| [2016] FWC 8389 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Roger Iannella
v
Engie Fire Services Australia Pty Ltd T/A Engie Services
(U2016/10283)
COMMISSIONER HAMPTON |
ADELAIDE, 30 DECEMBER 2016 |
Application for relief from unfair dismissal – road related incident on the way home from work in company vehicle with fellow employee present – whether applicant’s conduct was misconduct warranting dismissal – valid reason found – procedurally fair – whether dismissal harsh – competing considerations – on balance not harsh, unjust or unreasonable – application dismissed.
1. Background and case outline
[1] Mr Iannella has made an application under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal by his former employer, Engie Fire Services Australia Pty Ltd T/A Engie Services (Engie).
[2] Mr Iannella commenced employment on a full time basis with Engie in April 2007 as Lead Annual Tester. Mr Iannella’s position involved conducting testing of fire prevention and fighting equipment. This required that he travel to various work locations, generally with another employee.
[3] As part of his employment, Mr Iannella was supplied with a company vehicle and mobile phone.
[4] On 22 July 2016 Mr Iannella was involved in an incident with another road user while driving the company vehicle on his way home from work. This involved both the exchange of remarks and gestures by Mr Iannella with the other road user and in due course Mr Iannella pulling up behind the other car where some further verbal exchanges and other conduct took place. Another employee, Mr Matthew Wensley, was also in the company vehicle at the time.
[5] On 29 July 2016, after an investigation, Engie advised Mr Iannella that he was to be dismissed on the basis of his conduct on 22 July 2016. At the request of Mr Iannella’s representative, he was then permitted to resign.
[6] Mr Iannella contends the dismissal was unfair on the following grounds:
[7] In substance, Mr Iannella contends that the dismissal was harsh and unjust in all of the circumstances. He seeks reinstatement to his former position.
[8] Engie contends that Mr Iannella’s dismissal was for a valid reason and not unfair on the following grounds:
[9] There is no dispute that Mr Iannella was protected from unfair dismissal within the meaning of s.382 of the FW Act and there is a valid application before the Commission. It is also common ground that the circumstances of Mr Iannella’s departure from the workplace represented a dismissal at the initiative of the employer as contemplated by s.386 of the FW Act.
2. The witness and other evidence
[10] Mr Iannella provided a witness statement and gave evidence in the matter.
[11] Engie relied on the witness statements and oral evidence of its following employees:
[12] Engie also provided video footage of part of the incident taken by the other road user on her mobile phone. Further, a recording of a telephone interview between management and Mr Wensley was provided and relied upon.
[13] Engie did not lead evidence from the other road user. Ms Rogers, who appeared for Mr Iannella, contended that I should draw a negative inference from the failure to call that evidence.
[14] Engie, which was represented by its HR Business Partner, Mr Biernat, informed the Commission that it deliberately did not directly involve the other road user in the investigation and did not disclose her details in that process or in these proceedings, given the circumstances and the desirability to protect the privacy of that person.
[15] It is open for the Commission, but not necessary, to draw a negative inference as claimed by Mr Iannella where there is an unexplained failure to call evidence.2 In this case, Engie held legitimate concerns about the privacy of the other road user however those concerns could have been dealt with in a variety of ways by the Commission. There might also be a number of circumstances that could make it unreasonable for a respondent employer to call evidence from a member of the public; however, there is no evidence as to whether Engie approached the other road user to give evidence.
[16] In all of the circumstances of this case, it is not necessary or appropriate to formally draw a negative inference from the absence of evidence from the other road user.3 There is a video recording of some of the events and direct evidence about the whole incident has been given by Mr Iannella and Mr Wensley. It does, however, remain the case that there is no evidence about the events from the perspective of the other road user and the employer is also not entitled to any inference in that regard, positive or otherwise, which is not supported by reliable direct evidence.
