[2011] FWA 6672

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Chea Uy
v
Mackay Consolidated Industries
(U2011/6847)

COMMISSIONER GAY

MELBOURNE, 29 SEPTEMBER 2011

Termination of employment - arbitration.

[1] The following decision was given in transcript at the conclusion of proceedings in Melbourne on 11 August 2011.

[2] The decision followed an arbitration where Mr D Melling of the National Union of Workers (NUW) represented Mr Chea Uy (the applicant) in his application under s.394 of the Fair Work Act 2009 (the Act) and Mr A Dalton of the Australian Industry Group with Ms S Sharry representing Mackay Consolidated Industries (the respondent).

Background

[3] The case involved the termination of employment of an employee after 25 years of latterly troubled service, following a fracas in the company car park. The car park incident was caused by Mr Chea parking his car side by side, within a few inches of another employee’s car. As the events did not involve any physical acts by Mr Chea one was initially cautious in concluding that such an act, even if very unwise could (or should) be permitted to develop such force as to require the loss of a 57 year old unskilled man’s career employment. The upshot of these and related misgivings lead to my earnest endeavour to understand, and then consider, what had really happened. The consequences of these cases are so important that mere denial from an applicant and condemnation from the employer advocate can on occasion be inadequate to found the decision which ultimately one has to make. This was one of those occasions when Fair Work Australia is well equipped, given our flexibility in hearing cases, to adjourn proceedings to a factory car park to better understand the events in question. It was after endeavouring to inform myself in that way and assisted by the parties’ formal cases that the following extempore decision, now edited, was given in transcript at the conclusion of proceedings in Melbourne on 11 August 2011.

[4] “I have decided to give my decision straight away in this matter rather than reserve. In the event I was to reserve there would regrettably be a lengthy delay. So, because I think it is always far preferable for the parties to these dismissal cases to hear the outcome sooner rather than later, then in both parties’ interests I am going to give my decision although in doing so of course it is not possible to consider the transcript, and it is not possible to consider every nuance of the finely crafted arguments that have been put today and on the previous sitting days by Mr Melling and Mr Dalton.

[5] But I do think - and I hope that I can have some confidence in this - that anyone who has been associated with the hearing of this matter will understand the close attention that has been paid to the case as it has travelled along its course. The case has been closely argued and contested, although not in bad grace, because there are many vantage points from which to argue and they have all been occupied by some form of contention. It is true that not only are there written argument and witness statements sworn, but that material has been supplemented by the witnesses giving their viva voce evidence. Then there have been final submissions which I have very much appreciated. The advocates rely on the written submissions, and I have also noted that in some important respects the case has moved on a little bit from the time that the original written submissions were prepared. The advocates have supplemented them today in a brief but helpful way.

[6] I do want to say something generally about the evidence, because I have been particularly assisted by the witnesses. Only with some few exceptions have I thought that I might not be able to rely on the evidence in very large part that has been given. I have in fact been struck by the reliability, generally speaking, of the evidence, even though of course there remains a very sharp conflict in the case which cannot be avoided, and shortly I will show that it is not going to be avoided.

[7] I am not going to exhaustively outline the narrative of events or summarise the evidence in any detail because it is well known to the parties, and I do not know that there is a great deal to be gained by repeating it. But it is perhaps necessary to say that in considering this case one has to also consider some important elements of behaviour in the workplace. Because in this case an employee of the one part has attended for work and taken a step, which it is said is reasonable and available to him, which has inconvenienced and had an effect on another employee, and then engaged in conduct later in the day as a consequence of that action that had earlier been taken, which later controversial action is said to not constitute that which would warrant termination. For the employer the obverse of these judgements holds.

[8] The detailed case put by the NUW relies on and emphasizes the very considerable service that has been given by virtue of Mr Chea’s age.

