[2016] FWC 4140 Please find attached re-filed Decision in [2016] FWC 4140, which was originally filed on 1 July 2016. The re-filed Decision has been amended to redact the names of key parties and to correct a number of grammatical and syntactical errors in the initially published decision. Please discard your original and replace with the attached.

Sarah McBean

Relief Associate to Senior Deputy President Richards

12 July 2016

[2016] FWC 4140
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr R and Mr Y
v
Toll Holdings Ltd T/A Toll Group
(U2016/5384; U2016/5380)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 1 JULY 2016

Application for relief from unfair dismissal - two applicants – exclusionary conduct – difficulties assigning weight to so-called mitigating factors – dismissals elementally have harsh consequences- empathetic projections not basis for mitigation

[1] This decision concerns applications for unfair dismissal remedy under section 394 of the Fair Work Act 2009 (“the Act”) by Mr R and Mr Y.
[2] Each claims to have been unfairly dismissed by Toll Holdings Limited T/A Toll group (“the employer”) on 8 March 2016. Each of the employers were employed as Dockhands and Drivers for the employer under the terms of the Road Transport And Distribution Award 2010 (“the Award”) and the Toll Group – TWU Enterprise Agreement 2013 – 2017 (“the Agreement”). Each had been employed for the following periods of service:

[3] The circumstances leading up to the dismissal are largely common to both of the applicants, and involve the alleged conduct of Messrs R and Y in relation to a fellow employee and Dockhand, Mr A (name redacted). Mr A maintained that over a period of time he was subjected to harassment – type behaviour on the part of Mr R and Mr Y, amongst others. There was one principal incident that stood out in relation to this alleged course of conduct.
[4] Mr A claimed, that on a rainy Friday night during or around April 2015, he was sitting on the side door of the van which he had just finished unloading when Mr R and Mr Y along with other co-workers approached him. Mr Y and Mr R were said to have pushed him back into the van by pushing on his shoulders and above his stomach. This meant that he fell back into the van onto some bank bags. It is then alleged that one of the co-workers then said words to the effect that:

[5] Mr A claimed that following a brief period in which the applicants conveyed the impression to him that they were about to initiate a sexual assault, and were restraining him for that purpose, Mr A was released, or else struggled so that he was released.
[6] According to Mr A, the conduct of Mr R and Mr Y had been preceded by a lengthy period of time, over the course of which both persons, had humiliated and belittled him.
[7] When he first commenced with Toll some three years prior, Mr R and Mr Y were said to have ridiculed him for interacting with particular individuals.
[8] Mr A also exhibited sensitivity to being touched by males as a consequence of childhood abuse experiences which resulted in a psychological injury, so he claimed. Mr A had explained his situation, so he said, to others in his workplace including Mr R and Mr Y (although both deny that Mr A ever disclosed this issue to them).
[9] Mr A claimed that Mr R and Mr Y would nonetheless come up to him in the “smoko” room at various times and would rub his shoulder or put their arms around him and ask him laughingly, “How are you doing darling?” and “How you going love?” I make further reference to these matters below.
[10] Mr A also became aware that his co-workers were referring to him “FONC,” which an acronym for the term, “Friend of No C*nt.” This is a term which appears to have entered the lexicon in 2012, at least according to the Urban Dictionary.
[11] Mr A claimed that such conduct caused him significant distress and he discussed this with his wife, Mrs A. Mrs A gave evidence that her husband had indeed raised these issues with her over the course of 2015 when he had complained that various individuals including persons by the name of “R” and “Y” were touching him. Mrs A also gave evidence that in the first quarter of 2015, Mr A had reported to her that he had been assailed in his van whilst at work in the manner I have set out above.
[12] Mr A claims that at times he attempted to ignore the comments made to him by person such as Mr R and Mr Y. But even his refusal to react to their comments was met with comments such as, “Awww he is starting to like it,” and “… He is coming around.”
[13] At that time, Mr A claimed that his attempts to ignore the comments were not long-lived and he eventually demonstrated anger and started to push their hands away from him and spoke in aggressive terms to his tormentors, which included Mr R and Mr Y.
[14] In February 2015, Mr A claimed that he attempted to improve his relationship with Mr R by giving him a lift to the Sunshine Coast with his family one weekend.
[15] Mr A explained that Mr R had concluded the conversation with him by saying that, “If I don’t always talk to you, don’t feel bad, cause I don’t want them to think I am befriending you.”
[16] Shortly after, Mr A claimed to have confronted Mr R about his conduct towards him and claimed he was taking sides. This resulted in Mr R inviting Mr A to his house to discuss their apparent differences. No positive development appears to have resulted from that attempted rapprochement.
[17] Thereafter, it appears, according to Mr A, that, Mr R and Mr Y along with other co-workers continued to touch Mr A on his posterior as they passed him and made provocative statements to him such as, “How are you going sweetheart?”
[18] Mr A claimed that he now responded in angry terms but that the co-workers simply laughed. Mr A claimed further that there were some five occasions, to his recollection, on which the co-workers conducted themselves in this way.
[19] Mr A expressed his concerns to his wife in these regards (and Mrs A’s evidence so reflects). However, Mr A did not complain to his employer about his co-workers conduct at this stage as he was too embarrassed to do so and simply wished to be left alone. Mr A maintained this approach notwithstanding the van incident, as cited earlier.
[20] On 3 July 2015, Mr A claims that he eventually raised his concerns with the leading hand, Mr Trevor Ryan. As Mr Ryan was said to have been good friends with one of the relevant co-workers, Mr A anticipated that he might say something to the relevant co-worker which might cause the abuse to stop. Nothing apparently came of this and Mr Ryan informed Mr A that it might be best if he is left the issue alone.
[21] Mr A thereafter started to take time off from work. But even when he returned he was to discover that his co-workers were referring to him as a “FONC.”
[22] On 23 September 2016, it appears Mr A received a show cause letter in respect of his absences and his interactions with a supervisor. At this time he claims he became suicidal and contacted the employee assistance provider at the time in a state of some distress. The employee assistance provider counselled Mr A, so he says, to make a formal complaint to his employer about the incidents which had been occurring at work.
[23] Mr A now proceeded (with the assistance of his wife) to make that complaint, which led to the dismissal applications before me.
[24] The employer conducted an investigation and found that the conduct as alleged by Mr A on the balance of probability occurred in the terms on which Mr A had asserted. The employer contended that the conduct on the part of Mr R and Mr Y was contrary to the employer’s Code of Practice (“the Code”) and the Toll Workplace Behaviours Policy (“the Workplace Behaviour Policy”), in which they had been trained. The Policy included such requirements as:

[25] The applicants each denied in the course of the investigation, carried out by the employer, that they had either intimidated Mr A in the manner indicated above or spoken to him in the intentionally humiliating terms. The employer contended that the applicants had been dishonest in the investigatory process.
[26] The applicants were each represented by their TWU representative or other nominated representative over the course of the interview and investigation processes.
[27] The applicants were required to provide a written response to the allegations put to them, by way of an effective ‘show cause’ process.
[28] Each of the applicants gave evidence that they were not involved in any conduct designed to humiliate or intimidate Mr A personally. They strenuously denied that they did restrain Mr A or conduct themselves in any way to give the impression, as Mr A had alleged, that a sexual assault might take place.
[29] As I have mentioned above, the employer concluded that the conduct as alleged did occur in each instance and terminated each of the employees in the following (edited) terms:

[30] As I have mentioned earlier, both Mr R and Mr Y denied strenuously any participation in the simulated assault on Mr A. Indeed, Mr Y claimed that he was unlikely to have been in attendance at work at the time as he was on holidays and did not return until 7 April 2015.
[31] It was claimed by the employer that Mr R had also been the subject of a disciplinary warning on 5 October 2011 owing to a harassment complaint. At that time Mr R was warned that:

[32] Mr R claimed that he had received no such written communication from his employer. I will return to Mr R’s evidence in relation to the actual circumstances of this matter further below.
Legislative Context