[17] I found important elements of Mr Iannella’s evidence to be unconvincing. Despite denying that he had at any time acted aggressively toward the other road user, he could not explain why he had stopped his vehicle so closely behind the other car and after he had initially alighted from his vehicle and approached the driver’s window of the other car, got back into his vehicle and then moved it even closer to the other car with the engine clearly revving. Further, I found that his explanation about why he turned into the street to follow the other road user, unconvincing at best.
[18] I found that Mr Wensley was an honest and careful witness and that his evidence was in general terms, reliable. Ms Rogers, for the applicant, contended that there were inconsistencies between his evidence to the Commission and the statement and interview he provided to the employer during the investigation. There are some differences in the version of events provided in the investigation and the evidence provided by Mr Wensley before the Commission. These include some of the detail of the conduct and the events, and whether the road where some of the events occurred was a normal route home or a reasonable means to go to a service station. When considered in context, it is clear that these are matters of degree and that Mr Wensley was in a difficult position when being interviewed by management, particularly in conjunction with Mr Iannella. Mr Wensley was also the subject of investigation and potential disciplinary action at the time of his interviews. In that regard, I note that the witness statement provided to the Commission also concentrates on the alleged behaviour of Mr Iannella whereas the earlier statements and interview provided a broader picture. These factors lead me to treat the evidence of Mr Wensley with a degree of caution, but not to discount the substance of his sworn evidence as given to the Commission.
3. The immediate events leading to the dismissal
[19] Mr Iannella has been employed by Engie since 2007 and has not been subject to any formal disciplinary action in that time. There is some evidence that Mr Iannella was informally counselled about some alleged poor driving in February 2016 and a complaint in March 2016 about his attitude to being searched at a military facility that he attended on behalf of the employer. However, these allegations were not properly investigated and no warnings were issued at the time.
[20] It is common ground that on 22 July 2016 Mr Iannella was driving a company 4WD Ute along Glynburn Road, in the east of Adelaide accompanied by Mr Wensley. They were driving home from work, with Mr Wensley to be dropped off on the way to Mr Iannella’s residence. Based upon the evidence that is before the Commission, I find that the sequence of events was then as follows:
● Mr Iannella was driving the vehicle on Glynburn Road at or around the speed limit of 60km per hour;
● At the point where he was travelling, Glynburn Road moves from a dual lane to single lane (one in each direction) at intersections and back again into a dual lane;
● It is likely that at some point, the other road user was travelling behind Mr Iannella’s vehicle. For whatever reason, the other road user followed closely behind Mr Iannella’s vehicle and at one point where a dual lane appeared, she drove up next to the passenger side of Mr Iannella’s vehicle and made a hand gesture to Mr Iannella (colloquially known as the bird);
● Mr Iannella put down the passenger window and yelled back at the other road user across Mr Wensley and both Mr Iannella and the other road user then exchanged gestures and heated words;
● Mr Iannella’s vehicle remained in front of the other road user when the road turned back into a single lane at the next intersection and shortly thereafter, the other road user passed Mr Iannella’s vehicle;
● The other road user then “brake-checked” (put on the brakes in front of Mr Iannella’s vehicle to slow down and annoy him but not to stop) a number of times;
● The other road user turned down a side street (Hectorville Road) and in due course pulled over; and
● Mr Iannella followed the other road user and parked his vehicle immediately behind her car with the engine still running.
[21] At various times, Mr Iannella contends that he followed the other road user for a number of reasons. These included that the other road user had gestured that Mr Iannella should follow her and pull over to discuss the events. Alternatively, he suggested that this side road was a normal way home or a short cut to get to a service station to fill the car with fuel and that he was not travelling out of their normal way.
[22] I find that whilst the side road may have been a potential short-cut to avoid congestion, the purpose behind Mr Iannella pulling the vehicle into the side street was that he was very annoyed with the other road user and wanted to confront her.
