative.

[38] Ms Rebecca Smith also gave evidence concerning the Applicant’s behaviour. She stated he was swearing, screaming and “...became almost predatory.” She recalled the swear words as “I’m fucking sick of this” being used several times.

[39] Mr Graham Runge is the Brisbane manager for the Respondent. He conducted the meeting on 30 November referred to above with the Applicant, accompanied by Mr Munday of the MUA, after the incident. It was Mr Runge’s evidence that he was familiar with the company policies in force as at 16 November 2010 and he had communicated those policies which included the Performance Consequence Matrix, by mail to all employees in October 2009.

[40] During cross examination Mr Runge recalled the 30 November meeting where the Applicant acknowledged he was out of line and offered a formal apology. He agreed the Applicant was neither a thug or a hot head.

[41] Mr Warwick Sommer gave evidence that he directed the investigation into the incident and it was he who decided to terminate the Applicant. In reaching his decision Mr Sommer considered statements from employees who witnessed the incident and the Applicant’s responses during the meeting of 30 November.

[42] In particular Mr Sommer considered the Applicant’s:

[43] Under cross examination he agreed the severity of any bad language needed to be seen in context when weighing the issues up. He further acknowledged there was no physicality involved during the incident. Mr Sommer assumed the word “fuck” would have been said in terms of swearing in the exchange of conversation during the incident. Asked if it was not the case he stated it would be one of a number of matters to be weighed up and taken into account when making the decision to terminate.

Applicant’s submissions

[44] Counsel for the Applicant submitted the termination was disproportionate to the conduct, accordingly, the termination was harsh, unjust or unreasonable.

[45] The letter of termination from Mr Sommer was predicated on specific findings of conduct which were said to be founded on false premises. It was said the written reports relied on by Mr Sommer were at odds with the witness evidence in these proceedings.

[46] In response to Mr Sommers finding that the Applicant threatened and intimidated Mr Ferreira, Counsel submitted Mr Ferreira himself conceded there was no real threat or intimidation of him.

[47] Further, it was put that the language used by the Applicant in the exchanges with Ms Green was at its worst was the use of either “shit” or “bullshit”.

[48] Counsel for the Applicant took issue with the evidence of Ms Smith, who was in another room at the outset of the incident yet was certain she heard the words “fuck” or “fucking” three to six times. It was submitted this evidence was in “stark contrast” with the evidence of Ms Green and Ms Wright and it was never clearly put to the Applicant in cross examination.

[49] It was submitted the Applicant had been a long term employee with a good disciplinary record. He had accepted his wrongdoing and apologised to Ms Green and Mr Ferreira.

[50] The Applicant seeks reinstatement with continuity and payment of remuneration lost since the dismissal.

Respondent’s submissions

[51] Counsel for the Respondent submitted that on the evidence, the four incidents alleged to have occurred on 16 November did in fact occur and the decision to terminate was not harsh, unjust or unreasonable.

[52] It was put that despite the Applicant conceding his behaviour was unacceptable, attempts to play down the impact of his behaviour and its effect on Ms Green showed the hollowness of the Applicant’s remorse.

[53] In respect of the Applicant’s workplace history it was submitted that what happened in 2001 was irrelevant. No evidence was led of paranoia and it was not raised during the show cause meeting on 30 November. Furthermore, whether the Applicant perceived he was being “set up” was irrelevant as he could have invoked the grievance procedures of the enterprise agreement instead of refusing a drug test and walking off the job.

[54] The Respondent submitted it has a duty of care to provide a workplace free from harassment for all employees, including managers and it could not be expected to tolerate the Applicant’s behaviour.

Consideration and determination

[55] In dealing with applications pursuant to s.394 of the Act attention must be given to s.387 which provides:

[56] As the Applicant’s conduct is the reason given by the Respondent for the termination, I have to determine for myself whether the conduct occurred and, if so, whether it amounted to a valid reason for termination of employment.

[57] There is no question the Applicant breached the Drug and Alcohol Policy by refusing to provide a urine sample. He further engaged in misconduct towards Ms Green and left the workplace without permission. I find there was a valid reason for the termination of employment arising from the misconduct of the Applicant.

