[2016] FWC 1507
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

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

COMMISSIONER BISSETT

MELBOURNE, 11 MARCH 2016

Application for relief from unfair dismissal - Application granted – Reinstated granted.

[1] Mr Joseph Johnpulle was employed by Toll Holdings Ltd T/A Toll Transport Pty Ltd (Toll) in its warehouse at Erskineville. Mr Johnpulle commenced employment with Toll as a dock hand in August 2010. Mr Johnpulle’s employment was terminated on 9 February 2015 for misconduct reasons.

[2] Mr Johnpulle says that he was unfairly dismissed and seeks reinstatement to his position.

Background

[3] On 7 January 2015 Mr Johnpulle was working alongside Mr Younas Karzi. At about 4.30pm Mr Karzi left the workplace and approached Mr James Hewlett, the Operations Manager – Imports (the area in which Mr Johnpulle and Mr Karzi both worked). Mr Karzi complained to Mr Hewlett that Mr Johnpulle had made inappropriate comments to him with respect to the Taliban. Mr Karzi then took a short break and returned to the workplace and continued working alongside Mr Johnpulle.

[4] About 15 minutes after his conversation with Mr Karzi, Mr Hewlett spoke to Mr Johnpulle about the incident. On 16 January 2015 Mr Johnpulle was given a formal letter of allegations and asked to respond. The letter set out four allegations against him. Each of the allegations was that, during working time, Mr Johnpulle engaged in behaviour contrary to Toll Group’s Code of Practice – Workplace Behaviours.

[5] The first allegation related to the incident on 7 January 2015, the second allegation related to an incident on 24 or 25 September 2014, the third allegation related to an incident in early November 2014 (specific date unknown) and the fourth allegation related to an incident on 19 or 20 November 2014.

[6] Each of the allegations set out the particular details of the conduct it was said Mr Johnpulle had engaged in. Suffice it to say, for this decision, that the particulars of each of the allegations were things Mr Johnpulle was alleged to have said to Mr Karzi.

[7] In his reply of 21 January 2015 Mr Johnpulle denied the allegations and said that Mr Karzi ‘engages in talking politics, religion and his negative views on the western world.’ He named a number of individuals who he said had issues in the past with Mr Karzi discussing religion and politics in the workplace.

[8] Each of the named individuals was also spoken to as part of the formal investigation into the allegations against Mr Johnpulle.

[9] On 9 February 2015 Mr Johnpulle was advised of the outcome of the investigation. It was found that he had admitted to the first allegation and the second, third and fourth allegations were substantiated. The conduct was considered to be a breach of the Toll Group Code of Practice (Workplace Behaviours) and the Toll Group Workplace Behaviour Standard. As a consequence Mr Johnpulle’s employment was terminated on that day. He was paid one month’s wages in lieu of notice.

Was Johnpulle unfairly dismissed?

[10] I am satisfied that Mr Johnpulle is protected from unfair dismissal. I am also satisfied and do find that he has been dismissed, the Small Business Code does not apply and the dismissal did not relate to redundancy. In determining if Mr Johnpulle was unfairly dismissed it is necessary to determine if his dismissal was harsh, unjust or unreasonable.

[11] The Fair Work Act 2009 (the Act) states:

[12] I have considered each of these criteria in reaching my decision.

(a) a valid reason

[13] For the Commission to be satisfied that there is a valid reason for dismissal relating to misconduct it is necessary that the Commission first determine, on the basis of the material before it, if the misconduct occurred.

[14] In relation to the first allegation, which relates to the incident of 7 January 2015, I am satisfied that there was an exchange between Mr Johnpulle and Mr Karzi. I accept the evidence of Mr Hewlett that Mr Karzi approached him and that he was agitated by the incident. Whilst he was not remonstrating with hand gestures this is no reason to accept that what had occurred had not been upsetting. Different people react differently to such situations. Mr Karzi’s evidence was that he tried to keep it inside.

