DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joseph Johnpulle
v
Toll Holdings Ltd T/A Toll Transport
(U2015/3547)

Application for relief from unfair dismissal.

This is the printed version of the ex-tempore decision handed down on transcript on 3 June 2015. Minor changes have been made to improve grammar and fluency. Minor editorial changes have been made based on relevance and clarity.

[1] An application was lodged on 27 February 2015 in accordance with section 394 of the Fair Work Act, 2009 (the Act) on behalf of Mr Joseph Johnpulle in relation to his dismissal from Toll Holdings Limited, trading as Toll Transport (Toll) on 9 February 2015. Mr Johnpulle commenced employment in 2008 and during the course of his employment there were no relevant performance issues that have been raised. His dismissal revolved around an incident which occurred on 7 January 2015 which, associated with three previous incidents in 2014, the company believed showed a total disregard for its policies and procedures and code of conduct. Toll have labelled these actions as serious misconduct.

[2] Mr Guy a Legal Officer from the Transport Workers’ Union, represented Mr Johnpulle in these proceedings, and Toll was represented by their internal Legal Counsel, Ms Alam. It is fair to say that the evidence in this proceeding was highly contested. There are very few agreed facts. The evidence which was sworn and attested by 13 witnesses was contradictory between the evidence of Mr Johnpulle, Mr Monda, Mr Dasik, Mr Grampsas, Mr Singh, Mr Penna and Mr Risteski compared to that of Mr Fath, Mr Touba, Mr Hewlett, Mr Robinson, Mr Grant, and Mr Karzi.

[3] If one wished to develop a conspiracy theory, it would not be hard in this case to say that both sides were involved in fabricating evidence to meet the purposes of their case. However, I make no such accusation.

[4] When dealing with matters of this nature, that is, an application of relief from unfair dismissal, the Commission is obligated to take into account the objects of the Act. Section 381 of the Act says:

“(1) The object of this part is:

(a) To establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) To establish procedures for dealing with unfair dismissal that are:

(i) quick, flexible and informal; and

(ii) addresses the needs of employers and employees

(c) To provide remedies if a dismissal is found to be unfair, with an emphasis on re-instatement.

(2) The procedures and remedies referred to in paragraph 1(b) and (c) in the matter of deciding on and working out such remedies are intended to ensure that a “fair go all around” is accorded to both the employer and the employee concerned.

[5] It goes on to note that:

“The expression “fair go all around” was used by Sheldon J in re Loty and Holloway v Australian Workers’ Union [1971]”

[6] The issue at hand is whether Mr Johnpulle knowingly made inappropriate comments to Mr Karzi, one of his work colleagues, which could be regarded as racist, sectarian, and inappropriate. If such comments were made by Mr Johnpulle, was termination of employment the appropriate or fair disciplinary outcome. The statutory provisions which requires the Fair Work Commission to make an assessment can be found in section 387 of the Act. The parties separately took me to those provisions this afternoon. They are:

“s.387 Criteria for considering harness, etc”

(a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct;

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

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

(d) any reasonable refusal by the employer to allow the person to have a support person present to assist in any discussion relating to dismissal;

(e) if the dismissal related to unsatisfactory performance with the person, whether the person had been warned about that unsatisfactory performance before the dismissal;

(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;

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

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

[7] As I said earlier, the evidence in relation to this matter is highly conflicted. On the one hand, we have Mr Karzi indicating that Mr Johnpulle had made inappropriate comments in relation to his religion, his race, and tried to attribute the universally acknowledged criticisms of the conduct being undertaken in the Middle East to that of Mr Karzi and his heritage. Mr Johnpulle denied all allegations, including the allegations of inappropriate comments being made in 2014, and the inappropriate comments of 7 January 2015. I note that in all four scenarios the comments were made with no additional witnesses.

[8] The incident on 7 January, 2015, was captured on Toll’s CCTV footage. Unfortunately the footage is quite poor and for obvious reasons does not have any audio. However, the footage has been of benefit in establishing that Mr Johnpulle approached Mr Karzi, at which point in time Mr Karzi walked away and sought out Mr Hewlett to make a complaint about Mr Johnpulle’s conduct.

[9] Complaints were also made against Mr Karzi to Mr Hewlett during the investigation of this matter. It is fair to say that certainly one complaint from Mr Monda in relation to the comments of Mr Karzi and the subsequent and recent actions of Mr Karzi, also required further investigation. I note that investigation did not take place. Whilst I accept that the allegations attached to Mr Johnpulle and the alleged comments he made would be regarded as being offensive, I also regard the comments attributed to Mr Karzi, that he made to Mr Monda, as being equally offensive.