[9] It is necessary for me to make findings about these things and I have to first of all indicate the threshold position; that is, whether Mr Chea is a person protected from unfair dismissal, and I find that he is in that category. An enterprise agreement, I am told, applies, and I have no reason to say that is not so. The Manufacturing and Associated Industries and Occupations Award 2010 [MA000010], would also cover the employment in question. The period of employment monumentally surpasses that set out in the Act and this is not a case of general redundancy.

[10] The Small Business Fair Dismissal Code has no relevance and I think clearly Mr Chea has been dismissed, which leads of course to the necessary treatment of section 387, the criteria for considering harshness, to apply the shorthand term. It is true that before a remedy can be considered those criteria have to be dealt with, although it is important to note that there is the catch-all, at s.387(h), that any other matter that Fair Work Australia considers relevant is able and indeed should be had regard for. In fact Parliament says that Fair Work Australia must take into account any other matters in the same way as it must take into account the things that the advocates have dealt with.

[11] It is necessary then to come to a view as to whether the respondent had a valid reason for the dismissal which related to the person's capacity or conduct. This is a conduct case and it is noteworthy that in this case the brackets at s.378(a), to which my attention was drawn, have a bearing. I will read the whole of s.387. I must take into account:

[12] So one can see, even though this point was not particularised, that it is an important part of the respondent’s case; that the conduct involved in, to which it took exception, had an effect on the safety and welfare of other employees. The respondent invokes a general proposition that says conduct of the sort engaged in by Mr Chea is not the sort of conduct which can be supported by Fair Work Australia and should not be engaged in by employees; because it is conduct which is reflective of misconduct and indeed a serious variant of misconduct. That is my extrapolation.

[13] I am not going to outline all the evidence although there are some particular points that I will choose to comment on. In a general sense I have accepted the evidence given by Ms Sharry. I have also considered some, but not all of that given by Mr Ciconte, because I thought it was in large part capable of being relied upon. But I have relied on that of Ms Sharry. I have accepted the evidence - and I will come back to one element of this - of Mr Hawley that Mr Holaran spoke to him, I think it was on the 24th, and said some things and that Mr Hawley is explicit in his evidence about what Mr Holaran had said to him. I have accepted that evidence.

[14] I am deliberately truncating these things because it is not necessary to deal with every element, though I will try and take some of them up shortly. I have accepted the account given by Mr Blythman and Mr Knox as to the essential factual narrative of what happened in the car park. I will have something to say about the conduct itself, and to the extent that it is inconsistent with any element of Mr Blythman or Mr Knox’s evidence then to that extent alone I discount the evidence, but generally speaking I thought it was entirely reliable.

[15] Considering Mr Blythman’s evidence provides a convenient point to say something about this case at its core. I have tried to follow Mr Chea’s reasoning very closely. I have found it very difficult to understand the reason, that is the logical reason for the degree of exception taken by Mr Chea as to where Mr Blythman had parked his (Mr Blythman’s) car in the middle of the designated permanent spot in which he, Mr Blythman, daily parks. It was Mr Blythman’s car positioning which, in turn, is said to have justified Mr Chea taking the invasive parking action he did, of marooning Mr Blythman by parking within a few inches of Mr Blythman’s car. It is my desire in this case to give very full weight to the indignation which Mr Chea felt, which I have thought he wanted me to think was rightfully his, as a result of what Mr Blythman had done. I cannot see it for the life of me. I cannot see what it is, that is, where is the firm ground in Mr Chea’s position upon which I can place reliance as justification for his behaviour and his conduct?

[16] Because, if it is simply put that Mr Blythman is a very inconsiderate person to park where he does, and that he should park a little bit further to the left by some reasonable chunk of distance, then such a view simply cannot be accepted; I do not understand. I went to the plant to try and understand it. I do not understand why it could be said with any rationality that Mr Blythman should intrude into the spot of the person who parks on his left (as one drives in), because that would mean that person, Mr Blythman’s neighbour, would have, as I understand the size of these car parking spots, either nowhere to park or have to buy a very narrow car.

