| [2018] FWC 3135 [Note: An appeal pursuant to s.604 (C2018/3440) was lodged against this decision - refer to Full Bench decision dated 22 June 2018 [[2018] FWCFB 5967] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Bernard Mwango
v
WesTrac Pty Ltd
(U2017/10323)
COMMISSIONER SAUNDERS |
NEWCASTLE, 1 JUNE 2018 |
Application for relief from unfair dismissal – aggressive conduct – valid reason for dismissal – procedural fairness afforded to the applicant – dismissal not harsh, unjust or unreasonable – application dismissed.
[1] Mr Bernard Mwango was dismissed from his employment as a Laboratory Technician with WesTrac Pty Ltd (WesTrac) on misconduct grounds following an incident that took place on 17 August 2017 involving another WesTrac Laboratory Technician, Mr Matthew Crotty. Mr David Lai, the supervisor for both Mr Mwango and Mr Crotty at the time, witnessed part of the incident.
[2] Pending an investigation into the incident, Mr Mwango was suspended from his employment with WesTrac on 21 August 2017. On 7 September 2017, Mr Mwango was dismissed and was paid four weeks’ wages in lieu of notice. Mr Mwango alleges that his dismissal was harsh, unjust and unreasonable. WesTrac denies those allegations.
[3] In an earlier decision I found, contrary to WesTrac’s contention, that Mr Mwango and WesTrac had not reached a binding settlement of Mr Mwango’s unfair dismissal claim. 1 As a result, Mr Mwango was entitled to continue to pursue his unfair dismissal application.
[4] I heard this matter in Newcastle on 15 and 16 March 2017. Mr Mwango gave evidence in support of his case. WesTrac adduced evidence in support of its case from Ms Alysha Fletcher, HR Advisor, Mr Rodney Mudford, Business Development Manager, Mr Brett Ward, Operations Support Manager, Mr David Lai, Laboratory Operations Supervisor, and Mr Matthew Crotty, Laboratory Technician.
Initial matters to be considered
[5] Section 396 of the Fair Work Act 2009 (Cth) (Act) sets out four matters which I am required to decide before I consider the merits of Mr Mwango’s application.
[6] There is no dispute between the parties and I am satisfied on the evidence that:
(a) Mr Mwango’s application was made within the period required in s.394(2) of the Act;
(b) Mr Mwango was a person protected from unfair dismissal;
(c) WesTrac was not a “small business employer” as defined in s.23 of the Act, so the Small Business Fair Dismissal Code does not apply to the dismissal; and
(d) Mr Mwango’s dismissal was not a case of genuine redundancy.
[7] It remains, therefore, for me to consider whether Mr Mwango’s dismissal was harsh, unjust or unreasonable. 2 Section 387 of the Act states:
“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 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.”
[8] In determining whether Mr Mwango’s dismissal was harsh, unjust or unreasonable, I will consider and take into account each of the matters specified in paragraphs (a) to (h) of s. 387 of the Act below.
Legal principles
[9] It is relevant to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 3 In order to be ‘valid’, the reason for the dismissal should be “sound, defensible and well founded”4 and should not be “capricious, fanciful, spiteful or prejudiced.”5
[10] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 6 In addressing s. 387(a) of the Act, the Commission must consider whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).7
[11] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.8 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 9
[12] In cases, such as the present, where allegations of serious misconduct are made, the standard of proof in relation to the alleged conduct remains the balance of probabilities but "the nature of the issue necessarily affects the process by which reasonable satisfaction is attained" 10 and such satisfaction "should not be produced by inexact proofs, indefinite testimony, or indirect inferences"11 or "by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion".12 Put another way, the application of the Briginshaw standard means that I should not lightly make a finding that an employee engaged in the misconduct alleged against him or her.13
Valid reasons contended for by WesTrac
[13] WesTrac contends that it had a valid reason to dismiss Mr Mwango because he breached WesTrac’s Code of Conduct (Code) and Personal Behaviour Procedure (Procedure), on 17 August 2017, by: 14
(a) failing to treat his colleague with dignity and respect when he verbally abused Mr Crotty;
(b) physically threatening Mr Crotty, when he used words to the effect of:
“You better be Caref’ [careful], I will repay back 100, 1000 time worse to you. I have been tolerating you for the past few months and I will give you what you deserve”.
(c) causing Mr Crotty to feel physically threatened.
[14] Mr Mwango denies that he engaged in the conduct alleged against him and denies that he breached his obligations under WesTrac’s policies and procedures.
[15] The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 15 as follows:
“[35]... as indicated by Northrop J in Selvachandran, "valid reason" is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a “valid reason” should not impose a severe barrier to the right of an employer to dismiss an employee.
[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”
WesTrac policies and procedures
[16] WesTrac has promulgated a number of policies and procedures including the Code and Procedure. I am satisfied on the evidence that Mr Mwango was aware of the Code and the Procedure and understood that he was required to comply with the policies and procedures of WesTrac. 16
[17] Clause 3.2 of the Code states: 17
“General Conduct
WesTrac is committed to:
• Creating and maintaining an environment for employees, contractors, clients and visitors which is professional, safe and free of any form of unlawful or inappropriate behaviour; and
• A high level of customer service, providing outstanding value to all our customers.
