| [2016] FWC 5305 [Note: An appeal pursuant to s.604 (C2016/5140) was lodged against this decision - refer to Full Bench decision dated 21 October 2016 [[2016] FWCFB 7204] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Guillermo (William) Diaz
v
Anzpac Services (Australia) Pty Limited
(U2016/2078)
SENIOR DEPUTY PRESIDENT HAMBERGER |
SYDNEY, 10 AUGUST 2016 |
Application for relief from unfair dismissal.
[1] Guillermo (William) Diaz (the applicant) applied on 4 May 2016 for an unfair dismissal remedy in relation to the termination of his employment by Anzpac Services (Australia) Pty Limited (the respondent) on 13 April 2016.
[2] The application was heard on 3 and 4 August 2016. At the hearing, Mr Diaz was represented by Lucy Saunders (Legal Officer, Australian Manufacturing Workers’ Union) and the respondent by Charles Watson (General Manager, Workplace Relations and Legal Services, Printing Industries Association of Australia).
[3] The applicant gave evidence on his own behalf, together with Luis Alvial (AMWU Delegate). Evidence was given on behalf of the respondent by Lynne McKenzie (Human Resources Executive), Julie Murphy (Operator), Steven Arduin (Operations Manager), Maura Wisely (Human Resources Coordinator), and Lisa Borsey (Production Coordinator).
[4] On 13 April 2016, the applicant received a letter from Mr Arduin that included the following:
‘This letter confirms the termination of your employment issued to you today at the meeting held with you in the presence of Steve Arduin, Operations Manager, Lynne McKenzie, HR Executive and Luis Alvial as your support person.
During the meeting we discussed your repeated unacceptable behaviour involving harassment and bullying of peers in the workplace.
Having taken into account the seriousness of your behaviour, your response on this occasion, previous counsellings & warnings relating to your behaviour toward peers in the workplace and considering the facts, we advise that we are terminating your employment immediately.
The statutory notice period, as payment in lieu of notice, will be included in your termination payment.’
[5] The respondent is a printing company. It has been in operation for around 100 years and has traded as Anzpac Services (Australia) Pty Ltd since 1988.
[6] Mr Diaz is 55 years old. He came to Australia from Chile in 1991. He commenced working for the respondent the following year. At the time of his termination he was working as a gluing offsider, which included feeding, packing and stacking duties, and sometimes running the gluing machine when the operator was on leave.
[7] The incidents that proved the catalyst for the applicant’s dismissal took place on 30 and 31 March 2016. There is some conflict in the evidence of the applicant and Ms Murphy about these incidents. I found Ms Murphy to be a straightforward and credible witness. By contrast I found the applicant’s recall of events generally unreliable. I found much of the applicant’s evidence unconvincing. His oral evidence, in particular, was often in direct conflict with clear written evidence 1. In some cases, his replies during cross-examination were in conflict with his own written evidence.2 I also found evidence he gave about an injury to his finger, and his allegations that management tried to stop him seeking medical attention, not credible.3 I have generally therefore preferred the evidence of Ms Murphy (and more generally the respondent’s witnesses) over that of the applicant. I am satisfied, based on my assessment of the evidence, that the following events took place.
[8] On 30 March, Ms Murphy was operating the Alpina (a gluing machine designed to glue cartons into folded shapes). Mr Diaz was working as Ms Murphy’s offsider, feeding the machine. Ms Murphy started the machine at 30,000 units per hour and increased speed gradually to about 62,000 units per hour 4. Shortly after this, Mr Diaz started waving his arm and yelling at her. Ms Murphy stopped the machine and went to talk to Mr Diaz. Because of the noise and the distance involved, Mr Diaz had had to raise his voice to attract Ms Murphy’s attention.5 However he did not lower his voice when she went to talk to him. Instead Mr Diaz continued to yell at her:
‘Turn the machine down! You’re going too fast!’
[9] Mr Diaz was standing around a foot from Ms Murphy while he was saying this. He also waved his arms in Ms Murphy’s face. 6 They then had an argument about the speed of the machine.
[10] Following this altercation Ms Murphy reduced the speed to 55,000 units per hour.
[11] That night Mr Diaz’s hand was sore. 7
[12] The next day (31 March 2016) Ms Murphy was setting up the machine and went to the feeder end to talk to Mr Diaz. She asked him how he was and he yelled at her ‘Go away!’ and waved his arms at her. 8
[13] Later that morning Mr Arduin was having a discussion with John Sfikas (Production Shift Manager) and Ms Borsey near the Alpina machine. Mr Diaz began yelling at Mr Arduin and complaining that the machine was running too fast. Mr Arduin told Ms Murphy to maintain a speed where everyone was comfortable. 9
[14] Soon after that, Ms Borsey arranged for someone other than Mr Diaz to work as a feeder with Ms Murphy.