[23] The further sequence of events was as follows:
● Mr Iannella alighted from his vehicle and went to the driver’s side window of the other car. Mr Iannella aggressively approached the window and pointed at the other driver who was recording the events on her mobile phone;
● Mr Iannella then returned to his vehicle and pulled the 4WD up even closer to the other road user’s vehicle with the engine running and head lights on;
● Both drivers (and Mr Wensley) remained in their vehicles for a time and in due course the other driver got out of her vehicle and went to the footpath away from Mr Iannella’s door where she loudly informed Mr Iannella that she was on the phone to the Police;
● There was a discussion about going to the Police station; and
● Mr Iannella did not leave his vehicle again but he and the other road user exchanged heated words.
[24] It is evident to me that the other road user was a relatively young female driver and that although she was mainly responsible for the initial events and was acting stalwartly when confronted, the conduct of Mr Iannella in following her, coming to her window and then aggressively moving his vehicle up even closer behind her car in the manner in which that was done would reasonably be understood to be intimidating and aggressive. In particular, the act of aggressively moving the 4WD Ute up even closer behind the other vehicle following the original “discussion” was very belligerent.
[25] In due course, Mr Iannella drove off, where he went to a local Police station and reported the events after going to the service station and dropping off Mr Wensley.
[26] On 22 July 2016, Engie received an email complaint with the video footage from the other road user making allegations about the conduct of an employee, later identified as Mr Iannella. The complaint alleged, in effect, that she had been the victim of a road rage incident, had been followed after the earlier on-road exchange and then sworn at and intimidated by the employee.
[27] Engie initially interviewed both Mr Iannella and Mr Wensley together. At the first interview, Mr Iannella acknowledged that he had made a mistake in getting out of the car. Both Mr Iannella and Mr Wensley were suspended with pay at that point. During the suspension, both employees were later separately interviewed and Engie also spoke to the other road user. The other road user apparently alleged that she had pulled over after the 4WD followed her into the side road in order to prevent the other vehicle from following her to her nearby home. The truth of this statement cannot be verified for reasons outlined earlier in this decision.
[28] Engie provided the following basis for the suspension of Mr Iannella and the allegations:
“… …
On Friday 22nd July 2016, an email was received detailing an alleged incident that had occurred between the email sender and a person identified as an employee of Spectrum by the branded jumper being worn. Accompany the email, was a video showing the employee involved which after viewing we have identified as being you.
In her email, the complainant alleges whilst driving home at approximately 3:15pm she became aware that a vehicle was tailgating her. After changing lanes, the complainant alleges she was verbally abused before the driver of the vehicle came back into her lane and proceeded to tailgate her further. The complainant went on to describe a sequence of events that involved a further insulting verbal exchange after both parties pulled over to the side of the road. It was at this point the complainant commenced filming the events from within her vehicle. The video clearly shows you standing at the driver’s car window pointing at the driver before walking back to your car.
Employee’s business conduct on behalf of the Company must be guided by the ethical principles as set forth in policies and guidelines. In the context of the Company Respectful Workplace Behaviour Policy and the Ethics Guidelines, your alleged actions if substantiated would constitute a breach of both the policy and guidelines.
Due to the seriousness of this allegation, the decision has been made that you will be suspended from your duties of I & T Technician with immediate effect and whilst this investigation is ongoing.
Roger, you are required to respond to this letter of allegation in writing and attend a follow up meeting in person with Gray Rowe and Trevor Knuckey at 7.30am on 28th July 2016 at the Company offices in Salisbury where we will discuss your response to the allegation of misconduct. You are invited to bring a support person of your choice to this meeting. Please note that the role of the support person is that of a silent support, not as a participant to answer or ask questions on your behalf.