In all customer interaction and in all commercial and business dealings WesTrac upholds a high level of integrity and professionalism. WesTrac frequently complies with our client’s standards and procedures and conversely encourages its customers to adopt WesTrac’s standards where appropriate.
This commitment is to be achieved by all individuals embracing WesTrac’s Vision, Core Values and company policies and procedures. Individuals have an obligation to ensure their personal conduct and behaviour is at all times professional and lawful and does not reflect adversely on the reputation of WesTrac.”
[18] Clause 3.1 of the Procedure states: 18
“Acceptable/Unacceptable Behaviour
WesTrac’s core values include our commitment to safety and the well-being of our employees and customers. WesTrac is committed to maintaining a workplace that demonstrates positive behaviour in all employees to ensure that all employees are respected and valued as individuals. WesTrac believes that setting expectations for behaviour is important for the safety and protection of all employees and customers and the general well-being of employees in the work place.
Examples of behaviour that WesTrac believe is unacceptable include, but are not limited to the following:
• Threats, abuse, violence, intimidation or vandalism of any kind, whether physical or verbal;
• Practical jokes and horseplay;
• Employees who behave in ways that endanger any employee, customer or visitor to the Company;
• Employees who verbally or physically threaten, abuse or cause violence, show aggression or use excessive bad language;
• Destruction, vandalism or tampering with WesTrac facilities or the property of other employees or customers; and
• Theft of any kind. Please be aware that the manager is entitled, without prior warning, to inspect an employee’s locker/toolbox at any time in the presence of the employee and a witness.”
[19] Clause 3.2 of the Procedure continues as follows: 19
“Responding to Unacceptable Behaviour
Unacceptable personal behaviour has the potential to affect not only the Company but individuals within the Company. WesTrac believes that no individual is required to tolerate or accept poor personal behaviour of others that causes (or could cause) harm to them. Such action will be responded to by WesTrac. Poor personal behaviour (as outlined above) is viewed seriously at WesTrac and will be subject to a full investigation and may result in disciplinary action. Depending on the severity of the action, disciplinary action may include the termination of employment. Please be aware that provocation is not an excuse for breaching the standards of behaviour. It is recommended that if you are unsure about an incident or standards of behaviour in the workplace, you should speak with your Manager or Human Resources.”
Factual findings re 17 August 2017 incident
[20] On 17 August 2017, Mr Mwango and Mr Crotty were both rostered to work the afternoon shift in the SOS Laboratory at the Tomogo WesTrac site (Laboratory). 20 Mr Crotty commenced work at 12:00pm.
[21] At approximately 2:00pm, Mr Mwango walked into the Laboratory. Mr Crotty said to Mr Mwango that he was about to start working on coolant samples, to which Mr Mwango responded with words to the effect “I’m sorry mate, I wasn’t supposed to be here today.” Mr Mwango then sat down on a black swivel chair facing the Ion Chromatography (IC) computer and began to complete a ‘Take 5’, which is a safety related procedure at WesTrac.
[22] Mr Mwango had been attending training for two days prior to 17 August 2017 and had not worked in the Laboratory during that time.
[23] At approximately 2:30pm, Mr Crotty walked over to Mr Mwango who was still seated facing the Ion Chromatography (IC) computer. Mr Crotty stood to the right of Mr Mwango. Mr Crotty began to update Mr Mwango on what had occurred in the Laboratory during Mr Mwango’s absence. Mr Crotty told Mr Mwango that the Laboratory had received a nitrate standard, against which some initial results were tested, and a recalibration was performed to produce more acceptable results. In telling Mr Mwango this, there is no dispute that Mr Crotty said the word “shit”. 21
[24] According to Mr Crotty, he “specifically and purposefully” referred to the initial results as being “shit” as opposed to Mr Mwango personally or Mr Mwango’s work. 22
[25] Mr Crotty gave evidence that after he said the word “shit”, Mr Mwango became extremely angry and aggressive. 23 Mr Crotty gave evidence that Mr Mwango was shaking, his eyes were bulging and wide, and his voice changed dramatically.24 Mr Crotty gave evidence that the conversation continued in words to the following effect:25
Mr Mwango: “You are saying that everything I do here is shit.”
Mr Crotty: “I was referring to the nitrate result. This is not a personal attack on you.”
[26] Mr Crotty gave evidence that Mr Mwango then said “you better be Caref” in a raised and aggressive voice whilst shaking, bulging his eyes and pointing directly at him. 26 Mr Crotty alleges that he then asked Mr Mwango what he meant and Mr Mwango responded by repeating the words “you better be Caref”.27 Mr Crotty gave evidence that when Mwango said “you better be Caref” he understood the words to mean “you better be careful” and that he felt physically threatened because of Mr Mwango’s raised voice and body language.28
[27] Mr Crotty gave evidence that Mr Mwango then shouted words to the effect of “you can expect payback 150 percent” whilst shaking and gesturing towards him with an outstretched hand. 29 Mr Crotty gave evidence that at that point he formed the view that Mr Mwango was going to punch him, so he walked five or six metres away from Mr Mwango but remained in the Laboratory.30
[28] Mr Lai corroborated Mr Crotty’s evidence that Mr Mwango repeated the phrase “you better be Caref” in a raised voice. Mr Lai gave evidence that Mr Mwango also said words to the effect of “I will repay back 100, 1000 time worse to you. I have been tolerating you for the past few months and I will give you what you deserve” whilst pointing at Mr Crotty, shaking and clenching his fists. Mr Lai gave evidence that Mr Crotty then walked away from Mr Mwango but remained in the Laboratory. 31
[29] Mr Lai elaborated on his evidence during cross-examination: 32
“You’ll have to take it more slowly. I want it bit by bit. Tell me exactly where they were at different points of time. You walk into the lab, where are you? Are you standing in the doorway, are you inside the lab, where are you?---Just probably two or three meters away from them.