[58] There is no dispute that the Applicant was notified of the reason for his termination by letter dated 6 December 2010.

[59] I find the Applicant was given an opportunity to respond to the letter of 29 November setting out the four charges at a meeting on 30 November. He was accompanied by his union representative, Mr Trevor Munday.

[60] Subsections 387(e), (f) and (g) are not relevant.

[61] In respect of s.387(h), there are other matters that should be considered when determining whether the Applicant’s termination was harsh, unjust or unreasonable.

[62] I have carefully reviewed the evidence of the persons who directly witnessed the conduct of the Applicant in the office on 16 November. I find Ms Smith’s evidence to be exaggerated and at odds with the evidence of Ms Green and Ms Wright regarding the use of bad language and physical intimidation or physicality.

[63] To the extent that her evidence differs on degree, I give greater weight to the evidence of Ms Green and Ms Wright.

[64] Some emphasis was placed on an incident in 2001 and beyond when the Applicant was the target of a personal graffiti campaign. He was off work for a year suffering depression. I cannot ascertain any relevant link between that incident and the present matter. No medical evidence of the Applicant’s current condition, prognosis or prescribed medication was presented to establish any causal link.

[65] Would a cocktail of over the counter and prescribed medications contribute to volatile or erratic behaviour? I do not know and the lack of evidence did not assist me in whether the Applicant’s state of mind or mood at the time of the incident could be a mitigating factor.

[66] During the proceedings the Applicant raised his concerns about the location of a drug test on 10 November and that Ms Green arrived with the drug tester and went back to the drug tester’s car. Some fellow employees allegedly suggested he was being singled out. I accept Ms Green’s evidence regarding why the tests were conducted at the location. I also note that the Applicant did not raise any concerns at the time.

[67] For reasons not clearly established at the hearing there were errors in the way persons were selected for random testing on 16 November 2010. The Applicant had his doubts about the randomness or otherwise of employees chosen.

[68] The method of selecting employees for testing is not transparent and in this case, where the Applicant was tested twice in one week, it led to serious disputation.

[69] I am satisfied the conduct posed no physical threat to anyone yet the conduct of the Applicant was serious and I can only speculate on what possessed him to act so foolishly.

[70] The evidence of Mr Ferreira and Mr Runge and my observation of the Applicant’s demeanour under lengthy cross examination leads me to conclude the Applicant’s behaviour was out of character and unlikely to be repeated particularly given his contrition.

[71] Having regard to all of the evidence and taking the above matters into account I consider that the termination was in the circumstances of this matter, harsh and disproportionate to the conduct. The Applicant had a long period of service with a reasonably good record.

Remedy

[72] I have found the termination of the Applicant’s employment to have been harsh and therefore unfair. I now turn to consider whether I should grant a remedy.

[73] The primary remedy under the Act is reinstatement. I am satisfied that if I were to make an order for reinstatement, a functional working relationship based on trust and confidence can be re-established.

[74] I consider I should make an order for the Applicant to be reinstated without loss of continuity to the position in which he was employed before termination.

[75] Whilst I have found the termination was unfair the Applicant’s conduct was serious and an overreaction to the issue which confronted him. I am not persuaded to make any order for remuneration lost as a consequence of the termination. This will be a significant penalty on the Applicant.

[76] Given the absence of up to date information in relation to the Applicant’s fitness for work I will defer finalising an order until I am so advised by the representative of the Applicant of the current situation.

COMMISSIONER

Appearances:

L Doust, of Counsel, and W Giddins, Maritime Union of Australia, for Mr J Murphy.

C J Murdoch, of Counsel, instructed by A Last, Freehills, for Patrick Stevedores Holdings Pty Ltd.

Hearing details:

2011.
Brisbane:
June 20-22.

 1   Exhibit D1

 2   Ibid. PN 35

 3   Transcript PN 644

 4   Exhibit M1, PN 14

 5   Transcript PN1760

 6   Exhibit M4 - Statement of Vicki Wright PN21-27

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