[33] For the purposes of determining whether a dismissal was harsh, unjust or unreasonable, it is necessary to take into account the prescribed matters set out at s.387 of the Act. These matters are as follows:

[34] My particular considerations are as follows:
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)

[35] A determination as to whether there was a valid reason for the dismissals in this particular case turns critically upon an evaluation of the respective credibility of the witnesses’ evidence.
[36] Mr A presented his evidence largely in a distressed and emotionally unstable manner, moving between moments exhibiting an overwhelming sense of disempowerment to an aggressive defence of his claims.
[37] It was claimed that Mr A was suffering from trauma as a consequence of his experience in the workplace, and that the trauma had affected his composure and his ability to recollect matters of detail. It was put to me, without the support of any professional medical or psychological evidence, that Mr A had been suicidal and had been or is, still on a course of medication. I add that Mr A himself gave evidence in this regard, and did so in distressed terms.
[38] I say this because Mr A’s evidence in relation to his claims lacked specificity. Mr A would no doubt be offended by such a description of his evidence. He complained over the course of his cross examination when called upon to provide particulars that he did not live through his experience to, in effect, record every detail and date of every incident. Indeed, it was Mr A’s claim that for the most part he did his very best to endure, to put the matters behind him and ignore the conduct, and not to file a complaint (which he considered would be personally embarrassing).
[39] Thus, the claims that were central to this matter - which concerned the event or incident in early April 2015 - only came to light upon Mr A making a complaint to his employer in late September 2015 (which followed Mr A’s behaviour itself coming into question by his employer in relation to his interactions with his own supervisor). It was at this time that he disclosed his experiences to an Employee Assistance Program (EAP) counsellor, in whom he also confided, he said, his suicidal feelings. It was his EAP counsellor who advised him to make a formal complaint, and he eventually did so by early October 2015, with the assistance of his wife.
[40] Mr A’s evidence was subject to a forceful examination. His evidence fell into question on such issues as to whether the date and day that he claimed the alleged assault took place were accurate. Mr A claimed the alleged assault took place on or around early April (possibly around Easter), and on a Friday when it was raining. Doubt was cast on this recollection due to Bureau of Meteorology Reports that indicated rain fell in early April on a date on which Mr Y had not been in attendance at work (having been absent for the period 16 March 2015 until 7 April 2015).
[41] There is very considerable and real uncertainty arising from the Bureau of Meteorology data as to the reliability of the reported data in relation to meteorological phenomenon at a particular location. The Bureau of Meteorology data is subject to caveats, and localised meteorological experiences may differ from recorded events. In the end, I am left with very considerable uncertainty as to the precise date on which the alleged incident took place.
[42] Mr A’s evidence also fell into question around whether or not he had given conflicting reconstructions of the incident in question by reference to competing claims as to whether the alleged assault took place through the side doors of the van or the back rear doors of the van. Mr A’s claim was reported by Mr Jack Porter, the Branch Manager for the employer at Brisbane airport, as having taken place whilst Mr A sat in the back door of an open work van. Mr A for his part claimed that the alleged assault took place in the side door way of the van.
[43] The evidence is irreconcilable. Though it is Mr A’s direct evidence that I have heard that is important.
[44] Clearly, the task of properly weighing the evidence requires a careful examination of both forensic detail and the credibility of the respective witnesses. It is also important to examine the manner in which the witnesses evidence cross-relates and forms coherent narratives. I make a number of findings on the basis of this approach.
[45] Having heard the witness evidence, I am persuaded that Mr A was indeed harassed and humiliated by his co-workers, including Mr R and Mr Y, over a period of time.
[46] In respect of Mr R, I have not given great weight to his evidence given over the course of these proceedings. I did not consider his evidence to have any persuasive value. My reasons for this are as follows:
[47] At the outset, Mr R denied any interaction of substance with Mr A. He claimed that he had “very limited contact with him,” and “very minimal interaction” and “bare minimum contact” (sic).
[48] Notwithstanding this, other evidence suggests that Mr A and Mr R were very likely to have interacted more frequently than Mr R indicated. Mr A conceded that he may have patted Mr A on the shoulder from time to time as a friendly gesture. This degree of familiarity struck me as being unusual in circumstances where Mr R claims to have had very minimal interaction and contact with Mr A. Equally, notwithstanding the alleged minimal interaction between the two parties, Mr R accepted an invitation from Mr A to drive up the coast with his (Mr A’s) family in order to take possession of a motor vehicle.