The allegation contained in this letter is serious and, if substantiated, may result in disciplinary action, including the termination of your employment. Please be aware that no conclusions have been reached at this time as to the truth or otherwise of this allegation.” 4
[29] During a meeting on 28 July 2016, Mr Iannella provided a written response to the allegations. The response included the contention that the other road user had initiated the incident and that he had been brake-checked. The response then stated:
“… …
The driver continued driving ahead of me, holding up a phone in her left hand while driving in an attempt to photograph or video my vehicle. Both vehicles then turned right onto Hectorville Road at which point the driver of the other vehicle pointed to the side of the road as if indicating for me to pull over, which I did. Once we had both come to a stop, the other driver immediately undid her seat belt which gave me the impression she was about to get out of her vehicle, so I undid my seat belt and got out of my vehicle. The other driver remained in the vehicle with her window closed, holding her phone up while mouthing something which was indecipherable to me. I asked her why she had brake checked me and why she had driven in that manner and I told her that I did not authorise her photographing me. At this point, I returned to my vehicle and was about to leave when she alighted from her car and made a phone call. I got back out of my vehicle and repeated my previous question, to which her response was "get back in your car, let's go to the police station" to which I agreed. She then noticed the writing on my jumper and said "Ahh Spectrum Fire, now you're stuffed."
I returned to my vehicle, as did she, in order to accompany her to the Police Station. I waited a number of minutes to allow her to drive away first, which she did not. I proceeded to drive away, anticipating she would follow me to the closest police station, which she did not. I proceeded to the Police Station myself to report the incident believing I should report such dangerous behaviour and outline my version of events for the record. The Police issued me a claim number and asked me if I would like to take the matter any further.
It appears, according to the information outlined in your letter that the other driver has provided a very different version of the events that occurred, however my passenger, Matthew Wensley is a witness to what really occurred. I would also like to state that the use of her video footage was unauthorised and in no way clarifies the traffic infringement she is claiming occurred.
I would also like to make it known that during my employment of more than 9 years working for Spectrum Fire, I have on a number of occasions, offered and provided assistance to other motorists who have been stranded. However, I am unaware of whether these chivalrous acts have been reported to the company.
I pride myself on being a good citizen and have been able to obtain secret clearance, which has significantly benefited Spectrum Fire as I am able to access Defence work sites without escort. I am an upstanding member of my community and can provide character references to support this if required. I am extremely concerned that the potentially damaging, unsubstantiated allegations being made against me are false and defamatory and believe that further investigation, including interviewing of the witness to these events, is essential to ensure the correct version of events is made clear.” 5
[30] After consideration of the response, Engie determined that subject to any additional information that might be disclosed by Mr Iannella, he would be dismissed. I will further deal with the implications of the investigation process as part of my assessment of the statutory considerations.
[31] At a further meeting conducted on 29 July 2016, Mr Iannella was advised of the outcomes of the investigation and then that he was to be terminated. Mr Iannella apologised for his behaviour and admitted that it was the wrong thing to do. He was issued with a termination letter at that point. Following discussions with his support person (an official from the CEPU), Mr Iannella sought the opportunity to resign, which was accepted. The resignation was then confirmed in writing and the cessation of the employment relationship was treated as a resignation for the purposes of long service leave, Centrelink and all other purposes.
[32] Mr Wensley was given a written warning about his failure to report the incident. I note that Mr Wensley has subsequently become the Lead Annual Tester, however whether this was a promotion in any real sense is unclear on the evidence. Although only inferred on behalf of Mr Iannella, I have considered and found that there is no basis for any inference that this change in role has had an impact upon the evidence given in this matter.
4. Was Mr Iannella’s dismissal unfair within the meaning of the FW Act?
[33] Section 385 of the FW Act provides as follows:
“385 What is an unfair dismissal
(1) A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[34] Mr Iannella was dismissed, the employer is not a small business within the meaning of the FW Act, and the concept of a genuine redundancy is not relevant here.
[35] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or unreasonable.
[36] The FW Act relevantly provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(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 is 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.”
[37] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be treated as a matter of significance in the decision making process and weighed up accordingly.
[38] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.