Are you inside the lab?---Inside the lab.
Where are they? Are they sitting down or are they standing?---From what I recollect they were standing, but this could be cloudy, it’s been so long.
I understand. I'm just asking for your best recollection. They’re both standing near the IC machine?---Yes and there was one chair in between them. They were able to get the - Matt was sitting down and trying to explain the results and then he said the shit word and then all the arguments started.
When they’re starting, has anyone moved, or do they still have Mr Crotty sitting?---No, Mr Crotty was not sitting, he was going pacing, trying to get work done in between. So, trying to go to the ICTU or some of our instruments to get things done. I was trying to explain to him, trying to find out what’s going on with the instrument. I was trying to find out what’s going on in the instrument. There was a lot of dialogue in between that I could not recollect, but the most thing that I recollect was the, you better be careful, bring you back one hundred, one thousand, back to you again. I remember Matt saying “You know, you take everything to heart and you don’t listen to what people say”. Then Bernard is trying to justify and I'm trying to tell Bernard, go listen to people and then he’s asking me, why. Give me examples, give me examples. So I try to give him some examples of times that he wasn’t listening to people…”
[30] Mr Mwango submits that Mr Crotty and Mr Lai colluded to fabricate their evidence in relation to the 17 August 2017 incident. 33
[31] According to Mr Mwango, Mr Crotty said the word “shit” in reference to results that Mr Mwango had previously prepared, as well as in reference to him personally. 34 Mr Mwango alleges that Mr Crotty repeatedly swore at him, shouted and banged his hands on a nearby bench. Mr Mwango gave evidence that he responded to Mr Crotty’s alleged conduct by saying “please just talk to me nicely and stop swearing”.35
[32] Mr Mwango denies that he was aggressive, 36 pointed at Mr Crotty37 or said “you better be Caref”.38 Mr Mwango cannot recall raising his voice.39
[33] Mr Mwango denies that he said that he would repay Mr Crotty back; 40 however, he admits that he said words to Mr Crotty to the following effect:
“Now the line has been crossed if you think that is the appropriate language we should be using at work then from today onwards I will be using the same language at him. But I will be stepping it up, if you give me 100% I will give you 110%, 120% more.”
[34] During cross-examination, Mr Mwango explained that when he said to Mr Crotty “I will be stepping it up. If you give 100 per cent I will give you 110” he meant: 41
“…if you swore at me like that, he said he was swearing at me, I will swear to him in a way that you’ll feel bad, you’ll feel worse”.
[35] Mr Mwango denies that Mr Crotty walked away from him after he said this. 42
[36] Having considered all of the documentary and oral evidence in relation to the 17 August 2017 incident, I prefer the evidence given by Mr Crotty as summarised in paragraphs [24] to [27] above for the following reasons:
• First, there is a high level of consistency between the initial statement Mr Crotty gave to WesTrac dated 17 March 2017, 43 his witness statement dated 26 February 2018 and filed in these proceedings and the oral evidence he gave at the hearing. Further, although Mr Crotty was shaken as a result of his interactions with Mr Mwango on 17 August 2017, Mr Crotty answered the questions put to him in cross examination by Mr Mwango in a direct and responsive manner and gave his oral evidence in a measured way;
(b) Secondly, Mr Crotty’s evidence (as summarised in paragraphs [24] to [27] above) is broadly consistent with evidence given by Mr Lai, who I accept witnessed much of the incident on 17 August 2017 (see paragraph [75]). For example, although Mr Lai’s account is that Mr Mwango said words to the effect of “I will repay back 100, 1000 time worse to you etc.” whilst pointing at Mr Crotty, shaking and clenching his fists (see paragraph [28] above), his account is still broadly consistent with Mr Crotty’s evidence that Mr Mwango said that he could expect “payback” in a raised voice whilst aggressively gesturing towards him. Further examples of the broadly consistent evidence of Mr Crotty and Mr Lai include (i) Mr Crotty describing the calibration results as being “shit”, 44 (ii) Mr Mwango saying “you better be Caref” in a raised voice,45 and (iii) Mr Mwango behaving in an aggressive and threatening manner.46 In my opinion, the minor inconsistencies between the evidence given by Mr Crotty and Mr Lai are not a reflection of their credibility as witnesses and are explicable as a result of the passing of time since the incident on 17 August 2017. Although I accept Mr Lai gave credible evidence to the best of his recollection, his recollection of the 17 August 2017 incident was not as clear as Mr Crotty’s recollection. Indeed, during cross-examination, Mr Lai admitted that his recollection was “cloudy”(see paragraph [29] above), which is understanding given the passage of time since the incident and the fact that, unlike Mr Crotty, Mr Lai was not on the receiving end of the aggressive and threatening behaviour on 17 August 2017. Therefore, I prefer the evidence given by Mr Crotty as summarised in paragraphs [24] to [27] above to that given by Mr Lai;
