| [2017] FWC 4914 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Manuel Maciel
v
Lynch Admin Services Pty Ltd T/A Lynch Group
(U2017/4835)
COMMISSIONER CAMBRIDGE |
SYDNEY, 28 SEPTEMBER 2017 |
Unfair dismissal - serious misconduct - primary factual findings proven upon requisite standard - valid reason for dismissal - application dismissed.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 4 May 2017. The application was made by Manuel Franco Sebastiao Maciel (the applicant) and the respondent employer is Lynch Admin Services Pty Ltd T/A Lynch Group (the employer).
[2] The application indicated that the date that the applicant’s dismissal took effect was 28 April 2017. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.
[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 16 August 2017.
[4] The Commission granted permission under s. 596 of the Act, for the Parties to be represented by lawyers or paid agents. Although the applicant initially indicated an intention to engage lawyers, he represented himself at the Hearing, and he was assisted by a Portuguese language interpreter. The applicant was one of three witnesses who provided evidence in support of the unfair dismissal claim.
[5] The employer was represented by Ms P Thew, barrister, who was instructed by Ms M Remedios, solicitor, from the firm of Dentons Australia. Ms Thew called four witnesses who provided evidence on behalf of the employer. Ms Thew also introduced evidence in the form of two witness statements made by individuals who were not required to attend as witnesses for cross-examination.
[6] There were some unfortunate difficulties which arose from the evidence presented by the applicant in this instance. The applicant was unrepresented, and he was clearly inexperienced in matters involving the preparation and presentation of material upon which an unfair dismissal claim would be determined. In addition, the applicant had some limitations with English proficiency, and he generally appeared to prefer to communicate both verbally and in writing, in the Portuguese language. Consequently, much of the material relied upon by the applicant has had to be translated from Portuguese to English, and there has been a need to examine this translated material with considerable care in order to ensure that no inaccuracy has emerged as a result of the language translation.
[7] Further, the applicant adopted an approach whereby he did not seek to challenge much of the evidence that was introduced by the employer. In this instance there were two incidents involving the alleged misconduct of the applicant which were central to the determination of the unfair dismissal claim. The employer provided witness statements from four individuals each of whom had made serious allegations against the applicant. The applicant decided not to challenge the evidence contained in the witness statements of these individuals. The applicant appeared to fail to grasp that the Commission would generally be required to accept unchallenged evidence involving directly contested facts. In these circumstances, the Commission has required that the employer call the individuals who had made the allegations against the applicant as witnesses, so that the Commission could question the four individuals, and test their evidence about the incidents of the alleged misconduct.
[8] The applicant had worked for the employer for more than 25 years. The applicant was, until recent times, a valued employee who had been promoted from a labourer to a supervisor during his extensive period of service. At the time of dismissal, the applicant was engaged in a position described as Warehouse Supervisor for Receiving. The work of the applicant primarily involved supervision of all the daily activities associated with the receiving section of the employer’s warehouse, including the daily supervision of a team of approximately three full-time day shift workers, and one or two night shift workers as well as some casual employees.
[9] The employer operates a business as the largest wholesale floral supplier in the southern hemisphere. This business supplies cut flowers and other potted floral products to various supermarket chains across Australia. The employer directly engages over 500 employees, and in addition, it has a number of labour hire workers engaged via third-party labour hire companies. The employer has business operations in New South Wales, Queensland, Victoria and Western Australia, and relevantly, the applicant was engaged at the employer’s warehouse premises located in the Sydney suburb of Moorebank.
[10] The employment record of the applicant was generally commendable. However, in 2011 and 2015 he was the subject of complaints made by other employees. These complaints were primarily directed at the applicant’s alleged unnecessarily robust manner of issuing instructions and directions to subservient employees.
[11] In September 2016, the employer developed concerns about the applicant’s workplace behaviour and conduct. These concerns were documented and the applicant participated in a series of meetings aimed to address certain conduct and performance concerns. The applicant was not placed on a formal performance management plan as the employer was informed that he was suffering from anxiety related symptoms, and in those circumstances the employer decided to informally manage the performance and conduct issues that had arisen in respect of the applicant.