[39] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.6
[40] The failure to follow a lawful instruction or comply with policy which was reasonable in the circumstances may provide an employer with a valid reason to terminate an employee’s employment.7 It is however, clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason.8 Equally, facts justifying dismissal, which existed at the time of the termination, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.9
[41] In Woolworths Limited (t/as Safeway) v Cameron Brown10 a Full Bench of the AIRC, after considering the principles in Selvachandran v Peteron Plastics Pty Ltd and the approach of the AIRC in Atfield v Jupiters Limited t/a Conrad Jupiters Gold Coast,11 considered when a failure to abide by a policy of an employer would amount to a valid reason for termination of employment and when it would not:
“In summary, a breach of an employer’s policy involving or amounting to a failure to obey a lawful and reasonable direction of the employer sufficient to justify dismissal at common law will amount to a valid reason for termination of employment within the meaning of s.170CG(3)(a) in the sense of a reason that is “sound, defensible or well-founded.” A failure to comply with a direction to do or refrain from doing something in compliance with an employer’s policy will not provide a valid reason for termination of employment where:
(a) the policy, or a direction to comply with the policy, is illegal;
(b) the policy does not relate to the subject matter of the employment or matters affecting the work of the employee; or
(b) the policy, or a direction to comply with the policy, is unreasonable.”12
[42] In Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd,13 Deegan C determined that:
“Not every breach of a policy will provide a valid reason for termination of employment. However in circumstances where the policy is both lawful and reasonable and an employer has stressed the importance of the particular policy to the business and made it clear to employees that any breach is likely to result in termination of employment, then an employee who knowingly breaches that policy will have difficulty making out an argument that there is no valid reason for the termination.” 14
[43] Although also dealing with considerations beyond the existence of a valid reason, in Bostik (Australia) Pty Ltd v Gorgevski (No 1) 15 the Court observed:
“Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.” 16
[44] Engie has promulgated policies in the workplace concerning “ethics” and these include the “prevention and punishment of bullying and harassment”. 17 More particularly, the employer has implemented policies concerning respectful workplace behaviour and workplace bullying, and general WHS and reporting obligations, and these are sufficiently broad to include intimidating conduct in relation to non-employees provided there is a sufficient connection with the workplace. I consider that these polices are reasonable and it is also clear that Mr Iannella has been inducted in relation to these policies.18
[45] The conduct of Mr Iannella took place outside of what might be considered to be normal working hours. That is, on the way home from work. In Kedwell v Coal & Allied Mining Services Pty Limited T/A Mount Thorley Operations/Warkworth Mining, 19 Saunders C conveniently summarised the approach of the Commission to out of hours conduct in the following terms:
“[102] It is only in exceptional circumstances that an employer has a right to extend any supervision over the private activities of employees.
[103] The out of hours conduct must have a relevant connection to the employment relationship in order to be a valid reason for dismissal. In ascertaining whether a relevant connection is established, the following matters should be considered:
(a) Whether the conduct, viewed objectively, is likely to cause serious damage to the relationship between the employee and employer;
(b) Whether the conduct damages the employer’s interests; or
(c) Whether the conduct is incompatible with the employee’s duty as an employee.” 20 (endnotes omitted)
[46] In this case, I am satisfied that there is a relevant and sufficient connection between the “out of working hours” conduct and the employment relationship for the conduct to be considered in the present context. That conduct took place whilst a company vehicle was being driven, the vehicle was badged with company details, Mr Iannella was accompanied by another employee and both were wearing shirts with a company logo linked to Engie. 21
[47] I consider that the conduct of Mr Iannella was contrary to reasonable policy and instructions and was misconduct. Although there may have been some provocation, his conduct became intimidating and completely unacceptable. The decision to stop behind the other road user’s vehicle, to get out and confront her, and in particular, the action of getting back into his 4WD Ute and then moving it even closer to the other vehicle whilst loudly revving the 4WD was deliberate and threatening. The absence of any real recognition of the nature of conduct or contrition about the event compounds the seriousness of that misconduct. In that regard, it is evident to me, having seen and heard Mr Iannella give evidence, that he regrets getting out of his vehicle on the day in question and apologised after the dismissal, but still does not recognise the aggressive and inappropriate conduct associated with these events.