(c) Thirdly, I do not accept Mr Mwango’s contention that Mr Crotty and Mr Lai colluded in the preparation of their evidence. I accept as credible the denials by Mr Crotty and Mr Lai that they did collude. Their denials in that regard are supported by the different accounts given by each of them, both in their witness statements and in oral evidence, about some of the details of what happened on 17 August 2017. By way of example, Mr Crotty recalls Mr Mwango saying words to the effect of “you can expect payback 150 percent”, whereas Mr Lai’s recollection of that part of the conversation is that Mr Mwango said words to the effect “I will repay back 100, 1000 time worse to you”; and
(d) Fourthly, Mr Mwango’s accounts of the 17 August 2017 incident provided in his statement to WestTrac sent on 29 August 2017, 47 his statement in chief served on 12 February 2018 and his statement in reply served on 12 March 2018, contain many inconsistencies. For example, in Mr Mwango’s statement to WestTrac sent on 29 August 2017, he alleges that Mr Crotty said to him “I do not care about whatever fucking shit you are telling me, your results were shit” to which he responded “please just talk to me nicely…” Whereas in Mr Mwango’s statement in chief, he alleges that Mr Crotty said words to the effect of “you fucking shit, fucking cunt, shit” repeatedly, to which he responded “please just talk to me nicely…” In my opinion, the statement “I do not care about whatever fucking shit you are telling me, your results were shit” cannot fairly be described as words to the effect of “you fucking shit, fucking cunt, shit”. Although the statement contains the words “shit” and “fucking”, these words are not directed to Mr Mwango personally nor does the statement contain the word “cunt”. Another example of an inconsistency in Mr Mwango’s evidence is what he alleges he said in retaliation, or in ‘standing up’ (as he describes), to Mr Crotty. In Mr Mwango’s statement to WestTrac sent on 29 August 2017, he alleges he said in retaliation to Mr Crotty “… from today onwards I will be saying the same language he uses at me, I will be giving back at you actually more than you do it to me I will be giving back to you more than 100 percent, now the line has crossed I won’t be tolerating your nonsense and will be giving you back more 150 percent and see how you will like it”. Although I accept that Mr Mwango’s evidence in this respect is broadly consistent with that adduced in his statement in chief (see paragraph [33]), I do not accept that it is consistent with the evidence given by Mr Mwango in his statement in reply, in which he asserted that he said words to the effect of “If you swear at me, I will swear at you” in retaliation to Mr Crotty.48 A further inconsistency in Mr Mwango’s evidence was that, in his statement in chief, he alleges that he said to Mr Crotty “You stinking idiot. You stink if you do not know as old as you are cannot express yourself properly apart from swearing?” This evidence does not appear in Mr Mwango’s statement to WesTrac sent on 29 August 2017. This inconsistency was raised with Mr Mwango during cross-examination. Mr Mwango maintained that he said to Mr Crotty “You stinking idiot. You stink if you do not know as old as you are cannot express yourself properly apart from swearing?”– but denied that his failure to include this part of the conversation in his 29 August 2017 statement gave rise to an inconsistency because in that statement, he asserted that he said to Mr Crotty words to the effect of “if it is the language that he understands then you stinking idiot get out face”.49 I do not accept that this evidence is objectively consistent. Although some allowance must be made for the fact that Mr Mwango was self-represented throughout the material parts of these proceedings, the inconsistencies in Mr Mwango’s evidence, as well as his refusal to accept such an inconsistency when brought to his attention, negatively affects his credibility as a witness.
[37] For those reasons, I am satisfied, on the balance of probabilities and having regard to the Briginshaw standard, that the 17 August 2017 incident occurred as summarised in paragraphs [20] to [27] above. I am also satisfied that Mr Mwango’s conduct during the 17 August 2017 incident was in breach of the Code and inconsistent with the Procedure for the following reasons:
• The Code obliged Mr Mwango to ensure that his personal conduct and behaviour was at all times professional (and lawful). The conduct Mr Mwango engaged in on 17 August 2017 was unprofessional. It was inappropriate and threatening.
• The Procedure required Mr Mwango to behave in an acceptable manner. Mr Mwango engaged in unacceptable behaviour by physically threatening and showing aggression to Mr Crotty.
[38] For those reasons, I am satisfied that WesTrac had a sound, defensible and well-founded reason for Mr Mwango’s dismissal related to his conduct, including its effect on the safety and welfare of other employees.
[39] It is relevant to consider whether notification of a valid reason for termination was given to an employee protected from unfair dismissal before the decision to dismiss was made 50, and whether the notification was in explicit51 and plain and clear terms.52 In Crozier v Palazzo Corporation Pty Ltd, a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[40] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 53
[41] On 23 August 2017, Mr Mwango attended a meeting with Ms Fletcher and Mr Ward at the Tomago WesTrac site. At this meeting, Mr Mwango was provided with a letter dated 23 August 2017 (Stand Down Letter) which stated:
“Dear Bernard,
Stand down pending investigation
This letter serves to confirm our conversation from today, in which you were advised that you will be stood down with full pay effective immediately pending an investigation.
This investigation is in response to an incident in the lab on Thursday 17 August 2017, in which it is alleged that you made inappropriate and threatening comments to another employee.