[12] On Friday, 24 March 2017, two employees advised the Warehouse Manager of an incident that had allegedly occurred earlier that day. These two employees alleged that the applicant had unzipped his pants, removed his penis, and shaken or waived his penis at them. The employees said that they were shocked at this event, and the Warehouse Manager advised them that they needed to make an incident report about what had happened.
[13] On Thursday, 30 March 2017, two other employees advised the Warehouse Manager that on the afternoon of the previous day, Wednesday, 29 March, the applicant had been involved in an incident whereby he had allegedly unzipped his pants, taken out his penis, and shaken it or waived it in the direction of one of the employees.
[14] At this time, 30 March, the employer was presented with allegations made against the applicant by four employees and which involved two separate but apparently similar incidents, one on 24 March and the other on 29 March. The Warehouse Manager required all four employees to make individual written reports about the incidents that they had allegedly witnessed. Consequently, on 30 March 2017 the two employees who had allegedly witnessed the incident on 24 March, prepared individual documentary reports about that event, and the other two employees who had allegedly witnessed the incident of 29 March, also provided the employer with individual documentary reports about the incident that had allegedly occurred on the previous day, 29 March.
[15] In view of the allegations that had been made against the applicant by four employees, the employer immediately suspended the applicant from work with pay whilst it conducted an investigation into the allegations. Subsequently, the employer provided the applicant with written confirmation of the allegations regarding the incidents of 24 and 29 March and he was invited to provide a written response. Further, the applicant participated in a process whereby he attended meetings with his support person and at one such meeting he was provided with an opportunity to view the CCTV footage of the 29 March incident. The applicant subsequently provided both oral and documentary responses to the allegations of serious misconduct which had been made against him.
[16] Following the investigation and a show cause process, the employer concluded that the applicant had engaged in serious misconduct as described in the allegations that had been made about the incidents of 24 and 29 March. In particular, the employer rejected the responses and explanations that had been offered by the applicant particularly in respect to his activity as displayed in the CCTV footage of the 29 March incident.
[17] The employer provided the applicant with a letter of dismissal dated 28 April 2017, which inter alia, confirmed that the allegations made against the applicant in respect to the incidents of 24 and 29 March had been substantiated. The employer further advised that it believed that the established misconduct of the applicant provided basis for summary termination of employment. However, the employer decided to terminate the applicant’s employment and provide payment for five weeks in lieu of notice.
[18] Since the dismissal, the applicant had apparently not made any attempts to find alternative employment as he has experienced ongoing mental health problems.
[19] The written material that was provided by the applicant included a number of submissions. The applicant also provided some brief oral submissions during the Hearing.
[20] The applicant submitted that his dismissal was unfair because he was innocent of the allegations used by the employer as the basis for his dismissal. The applicant submitted that he solemnly declared that on neither of the occasions (24 and 29 March), did he expose any private parts of his body to any other worker.
[21] The submissions made by the applicant also challenged that the CCTV footage of the 29 March incident, in any way substantiated the allegations made against him. The applicant submitted that the CCTV footage disproved the false allegations that had been made against him. The applicant said that he had not indecently exposed himself to other work colleagues, and that the allegations made against him were a sordid attempt to sully his reputation.
[22] The applicant submitted that the allegations had been made against him by someone who was seeking to obtain the applicant’s job. The applicant said that one of those that made allegations against him was lying, and that he had never opened his pants or anything like that.
[23] The submissions made by the applicant maintained that he was innocent of the calumnious allegations which had been made against him, and which had caused him distress and aggravated his present medical condition, which he said, was well known to the employer. The application document indicated that the applicant was seeking reinstatement as remedy for his alleged unfair dismissal.
[24] Ms Thew who appeared for the employer, relied upon written submissions which had been filed. Ms Thew made supplementary oral submissions during the Hearing.
[25] The submissions made on behalf of the employer acknowledged that in cases involving serious misconduct there was an evidentiary onus that the employer needed to discharge. Further, the submissions made by the employer recognised that in cases of serious misconduct an elevated standard of proof was required in accordance with the principles that were established in the Briginshaw 1 case.