[10] In this situation it becomes very difficult for the Fair Work Commission to make an assessment in relation to the veracity of each individual witness that appears in a proceeding such as this. In many respects it boils down to an argument of “he said/she said”, to use the vernacular. The Commission has to weigh up what has transpired, in accordance with the principles enunciated in Brigginshaw, which introduces the balance of probabilities test.

[11] There are any number of decisions which have referred to this type of issue when it goes to matters of conduct. In Qantas Airways Limited v Cornwall 1 the Full Court of the Federal Court said:

“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action, and those which accompany it, may qualify or characterise the nature of the conduct involved.”

[12] Mr Guy took me to the decision in Edwards v Giudice 2 where Moore J said:

“The paragraph requires consideration of the validity of the reason when the reason is, relevantly, based on the conduct of the employee. It is, in my opinion, difficult to avoid the conclusion that the Commission is obliged in such circumstances to investigate in the inquiry process contemplated by the Act whether the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed.

The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.”

[13] His Honour referred to section 170CG of an earlier Act.

[14] Perhaps the most often used quote in these sort of circumstances is set out in Byrne and Frew v Australian Airlines, the comments of the joint judgment of McHugh and Gummow JJ, where they said:

“It may be that the termination is harsh, but not unjust or unreasonable; unjust but not harsh or unreasonable; or unreasonable but not harsh or unjust. In many cases the concepts will overlap, thus the one termination of employment might be unjust because the employee was not guilty of misconduct in which the employer acted. It may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from material before the employer, and may be harsh in its consequences for the personal situation of the employee, or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust, or unreasonable.”

[15] In this matter I share the view of Mr Grant that if Mr Johnpulle was guilty of this conduct, that it would be a serious breach of the code of conduct, a policy of Toll, and would warrant his termination. I concur with his statement under cross-examination that if Mr Karzi was guilty of making comments in the manner which he has been accused, that such comments would also warrant termination. The question at hand though is not that of Mr Karzi, or what occurred in 2013 in relation to an incident between Mr Karzi and Mr Penna, although it does have some relevance in this determination, but whether or not Mr Johnpulle is guilty of breaching the code of conduct of Toll by making inappropriate comments.

[16] I find that Mr Johnpulle made comments to Mr Karzi on 7 January which caused him distress and anxiety. I have no reason not to believe the evidence of Mr Karzi in relation to the comments that he attributes to Mr Johnpulle on that day. As such, I find that there was a valid reason for the termination of Mr Johnpulle (s.387(a)). I find that Mr Johnpulle was notified of that reason (s.387(b)) and that Mr Johnpulle was given an opportunity to respond to the reason in relation to his conduct (s.387(c)).

[17] I accept the evidence of Mr Hewlett that at the time that he interviewed Mr Johnpulle that it was not part of a disciplinary process in relation to his termination, but a simple fact-finding exercise. However, in saying that, if Mr Johnpulle had in fact requested a support person to be present, it would have been appropriate for that to occur. However, I do not regard the fact that a support person was not present to be a breach of section 387(d) of the Act.

[18] The dismissal does not relate to unsatisfactory performance, so section (s.387(e)) is not relevant. Toll is a large organisation (s.387(f)). The human resources department of Toll was involved in this process, and the procedures that were followed were appropriate (s.387(g)). Which leaves to me any other matter which the Fair Work Commission considers relevant in relation to determining whether or not the dismissal was harsh, unjust, or unreasonable (s.387(h)).

[19] As indicated earlier, I believe that the investigation process was flawed in relation to the lack of investigation, particularly in relation to the interview and statement of Mr Monda. I also note that former Fair Work Commissioner, Mr Greg Harrison, was engaged to provide a report on issues in this department, whilst not going to the precise issue of this application. It is fair to say that there is some overlap in relation to the evidence that Mr Harrison had the opportunity to look at the evidence that is before the Commission.

[20] However, I note that Mr Harrison did not have the opportunity to hear submissions from the parties, or conduct an examination under oath of any of the witnesses. As such, whilst I have read the report, the evidence that he has seen is not of the same standard or quality as that which is currently before the Fair Work Commission.

[21] In final submissions, Ms Alam took me to the four allegations that were contained in the show cause letter of January 16, 2015, and the termination letter of 9 February 2015 which was signed by Mr Robinson on behalf of Mr Grant. The relevance of allegation 2, 3 and 4 are important considerations in relation to determining whether or not the dismissal was harsh, unjust, or unreasonable. It is fair to say that allegations 2, 3 and 4 contained comments that are nowhere near the severity or inappropriateness of the alleged comments of January 7 2015. I also note that, these three issues, were all resolved by way of a shop floor resolution, for want of a better term, where Mr Johnpulle had acknowledged the comments and indicated that he would not make such comments again.