[15] At around 1:30pm that day, Mr Arduin had a disciplinary meeting with Mr Diaz. Mr Arduin made notes of the meeting, which he emailed to a number of managers. I consider that they are a generally accurate summary of the discussion. They state as follows:
‘I had a discussion with William in my office this afternoon 1.35-2.20pm regarding his behaviour this morning.
He says that after Julie said good morning to him and he replied with, “Please Julie do not speak to me”. After much discussion around this topic I believe he eventually understood that the company and I would not accept this behaviour and my expectation is that he speaks to other employees civilly and any work-related matters are discussed and worked on together as a team. He said that Julie asked him some questions today regarding work and he responded with the answers, no issue.
I also touched on some other topics as listed below.
In regards to his first aid report he said he will come to work tomorrow and go to the doctor after work. I said that if his arm is that sore he should go straight to the doctor today and not wait to get assessed. We will speak to him tomorrow if he does come into work and determine the best course of action from here.’ 10
[16] That day (31 March 2016) Ms Wisely interviewed Ms Murphy about the incident with Mr Diaz. Ms Murphy told Ms Wisely that she had ‘had enough’ and wanted to a make formal complaint, which she subsequently submitted on 4 April 2016. 11
[17] Ms Wisely conducted a number of interviews over the next few days.
[18] On 12 April 2016, Mr Arduin wrote a letter to the applicant, which included the following:
‘You are required to attend a meeting at 2 pm Wednesday, 13 April, 2016 in the Training Room to discuss reasons why the Company should not proceed to terminate your employment as a result of unacceptable behaviour on your part and for which you have received several previous warnings.
Matters for discussion include your bullying and harassment of fellow employees in the Operations departments including intimidation, insulting remarks, ignoring or excluding an individual/s & public criticism.
A Chapel representative will be present at the meeting and a Human Resources Department representative will also be present.
Please take this matter seriously as your employment is at risk.
Due to the serious nature of this matter you must refrain from engaging in any form of retribution against or victimisation of a person you believe has assisted the company in its enquiries over this matter or your employment will be terminated.’ 12
[19] Mr Arduin gave evidence, which I accept, that earlier that day he had met with Mr Diaz and told him:
‘…that a complaint was made against him in relation to his ongoing conduct and behaviour towards Ms Murphy which included the abusive incidents in late March and ignoring her in the workplace.’ 13
[20] Mr Arduin, who had worked with Mr Diaz for many years, gave the following evidence, which I accept:
‘In my experience with working with Mr Diaz, I have seen that he could become loud, confrontational and fiery as he would often raise his voice in a somewhat explosive manner. Such behaviour could happen almost anywhere in the workplace, whether it would be on the factory floor, in a manager’s office, in the corridors or even during a meeting...
In general, Mr Diaz worked with colleagues reasonably but if he did not agree with a particular view, he could become very loud and direct in his response, which at times created angst or developed into an argument.’ 14
[21] Mr Arduin gave evidence, which again I accept, that during the course of his employment there were many occasions where he had discussions with Mr Diaz concerning his confrontational manner which were not recorded in writing. 15
[22] I am also satisfied that Mr Diaz had been given several warnings in relation to his behaviour and conduct at work. I am satisfied that, at the very least, these included:
● A written warning in November 2002 for abusive behaviour towards another employee; 16
A written warning in November 2009 for confrontational behaviour, including the use of racist comments to another employee; 17
A written warning in June 2012 for behaving in an unacceptable manner by raising his voice, shouting and arguing with managers, crew leaders and peers. 20
[23] Mr Arduin’s contemporaneous notes concerning the applicant’s response to these warnings typically included comments along the following lines:
‘I explained that although he recognises it is only his normal behaviour others at Anzpac will not accept it and feel he is rude and intimidating when he speaks to people with a raised voice’ (June 2010); and
‘Spoke to William regarding raising his voice at Joe. I explained in front of Anne that this was the last time I would verbally warn him, any times in the future he would receive a written warning. He said that it’s just him, I said it was unacceptable and to fix it otherwise he will get a written warning (May 2012). 21
[24] Ms Wisely gave evidence about what might be seen as typical conduct by Mr Diaz.
‘[Around December 2014] I recall Mr Diaz became very angry when I called him into my office to tell him that his wages would be affected by the garnishee order.
He snatched the paperwork out of my hand and told me it was none of my business.