[15] Mr Karzi’s evidence is that the following conversation took place between himself and Mr Johnpulle:

[16] Mr Karzi set out the details of the conversation in a letter to Toll on 12 January 2015, five days after the incident. What he put in writing, whilst not exactly the same as the words recorded by Mr Hewlett, is not different in substance from what he told Mr Hewlett had been said to him.

[17] Mr Johnpulle gave inconsistent accounts of what occurred on 7 January 2015 with his answer developing a level of detail over time. I find Mr Johnpulle’s changing answers when questioned about the incident to be of concern. When he met with Mr Hewlett on 7 January 2015 he said he could not recall a conversation he had less than 30 minutes earlier. Mr Johnpulle along with his representative met with Mr Hewlett on 9 January 2015. Mr Hewlett’s notes of that meeting indicate that Mr Johnpulle said that Mr Karzi had started the conversation ‘relating to his origin and other worldly issues’ on 7 January 2015 and that Mr Johnpulle said nothing and continued working.

[18] When Mr Johnpulle responded to the allegations on 21 January 2015 he says that he could ‘vaguely recall’ that Mr Karzi was talking politics and saying how angry he was with America and the Australian Army.

[19] In his written evidence Mr Johnpulle said that, on 7 January 2015, as they were working on the belt together, he recalls Mr Karzi ‘discussing the American Army and their involvement in the Middle East as well as the Australian Defence Force’s involvement.’ He says that ‘Mr Karzi was asserting that the American Army was killing innocent people in Arab countries and that the much publicised ISIS beheadings were actually performed by the Americans.’ Mr Johnpulle says he attempted not to engage with Mr Karzi but continued with his work.

[20] In his evidence to the Commission during the hearing of the application, Mr Johnpulle said that he had gone blank in the meeting with Mr Hewlett on 7 January 2015. He said that he was nervous and the first question asked of him upset him and he could not get beyond that. He says that, as he thought of the incident he attempted to clear the air, so sought to meet with Mr Hewlett on 9 January 2015. He said that in this meeting Mr Hewlett said the matter had been referred to HR so he never got to say anything further.

[21] Mr Johnpulle agreed that he could remember the incident on 7 January 2015 much better 10 days after it occurred than on the same day.

[22] The evidence of Mr Hewlett is that the file notes were taken by him at or typed up shortly after the meeting. This statement by Mr Hewlett was not questioned and, given the contemporaneous nature of the notes, I am prepared to accept them as a true and accurate account of the meeting.

[23] I find the evidence of Mr Johnpulle on his nervousness and memory disingenuous. If it was always Mr Karzi raising issues of politics and religion I do not understand why Mr Johnpulle would be nervous when asked by Mr Hewlett if he had said anything about the Taliban to Mr Karzi. In this respect I consider his memory loss on 7 January 2015 difficult to comprehend. If, as he gave in evidence, Mr Karzi talks of such matters all the time and he just shuts down he did not give this explanation to Mr Hewlett at the time or at any time prior to the hearing of his application.

[24] Following the report of the incident by Mr Karzi to Mr Hewlett, Mr Karzi had a number of conversations over the next couple of days with union delegates on the site. The substance of these conversations was reported to Mr Hewlett and Mr James Robinson, National Operations Manager – Global for Toll. It appears that the union delegates attempted to have Mr Karzi not formalise his complaint against Mr Johnpulle so that it could be dealt with locally or by the union. Both Mr Hewlett and Mr Robinson recorded their discussions with Mr Karzi or the delegates about his interaction with the delegates in file notes.

[25] Mr Ali Touba, a labour hire employee who works for Toll, gave evidence that in January 2015 he had a conversation with Mr Johnpulle in which he asked Mr Johnpulle if he had said anything to Mr Karzi abut ‘9/11 and that’. Mr Johnpulle answered that he had. Mr Touba told Mr Hewlett of the conversation who made a file note of that conversation. Nothing has been put to convince me that I should ignore the evidence of Mr Touba. Whilst he said he had the conversation with Mr Johnpulle because he had heard he was saying things about ‘9/11’ I am satisfied that it would take little for whispers in the workplace to find a short hand (albeit inaccurate) method of describing what had, in fact, taken place. Mr Touba’s evidence cannot be dismissed because it was ‘understandably denied’ by him that his recollection of the conversation was wrong.