[17] Instead, what one is faced with is that Mr Chea then engages in a range of behaviours which on any construction, and on the most favourable construction to him, test the outer limits of what is reasonable conduct in the workplace. It has to be noted also - and I do not do this reluctantly - it is part of the factual matrix of this case, that Mr Chea at two two-year intervals in this latter portion of his engagement, that is in 2007 and 2009, had written warnings from the company that dealt with behavioural difficulties.

[18] One of them dealt on its face with a threat to kill and use of abusive language, and the other dealt with angry and loud behaviour, where Mr Chea remonstrated with a company decision and then went off the job. The earlier of those warnings that was given in 2007 was for the language and the threat, and the company in its written warning reduced its concern - there were other words used also though - to Mr Chea displaying an unacceptably high level of anger. The 2009 warning speaks of Mr Chea becoming angered by the company decision that related to lack of overtime, and he was told to moderate his behaviour. Then a further two years of course takes us to the present in the continuum of unhappy events.

[19] I have not any doubt that there was nothing accidental in what occurred. It is very clear. Anyone who has been involved in the case knows that that is necessarily the conclusion one has to reach on a fair reading of Mr Chea’s statement, but also because of the evidence - and I am going to particularise this - of Mr Holaran. It is Mr Holaran’s evidence that is compelling because Mr Holaran presented Mr Chea with a neutral opportunity to change the position that he, Mr Chea, had set about creating. Mr Holaran said to Mr Chea, as a friend, "You’ve parked too close to Terry’s car. You need to move it before he comes out because he won’t be able to get out". I am not going to give the first part of Mr Chea’s obscene response.

[20] I accept Mr Holaran’s evidence that Mr Chea did respond in the way that he did; that is, the first several words of the quote in paragraph 8. The latter words only I will use, "I’ll teach him a lesson". So, to the extent that that conflicts with other evidence I have accepted the evidence that Mr Chea was about teaching Mr Blythman a lesson. I have no doubt about that. It was the purpose of the great majority of his actions. Perhaps I will make some factual findings lest there be any uncertainty. It is not really vital for the conclusion that I have reached, but I am not convinced there was a third car. The evidence does not support the existence of a third car. It is most curious that Mr Chea did not mention the fact of the ‘third car’ earlier in his discussions with Company officials.

[21] But in any event, Mr Chea’s own statement says he parked so close to Mr Blythman’s car for the reasons that I have identified. That is, to make it not possible for Mr Blythman to go without Mr Chea having to come and release his car. That is unless Mr Blythman wriggled through the car, and Mr Blythman gave careful and repeated evidence that it is an impossibility in the model of Honda car that he was driving, to get into the driver’s cockpit from the passenger side, which, while it seems quizzical, I have no empirical capacity or scientific basis to doubt. Of course the mirrors of the cars are almost touching. The photographs taken at the time show that the cars are very, very close, within a couple of inches, certainly the mirrors; and the body panels within five or six inches, perhaps less.

[22] If the evidence permitted a conclusion that Mr Chea had some rational or righteous ground to be indignant or aroused about Mr Blythman’s allegedly intruding car it might be that one could acknowledge parking the way he did, however unattractive such a conclusion would be; to ‘teach the fellow employee a lesson’. On almost any construction it would be excessive behavior, but one might just be persuaded to think that that was reasonable responsive action or, which would be far more likely, an error of judgement for which (alone) loss of employment might be too severe. Then, moving to the delayed release of Mr Blythman’s car; one would be very much on guard to make sure that the behaviour exhibited by all the employees remained well within reasonable bounds. Certainly the actions of Mr Chea, as initiator, would have to remain between reasonable bounds; that you could not keep someone, perhaps even after just one or two minutes, from exercising their right to free movement.