[48] I find that there was a valid reason for Mr Iannella’s dismissal.
[49] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken. 22
[50] The evident purpose of this consideration is that notification of the valid reason to terminate must be given to the employee before the decision to terminate the employee is made and the notification needs to be in explicit and clear terms.
[51] I consider that the process of putting the broad allegations to Mr Iannella in the first interview, and providing the more detailed written allegations on 27 July 2016, mean that he was notified of the relevant reasons as contemplated by this consideration.
[52] The relevant reasons are those arising from the valid reasons found by the Commission. This consideration is therefore directly related to the above discussion.
[53] This process contemplated by the FW Act does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly. The question becomes whether Mr Iannella was aware of the nature of the employer’s concern about his conduct and had a full opportunity to respond to these concerns. 23
[54] Mr Iannella relies on the fact that the detail of the alleged verbal comments was not put to him. Whilst this may be correct, the substance of the alleged conduct and the broader context were put to him in a manner that permitted a full and frank response to be provided.
[55] Mr Iannella was accompanied by a support person during the discussions leading to the decision to terminate his employment.
[56] This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work. 24
[57] This consideration does not arise in this matter.
[58] I will deal with these considerations together. Engie is a large business and has dedicated Human Resources expertise.
Section 387(h) - other matters considered to be relevant
[59] Amongst other considerations, the Commission should consider the impact of the dismissal upon the applicant given all of the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct found by the Commission. 25
[60] Further, a dismissal may, depending upon the overall circumstances, be considered to be harsh on the applicant employee due to the economic and personal consequences resulting from being dismissed. 26
[61] There are competing considerations in this regard. These include the nature of the conduct, including its relative seriousness, the context in which it took place and what I find to be the absence of any recognition that the conduct was completely inappropriate. As outlined earlier, I have found that Mr Iannella accepted during the investigation process and before the Commission that he should not have exited from his car. This was appropriate, however he had no explanation for the remainder of his conduct or any genuine recognition that what had occurred was objectively an attempt to intimidate the other road user.
[62] On the other hand, Mr Iannella’s good record prior to this point and length of service must also be considered. Further, Mr Iannella has lost that employment with all of the consequential monetary and associated social benefits.
[63] The termination was without notice or pay in lieu of notice. The notice of termination of employment provisions in s.117 of the FW Act, which also permit payment in lieu of notice of termination, would in accordance with s.123(1)(b) of the FW Act not apply if the conduct of the applicant could be described as being serious misconduct. This term is defined by Fair Work Regulations 2009, regulation 1.07 in the following terms:
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”
[64] I am satisfied that the misconduct was serious and whilst the absence of notice or payment in lieu of notice is a factor, it is not a decisive one in this case. In that regard, I note also that the dismissal was converted into a resignation for all purposes. Although it is not clear whether this had any actual benefit for Mr Iannella’s long service leave entitlements 27 it was intended to do so. More particularly, it was intended to soften the blow of the dismissal more generally and to reduce the legacy of that decision upon Mr Iannella’s future employment prospects. This is also a factor in assessing the personal impact of the dismissal upon him.
Conclusions on the dismissal
[65] I have weighed all of the factors and circumstances of this application.
[66] In Parmalat Food Products Pty Ltd v Mr Kasian Wililo,28 the Full Bench observed:
“[24] ... ... The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”
[67] I have found a valid reason for dismissal. There are no significant concerns about the procedure leading to the dismissal and there are competing considerations as to whether the dismissal was harsh.