[26] Mr Johnpulle said that the Commission should accept that Mr Karzi was the one making the inappropriate comments based on his past behaviour. To this extent Mr Johnpulle relied on evidence given by a number of workers at the site. For the reasons given below I do not consider that the evidence of those employees provides any assistance to Mr Johnpulle’s contention as to how the conversation proceeded on 7 January 2015.

[27] The standard of proof in a matter such as this is that I must be satisfied, on the balance of probabilities, that the conduct complained of did, in fact, occur.

[28] I have taken into account all of those matters set out above. I have also taken into account Mr Johnpulle’s emphatic denial under oath that he said any of these things to Mr Karzi. On this question however I prefer the evidence of Mr Karzi to that of Mr Johnpulle. Mr Karzi’s evidence is supported by the evidence and records of Mr Hewlett. My conclusion is further supported by the evidence of Mr Robinson and Mr Touba. On the balance of probabilities I am satisfied that Mr Johnpulle made inappropriate comments to Mr Karzi on 7 January 2015 with respect to the Taliban and its activities and, that in doing so, he implied that Mr Karzi would have some knowledge or would have some sympathy with the activities of the Taliban.

[29] In making the comments contained in the first allegation to Mr Karzi, Mr Johnpulle caused Mr Karzi unnecessary distress. These were not unfortunate comments but were designed to hurt Mr Karzi who has an Afghani background.

[30] Prior to determining if the conduct provided a valid reason for the dismissal of Mr Johnpulle, it is necessary to say something of remaining allegations put to Mr Johnpulle.

[31] I am satisfied, on the basis of the evidence before me that the conduct in those further allegations occurred. In this respect I prefer the evidence of Mr El Mostafa Fath to that of Mr Johnpulle. I consider that Mr Johnpulle’s recollection of past events is not reliable. His ability to recall events that occurred 30 minutes ago (as was the case on 7 January 2015) suggests that his memory is convenient, at best.

[32] However, the events of 2014 were dealt with by Toll at the time, albeit at a relatively low level in the organisation. This is not a criticism but rather a reflection on a desire by Toll to have matters dealt with as close to the workplace as possible. Having been dealt with, and Mr Johnpulle having agreed that he would not engage in such conduct again, those incidents cannot now be used to support a finding that there was a valid reason for the dismissal of Mr Johnpulle. This does not mean that they are not relevant matters in determining if the dismissal was harsh, unjust or unreasonable and are proper matters to be considered in that context, but they are not relevant at this point of the decision making. 1

[33] For a reason for dismissal to be valid it must be ‘sound, defensible and well-founded.’

[34] Toll has a Code of Practice (the Code). The Code says, of workplace behaviours that employees should treat everyone in line with Toll’s values of integrity and trust and employees should never discriminate, harass, verbally abuse, bully, or victimise others. It also says, that equal opportunity and diversity is about treating employees and potential employees fairly and equitably regardless of age, nationality, race, gender, political views…religious beliefs…personal associations or cultural background.’ The Code indicates that breaches of it may lead to a variety of outcomes including further training through to termination of employment.

[35] The Toll Group Workplace Behaviours Policy and Standard reinforce the Code.

[36] I am satisfied that Mr Johnpulle was aware of the Code, the Policy and Standard. Even if he was not aware, social norms dictate compliance with standards such as those. I am satisfied that the Code establishes fair and reasonable workplace standards. There is nothing obscure or novel in them such that a lack of detailed examination and training in them could lead to some inadvertent breach. Mr Johnpulle is bound to observe the policies of Toll including the Code. This much is clear from his contract of employment. That the policies do not form part of his contract does not alter the obligation placed on Mr Johnpulle with respect to those policies.

[37] By his actions Mr Johnpulle’s treatment of Mr Karzi could not be said to comply with the Code, Policy or Standards. Mr Johnpulle’s actions were designed to harass, vilify and victimise Mr Karzi. Those things he said to Mr Karzi were unnecessary and attempted to stigmatise Mr Karzi. They demonstrated a total disregard for Mr Karzi for no reason except that he thought he was having a bit of fun.