Upon completion of the investigation, you will be given 24 hours’ notice of the requirement to return to site for a meeting. This meeting will involve myself and a representative from HR where you will be given the investigation findings and asked to provide a response. During this meeting you are able to use the Employee Resolution Process (as per Company policy) and have a support person present, if you wish.
Please be aware that the outcome of this investigation may lead to disciplinary action.
A copy of this letter will be kept in your personnel file.
Yours faithfully,
Brett Ward”
[42] Although the Stand Down Letter did not set out the specific inappropriate and threatening comments (and other conduct) WesTrac relied on to terminate Mr Mwango’s employment, I accept the evidence given by both Ms Fletcher and Mr Ward that Mr Mwango was orally informed of these specifics at the 23 August 2017 meeting. 54 I also accept Ms Fletcher’s and Mr Ward’s evidence that Mr Mwango was asked at this meeting to provide a written statement of events by no later than 8:00am on 24 August 2017.55 Mr Mwango did not comply with the request.
[43] I accept Mr Ward’s evidence that Mr Mwango was provided with another opportunity on 25 August 2017 to respond to the allegations upon which WesTrac relied to dismiss him. 56 Mr Ward’s email to Ms Fletcher sent at 12:03pm on 25 August 2017 supports Mr Ward’s contention that he gave Mr Mwango a further opportunity to respond to the allegations:57
“…I finally got a hold of Bernard by him texting me to give him a call. I asked him how he is going with the statement I asked him to produce to me 2 days ago. He informed me that he can not supply to me as I have not sent him Matthew’s statement. I replied to Bernard that I never stated that he would receive a copy of his statement and this will not be occurring, he needs to supply his statement on versions of events as it actually occurred.
He then continued in saying that he has written it but will not supply unless I send him I [sic] writing that I have only stood him down and reason I have not stood Matthew down. I informed him as discussed in the last face to face meeting a decision was made to stand Bernard down as we have 2 witness statements that describe his behaviour to be in breach of WesTrac behaviour procedure… I made a decision to … give him time to respond his version of events before any possible action is taken…
I informed him that if I do not receive a statement from him I will have to act on only those statements I have received…”
[44] On 28 August 2017, Mr Mwango attended another meeting with Ms Fletcher and Mr Ward at the Tomago WesTrac site. I accept Mr Fletcher’s and Mr Ward’s evidence that Mr Mwango was given yet another opportunity at this meeting to respond to the allegations made against him by Mr Crotty and Mr Lai. 58 Indeed, following this meeting, Mr Mwango sent an email to Ms Fletcher and Mr Ward at 7:34am on 29 August 2017 in which he set out his version of the events on 17 August 2017.59
[45] On 7 September 2017, Mr Mwango attended a final meeting with Ms Fletcher and Mr Ward at the Tomago WesTrac site. The purpose of this meeting was to provide Mr Mwango with the outcome of the investigation. I accept Mr Fletcher’s and Mr Ward’s evidence that Mr Mwango was again notified of the allegations made against him and that he was given yet another opportunity to respond to those allegations. 60
[46] On the basis of the evidence summarised in the previous five paragraphs, I am satisfied that WesTrac notified Mr Mwango of the reason for his dismissal and gave him multiple opportunities to respond to that reason before making the decision to dismiss him.
[47] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[48] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”61
[49] I am satisfied on the evidence that there was no refusal by WesTrac to allow Mr Mwango to have a support person present to assist at any discussions relating to his dismissal. To the contrary, Mr Mwango was advised in the Stand Down Letter that he could bring a support person to future meetings. 62 I do not accept Mr Mwango’s evidence that he was given no choice by Mr Ward but to continue with the 7 September 2017 meeting when he became aware that his support person could not attend the meeting. Mr Ward and Mr Fletcher both gave consistent evidence, which I accept, that Mr Mwango confirmed that he was happy for the 7 September 2017 meeting to proceed without his support person.63
[50] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, it is relevant to consider whether the employer warned the employee about the unsatisfactory performance before the dismissal.
[51] In this case, the reason for dismissal related to Mr Mwango’s conduct, rather than his performance, so this consideration is not relevant.
[52] WesTrac is a large business enterprise. I do not consider that its size would be likely to impact of the procedures followed in effecting Mr Mwango’s dismissal. This consideration is not relevant.
[53] WesTrac has dedicated human resource management specialists and expertise, so this consideration is not relevant.
[54] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[55] The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal based upon conduct in breach of employer policy was explained by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 64 in the following terms:
“[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button [2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited [2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.
[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:
(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.
(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]
(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]
[43] The determination of whether there was a “valid reason” proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as “substantive fairness” from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason”.
...
[47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460):
“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.”
[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer’s policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] PR958003, Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13].”
[56] There are a number of “other matters” which are relevant to my determination as to whether Mr Mwango’s dismissal was harsh, unjust or unreasonable. I will deal with each of them in turn below.
Mr Mwango’s employment history with WesTrac
[57] Mr Mwango commenced employment with WesTrac on 26 November 2012 and remained in that employment until he was dismissed on 7 September 2017. I have had regard to Mr Mwango’s length of service, which is a reasonable period of time, in considering whether his dismissal was harsh, unjust or unreasonable.