[49] Mr R claimed that Mr A offered him a lift because Mr A must have overheard a conversation between himself and another co-worker at some point in the “smoko” room. Mr R could not otherwise explain why Mr A made such an offer to him.
[50] By contrast, Mr A maintained that he invited Mr R to travel with him and his family as a social gesture to improve their relationship. This struck me as having a more naturalistic context and illuminated a deeper relationship than Mr R would admit. I am inclined to place more emphasis on this conclusion in the whole context of Mr R’s evidence, which I now set out.
[51] It also struck me as unusual that there would be an incident between Mr R and Mr A in which Mr A aggressively questioned Mr R’s workplace behaviours in relation to him. Mr R claimed that Mr A had without any context attacked him as a “f**king dog” for “taking sides.” Mr R claimed to have no understanding about what Mr A had been talking about and that Mr A’s comments held no context or meaning to him. However, under cross examination Mr R eventually conceded the exchange may have been about the manner in which Mr A was being treated in the workplace. Having heard the evidence, I formed the view that Mr R knew well what it was that Mr A was raising with him and was only revealing his understanding of the full circumstances in a limited manner and only upon questioning. Further, I consider it to be unusual for Mr A to have approached a person (Mr R) in respect of whom he has had only “minimal interaction” in such terms as he did. That is, Mr A approached Mr R in a manner that suggested they had some very considerable workplace interaction in the context of some wider group behaviours.
[52] Further, despite the “minimal interaction” Mr R also claimed to have had with Mr A, and despite initially claiming to not know what he was talking about in relation to Mr A’s accusations about him (in March 2015), Mr R nonetheless took the above matter sufficiently seriously to invite Mr A to his house to attempt a rapprochement (which failed to resolve their differences).
[53] This struck me again as being behaviour that was not compatible with Mr R’s description of his relationship with Mr A, or his alleged surprise and unawareness of the basis for Mr A’s asserted concerns. That is, the evidence led me again to conclude that Mr R and Mr A had a more complex relationship than Mr R had disclosed in his written and oral evidence.
[54] Further to this, Mr R claimed that he was aware of the term “FONC” which was used in the workplace in relation to Mr A. He seemed to claim after some initial ambiguity that he had never use the term himself but that he was aware about a half a dozen other people had used the term but he could not identify who any of those co-workers might be. This last claim seems unlikely, particularly because Mr Y gave evidence that he used the term in Mr R’s company.
[55] Mr Y, for his purposes, gave candid evidence that everyone in the workplace used the term “FONC” in relation to Mr A, including himself (Mr Y). Further, Mr Y contended that the employees in the workplace had been using the term for a number of years; 2-3 years in fact. This is the entirety of Mr A’s period of employment.
[56] Mr Y, for his part, made the point in distinction that he had never use the term directly to Mr A himself but had only used it in conversation with others. He gave an example of that use of the term “FONC” as being; “Is the FONC in tonight?”
[57] The term “FONC” was a term that was used for the express purpose of characterising Mr A in the eyes of the relevant workers. It was a term that would appear reasonable to have been used for the express purpose of isolating Mr A from his co-workers. I very much doubt it was a term used passively in the background and was not associated with other behaviours. On the balance of probability, it was conduct that was associated with the kind of behaviours of which Mr A complained.
[58] It defies reasonable probability that Mr R would have had such limited exposure as he asserted to the workplace use of the term “FONC.” It appears to me that Mr R would know like Mr Y that the term was in common use, and not by half a dozen, apparently unidentifiable persons.
[59] I find that Mr R has sought to conceal the true extent of his collaboration with others in relation to workplace behaviours intended to isolate and humiliate Mr A, and has not honestly disclosed the full extent of his interactions with Mr A.
[60] I add that Mr R displayed no remorse or contrition in relation to the conduct in the workplace and offered no critical reflection of any kind on its impact, actual or potential, on a vulnerable person. That is, Mr R demonstrated no sensitivity to the impact of group behaviours in a workplace, and no inclination to report any unfair conduct.
[61] Another aspect of Mr R’s evidence caused me concern.
[62] Mr R conceded that he was counselled in 2011 regarding a workplace incident. For reasons of internal changes, it appears that his employer has no detailed record of the nature of the incident other than a documentary record that Mr R was warned in relation to conduct which it considered to involve harassment. Mr R disagreed with the content of the documentary record and claimed that he never received any warning or was given any indication that his employment was in jeopardy because of his conduct.