[38] There is no excuse for the conduct of Mr Johnpulle. It was intended to hurt and offend and could not, in anyone’s view, be considered a joke.

[39] Having found that the conduct did occur I am satisfied that it was a valid reason for the dismissal of Mr Johnpulle.

(b) notified of the reason

[40] I am satisfied that Mr Johnpulle was notified of this reason (along with others) for his dismissal prior to the decision being made to dismiss him.

(c) an opportunity to respond

[41] Mr Johnpulle was provided with a letter of allegations (the show cause letter) on 16 January 2015. He was given until 20 January 2015 (extended to 21 January 2015) to provide his response to the letter. Mr Johnpulle provided his response on 21 January 2015 and this was considered by Toll prior to a decision being taken to terminate his employment.

[42] Mr Hewlett, who undertook the investigation into the incident, provided a report to both Mr Robinsons and Ms Emilia Cvetkovic of Toll HR and recommended to them that Mr Johnpulle’s employment be terminated. They agreed with his recommendation and Mr Robinson and Ms Cvetkovic subsequently made this recommendation to Mr Cameron Grant, General Manager – International Operations.

[43] Mr Grant determined that Mr Johnpulle’s employment be terminated. This was conveyed to Mr Johnpulle on 6 February 2015.

[44] Mr Johnpulle says that he was not given an opportunity to respond to the evidence relied on by Mr Grant, in particular, the CCTV footage or the evidence of Mr Touba.

[45] I agree that he was not given an opportunity to respond to these two matters. It is my opinion that, in the course of the investigation it would have been prudent to put these matters to Mr Johnpulle. Of course the CCTV footage does not provide any evidence as to what was said between Mr Johnpulle and Mr Karzi but does provide the movement around the incident. The statement of Mr Touba was important in Mr Grant reaching his decision. I have taken this failure into account in reaching my decision as to whether the dismissal was harsh, unjust or unreasonable.

[46] In all other respects I am satisfied that Mr Johnpulle was given an opportunity to respond to the reason for the termination of his employment before the decision was taken to do so.

[47] I take nothing from the fact that Mr Grant did not physically meet with Mr Johnpulle before he made the decision to terminate his employment.

(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

[48] Mr Johnpulle says that, at the meeting of 7 January 2015, on the day of the incident, he was refused access to a support person. There is no complaint by him that such support was refused at any subsequent meeting. Mr Hewlett says Mr Johnpulle never asked for a support person.

[49] It is agreed that at all other meetings Mr Johnpulle had with respect to the incident he had a support person with him.

[50] I prefer the evidence of Mr Hewlett to that of Mr Johnpulle as to whether Mr Johnpulle asked for a support person at the meeting on 7 January 2015. By Mr Johnpulle’s own evidence he always takes a delegate with him to meetings with management. He clearly is aware of his right to do so. It is not explained why, on this occasion, if he did seek and was denied access to a support person, he would have continued with the meeting.

(e) dismissal in relation to performance

[51] Mr Johnpulle’s dismissal was not related to performance. This is not a matter I need to consider.

(f) & (g) 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 the impact of the absence of dedicated human resource management specialists or expertise in the enterprise

[52] Toll is a large enterprise. It has well established human resource policies and practices and has dedicated human resource experts. It also clearly has well developed procedures for dealing with matters involving misconduct of employees.

[53] There is certainly no latitude to be given to Toll in the procedures it adopted in dealing with the dismissal because of its size.

[54] There is no substantive criticism to be made of the procedures adopted by Toll. Mr Hewlett is to be commended for maintaining detailed file notes of the initial incident and all the followed from that, it is evidence of good practice.

[55] My only criticism is that, whilst Mr Hewlett signed the letter of termination on behalf of Mr Grant, it would be better if Mr Grant had himself signed the letter or, if for good reason he could not, that a person other than Mr Hewlett, who a had undertaken the investigation, should have done so.