[23] That did not happen in this case. I think there was a wholly unreasonable 15 or 20 minute period, before Mr Blythman could depart, although I do not make a finding that it was 20 minutes. In any event, a quarter of an hour is a very long time to be obstructed from exercising a right of movement. Moreover, I have formed the view that there was a great deal of hostile behaviour exhibited by Mr Chea, and I think Mr Lawless comes close to correctly describing in a moderate way the behaviour engaged in. There is sufficient evidence to make a finding that there was loudness and angry behaviour. It is very likely to have bordered on aggressive behaviour. One does not wish to contemplate the result had Mr Chea encountered a person of similar temperament and judgement.

[24] Mr Chea’s was behaviour which transcends the tedious and, rather, would be likely to engender fear and concern and to alarm a fellow employee. It is not behaviour that one would normally want to encounter and not over an extended period. It is very similar to some of the behaviours that have been the subject of the earlier warnings. I make no finding about a pattern. It is unnecessary to do so. Is it intimidating? It is unpleasant, and certainly not to be countenanced. A consideration of the meeting of Mr Chea and Mr Blythman shows that Mr Chea was not abashed; he had not been taken aback; had not given any thought to his conduct. I have concluded that for any rationality to have been present in Mr Chea’s day-long consideration of the approach he was adopting (the retarding of Mr Blythman) it must be that Mr Chea thinks this is reasonable, that it is a proper way to conduct oneself.

[25] But I do not have to speculate about that. I engage in no speculation because instead I apply a normal standard of what in my view is likely to be considered acceptable workplace behaviour in the Australian community. It was very provocative behaviour and I think it was entirely unacceptable behaviour. It is not behaviour which conduces to a safe workplace, and in the railing against Mr Blythman which I find occurred for some 15 or possibly 20 minutes, in my view a volatile and an unsafe situation was deliberately and artificially contrived into being by Mr Chea. Such a situation is also not to be countenanced.

[26] On a fair understanding of all these things in my view it cannot be said that the conduct is other than serious misconduct. In my view there is no doubt that it ultimately constituted conduct which provides a valid reason for the dismissal. A strong argument can be made for the respondent not having any alternative open to it. However, in light of the events considered it is not a question of alternatives. I find that there was a valid reason pursuant to section 387(a). As to section (b), I find Mr Chea was notified of the reason, that he was given an opportunity to respond. I find that he was given the opportunity to have an interpreter present - to the extent it was necessary.

[27] I have noted that Mr Ciconte rendered as much assistance as he could, and I would not want anything I have said to reflect poorly on Mr Ciconte’s attempts to assist Mr Chea, because I think they were earnestly given. Section 387(e) relates to unsatisfactory performance and warnings. This is not a performance issue but it is relevant, and it has been relied on that there had been previous unsatisfactory conduct of a very similar nature, which has been the subject of notice.

[28] As to sections 387(f) and (g), I agree with the advocates that they do not have particular relevance. In relation to (h) I think all the key points are taken up in the comments that I have made.

[29] Mr Melling makes a strong argument for the serious position in which the dismissal places Mr Chea - and it is of course something that one feels very strongly about, that is, one is conscious of the effect on a 57 year old man of termination after 25 years service.

[30] Regrettably, in my view the company could have no confidence as to Mr Chea; the confidence that is requisite, because I am not sure that Mr Chea sees that this behaviour is as bad as on close analysis it really is. In my view it was behaviour which falls well within that which justifies termination, constituting a valid reason, in the way I have outlined in relation to section 387(a). So for all those reasons I am unable to accept the arguments put on Mr Chea’s behalf, and I must therefore dismiss the application. An order to that effect will issue at the first opportunity. I now adjourn.”

[31] An Order was issued on 9 September 2011 [PR514477] dismissing the application.

COMMISSIONER

Appearances:

D Melling of the National Union of Workers appearing for the applicant.

A Dalton of the Australian Industry Group appearing with S Sharry for the respondent.

Hearing details:

2011.
Melbourne:
August 10, 11.

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