| FWC 145|
|FAIR WORK COMMISSION|
Fair Work Act 2009
Kailis Bros Pty Ltd
DEPUTY PRESIDENT GOOLEY
MELBOURNE, 8 JANUARY 2016
Application for relief from unfair dismissal.
 Mr Jamin Horner was employed by Kailis Bros Pty Ltd from 28 October 2013 until 31 July 2015. He alleges he was unfairly dismissed. Kailis Bros alleged his employment was terminated for misconduct.
 Mr Horner’s letter of termination explained the reasons for his dismissal. It sets out a number of factors considered by Kailis Bros in reaching the decision to terminate Mr Horner’s employment.
 Mr Horner gave evidence that on 23 July 2015 he was handling cartons in a confined space under the racks. Because of the way the cartons are located on the second pallet, he had to lift whilst twisting and this caused him to strain his lower back. He said he had a couple of months earlier brought this to Mr Stanton’s attention and that it needed “proper and systematic attention”. Mr Horner accepts that when Mr Stanton approached him he said “why don’t you get this ‘f....” shit brought forward. It’s not right that we should ‘f....’ well have to get stuff from under or straddle the ‘f….’ racks all the ‘f….’ time. He said he asked Mr Stanton not to talk to him and to go and get Mr Brent Shaw, the Operations Manager and ended up telling Mr Stanton to ‘piss off’.1
 Mr Stanton’s complaint described the incident as follows:
When I approached Jamin “he started swearing at me. “I f….ing told you to get the pallets pulled out, I’ve hurt my back going in and out of the racking.” Followed by a lot of f…. this and f…. you. I told him not to speak to me like that to which he replied “no f…. you I told you to do it f…. off” this was going on in front of Ricky, Steve and Simon so I asked him three times to get off the fork follow me outside which he replied “f…. off.” I then told him to get off the f…. forklift and come outside and stop swearing at me. I realise this wasn’t the smartest thing to do, swearing at an already antagonised person but I did in an attempt to get him outside and tried to defuse the situation. I came inside to get you (Mr Brent Shaw) but you were in a meeting, so I went back in to get him but he continued his tirade of f…. off and get f….d and I went to speak to Brent.”
 Mr Simon Webb was called by Mr Horner to give evidence. Mr Webb witnessed the incident. Mr Webb said this was the only time he had heard swearing in the warehouse and that he had not heard Mr Horner or Mr Stanton swear on previous occasions.2 He said he heard Mr Horner and Mr Stanton yelling at each other but he didn’t understand what was going on. He said that Mr Stanton had sworn at Mr Horner telling him to “get the eff outside” after Mr Horner had refused a couple of times.3
 Mr Horner did not deny swearing at Mr Stanton though in his view it was only when he told Mr Stanton to piss off that he actually swore at him. He considered the use of the ‘f’ word as an adjective not to be swearing at Mr Stanton. Mr Horner accepted that he should not have told him to piss off and apologised to Mr Stanton. Mr Stanton, while accepting that swearing occurred in the factory4, did not accept that Mr Horner’s language was just swearing. It was his view that there was a difference between swearing and abusing.5 He said he accepted Mr Horner’s apology but that he could not have “anybody working underneath [him] who is going to, you know, treat me like that.”6 He said he had “never had anybody speak to [him] like that ever.”7
 Mr David Turtur, who gave evidence for Mr Horner, said that swearing was common at the factory and no one took offence. Mr Turtur gave evidence that swearing in the front office in front of female staff would be off limits.8 Mr Turtur distinguished between swearing and swearing at people. He accepted that swearing at people could cause offense.9 He accepted in cross examination that he would be offended if one of the employees he supervised swore at him when he told them to do something.10 He gave evidence that despite the widespread swearing on the factory floor he was not aware that anyone had been dismissed for swearing.11
 Mr Horner justified his conduct by saying he was in pain at the time; his injury at the time was a direct result of the failure of Kailis Bros to address the OH&S concerns he had raised about the work he was performing; there was a culture of swearing.
(1) He was in pain at the time
 Mr Horner gave evidence that he was in pain at the time. There is no evidence of the extent of the pain. There is no evidence that the pain prevented Mr Horner from working.