[63] When asked about the nature of the incident Mr R disclosed that he had placed on a bulletin board a clipping from of a newspaper article in which a taxi driver had sexually assaulted an intoxicated female passenger.
[64] I enquired to Mr R the reason why he would place such a clipping on the notice board. Mr R explained that he did so because he wished to “make people aware of it.” When pressed as to why he would take such a step Mr R only repeated his stated motivation (“to make people aware of it”).
[65] Having heard his evidence, I was far from persuaded that Mr R was honestly disclosing the true nature of the incident or his true motivation. I doubt Mr R was performing a public service in putting such a clipping on the notice board. Again I was left unpersuaded that Mr R was disclosing the truth under examination.
[66] Mr R also claimed that he had only limited training or exposure to the employer’s Code or Policy documents. He claimed to have only partly completed some training in relation to the Code of Practice. Whilst he was familiar with the Workplace Behaviours Policy, he had only partly completed training in relation to that Policy as well. However, in relation to the Policy, Mr R had completed a signed off declaration indicating that he had read and understood the policy and agreed that there were procedures for clarifying any misunderstandings or questions in relation to that policy. I make some further comment about the content of the Workplace Behaviours Policy further below in relation to Mr Y’s evidence.
[67] On the whole, I considered Mr R’s evidence to lack persuasiveness as it struck me as being self-serving.
[68] Like Mr R, Mr Y claimed that he had very little interaction with Mr A. And like Mr R, Mr Y claimed that his physical interaction with Mr A extended only to tapping Mr A on the shoulder and asking him how he was going.
[69] As I have said earlier, Mr Y conceded that he knew of the existence of the term “FONC” in the workplace but denied ever using the name to Mr A.
[70] Under cross examination Mr Y conceded that he used the term in relation to Mr A but not directly to him in a personal context. Mr Y also explained that the term was used commonly by all employees in the workplace (in relation to Mr A) and had been so used over a period of some years.
[71] Mr Y contended that he had never heard of the Code of Practice and had “never been through that” document (even though it figured in his attachments and in the allegations to which he responded).
[72] Like Mr R, Mr Y had also completed the Workplace Behaviours Policy and Standards Q&A (on 24 April 2015). In doing so he had acknowledged that he had read, understood and agreed to be bound by the Workplace Behaviour Policy and understood that any questions about that Policy and the standards should be directed to his manager or a human resources representative.
[73] The Workplace Behaviour Policy also required Mr Y to declare that he understood that he is required to perform his role and conduct himself in a manner that is professional and appropriate all times in the workplace and that not complying with the Policy will result in disciplinary action, which may include termination.
[74] The Workplace Behaviour Policy included behavioural expectations such as not treating people differently and less favourably because of any particular attributes, and contributing to a safe and harmonious workplace where morale is high and work relationships are positive. Appreciating such policies does not require any high level of insight or comprehension. They are no more than common civil dictates.
[75] Like Mr R, Mr Y provided no critical reflection whatsoever in relation to the conduct in the workplace to which Mr A was exposed, and exhibited no remorse or contrition in relation to the workplace behaviours he had observed and in which he had participated. He revealed no awareness that such exclusionary behaviour should be reported to his supervisor.
[76] It appears to me on the balance of probability that Mr R and Mr Y both participated knowingly in a workplace culture which acted to discriminate against Mr A on the basis of his particular, explicit psychological vulnerabilities. Mr A was, in my view, the recipient of conduct which was intended to isolate him and cast him as a social misfit. In all likelihood, the course of conduct of this kind, when applied over time, will have a traumatising impact upon the affected individual – in this case Mr A. Mr A’s conduct in approaching Mr R and complaining that Mr R was participating in the group effort to isolate him must be set in this context.
[77] I say a little more about Mr R’s and Mr Y’s evidence further below.
[78] I have not only relied on my assessment of Mr R and Mr Y’s evidence in reaching my conclusions. My conclusions in relation to Mr Y and Mr R are buttressed by my view of the evidence given by Mr A and to the extent that it was corroborated by his wife Mrs A. I add at this juncture that Mrs A’s evidence was not challenged in any significant manner, nor was her role in giving evidence bought into question. In essence, it is not challenged that Mr A informed his wife of various incidents over time. Indeed having listened to Mrs A’s evidence I consider her to have been a candid observer of her husband’s behaviour and to be a person who was not disposed to distort the truth of her situation.