[22] It is fair to say that I do not accept that Mr Johnpulle has been forthright in relation to the comments that he has allegedly made throughout the last 18 months of his employment. But in saying that, that does not necessarily mean that the comments that have been made necessarily lead to a determination that the dismissal was not harsh, unjust, or unreasonable.

[23] Since the 1970s and 1980s Australian workplaces have been forced to transition from the old fashioned prejudicial Angelo-Saxon male domains. It is no longer appropriate for employees to “stir up” or “take the Mickey” out of their colleagues based on their sex, religion, culture or heritage in order to get a reaction. It appears to me that this is the type of conduct in which Mr Johnpulle has participated. He was under the misconception that he was being funny or was looking for a reaction. In fact, he was just being stupid.

[24] The changes to Australian workplaces has followed the changes to Australian society where multiculturalism, equal rights, and the Anti-Discrimination Act have forced these changes to occur. Toll has a multicultural workforce, but it would appear that the concept of multiculturalism has not evolved at the site. Rather than accepting and encouraging the variety of cultures, beliefs and values of every employee, some employees have taken on a role of intimidation, vilification, and harassment to try and assume some type of supremacy for their faith or culture. Others have participated in this type of behaviour for personal gratification. Such a practice is dangerous, divisive, and unproductive. Toll have acknowledged that there is a hostile work environment which exists in their depot at Erskineville. I am not convinced that the dismissal of Mr Johnpulle has done anything but exacerbate that situation.

[25] I find the practice of going back to revisit settled disputes, issues and allegations to be inappropriate and unfair. It fails the fair go test for an employee to be subjected to a form of double jeopardy in relation to conduct which has been dealt with previously by management. It is not fair or consistent for Toll to be able to ignore or claim that Mr Karzi’s involvement in a matter in 2013 is settled and concluded, yet not provide the same courtesy to Mr Johnpulle. I have taken this into account.

[26] As I said earlier, I believe there was a valid reason to terminate Mr Johnpulle. He obviously made some comments on 7 January which were highly offensive and inappropriate that resulted in Mr Karzi immediately going to see Mr Hewlett. Mr Hewlett claimed that Mr Karzi was clearly upset and distressed, yet had no problem in sending him back to work alongside Mr Johnpulle for the rest of his shift. Whilst I do not deny that Mr Karzi was upset and undoubtedly disappointed that Mr Johnpulle had breached his word in relation to not raising these issues on another occasion, his response to Mr Hewlett when asked if he was right to go back to work was, according to Mr Hewlett’s notes:

“Yep. No problem. I am okay.”

[27] To me that almost sounds jovial. It certainly does not show an employee who was fearful or showed concern about working with Mr Johnpulle. In fact, I note that the rest of the shift concluded with the two gentlemen working alongside each other and that they continued to work alongside each other for some weeks until Mr Johnpulle was dismissed in February.

[28] Mr Robinson indicated, in his evidence, that he had the capacity to sign off on a first and final warning. He also agreed that it would be appropriate for an employee to be given a formal warning in relation to misconduct. Mr Johnpulle was not given a formal warning. In relation to any form of a disciplinary process, Mr Johnpulle had been spoken to on two occasions by his leading hand Mr Fath, a leading hand who has no direct control, in a disciplinary sense, over Mr Johnpulle. It is a quantum leap from an informal verbal warning for conduct which may be bordering on inappropriate, to being terminated for serious misconduct when the company claims there is an escalation and continuation of inappropriate conduct. I have taken this into account.

[29] Having found that it was inappropriate and unfair for Toll to rely on allegations 2, 3 and 4, as identified in the termination letter, I now seek to turn to the commentary in allegation 1. The termination letter states that Mr Johnpulle’s explanation was not accepted for the following reasons:

“When James Hewlett first questioned you a very short time after the incident as to what had occurred, you firstly said you could not recall having a conversation with Younas, then you said that you could not recall the content of that conversation.”

[30] These statements are contradictory. I find the behaviour of Mr Johnpulle in relation to this interview to be outrageously inappropriate. It beggars belief to think that an employee invited into a meeting some 30 to 45 minutes after a discussion which resulted in his work colleague leaving the work area, would not recall at least some component of that discussion. I have taken this into account.