[56] Overall however, I consider both of these matters neutral in my consideration.

(h) any other matters that the FWC considers relevant

[57] There are a number of other matters that it is relevant I consider before determining if the dismissal was harsh, unjust or unreasonable.

The second, third and fourth allegations of the letter of 16 January 2015

[58] I have found above that the matters contained in the second, third and fourth allegations of the letter of 16 January 2015 were not relevant to a determination as to whether or not there was a valid reason for the dismissal. That does not mean that they are not matters which I might take into account in reaching my final conclusion as to whether the decision to dismiss was harsh, unjust or unreasonable.

[59] Mr Johnpulle denied that he had engaged in any of the conduct set out in these allegations. In his letter in reply to the letter of allegations of 21 January 2015 Mr Johnpulle said that Mr Karzi should have complained to management on the first or second occasions raised in the complaint if these things did actually happen.

[60] Mr Fath, in his evidence, says that on two occasions in 2014 he dealt with Mr Johnpulle making inappropriate comments to Mr Karzi along similar lines to those made on 7 January 2015. On both occasion Mr Johnpulle undertook not to say such things to Mr Karzi again. On one of the occasions Mr Fath says he wanted to raise the matter with his manager but was convinced by a co-worker to deal with it locally which he did. He considered the matter dealt with when Mr Johnpulle agreed not to say such things again. Beyond this he says he had not had complaints with respect to Mr Johnpulle again in respect to such comments although had received complaints as to Mr Johnpulle’s performance.

[61] Mr Karzi’s evidence is that after the second incident he went to see Mr Hewlett however, he was out and spoke to Mr Fath instead. He says that while Mr Johnpulle had agreed not to say such things again, when he did for a fourth time on 6 January 2015 Mr Karzi took the matter to Mr Hewlett.

[62] I am satisfied that these earlier incidents occurred. Mr Fath was steadfast in his evidence as to the events and as to what he understood to be correct behaviour in the workplace. There are no grounds on which to doubt his evidence.

[63] Mr Johnpulle’s comment that Mr Karzi should have complained about the incidents, suggesting Mr Karzi did nothing about them, is not borne out by the facts. Mr Karzi sought to have Mr Johnpulle stop making the comments to him by going to his leading hand. He believed this was the appropriate place to get the matters resolved and thought they had been when Mr Johnpulle agreed not to make such comments again.

[64] These incidents do show a pattern of behaviour of Mr Johnpulle that is, in a modern workplace, unacceptable and disrespectful. It is no joke to make comments of the sort Mr Johnpulle made. This pattern of behaviour is not one that could, or should, be ignored.

Mr Karzi’s past conduct

[65] During the conduct of the investigation into the 7 January 2015 incident a number of witnesses say they raised matters with Mr Hewlett in relation to how Mr Karzi behaves in the workplace but that nothing was done about it.

[66] Mr Tome Risteski says that Mr Karzi said the twin towers attack was carried out by the Americans; the CIA use Taliban to stage suicide bombings; that America was involved in the downing of an aeroplane and that he questioned another employee – Mr P – as to why he had joined the army to fight in the Middle East. Mr Risteski said he did not know exactly who made the comment to Mr P as he had his back to the conversation but says that Mr P complained to Mr Hewlett who did nothing about it.

[67] Mr Ace Pena gave evidence that there was an incident involving him and Mr Karzi in October 2013 in which he considered Mr Karzi had threatened his safety. Mr Karzi was stood down while the matter was investigated. Whilst in his written evidence Mr Pena said nothing happened with his complaint, he agreed that he had been advised the outcome of the investigation in late 2013. Mr Pena said he has had limited interaction with Mr Karzi since 2013.

[68] Mr Pena said that Mr Karzi regularly expressed views on politics and religion in the workplace including stating that one day the majority of the population would be Muslim and questioning why Australia was involved in the Middle East.

[69] Mr Kristian Dasik said Mr Karzi had made a number of statements to him in relation to orthodox religion, made pro-Russian and anti-American statements and said that there would be a big war coming soon. These were discussed in the meeting with Mr Hewlett although Mr Dasik indicated he was not bothered by them.