[79] I make this observation on the basis that Mrs A had ample opportunity to contrive her evidence so that her husband’s claims would be better made out, but she took no such steps. For example, having had the statement, of Mr Y, Mrs A could have easily crafted her responses to questions to place Mr Y at the scene of the alleged assault outside the dates of his leave. But she did not do so, and on questioning merely indicated to the best of her knowledge and recollection that Mr A had disclosed the incident to her in the first quarter of 2015. She added no further embellishment to her evidence, and showed no inclination to do so.
[80] Further to this, Mr A communicated contemporaneously with his wife as to his experiences in the workplace. I do not believe that Mr A maintained an elaborate and evolving fiction for such a lengthy period of time for the benefit of his relationship with his wife alone. This lends support to a finding that Mr A’s concerns were based on actual incidents.
[81] There were allegations that Mr A only raised his complaints about the applicants following having been the subject of a complaint about his own conduct in which it was claimed that the applicants were involved. But I find this difficult to accept. Mrs J’s evidence - which went broadly unchallenged - was that she was critical to instigating the complaint which led to the dismissal of the two applicants. That is to say, Mr A did not act to raise his complaint in quick reaction to the complaint raised about him. In any event, Mr A had made prior steps to approach his supervisor (Mr Ryan) to initiate a complaint and this had occurred well before the incident involving his supervisor (which culminated in the complaint made in October 2015).
[82] On the balance of probability, I consider Mr A’s evidence to have had a sound basis. This is particularly so in relation to the treatment that he received from his co-workers in referring to him as the FONC and ostracising him from their social interactions. I think also on the balance of probability that the co-workers, including Mr R and Mr Y, physically interacted in a manner with Mr A which caused him distress. It struck me as particularly unusual that both Mr R and Mr Y were at pains to indicate they had negligible interaction with Mr A, but nonetheless both claimed that they from time to time would physically interact with him on the same terms - by patting him on the shoulder as an expression of cordiality or friendliness.
[83] Their evidence on a critical point was too synchronised by far, and it struck me as highly unusual that two co-workers facing the same allegations would express similar – in fact near identical - tactile interactions in relation to a person with whom they claimed they had very minimal interaction.
[84] I have mentioned above that Mr A’s evidence about the incident in early April 2015 lacked specificity. But in the context of the evidence, I am unsurprised by this. Mr A, at the time, had no wish to expose the conduct which occurred and apart from mentioning the incident to his wife – which she recalled – the matter was suppressed or put aside.
[85] In such circumstances, the clarity of recall around the incident may be partial.
[86] That said, Mr R and Mr Y both deny the incident ever occurred, period, and if the incident was of such concern (as a possible sexual assault) it should have been reported to the Police. It was also observed that there is camera surveillance in the area, which would discourage such an assault.
[87] While I do not consider Mr A’s evidence about the incident to be without blemish (see below) on the balance of probability, however, I am satisfied that there was an incident in the broad terms as sketched in Mr A’s evidence, and that Mr R and Mr Y were participants therein.
[88] I consider the likelihood of Mr A firstly fabricating the incident and communicating it to his wife in the first quarter of 2015 and then resurrecting it in his October 2015 complaint (essentially to attack his two co-workers) to be most unlikely. I am not satisfied however the incident could be characterised as a “sexual assault.” If it had the intensity of a genuine assault I would see no reason why Mr A would not have reported the incident then and there, rather than wait several months until a latter incident served as a trigger for a complaint. It may be the case that the incident had a more light-hearted execution than an aggressive, simulated assault. But either way it was an unwelcome action, which was initiated only because Mr A presented as a vulnerable person in the workplace. It was also conduct that formed an element of the whole course of conduct to which Mr A was exposed.
[89] I am satisfied that Mr Y and Mr R both participated in a wider workplace culture which targeted a vulnerable employee and sought to cast him as a social isolate and misfit.
[90] Both Mr Y and Mr R ought reasonably to have appreciated that their conduct was counter-productive to their employer’s business objectives, and contributed to the creation of an unsafe workplace in so far as the conduct was personally, socially and psychologically damaging to Mr A.
[91] Thus the employer had a valid reason for the dismissal of Mr R and Mr Y.
Whether the person was notified of that reason