[58] Earlier instances of misconduct and any warnings in relation thereto may be “relevant matters” to an assessment of whether the dismissal was too harsh a penalty in the circumstances. 65
[59] WesTrac alleges that on 10 February 2016, Mr Mwango exhibited loud, abusive, aggressive, and disrespectful behaviour during a team meeting and that this resulted in other employees feeling threatened and intimidated. Mr Mudford was assigned to investigate this incident.
[60] On 4 March 2016, Mr Mwango was issued with a written warning after WesTrac determined that his alleged behaviour during the team meeting on 10 February 2016 constituted a serious breach of the Procedure and the Code (Written Warning). The Written Warning stated the following:
“Dear Bernard,
Written Warning
…
I refer to your counselling meeting with EM Solutions Manager Rod Mudford and Lab Supervisor Adam Boyd on 12 February 2016, and secondary meeting with Rod and HR Advisor Alysha Fletcher on 7 March 2016. I confirm that in both meetings you declined the opportunity to have a support person present.
I confirm at the meetings the following issues were raised with you concerning your performance and behaviour at work:
• On Wednesday 10 February at a laboratory team PSI, it has been alleged that your behaviour was unacceptable in response to incident in the lab.
Witnesses have stated that you questioned the reasoning for numbers on the whiteboard in a frustrated manner, to which you did not get a satisfactory response. You then began to explain what you thought the numbers meant, and targeted your discussion at specific employees by edging nearer to where they were standing and pointing at them.
It was further alleged that you swore in the direction of one employee, stating “this is shit!”.
During this exchange, witnesses have stated the following in regard to your behaviour and conduct:
o The way you reacted was unnecessary and unacceptable in that setting
o Your approach (body language and raised tone of voice) was confrontational, aggressive and intimidating
o You made employees feel uncomfortable
o Employees who were standing near to you moved to the other room as they “did not feel safe near you”.
This behaviour is NOT acceptable and will not be tolerated.
The following areas of your employment require immediate improvement on your behalf;
• No further acts of unacceptable behaviour. You must be mindful of your approach and the way you communicate with other staff members. If you do feel frustration, you have been reminded to think before you act. If you are still frustrated, you have been told to walk away the situation and talk to a Supervisor about your issues.
• You will review and comply with WesTrac's Personal Behaviour Procedure and Code of Conduct. Any further breaches of these procedures and policies will result in disciplinary action, inclusive the possibility of dismissal...”
[61] Mr Mwango signed his acknowledgement of the Written Warning on 7 March 2016, 66 however, Mr Mwango alleges that he only did so:67
“after an assurance from Rodney Mudford that he was wrong and biased in the presence of Alysha Fletcher and promised that he will fix the nonsense which was going on in the Laboratory”.
[62] Mr Mwango denies that he behaved as WesTrac alleged in the Written Warning. 68 Mr Mwango appealed against the Written Warning. His appeal was not successful.
[63] Mr Mudford was the only person called by WesTrac to give evidence about the 10 February 2016 incident. However, Mr Mudford did not witness this incident. On 10 February 2016, Mr Mudford was attending a conference off-site in Tamworth, NSW. Other WesTrac employees who were present during the events on 10 February 2016 were not called by WesTrac to give evidence in these proceedings. Further, in these proceedings Mr Mwango was not cross examined in relation to his denials that he engaged in the alleged conduct on 10 February 2016. In those circumstances, I do not make any finding on the evidence before the Commission that Mr Mwango engaged in the alleged conduct on 10 February 2016, nor do I find that Mr Mwango breached the Procedure and/or the Code on 10 February 2016.
[64] Had I made findings that Mr Mwango engaged in the alleged conduct on 10 February 2016 and thereby breached the Code and the Procedure, I would have placed significant weight on those matters in my consideration of the length and quality of Mr Mwango’s employment with WesTrac. The absence of such findings does not, however, render the Written Warning wholly irrelevant. The Written Warning served as a reminder to Mr Mwango of the standards of behaviour required of him and the potential consequence for failing to behave in such a way.
WesTrac’s investigation
[65] Mr Mwango contends that he was denied procedural fairness during the disciplinary process leading up to his dismissal for a number of reasons, including the following:
(a) Mr Ward and Ms Fletcher refused to show Mr Mwango the statements made by Mr Crotty and Mr Lai, which contained the allegations upon which WesTrac relied to dismiss Mr Mwango;
(b) Mr Ward and Ms Fletcher did not give Mr Mwango the opportunity to provide his version of events before they made the decision to stand him down pending the investigation; and
(c) Mr Ward and Ms Fletcher did not provide him with the findings of their investigation when they decided to terminate him.
[66] There is no dispute that Mr Mwango asked WesTrac to provide him with Mr Crotty’s and Mr Lai’s statements and that WesTrac refused to provide them to him.
[67] In light of my earlier findings that Mr Mwango was provided with the specifics of the allegations upon which WesTrac relied to dismiss Mr Mwango at the 23 August 2017 and 7 September 2017 meetings (see paragraph [42] and [45] above), I do not accept that Mr Mwango was denied procedural fairness by Ms Fletcher and Mr Ward refusing to show Mr Mwango the statements of Mr Crotty and Mr Lai. Mr Mwango was able to, and did, provide WesTrac with his version of the events on 17 August 2017. 69 Although the process would have been a better one had those statements been provided to Mr Mwango, I am satisfied the process which was followed by WesTrac did not deny Mr Mwango procedural fairness.