[70] Mr Sanjev Singh said Mr Karzi had said to him that Islam was the only religion and all others were incorrect. He advised Mr Hewlett that Mr Karzi was always discussing religion and politics. Mr Singh has had little or no interaction with Mr Karzi since mid-2014.

[71] Mr Theo Grampsas said he had overheard Mr Karzi say to other workers that Australia should not be in the Middle East and heard that he had asked another employee why he wanted to join the army and kill people in the Middle East although was not a direct witness to the conversation.

[72] Mr Tony Monda said that on many occasion Mr Karzi spoke to him of the war in the Middle East, religion and politics including that within fifty years Muslims would rule the world, comments with respect to the Lindt café and that he did not like how Australian women dressed. Mr Monda raised his concerns at what Mr Karzi said to him with Mr Hewlett. Mr Monda says that when he asked Mr Karzi to stop talking to him of such things Mr Karzi did stop but that he heard him speak to others of such matters. He also said that Mr Karzi walked behind his back hissing.

[73] Most of these witnesses gave evidence that they never raised issues with Mr Karzi with management because nothing was done when complaints were made.

[74] Mr Hewlett’s notes of the meetings he had with the witnesses indicate that some of them did mention that Mr Karzi spoke of matters in relation to religion and politics to his co-workers. Mr Hewlett’s notes of those meetings indicate direct complaints only from Mr Monda and Mr Pena which appear an accurate record of what the individuals said was happening in the workplace.

[75] Mr Hewlett was asked why nothing was done of the allegations raised in respect to Mr Karzi’s conduct during the investigation into Mr Johnpulle. Whilst initially Mr Hewlett said no-one else had witnessed the incidents, on reflection he said that a number of the matters had, in fact, not been raised with him and that, if they had been, he would have made note of them.

[76] On balance I am satisfied that some general matters were raised with Mr Hewlett (eg Mr Karzi spoke of religion and politics in the workplace) along with the specifics in relation to Mr P who had joined the army, Mr Monda’s complaint regarding hissing and Mr Pena’s gut feeling.

[77] Mr Hewlett gave evidence that he followed up with Mr P as to the comments said to have been made by Mr Karzi but Mr P did not consider this an issue. I am satisfied that Mr Hewlett did not follow up on the hissing matter. It is difficult to understand why Mr Hewlett would follow up on that one matter but not others where specific concerns had been raised. Even where matters were general in nature they did warrant some investigation into Mr Karzi’s conduct.

[78] As to the complaint that Mr Karzi’s conduct had not been raised earlier because management did not do anything about complaints, this is not borne out by the facts. The complaint of Mr Pena was investigated and it seems that Mr Monda’s issues were followed through at the time they were raised. Mr Hewlett also looked into the matter involving Mr P who joined the army and Mr Karzi’s complaint of 7 January 2015 was also investigated. The evidence suggests the opposite of what the witnesses said at least in relation to specific matters. When specifics were raised they were investigated.

[79] I am satisfied that the union delegates did speak to Mr Karzi in an attempt to resolve the complaint at the shop floor level (without involving HR). That talk was occurring in the workplace however is evident from what was observed by Mr Hewlett and Mr Robinson. To this extent the actions of the delegates suggests that they did know that matters would be investigated should they be formalised to Mr Hewlett, contrary to the statements made by witnesses that complaints are not investigated if they are raised with Mr Hewlett.

[80] I am satisfied that Mr Karzi did, at times, speak to his co-workers of religion and politics. I am satisfied however that when he was specifically asked to stop he did so. It seems to be however that some reinforcement of the policies that apply in the workplace would be warranted for all employees. Whilst Mr Karzi may not think he is offending others by his comments (innocuous as they may seem), references to religion and politics are matters more likely to offend or stir up passions (perhaps along with sport) in the workplace more.