(2) The OH&S issues
 Mr Horner gave evidence that he had raised with Mr Stanton the OH&S risks associated with the requirement for workers to have to pick stock from a back pallet which is behind an empty front pallet. Mr Webb gave evidence that other pickers were unhappy with this situation and that Mr Stanton had not addressed the issue.12 In cross examination Mr Webb acknowledged that it was the responsibility of the forklift drivers to bring the back pallets through to the front.13 He gave evidence that they had been asked to do it themselves14 and that they often don’t have time to wait for the forklift drivers.15 Mr Webb accepted that what he did was not the procedure but “it’s a lot about saving time and pressure of getting orders out.”16 He accepted that when they are told to do it themselves they are supposed to get a forklift to “pull them forward but a lot of the time there’s no forklifts available.”17
 Mr Stanton accepted that Mr Horner had raised this issue with him on more than one occasion18 but it was his evidence that he had addressed it and when he attempted to explain during cross examination how it had been addressed, Mr Horner interrupted him.19
 Mr Horner gave evidence of other OH&S issues in the factory. In particular, there was evidence that there were employees required to operate equipment without an appropriate licence. Mr Stanton gave evidence that he raised this issue with his managers and alerted them to the issue. Despite this the employees continued to work unlicensed until the training occurred. While Mr Shaw denied knowing that this occurred, I accept Mr Stanton’s evidence that he brought this to Mr Shaw’s and Ms Jill Winning, the Human Resources Manager’s attention.20 Mr Horner accepted that Mr Stanton stood him down from operating the equipment without a licence.21
 Mr Horner also called evidence about employees working without appropriate harnesses. I accept that this requirement was not enforced generally. Yet it is clear that Mr Stanton enforced the requirement. Mr Horner accepted that Mr Stanton had issued him with a warning about not having his harness clipped on. Mr Stanton gave evidence that he gave the warning because he had repeatedly told Mr Horner to have his safety harness clipped on. He explained that Mr Horner had received a written warning because he was a repeat offender and the other employee was only reprimanded because he had not had previous warnings.22 Mr Horner complained that Mr Stanton was “more interested in patrolling around being pernickety about whether we clipped our harnesses in above 60cm height than he was in being collaboratively effective in solving more practical issues.”23
 I accept that Mr Horner was frustrated at Kailis Bros’ failure to comply with its OH&S obligations. I accept that he raised issues with Mr Stanton. However I find that Mr Stanton did take his OH&S obligations seriously and where he was able, he ensured that the employees he supervised complied with their OH&S obligations and he also attempted to ensure that Kailis Bros complied with its obligations. I accept that a procedure was put in place to deal with the problem of employees having to move goods from the back of the space to the front. I accept that it was not working because employees were told to move things themselves if the forklift driver was not around. There is no evidence that they were told by Mr Stanton to work inconsistently with the procedures. There is also no evidence that any employee was disciplined because he or she stopped picking because the goods had not been moved to the front of the space.
(3) A culture of swearing
 The witnesses accepted that there was a culture of swearing in the workplace. It was accepted that there was a difference between swearing as part of a conversation as opposed to swearing at someone. It is clear that the supervisors and managers were aware of the swearing at the workplace and rarely took action about the swearing. It is clear that managers and supervisors also swore. The employees had not received appropriate training about the use of offensive language in the workplace. Mr Horner also apologised to Mr Stanton for his language.
 I do not accept Mr Horner’s justification for the language he directed at Mr Stanton. Despite the culture of swearing in the workplace, I find that Mr Horner’s language directed at Mr Stanton was abusive. I do not accept that it was only when he told Mr Horner to piss off that he stepped over the mark. The entire exchange was abusive. This was not a case where the ‘f’ word was simply used as an adjective. It was used aggressively. I agree with Mr Stanton that no-one should expect to be spoke to like Mr Horner spoke to him. Mr Horner’s apology does not alter his conduct. If Mr Horner was aggrieved at the failure of Kailis Bros to take its OH&S obligations seriously, he had other options which did not include using offensive language towards his supervisor. When Mr Stanton attempted to get him to talk with him more privately Mr Horner refused to comply with his direction. I do not accept Mr Horner’s explanation that he thought that when Mr Stanton made the request that he was asking him to go outside for a physical altercation. He made no reference to this in his statement given on 26 July 2015 or at the meeting on 30 July 2015. I accept that Mr Stanton’s use of the ‘f’ word when trying to get Mr Horner to comply with his direction to talk privately was also inappropriate however, while Mr Stanton should have been counselled about that, it did not excuse Mr Horner’s conduct.
 On 10 November 2014, Mr Horner had an altercation with his manager Mr Bob Cullum over Mr Cullum’s refusal to recommend he be granted leave without pay. Mr Horner did not give any direct evidence about this incident but tendered documents24 which dealt with the incident. When cross examining Mr Cullum, Mr Horner put to Mr Cullum that he had said “no I won’t go home you little prick”. Mr Cullum remembered telling Mr Horner to go home and cool off but he did not remember what Mr Horner said to him. In the documents tendered by Mr Horner there is a record of interview with Mr Horner in which he is recorded as admitting calling Mr Cullum a prick and yelling at him. This conduct was witnessed by other employees. Mr Horner considered Mr Cullum to be a bully.
Was the termination of employment harsh, unjust or unreasonable?