[26] Having regard for these relevant principles, the employer submitted that it had correctly established the serious misconduct of the applicant which involved him exposing his penis to four different employees during the two separate incidents on 24 and 29 March 2017. The employer further submitted that the nature of the applicant’s misconduct represented serious misconduct as contemplated by the Fair Work Regulation 1.07. The employer submitted that this serious misconduct provided valid reason for the dismissal of the applicant.
[27] The submissions made by Ms Thew challenged the credibility of the applicant and asserted that the respondent’s witnesses gave believable evidence in a genuine and frank manner. Ms Thew submitted that the applicant’s assertion that allegations were made against him by employees who had an axe to grind against him, or were endeavouring to obtain his position, was simply not borne out by the evidence.
[28] Ms Thew submitted that three of the four employees who had made the allegations against the applicant were already in supervisory positions, and they had absolutely nothing to benefit as a result of the applicant being dismissed. Ms Thew acknowledged that one of the complainants was ultimately appointed to the position that the applicant had held, but this only occurred after a different employee had been offered the position and declined it.
[29] The submissions made by Ms Thew reiterated the challenge made to the credibility of the applicant particularly on the basis of the inconsistent explanations that he had provided for his actions which could be clearly seen on the CCTV footage. In this regard, Ms Thew submitted that the applicant’s explanations were not plausible. Ms Thew mentioned that at one point the applicant suggested that the actions that he made on the CCTV footage involved him walking with a gait or a limp, and that this was mistaken for him exposing himself. Subsequently, Ms Thew submitted that the applicant had acknowledged that he was making a rude gesture by thrusting his pelvis in and out. This was an inconsistency which Ms Thew said discredited the applicant.
[30] In summary, the submissions made by the employer denied that the applicant had been unfairly dismissed. The employer submitted that the applicant had been dismissed for valid reason involving serious misconduct. Further, the applicant had been notified of the reason for dismissal, he had been given an opportunity to respond, there had been no unreasonable refusal for him to have the assistance of a support person, and that on no other basis was the dismissal harsh, unjust or unreasonable. The employer submitted that the application for unfair dismissal remedy should be dismissed.
[31] The unfair dismissal provisions of the Act include s. 385 which stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:
“(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.”
[32] In this case, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable.
[33] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria 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.”
[34] In this instance, the reason for the dismissal of the applicant involved the employer’s findings of serious misconduct in respect to the applicant’s indecent exposure during the two incidents on 24 and 29 March 2017. These two incidents had been the subject of complaints raised by four employees.
[35] If, upon analysis, the allegations of serious misconduct which involved the applicant’s indecent exposure in the workplace were verified to the requisite standard of proof, the unfair dismissal claim would be unlikely to succeed. Confirmation of the employer’s findings that the applicant had engaged in the indecent exposure incidents, as alleged by the four complainants, would provide proper, sound, defensible, valid reason for dismissal. The particular nature of that sound, valid reason for dismissal would be unlikely to be altered or disturbed by any other conceivable issue.
[36] As mentioned earlier in this Decision, this matter has suffered from some inadequacies and difficulties in the evidentiary case that was presented by the applicant. These difficulties have included language translation issues which have required evidence to be closely examined so as to ensure that no misinterpretation has arisen because of potential language and/or cultural differences. Notwithstanding the particular evidentiary and language difficulties, the question as to whether the applicant was involved in the serious misconduct as alleged has required careful examination.
[37] The applicant bluntly and steadfastly denied that he had indecently exposed himself at work at any time, specifically including the two incidents of reported complaints, 24 and 29 March 2017. The employer investigated the allegations made by the four employees about the two incidents of 24 and 29 March, it examined CCTV footage of the 29 March incident, it provided the applicant with opportunities to give any explanations or other responses, and it then found that the allegations were substantiated, and that the applicant had engaged in the conduct as was alleged.