[68] In determining matters in this jurisdiction, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in that position. 29 The Commission is also directed to ensure a “fair go all round”. This is reinforced by the objects of this Part of the FW Act in s.381 including ss.(2) which provides as follows:
“(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.”
[69] I am not without sympathy for the circumstances of Mr Iannella and I have taken into account the fact that this was a single act of misconduct after relatively long service. However, given the absence of any real recognition of his misconduct, combined with the actual conduct as found by the Commission and the other circumstances and statutory considerations, he is largely responsible for his own fate.
[70] On balance, having regard to the provisions of s.387 of the FW Act as applied to my findings in this case, I am not persuaded that Mr Iannella’s dismissal was harsh, unjust or unreasonable. The dismissal was not therefore unfair within the meaning of the FW Act.
[71] As a result, this application must be dismissed and an order 30 to that end is being issued in conjunction with this decision.
COMMISSIONER
Appearances:
J Rogers, of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, for Mr Iannella.
N Biernat on behalf of Engie Fire Services Australia Pty Ltd T/A Engie Services.
Hearing details:
2016.
Adelaide:
22 November.
1 At the time of the incident leading to this application.
2 Jones v Dunkel (1959) 101 CLR 298. See also The Herran Building Group Pty Ltd v Edward Anneveldt [2013] FWCFB 4744.
3 See Cross on Evidence, Fifth Edition at [1215].
4 Attachment 2.1 to Respondent Documents – Stand down letter to applicant dated 27 July 2016.
5 Attachment 2.2 to Respondent Documents – Response to stand down letter dated 27 July 2016.
6 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, at [36].
7 Cox v South Australian Meat Corporation [1995] IRCA 287 (13 June 1995) per von Doussa J.
8 See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 (17 March 2000) per Ross VP, Williams SDP, Hingley C; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 (11 May 2000) per Ross VP, Acton SDP and Cribb C, and Rode v Burwood Mitsubishi AIRCFB Print R4471 (11 May 1999) per Ross VP, Polites SDP, Foggo C.
9 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 (8 October 2002), per Ross VP, Hamilton DP, Eames C, at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.
10 PR963023 (26 September 2005) (footnotes omitted).
11 PR928970 (19 March 2003) at [14].
12 PR963023 (26 September 2005) at [34]. See also B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 at [48], [65] and [67].
13 [2009] AIRC 893 (16 October 2009).
14 Ibid at [54].
15 (1992) 41 IR 452 per Sheppard and Heerey JJ.
16 Ibid at p 460.
17 Attachment 5.1 to Respondent Documents Ethics Charter.
18 Attachment 5.5, 5.7, 5.8, 5.9, and 5.11 to Respondent Documents – Respectful Workplace Behaviour Policy, Cardinal Safety Rules Policy Statement, Toolbox Meeting Minutes of 18 December 2015, Staff and Sub Contractor Annual Induction Record for 2016/2017 and Code of Business Conduct.
19 [2016] FWC 6018, citing Applicant v Respondent (1999) 89 IR 407 at 416 and Rose v Telstra Corporation Ltd AIRC Print Q9292 (4 December 1998) per Ross VP.
20 Kedwell v Coal & Allied Mining Services Pty Limited T/A Mount Thorley Operations/Warkworth Mining [2016] FWC 6018.
21 See also Linfox Australia Pty Ltd v Stutsel [2012] FWAFB 7097 at [25] and Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157.
22 See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.
23 RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].
24 See Anetta v Ansett Australia Ltd (2000) 98 IR 233.
25 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.
26 See also Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.
27 The long service leave scheme applicable to Mr Iannella was apparently the Construction Industry Long Service Leave Act 1987 (SA). Dismissal for misconduct may impact upon industry service and accumulated entitlements in some cases (s.14(3)(b)) however it is not clear whether this would have applied in the case of Mr Iannella.
29 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685]; Miller v University of New South Wales (2003) 132 FCR 147 at [13].
Printed by authority of the Commonwealth Government Printer
<Price code C, PR587799>