[92] Both Mr R and Mr Y were notified of the reasons for the employer’s concerns in relation to their behaviour through the show cause process instigated by the employer.
Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[93] Both Mr R and Mr Y were provided with opportunities to respond to their employers concerns through the show cause process. I do note that the lack of specificity in Mr A’s complaints may have caused some difficulty in responding to their employer’s concerns.
Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[94] There was no unreasonable refusal by the employer to allow either Mr Y or Mr R a support person to be present in the relevant discussions.
If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[95] The relevant considerations in these proceedings relate to conduct and not to the performance of each employee’s duties.
The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[96] Reasonably, no issue was raised in relation to the size of the employer’s enterprise and its impact upon the procedures effecting the dismissal.
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

[97] The employer raised no issue as to the absence of dedicated human resource management specialists. The employer was well resourced in this respect.
Any other matters that the FWC considers relevant

[98] Mr Y and Mr R are men in their 50s and have long work histories with the employer. As a matter of routine, the Commission has regard to the length of service and the age of the applicant (along with other matters such as the economic consequences of the dismissal) for the purposes of determining whether a dismissal, in all the circumstances, is harsh, unjust or unreasonable. The Full Bench in B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 (per Vice President Lawler, Senior Deputy President Hamberger and Commissioner Cribb) outlined the following approach;