[38] Consequently, the determination of this case has involved a requirement to resolve a fundamental factual contest about the conduct of the applicant as alleged by the four employees, and subsequently substantiated by the findings of the employer. The factual contest has involved serious misconduct with some level of potential, attendant criminality. However, the matter must be determined on the balance of probabilities, the civil standard of proof as it is described, and not the criminal standard, which requires proof beyond any reasonable doubt. It is well established by cases such as Briginshaw, that the civil standard of proof should be elevated commensurate with the seriousness of the conduct under examination. However, such elevation of the civil standard does not translate into the criminal standard, and a matter remains to be determined on the balance of probabilities albeit that in more serious cases, a more exacting or stringent satisfaction would be required.
[39] The determination of the factual conflict that is central to this matter has been assisted by detailed and repeated examination of the CCTV footage of the 29 March incident. However, the CCTV footage has not provided conclusive evidence of the alleged indecent exposure event. The angle and distance of the location of the camera that provided the CCTV footage has meant that there was no clearly visible exposure of the applicant’s penis as was alleged by the two witnesses to the 29 March incident.
[40] The CCTV footage shows the applicant reaching with his hands to the area of his crotch, and then he clearly arches his back as he moves his hips with a forward thrusting motion. Initially, the applicant described this particular activity as an action that he did in response to something said to him by another employee (Matthew). The applicant described the action as; “… a gesture, maybe rude but absolutely not obscene. I did not show any part of my body.” 2 Subsequently, the applicant introduced an alternative explanation for this action when he suggested that the CCTV footage of his thrusting movements was “…consistent with the fact that I walk with a gait since 2009…”3
[41] The proposition that the thrusting action of the applicant, as clearly visible in the CCTV footage, was something that was connected with a limp or gait is plainly unbelievable from any contemplation of the CCTV footage. During cross-examination of the applicant which involved a number of reviews of the CCTV footage, combined with a language translation clarification for the word “gait”, the applicant stated; “I have always walked the same way.” 4
[42] The reason for the very unusual inconsistency in the applicant’s evidence about the thrusting motion being connected with a gait which was, with the benefit of the CCTV footage, both unbelievable and subsequently disavowed by the applicant himself, may be the result of an attempt to overcome more fundamental problems with the applicant’s explanation for why he was making a rude gesture in the first place.
[43] At an early stage of the employer’s investigation into the complaints made by the four employees, the applicant provided a documentary response which was written in Portuguese and translated into English. The English translation document included the following:
“The following day I saw the buyer smoking in the dock. I stopped and said to him that he should not be smoking there because it was dangerous and against the company’s instructions. He shouted at me: -‘piss off, you’re on drugs.’
I then reacted with a gesture, maybe rude but absolutely not obscene. I did not show any part of my body.” 5
[44] The accuracy of this particular part of the translated document was confirmed during the Hearing. The witness statement of the applicant also included the following:
“On 29/03/2017, I caught Matthew smoking in the loading dock. I told him that he should not smoke there because it was dangerous and against the Company’s regulations. Matthew went into a frenzy and shouted – ‘you f… off….you on drugs!’”
[45] The evidence provided by the applicant sought to justify his rude gesture as an action that was taken in response to insults that were directed at him from the particular employee who the applicant had admonished for smoking in the loading dock area. Unfortunately for the applicant, the CCTV footage has operated to soundly discredit the applicant’s evidence about his rude gesture occurring in retaliation for an acrimonious exchange with the other employee arising from that employee smoking.
[46] Firstly, the CCTV footage shows that the other employee (Matthew), who the applicant said he had caught smoking, had walked to the dock area and operated the opening of the roller door only five seconds before the applicant is observed to make the thrusting movement. Therefore, the CCTV footage discloses that there was simply insufficient time between when Matthew reached the roller door to exit to the dock area, and when the applicant made his rude gesture for there to have been any discovery of Matthew smoking, and then an exchange involving the two individuals before the retaliatory rude gesture of the applicant.
[47] For the applicant’s version of the event to have been substantiated, the CCTV footage would have had to provide for a sufficient period of time for the applicant to have admonished the smoking employee and then retaliate after that employee had made the insulting remarks. The period of five seconds is plainly insufficient time to provide for; firstly, the employee to light his cigarette, secondly the applicant to admonish him about smoking contrary to company requirements, thirdly, for the employee to then direct the insult to the applicant, and then finally for the applicant to retaliate by making the rude gesture involving his thrusting movement.