[68] As to the allegation that Mr Ward and Ms Fletcher did not give Mr Mwango the opportunity to provide his version of events before they made the decision to stand him down, clause 3.2.4 of WesTrac’s Counselling and Disciplinary Policy (Disciplinary Policy) states: 70
“Suspension
Suspension is where an employee is relieved of their current duties and responsibilities while an investigation is taking place into their alleged poor performance or conduct. Depending on the nature of the incident, this can either be in the form of being reassigned other duties within the workplace or being sent home with pay until the investigation has been finished and an appropriate decision made.”
[69] Although Mr Ward used the terminology “stood down” (as opposed to “suspended”) in the Stand Down Letter, I am satisfied that he acted in accordance with cl 3.2.4 of the Disciplinary Policy in directing Mr Mwango not to attend work until the investigation was completed. I am also satisfied that the decision and direction to stand Mr Mwango down before he gave his version of events was reasonable and fair. The purpose of the “suspension” was to enable the investigation to be conducted after serious allegations had been made to WesTrac about Mr Mwango’s alleged conduct. The act of “standing down” or “suspending” Mr Mwango did not carry with it an automatic finding or implication of wrongdoing on his part. Importantly, Mr Mwango was provided with multiple opportunities during the investigation and prior to WesTrac’s decision to dismiss him to provide his version of events, which he eventually did on 29 August 2017.
[70] I do not accept Mr Mwango’s contention that Mr Ward and Ms Fletcher did not provide Mr Mwango with the findings of their investigation when they decided to terminate his employment. Mr Ward and Ms Flether both gave evidence that Ms Fletcher confirmed the allegations and advised Mr Mwango that they had been established at the 7 September 2017 meeting. 71 I accept this evidence.
[71] I am satisfied that Mr Mwango was afforded procedural fairness in connection with his dismissal.
Discriminatory behaviour and bullying and harassment
[72] Mr Mwango alleges that he was subject to continuous discriminatory behaviour, bullying, and harassment during his employment at WesTrac and that he complained about this. 72 Mr Mwango contends, rather than dealing with this complaint, WesTrac decided to terminate his employment.73
[73] Mr Mwango’s allegations of discriminatory behaviour and bullying and harassment were not clearly specified in his evidence, nor were they the subject of any detailed evidence or cross-examination in these proceedings. I am therefore not in a position to make any findings about Mr Mwango’s allegations of discriminatory behaviour and bullying and harassment. I do, however, reject Mr Mwango’s allegation that WesTrac decided to terminate his employment based on his bullying and other complaints as opposed to his conduct on 17 August 2017. 74 In that regard I accept Mr Ward’s evidence that Mr Mwango was dismissed as a result of his conduct on 17 August 2017,75 and Mr Mudford’s evidence that Mr Mwango was treated fairly and consistently with other WesTrac employees.76
Provocation
[74] The catalyst for the incident between Mr Mwango and Mr Crotty on 17 August 2017 was Mr Crotty’s use of the word “shit”. According to Mr Mwango, Mr Crotty said the word “shit” in reference to results that Mr Mwango had previously prepared, as well as in reference to him personally. 77 According to Mr Crotty, he said the word “shit” in reference to the initial results as opposed to Mr Mwango personally or Mr Mwango’s work.78 Although it was not quite put in this way by Mr Mwango in his submissions, it is possible that Mr Crotty’s use of the word “shit” provoked Mr Mwango to act in the way he did.
[75] Mr Lai corroborated Mr Crotty’s evidence that he used the word “shit” to describe results. Mr Lai gave evidence that when he entered the Laboratory he heard Mr Crotty say words to the effect of “the calibration is shit”. 79 Although Mr Mwango and Mr Crotty both gave evidence that they believe Mr Lai entered the Laboratory at a later stage in the discussion, I accept Mr Lai’s evidence that he heard Mr Crotty say words to the effect of “the calibration is shit”. During cross-examination, Mr Mwango accepted that it could have been the case that Mr Lai was standing in the doorway of the Laboratory and he did not notice.80 Indeed, I am satisfied that both Mr Mwango and Mr Crotty did not realise that Mr Lai had entered the Laboratory until he walked over to them and/or said something to them.
[76] For this reason, I am satisfied, on the balance of probabilities, that Mr Crotty used the word “shit” in reference to the initial results (or methodology by which the initial results were obtained), rather than Mr Mwango personally. This finding is supported by Mr Mwango’s evidence that Mr Crotty said to him words to the effect of: 81
“The problem with you Bernard is, you take things to hear [sic] easily. Do not take thing to heart Bernard I did not mean that you are shit. When I said that your results were shit I was just referring to the results not you.”
[77] It is unclear on the evidence whether the initial results (or methodology by which they were obtained) to which Mr Crotty referred were prepared by Mr Mwango. However, even if this were the case, cl 3.2 of the Procedure clearly states: 82
“Please be aware that provocation is not an excuse for breaching the standards of behaviour. It is recommended that if you are unsure about an incident or standards of behaviour in the workplace, you should speak with your Manager or Human Resources”
[78] Mr Mwango was reminded of this in the Written Warning, which states: 83
“If you do feel frustration, you have been reminded to think before you act. If you are still frustrated, you have been told to walk away the situation and talk to a Supervisor about your issues.”