[99] This approach seems to be premised on speculative considerations such as the prospect of the applicant obtaining further work, or other empathetic projections, relating to hypothetical social and familial consequences based on contrived typologies. It is not always evident what weight should be given to particular sets of circumstances. Empathetic overreactions should also be avoided to ensure the principle of a ‘fair go all around’ is applied to each case.  
[100] Further, while an experienced and older employee might prospectively encounter difficulties in re-employment following a dismissal, so might a younger employee. Indeed, it is important not to disregard the psychological and financial trauma brought about by a dismissal of a young person (who may find it difficult to obtain work again with little experience, a tarnished work history, unproven skills and a disrupted continuity of service).
[101] Generally, the difficulties arise in appropriately weighing mitigating factors, such as age and skills, as proxies for economic loss and negative social and personal outcomes, such as set out in the above quoted Full Bench decision.
[102] It must be appreciated, at the outset, that dismissals elementally are harsh in their consequences because they invariably cause economic loss and disruption at personal and social levels. A dismissal which has no harsh consequences for an employee constitutes an exception. It is unusual that as an ordinary outcome of a dismissal, “economic consequences,” is held to be a mitigating factor. Reasonably, mitigating factors should illuminate exceptional and not “the usual” consequences of a dismissal.
[103] Returning to the Full Bench guidance set out above, an issue of equity firstly arises: why should a young trade qualified person who has invested discretionary effort including time and money in acquiring a formally recognised skill be more exposed to a dismissal, or have a lesser case in mitigation, than an older person who has made no discretionary effort and acquired no such skills?
[104] Further, economic loss is difficult to quantify and for this reason each case turns on separate facts, which themselves can only be established by forensic examination of a person’s assets, investments, liabilities, access to other cash streams and other resources. The number of dependents would also need to be considered. Is an older worker with no dependents and with no mortgage worse off than a younger one with multiple dependents and a large mortgage? An extensive investigation would be required of each case before an informed judgment could be made as to the extent the circumstances had actual mitigating relevance.
[105] Similarly so, it is difficult to make broad judgments about a person’s position in the local labour market. A trade qualified coal mine worker who has been dismissed in Central Queensland may have limited local job prospects. In any given case, a local labour market specialist may be required to give professional or expert evidence to determine the appropriate weight (in mitigation) to be applied to a particular dismissed employee’s circumstances.
[106] In essence, the principle of applying a ‘fair go all round’ to an unfair dismissal application is undermined where weight is attached to a so called mitigating factor without regard to any factual situations derived from an investigative effort or detailed enquiry.
[107] That said, it was made clear in the proceedings that Mr Y and Mr R, both with long periods of service, have found it difficult to find new work following the dismissals, and there is a probability that those circumstances may persist into the future. The evidence for this is provided in the unchallenged claims by both Mr Y and Mr R who have made substantial efforts to seek re-employment to mitigate their losses but have so far been unsuccessful in their endeavours. Mr Y in particular has limited literacy skills, but this does not appear to have been an impediment to his career as a driver at Toll. Little more was put to me about their wider circumstances, however, I give weight to the applicants’ known circumstances in accordance with the Commission authorities in relation to mitigation, in respect of which I am not at liberty to depart.
[108] That all said, while the Commission will have regard to a range of factors, particularly for purposes of determining if a dismissal is harsh, such factors (as cited above) are not conclusive in their own right, or taken together. Such factors, must be balanced against the reason for the dismissal, including “[…] the gravity of the employee’s misconduct” Re Bostik (Australia) Pty Ltd v Dimitrja Gorgevski [1992] FCA 209 at [37].
[109] Both Mr R and Mr Y contended that they had not been fully conversant with their employers Code of Practice or Workplace Behaviours Policy. Both claimed that they had only been partly exposed to the content of those documents. Their employer did not cite any evidence to the contrary (such as evidence of a sign on document). Equally, however, Mr R and Mr Y both signed off on their understanding of the workplace behaviours policy, to which I have made reference above. Both seem to suggest that they may have done this as a convenience given that they had only been in part attendance at a discussion about the materials. But in the end, both Mr R and Mr Y have put their signatures to a set of circumstances which attest to their understanding and their obligations as employees.
[110] To this I add that there is nothing in the Workplace Behaviours Policy that might not constitute common sense in civil society. That is, it is ordinarily expected that when interacting with other workers in a workplace, an employee will act with some elemental civility, and contribute productively to a safe workplace.
[111] I add that the conduct towards Mr A appear to have taken place over some considerable period of time - 2 to 3 years on Mr Y’s evidence. That was the time period over which employees in the depot were referring to Mr A as a “FONC.” Mr A was exposed to a lengthy period of exclusionary conduct by his co-workers.

Conclusion

[112] On balance, and noting my findings in relation to a valid reason, I conclude that the dismissal was not harsh, unjust and unreasonable. While the case has presented novel circumstances requiring a particularly intense consideration of the witness’ evidence, I nonetheless am satisfied the conduct of Mr R and Mr Y warranted the sanction imposed by their employer, and the wider circumstances of the case did not support any strong arguments in mitigation.
[113] Because I have so found, the applications made by Mr Y and Mr R are dismissed.

Title: Seal of the Fair Work Commission with Member's signature. - Description: H:\eDocsforDMS\Untitled.jpg

SENIOR DEPUTY PRESIDENT

Appearances:

Ms de Lange for Toll Pty Ltd

Mr Norris of the TWU for Mr Y and Mr R

Hearing details:

Brisbane

Thursday 23 and Friday 24 June 2016

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