[48] The fallacy of this particular aspect of the applicant’s evidence was further exposed when in final submissions the applicant stated that: “Matthew is lying. He was at the door. He was about to smoke.” 6 [emphasis added]. It may well have been true that the other employee (Matthew) was about to light up a cigarette, but it was clear that he had not done so, nor had there been some verbal exchange between the two men before the applicant’s rude gesture. Consequently, there are various aspects of the applicant’s evidence which are inconsistent, incongruous, and generally unbelievable.
[49] In contrast, the evidence provided by the four employee complainants particularly when tested by the Commission, was genuine, frank, openly provided, and readily believable. There was no evidence to support the applicant’s assertion that any one of the four complainants was improperly motivated to bring the allegations against the applicant. On balance and weight of evidence, unfortunately, I am unable to accept that the applicant was a witness of credit. Further, the evidence provided by the four employee complainants has been accepted to be accurate and truthful.
[50] Consequently, the findings of serious misconduct made by the employer against the applicant have been carefully and objectively analysed, and must be supported as representing valid reason for the dismissal of the applicant. The particular findings of serious misconduct made by the employer in respect to the applicant’s indecent exposure in the workplace, have been verified, and represent valid reason for the summary dismissal of the applicant. Notwithstanding that the serious misconduct of the applicant would justify his summary dismissal, the employer decided to invoke a dismissal with notice.
[51] The employer provided written notification of the reason for the applicant's dismissal.
[52] The applicant was given various opportunities to respond to the allegations of serious misconduct made against him by the four employee complainants. The employer conducted a fair, thorough and balanced investigation into the serious allegations made against the applicant. Further, the employer implemented a measured and careful show cause process which enabled the applicant to make out a defence or offer an explanation in respect to the allegations of serious misconduct.
[53] The employer did not unreasonably refuse or otherwise avoid the presence of a support person to assist the applicant. The applicant attended various meetings together with his support person, Mr Freitas.
[54] This factor is not relevant to the circumstances in this instance as the applicant was not dismissed for unsatisfactory performance but instead, serious misconduct.
[55] The employer is a reasonably large size business operation, and it adopted relevant and commendable procedures to deal with both the investigation of the allegations made against the applicant, and the show cause process that lead to the final determination involving dismissal.
[56] There was evidence that the employer did have management specialists or other expertise and this factor has not been relevant in this instance.
[57] The confirmation of the particular nature of the misconduct which has provided valid reason for the dismissal of the applicant has involved findings of unpleasant, disturbing and troubling conduct. Perhaps, at the risk of being unrealistically benevolent, it should be recognised that there was evidence that the applicant had been obtaining the care and assistance of a psychiatrist. Consequently, mental health issues may provide some explanation but not justification, for the particular misconduct of the applicant.
[58] The applicant was dismissed for serious misconduct involving the employer’s finding that he had engaged in two incidents which involved indecent exposure in the workplace. Upon careful analysis, the employer’s findings of serious misconduct have been confirmed.
[59] In view of the particular nature of the serious misconduct which has been established in this instance, that misconduct has provided valid reason for the summary dismissal of the applicant. Although the employer recognised that summary dismissal was open to it, dismissal with notice was invoked.
[60] In conclusion the dismissal of the applicant was not harsh, unjust or unreasonable. Accordingly, the applicant’s claim for unfair dismissal remedy must be dismissed, and an Order dismissing the application shall be issued.
COMMISSIONER
Appearances:
Mr M Maciel appeared unrepresented.
Ms P Thew of Counsel, together with Ms M Remedios, from Dentons Australia appeared for the employer.
Hearing details:
2017.
Sydney:
August, 16.
1 This is reference to the case of Briginshaw v Briginshaw (1938) 60 CLR 336.
2 Exhibit 1 – Appendix “B”.
3 Exhibit 1 – Appendix “C”.
4 Transcript @ PN393.
5 Exhibit 1 – Appendix “B”.
6 Transcript PN952.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR596249>