[79] Therefore, in my view, Mr Mwango’s conduct on 17 August 2017 cannot be excused even in circumstances where Mr Mwango felt provoked by Mr Crotty’s use of the word “shit” to describe a result or methodology prepared by him. Whilst I can understand how Mr Mwango may have misunderstood Mr Crotty’s use of the word “shit” to be a personal attack on him or his work, it did not justify his response.
[80] I do not accept Mr Mwango’s contention that Mr Crotty swore at him in a serious way on a number of occasions including on 17 August 2017. 84 Mr Crotty denies engaging in such conduct and his denials are supported by Mr Lai.85 I accept the evidence of Mr Crotty and Mr Lai in relation to this issue.
Harshness of the dismissal
[81] Mr Mwango’s dismissal has had significant negative consequences for his personal and economic situation. In particular, he has lost a job which provided him and his family with financial support. I accept that Mr Mwango and his family are now in a very difficult financial situation. I also accept that Mr Mwango has made efforts to find alternative employment, but has not been able to find such work.
[82] The extent to which the dismissal is harsh must be weighed against the gravity of Mr Mwango’s misconduct in respect of which WesTrac acted in deciding to dismiss him. In the circumstances, I am satisfied that Mr Mwango’s dismissal was not disproportionate to the gravity of the misconduct in which he engaged on 17 August 2017, nor was it harsh in any other sense.
Conclusion
[83] After considering and taking into account each of the matters specified in s.387 of the Act, I am satisfied that WesTrac’s dismissal of Mr Mwango was not harsh, unjust or unreasonable. Mr Mwango engaged in serious conduct on 17 August 2017 when he acted in a threatening and aggressive way towards a co-worker. He thereby breached the Code and the Procedure and gave WesTrac a valid reason for his dismissal. WesTrac afforded Mr Mwango procedural fairness in the process leading up to his dismissal. Notwithstanding the undoubted significant negative consequences of the dismissal for Mr Mwango’s personal and economic situation, my value judgment is that the dismissal was not harsh. Mr Mwango’s unfair dismissal application is therefore dismissed.
COMMISSIONER
Appearances:
B. Mwango on his own behalf
R. McMahon of AiGroup for WesTrac
Hearing details:
2018.
Newcastle:
April 15 and 16.
Printed by authority of the Commonwealth Government Printer
<PR607658>
1 Mwango v WesTrac Pty Ltd [2018] FWC 302
2 s. 385 of the Act
3 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8
4 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
5 Ibid
6 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
7 Ibid
8 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].
9 Ibid
10 Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at p 363
11 Ibid per Dixon J at p 362
12 Ibid per Rich J at p 350
13 Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J
14 WesTrac’s Outline of Submissions at [34]
16 Ex R1; attachment AF-1, AF-2 and AF-7
17 Ibid at [83]
18 Ibid; attachment AF-3
19 Ibid
20 Ex A3; Ex R5
21 Ex R5 at [15]
22 Ex R5 at [16] and [17]
23 PN 2134
24 PN 2135; PN 2144; Ex R5 at [17]
25 Ex R5 at [17]
26 PN 2155
27 PN 2152
28 PN 2153-2155
29 PN 2169; PN 2321; Ex R5 at [22]
30 PN 2178
31 Ex R4 at [31] - [32]
32 PN 1770-1774
33 Ex A10
34 PN 426
35 Ex A1
36 Ibid
37 PN 427
38 PN 433
39 PN 431
40 PN 468
41 PN 420
42 PN 433
43 Ex R5; attachment MC-1
44 Ex R4 at [29] and Ex R5 at [15]-[16]
45 Ex R4 at [30]-[31] and Ex R5 at [19]-[20]
46 Ex R4 at [30]-[34] and Ex R5 at [20]-[24]
47 Ex R1; attachment AF-8
48 Ex R10
49 PN 447-459
50 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]
51 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151
52 Previsic v Australian Quarantine Inspection Services Print Q3730
53 RMIT v Asher (2010) 194 IR 1 at 14-15
54 Ex R1 at [69]; Ex R3 at [57]
55 Ex R1 at [70]; Ex R3 at [58]
56 Ex R3 at [72]
57 Ibid; attachment BW-9
58 Ex R1 at [77]; Ex R3 at
59 Ex R3; attachment BW-10
60 Ex R1 at [101]; Ex R3 at [88]
61 Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542].
62 See paragraph [41]
63 Ex R1 at [96]; Ex R3 at [87]
65 Diaz v Anzpac Services (Australia) Pty Limited [2016] FWCFB 7204 at [12]-[16] and Toll Holdings Ltd t/a Toll Transport v Johnpulle [2016] FWCFB 108 at [15]
66 Ex R2 at [41]
67 Ex A1
68 Ibid
69 Ex R3; attachment BW-10
70 Ex R1; attachment AF-5
71 Ex R1 at [98]; Ex R3 at [88]
72 PN 2869
73 Ibid
74 Ex A10
75 Ex R3 at [80] & [89]-[90]
76 Ex R2 at [44]
77 See paragraph 30
78 See paragraph 23
79 PN 1676
80 PN 417
81 Ex A1
82 Ex R1; attachment AF-3
83 See paragraph 53
84 See, for example, Ex R3; attachment BW-10
85 Ex R4 at [50]-[51]; Ex R5 at [37]-[38]