I recall I had to ask him to calm down and sit down while I explained that it had now become the company’s business and the company had legal obligations to act on it.’ 22
[25] I am satisfied that the applicant attended several training sessions about bullying, discrimination and harassment since 2002 as well as a one on one refresher training session in 2009 with Ms Wisely. 23
[26] The applicant met with Mr Arduin and Ms McKenzie on 13 April 2016. Mr Diaz was supported by Mr Alvial. I accept the version of the meeting set out in Ms McKenzie’s statement. In particular, I am satisfied Mr Arduin explained to Mr Diaz that the company had received a complaint from Ms Murphy about the applicant’s conduct towards her. The allegations were read directly from Ms Murphy’s statement and Mr Diaz responded to the allegations made. 24
[27] Mr Arduin and Ms McKenzie then took a break from the meeting and held a discussion with the General Manager, Mr Lowe. The decision was made to terminate the applicant’s employment with immediate effect. Mr Diaz was advised accordingly, and a payment in lieu of notice was processed the next day.
[28] In considering whether I am satisfied that a dismissal is harsh unjust or unreasonable I must take into account the criteria set out in s.387 of the Fair Work Act 2009. These are:
(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); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(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; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(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; and
(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; and
(h) any other matters that the FWC considers relevant.
[29] I will consider each of these criteria in turn.
[30] I am satisfied that the respondent had a valid reason for the applicant’s dismissal. There is no doubt that the applicant’s conduct towards Ms Murphy on 30 and 31 March 2016 was inappropriate. By itself it would not have justified the termination of the applicant’s employment. However this instance of misconduct must be seen in the context of the applicant’s long record of repeated inappropriate behaviour – most obviously getting angry and shouting at his colleagues when something did not go his own way. It is not good enough for the applicant to simply say that this is his nature. Moreover it is nonsense to suggest that it is just the case of the applicant having a loud voice. What happened on 30 (and to some extent the 31) March 2016 was just one occasion too many. The respondent was well within its rights to dismiss Mr Diaz.
[31] I am satisfied that Mr Diaz had been notified of the allegations against him. While the ‘show cause’ letter was cast in rather general terms, he was told by Mr Arduin that the meeting would primarily be about Ms Murphy’s complaint about his behaviour on 30 and 31 March. He had been told on many previous occasions about the respondent’s long standing concerns with his inappropriate behaviour.
[32] Mr Diaz was given the opportunity to respond to the allegations at the meeting on 13 April 2016.
[33] Mr Diaz had a support person at the meeting on 13 April 2016. I note that the applicant was not allowed to have the support person of his choice. I consider that in this case the respondent had a sound reason for its decision that Mr Alvial (who was the union delegate) should be the applicant’s support person.
[34] The dismissal related more to misconduct than poor performance. In any case the applicant had had several warnings about his unacceptable behaviour.
[35] The respondent is a medium sized business, with qualified human resources professionals. While its procedures were less than perfect, they were generally reasonable, given its size.
[36] I have had regard to the impact of the dismissal on the applicant’s personal circumstances. However this must be weighed against the applicant’s failure to remedy his own poor behaviour in the workplace – despite being given repeated opportunities to do so over a long period of time. I am sure that the consequences of his dismissal weigh heavily on the applicant. However they are the consequences of his own conduct, and he must take responsibility for them.
[37] The applicant’s representative pointed to a number of weaknesses in the respondent’s investigation. Some of these criticisms have merit. However they are largely irrelevant to the issue before me. I am satisfied, based on the evidence presented in the proceedings before the Commission, that the applicant engaged in the misconduct for which he was dismissed. I am also satisfied that the applicant was afforded procedural fairness, in that he was notified of the reason for his dismissal and was given an opportunity to respond.
[38] In conclusion, I find that Mr Diaz’s dismissal was not unfair and his application is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Ms L Saunders of the AMWU appeared for the applicant
Mr C Watson of the Printing Industries Association of Australia appeared for the respondent
Hearing details:
2016
Sydney
3 and 4 August
1 For example, see his reply at PN54
2 For example, he said, in response to a question from the Bench, at PN215-6 that he had not seen Ms Wisely’s statement, yet in the first paragraph of his statement in reply (Exhibit D2) he said he had read Ms Wisely’s statement.
3 See PN129 - 159
4 Exhibit A2 paragraphs 38-, PN?
5 PN784
6 Exhibit A1, paragraph 46, PN790-1
7 Exhibit D1, paragraph 40
8 Exhibit A2, paragraph 69
9 Exhibit A5, paragraphs 19-29
10 Exhibit A5, attachment SA3
11 Exhibit A3, paragraph 24
12 Exhibit D1, attachment WD-3
13 Exhibit A5, paragraph 46
14 Exhibit ,paragraphs 12, 14
15 Exhibit , paragraph 17
16 Exhibit A1, attachment LM1
17 Exhibit A1, attachment LM2
18 Exhibit A5, attachment SA1
19 Exhibit A5, attachment SA1
20 Exhibit A1, attachment LM3;
21 Exhibit A5, SA1
22 Exhibit A3, paragraphs 14-16
23 Exhibit A3, paragraphs 22-24
24 Exhibit A3, paragraphs 30-34
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