Industrial action post dismissal

[81] There is evidence that, following the decision to dismiss Mr Johnpulle, members of the Transport Workers Union (TWU) took industrial action to protest the decision. Related to this an investigation was undertaken by Mr Greg Harrison (a previous Commissioner of the Fair Work Commission). I do not consider this matter or report relevant to the matter before me and have not had regard to either the action taken or the report except to say that it does support my finding that Mr Karzi did speak of religion and politics in the workplace.

Effect of dismissal on Mr Johnpulle

[82] The effect of his dismissal has been severe on Mr Johnpulle. He was the sole breadwinner for his family and has the care of his aging father.

[83] Mr Johnpulle is 58 years old and, whilst he has attempted to find work, at the time of hearing, had not secured any employment.

Both remained working together

[84] Immediately following the incident of 7 January 2015, after Mr Hewlett had spoken to both Mr Karzi and Mr Johnpulle, both employees returned to work and continued to work alongside each other and both remained at work during the investigation.

[85] That neither employee was stood down (in contrast to Mr Karzi having been stood down while the incident between him and Mr Pena was investigated) suggests that management did not see the incident to be so inflammatory that action should be taken to ensure their paths did not cross. It is further surprising that management took no action to protect Mr Karzi from what it says now was behaviour of the delegates to force him to withdraw or not proceed with his complaint.

Conclusion as to harsh, unjust or unreasonable

[86] Mr Johnpulle knew that language, of the type he used on 7 January 2015, was unacceptable. He had been told at least twice that he was not to speak that way to Mr Karzi and had, both times, agreed it would not happen again. The evidence and my findings indicate that it did happen again.

[87] Mr Johnpulle was aware of the standards of conduct in the workplace. He had disregard for these policies and, in doing so has caused a level of distress to a co-worker.

[88] That Mr Karzi may have engaged in inappropriate discussions at work does not excuse Mr Johnpulle or the seriousness of his action.

[89] My decision in this matter has been very carefully considered. The evidence suggests that there is either a lack of awareness by Mr Johnpulle of appropriate workplace conduct or a disdain of the need to treat others at work with respect and to be sensitive to cultural, religious and ethnic backgrounds. It seems to me that these are matters which require regular reinforcement in a diverse workforce. Just as Mr Johnpulle would be appalled if his co-workers made assumptions about his background, so he must understand that it is totally inappropriate to make assumptions about others.

[90] Cultural and ethnic awareness however are not things that happen by the writing of policies. It is through training and raising and discussion of issues that knowledge is gained, understanding is reached and tolerance found.

[91] I have very carefully considered Mr Karzi’s past conduct and the actions taken in respect to it.

[92] I have also carefully considered Mr Johnpulle’s past conduct and actions that have been taken in respect to it. It is my strong view that appropriate formal disciplinary action should have been taken against Mr Johnpulle in the past so that he was fully aware that his conduct, should it persist, would not be tolerated. But, by its actions, Toll has not provided such an indication. While its Code may be clear on what is tolerable, this is undermined if such behaviour continues to be tolerated by inaction or mild rebuke. Mr Fath should have reported Mr Johnpulle’s conduct to more senior management in November 2014.

[93] I have also carefully considered Mr Johnpulle’s service, his age and the impact of the decision to terminate his employment on him.

[94] In all of these circumstances and after careful consideration I am satisfied that the decision to terminate Mr Johnpulle’s employment was harsh for the personal consequences of it for him and because of the severity of the punishment when little has been done with respect to his past behaviours. Whilst I do not say that Toll condone the behaviour of Mr Johnpulle I consider that the decision to dismiss is severe given the absence of any earlier sanctions. In circumstances where the personal effect of the decision to terminate employment had not been so sever my decision may well have been different.

[95] Mr Johnpulle and those who have supported him in this matter should not feel vindicated by my decision. Conduct such of that displayed by Mr Johnpulle must be called out. Employees engaging in such conduct must be warned that the conduct is not acceptable and further conduct of that type may lead to dismissal.

Unfairly dismissed

Having reached the conclusion that Mr Johnpulle’s dismissal was harsh I therefore find that his dismissal was unfair.