[31] The letter then states:

“The CCTV footage at the time of the incident indicates that immediately before Younas went to see James Hewlett, you approached Younas and faced up to him in a confronting manner as he left the work space.” (my emphasis)

[32] Whilst that may be Mr Robinson and Mr Hewlett’s view of that incident whilst viewing the CCTV footage, that is certainly not the view of Mr Karzi. Mr Karzi indicated that there was no confrontation. He did not feel threatened or intimidated by the actions of Mr Johnpulle. In fact, Mr Karzi testified, Mr Johnpulle was trying to calm him down and stop him from becoming agitated as a result of the inappropriate comments that he had recently made. I have taken into account the fact that no confrontation occured.

[33] Mr Robinson testified that a “key component” of his decision to recommend termination was the fact that the TWU played such an active role in trying to get Mr Karzi to withdraw his complaint. He accepted, under cross-examination, that he had made a huge assumption in the termination letter;

“I am satisfied that if there had been no substance to Younas’s complaints against you, the delegates would not have been so persistent in their attempts to have to deal with the complaint.”

[34] It is clear that the union delegates knew that an incident had occurred and that it was a reasonably serious incident. Whilst under re-examination Mr Robinson indicated that if he had not made that assumption, he still may have landed on the decision to recommend termination. We will never know. I rely on his original evidence that he regarded the TWU’s involvement as a key component in his decision to recommend termination. I accept the submissions of Mr Guy that such an assumption in relation to the actions of a third party is grossly unfair to Mr Johnpulle. I have taken this into account.

[35] In determining this matter I have taken into consideration all of the evidence, submissions, and conflicting reports of the parties. I have not gone into a detailed examination of the evidence of each witness for obvious reasons, but have merely focused on what I regard to be the relevant issues in this determination.

[36] Mr Karzi’s comments and conduct towards Mr Monda were equally offensive and inappropriate. Having found that Mr Johnpulle has involved himself in a manner which breached the code of conduct, I also find that Mr Karzi has allowed himself to be involved in conduct which would also fall under the same description in relation to the code of conduct. The lack of consistency in dealing with Mr Karzi compared to Mr Johnpulle is a relevant consideration when trying to ascertain whether a termination is harsh, unjust, or unreasonable. And I refer the parties to a decision of APS Group v O’Loughlin [2011] 209 IR 351. I have taken this into account.

[37] Ms Alam took me to the decision of McQuinn v Alcoa, which is a recent decision of the Full Bench of the Fair Work Commission. I note in that decision the conduct of the employee concerned resulted in obscene and foul language being broadcast over a two-way radio to members of the public. In my view that type of conduct can be distinguished from this incident where inappropriate comments were made privately between two employees on the shop floor.

[38] For the reasons stated I find that the dismissal of Mr Johnpulle to be harsh, unjust or unfair. Mr Johnpulle was not given a formal warning for his ongoing conduct, nor was he treated in a consistent manner. The decision to terminate was based on a flawed investigation and unreasonable assumption. He was not afforded a fair go.

[39] In accordance with s.381(1)(c) of the Act, I order that Mr Johnpulle’s be reinstated, with no loss of continuity of service. My calculations indicate that it is 16 weeks since Mr Johnpulle was terminated. I note that Mr Karzi was without pay for three weeks as a result of an incident in 2013. Mr Johnpulle deserves that penalty as well. In addition, I order that Mr Johnpulle be denied a further six weeks pay as a result of the misconduct in breaching the code of conduct in using inappropriate language to Mr Karzi. That means that Mr Johnpulle should receive a back payment of seven weeks of his ordinary pay, less any payment that he has already received by way of a payment for notice (which I understand to be 4 weeks). I also order that Mr Johnpulle be issued with a final warning. Such warning to remain on his file for a period of 12 months.

[40] Mr Johnpulle’s conduct cannot be condoned in 2015. It is highly offensive and inappropriate to insinuate or assert that one’s religion or culture can be generalised in the manner in which occurred in January. I also believe that Mr Karzi should be issued with a formal warning. Making comments about other religions, or comments in relation to the supremacy of his religion, in the workplace, are also inappropriate and a breach of the policies of Toll. I so order.

[41] I am concerned about the ongoing relationship which exists between the management and the two different factions of employees at the Erskineville site. I would encourage the parties to utilise the Fair Work Commission in accordance with its recently announced capacity in relation to developing better workplaces (s.576(2)(aa)). I note that Hamberger SDP and Booth DP have had a great deal of success in improving the productivity of a number of organisations where there has been a level of distrust in the past between the parties. Whilst this case is a little bit different, I am sure that there will be a Member of the Fair Work Commission who will be able to assist the parties, if the parties wish to avail themselves of that opportunity.

COMMISSIONER

 1   [1998] FCA 865.

 2   [1999] FCA 1836.

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