 In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:
s387(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);
 Mr Horner was terminated because he verbally abused his manager. I find that this conduct occurred. I am satisfied that Kailis Bros had a valid reason to terminate Mr Horner’s employment. While I accept that swearing is common in this workplace I accept the submission of Kailis Bros that Mr Horner did more than swear. Mr Horner verbally abused his supervisor. Mr Horner received a letter of warning on 13 November 2014. On that occasion, Mr Horner was said to have yelled and directed inappropriate remarks towards his manager. That warning advised Mr Horner that if there was a repeat of this or a similar occurrence it may result in possible termination of his employment. Having been put on notice that using inappropriate language to a supervisor is unacceptable, I find that as the language Mr Horner directed at Mr Stanton was unacceptable, there was a valid reason for the termination of his employment.
 Kailis Bros also submitted that Mr Horner had an inappropriate attitude to safety. I do not accept this submission. The evidence established that Mr Horner was concerned about OH&S issues in the workplace. Kailis Bros complained that Mr Horner did not follow the correct procedure yet there was evidence that employees were told to do what Mr Horner did. The evidence established that the management at Kailis Bros did not comply with its own OH&S obligations. I find that Kailis Bros has not established that Mr Horner had an inappropriate attitude to safety.
s387(b) whether Mr Horner was notified of that reason;
 Mr Horner was asked to provide his version of the events that occurred on 23 July 2015. He attended a meeting on 30 July 2015. At the commencement of the meeting, Mr Horner asked what aspect of the incident was he there for.25 He was told “swearing”. He asked if his job was under threat and he was told it could be.26 I am satisfied that Mr Horner was aware of the reason prior to the decision being taken.
s387(c) whether Mr Horner was given an opportunity to respond to any reason related to the capacity or conduct of the person;
 Mr Horner submitted that he was not made aware of any allegations and did not have the opportunity to reply.
 I do not accept that submission. Mr Horner was asked to provide a statement of his version of what happened on 23 July 2015. On the morning of 30 July 2015, Mr Horner was told that he would have to go to a meeting at 1pm as Ms Winning wanted to hear his description of the incident.27 At the meeting there was a discussion about what occurred. Mr Horner had an opportunity to respond to the complaint and to put his version of events.
s387(d) any unreasonable refusal by the employer to allow Mr Horner to have a support person present to assist at any discussions relating to dismissal;
 Mr Horner was not denied the opportunity to have a support person. He was advised by Mr Shaw that he could have a support person but decided that is wasn’t necessary if the meeting was to discuss the incident. When he realised his employment might be at risk he said he should be able to have a support person and when asked who he wanted he said Arthur or Andrew and Andrew was brought to the meeting as his support person. I am satisfied that there was no refusal by Kailis Bros to allow Mr Horner to have a support person.
s387(e) if the dismissal related to unsatisfactory performance by the person—whether Mr Horner had been warned about that unsatisfactory performance before the dismissal;
 Mr Horner was not dismissed for poor performance. This criterion is not relevant.
s387(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;
 Kailis Bros submitted that the procedures adopted were appropriate.
s387(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;
 Kailis Bros has dedicated human resource management specialists and therefore this criterion is neutral.
s387(h) any other matters that the Fair Work Commission considers relevant.
 Mr Horner complained that whilst swearing was rife he is the only person sacked for swearing. For example Mr Stanton swore when speaking to him. He said he apologised to Mr Stanton. Mr Horner submitted that singling him out was harsh. Mr Horner submitted that dismissal was disproportionate to his conduct.
 I find that Mr Horner’s dismissal was not unfair. If this had been the first time Mr Horner had sworn at his supervisor, I would have agreed with Mr Horner that the dismissal was harsh. If there had been evidence that other staff had on more than one occasion sworn at another employee in the manner Mr Horner did and not been disciplined or sacked I would have agreed with Mr Horner that the dismissal was unfair. However no such evidence was given. I have not accepted Mr Horner’s contention that the only time he swore at Mr Stanton was when he told him to piss off. Mr Horner repeatedly used the ‘f’ word in an aggressive fashion toward Mr Stanton. His conduct, in light of his previous warning, meant that there was a valid reason for the termination of his employment. He was afforded procedural fairness. I therefore dismiss Mr Horner’s application for an unfair dismissal remedy. An order to that effect will issue with this decision.
J. Horner on his own behalf.
J. Winning for the Respondent.
1 Exhibit A1
2 Transcript PN 153-162
3 Ibid PN 231
4 Ibid PN 865
5 Ibid PN 865 and 937
6 Ibid PN 934
7 Ibid PN 936
8 Ibid PN 328-332
9 Ibid PN 337-342
10 Ibid PN 426-427
11 Ibid PN 364
12 Ibid PN 152
13 Ibid PN 181
14 Ibid PN 205 and PN 220
15 Ibid PN 182-183
16 Ibid PN 212
17 Ibid PN 221
18 Ibid PN 898
19 Ibid PN 901
20 Ibid PN 729
21 Ibid PN 738
22 Ibid PN 828-833
23 Exhibit A1
24 Exhibit A4
25 Exhibit A2
Printed by authority of the Commonwealth Government Printer
<Price code C, PR575940>