Remedy

[96] Having found that Mr Johnpulle was unfairly dismissed I must now determine remedy.

Mr Johnpulle seeks reinstatement. Toll says that it has no confidence that Mr Johnpulle would not engage in the same misconduct should he be returned to the workplace.

The Act states:

(i) 391 Remedy—reinstatement etc.

Reinstatement

Order to maintain continuity

Order to restore lost pay

[97] Mr Hewlett, Mr Robinson and Mr Grant all gave evidence that they do not believe Mr Johnpulle should be returned to the workplace as each said he had lost trust and confidence in Mr Johnpulle to act in accordance with the required standards of employees of Toll.

[98] I have given Mr Grant’s evidence in respect to this matter little weight. He does not know Mr Johnpulle and has met him briefly once. His views are an apparent reflection of the views of Mr Hewlett and Mr Robinson although I accept that he takes any breach of Toll policies seriously. Had Mr Grant had greater hands on involvement in the process leading to Mr Johnpulle’s dismissal I might have given more weight to his views.

[99] I find the resort to a loss of trust and confidence as a statement as to why a dismissed employee should not be reinstated formulaic, as if a recitation of the phrase is evidence of it as a fact.

[100] There is no evidence that reinstatement would cause general disruption in the workplace. Mr Karzi was not so distraught or fearful of Mr Johnpulle following the incident that he could not return to work with him. Any claims he makes as to concern about Mr Johnpulle are diminished by his willingness to return to work with him straight away. I do note however that events following the termination of Mr Johnpulle’s employment where union members took industrial action may have had some impact on Mr Karzi.

[101] Mr Hewlett’s concern with Mr Johnpulle returning to work seems to relate to concerns it would create an environment of hostility. It is not evident, beyond some industrial action having been taken in the workplace in relation to the termination of Mr Johnpulle’s employment, what this hostility is. It does not appear grounds to refuse reinstatement

[102] Mr Robinson outlined in some more detail the concerns he would have with the reinstatement of Mr Johnpulle to his work team but agreed that there were other work areas in which he could be placed at the Erskineville site.

[103] Whilst I acknowledge the real concerns of Toll as to what message is sent if Mr Johnpulle is reinstated I do not believe this to be insurmountable.

[104] Consideration of whether to order for reinstatement requires a fine balancing act between the dictates of the Act (compensation should only be considered if it is deemed that reinstatement is not appropriate), the circumstances of the individual, the views of the business and some general assessment of the impact of reinstatement to the business and other employees. I have carefully considered each of these matters and have decided to order the reinstatement of Mr Johnpulle with Toll.

[105] In accordance with the requirements of the Act I shall order the Mr Johnpulle be reinstated by appointing him to another position in a different work area on terms and conditions no less favourable than those on which he was employed immediately before the dismissal.

[106] I shall also order that the continuity of his service and continuous service with Toll should be maintained.

[107] I am prepared to order that Mr Johnpulle should be paid an amount for remuneration lost since the time of his dismissal. I am not satisfied that this should reflect the entire period that he was without pay and shall reduce this amount by 3 months’ pay. In order to do so the parties should confer with a view to reaching agreement about any remuneration Mr Johnpulle has received through other employment wince the time of his dismissal.

[108] The parties are required to confer on as to what refresher training it may be necessary for Mr Johnpulle to undertake as part of a return to the workplace (given his extended absence) Toll should advise of the location/work area Mr Johnpulle will return to.

[109] I do not consider that Mr Johnpulle’s conduct should go without some sanction by Toll but this is a matter it must consider and not something I can properly order. Further, in ordering the reinstatement of Mr Johnpulle it is my recommendation that Toll ensure he is not placed to work in an area where he may come into contact with Mr Karzi.

[110] The parties may apply for a variation to the order should this be necessary to ensure it can be properly effected.

Seal of the Fair Work Commission with member's signtaure.

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 1   See B,C and D v Australian Postal Corporation T/A Australian Post [2013] FWCFB 6191; Nyrstar Hobart Pty Ltd v Cannan and Fuller [2015] FWCFB 888.

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