| FWC 3909|
|FAIR WORK COMMISSION|
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
StarTrack Express T/A StarTrack
SYDNEY, 6 JULY 2018
Unfair dismissal - misconduct - valid reason for dismissal - no procedural deficiency - application dismissed.
 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 15 September 2017. The application was made by Michael Glen Taylor (the applicant) and the respondent employer is StarTrack Express Pty Limited T/A StarTrack (the employer).
 The application indicated that the date that the applicant’s dismissal took effect was 28 August 2017. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.
 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 6 December 2017, and 19 April 2018. At the conclusion of the proceedings on 19 April 2018, the applicant requested an opportunity to provide further submissions in writing, and a timetable for the provision of further material has resulted in the closing submissions in reply from the applicant being filed on 15 May 2018.
 In a Decision ( FWC 6083) issued on 20 November 2017, the Commission refused to grant permission as sought by the employer under s. 596 of the Act, for it to be represented by lawyers or paid agents. The applicant was represented by the Transport Workers’ Union of Australia (TWU) and at the Hearing Mr A Grumley, from the TWU, appeared for the applicant. Mr Grumley called the applicant and three other witnesses to provide evidence in support of the unfair dismissal claim.
 The employer was represented by Mr A Moulton, the employer’s Head of Workplace Relations. Mr Moulton provided evidence himself as one of the four witnesses called to provide evidence on behalf of the employer.
 The applicant had worked for the employer for almost 17 years. The applicant worked as a freight handling/forklift driver. The applicant was engaged at the employer’s depot located in the Sydney suburb of Minchinbury.
 The employer operates a business as Australia’s largest parcel delivery service provider. The employer is a subsidiary business operation of Australia Post, and it represents one of the largest parcels, freight and logistics companies in the country. The employer has in excess of 5000 employees.
 The employment record of the applicant was without any recorded complaint or other blemish. The applicant was considered to be a diligent worker.
 On Wednesday, 19 July 2017, the applicant was undertaking his usual work duties when an incident occurred that involved the applicant being physically assaulted by another employee, Malake Auva'A (Mac). The incident on 19 July, involved an aggressive response by Mac to a disagreement that arose about where pallets that were being stored could be placed. The incident included the applicant being manhandled by Mac whereby the applicant's gold chain and company lanyard were broken.
 Shortly after the incident on 19 July, the applicant made a verbal report to his supervisor complaining about being physically assaulted by Mac. On the following day, 20 July, the applicant completed a written incident report about the incident of 19 July involving the physical assault.
 On Friday 21 July, the applicant participated in an incident report meeting when it was explained to him that the meeting involved the first formal stage of the investigation process into the incident of 19 July. At this meeting the applicant was informed that the outcome of the investigation could have an effect on his ongoing employment.
 On Friday 11 August, the applicant attended a second investigation meeting during which the applicant was advised that Mac had alleged that during the incident on 19 July, the applicant had said words to Mac to the effect of; "put the pallet over there you black cunt." At this time, the applicant told those who were investigating the 19 July incident that he had not said such words to Mac. However, when asked if he had used words like that in the past, the applicant indicated that he had, at different times, referred to co-workers as "towel head" or "coconuts" and that he himself had been called a “white Aussie fuck."
 The applicant was provided with a letter dated 11 August 2017, which, inter alia, indicated that in addition to the incident of 19 July, the employer was investigating allegations that the applicant had on previous occasions, used racial slurs which were recorded as including; "Go back where you came from you black cunt" and "fuck off to where you came from" and “row your canoe back home you fucking black cunt.” The letter of 11 August, also recorded that the applicant was surprised about the complaints as he alleged that he and Mac had been using such language as goodhearted banter towards each other for years. The letter also advised the applicant that his conduct was in breach of various company policies and procedures and did not meet appropriate standards of workplace behaviour.
 The applicant was suspended from duty with pay and advised that the employer had formed a preliminary view that his conduct was serious misconduct justifying termination of employment without notice. The applicant was invited to provide any additional information as to why his employment should not be terminated and he was invited to attend a further meeting scheduled for Monday, 14 August 2017.
 The applicant attended the third investigation meeting held on Monday 14 August, at which time he provided a written response to the allegations that have been made against him. The applicant attended a further, fourth investigation meeting on Friday 18 August, at which time he was advised that the employer was finalising its decision in the matter.
 The applicant attended a final meeting on 28 August, at which time he was provided with confirmation of the termination of his employment. At this meeting the applicant was provided with a letter dated 28 August 2017, headed "RE: confirmation of dismissal". This letter of dismissal confirmed that the employer had determined that the applicant had repeatedly used racial slurs in the workplace aimed at Mac and other employees. Further, the letter of dismissal advised that no finding was made that the applicant used racial slurs during the incident of 19 July 2017. However, the employer had found that the applicant had used racial slurs extensively within the workplace and, despite having taken into account the applicant's responses and explanations for this conduct, the employer had found the applicant to have committed misconduct warranting dismissal with notice.
 Since the dismissal, the applicant has made attempts to find alternative employment. However, the applicant has been unable to secure any permanent alternative employment.
 The TWU, through Mr Grumley, provided various documents which comprised extensive written submissions on behalf of the applicant. The submissions made of behalf of the applicant asserted that the dismissal of the applicant was harsh, unjust and unreasonable.
 The applicant submitted that his dismissal was unfair because his conduct did not amount to serious misconduct warranting termination with notice. The submissions of the applicant asserted that the dismissal was an excessive response by the employer because: (a) there was no valid reason; (b) the conduct cannot be confirmed to have occurred; (c) the respondent was aware that racial slurs were being used; (d) the serious misconduct was not made out; (e) the applicant was not afforded procedural fairness; (f) the dismissal was disproportionate and harsh; and (g) recent like conduct had not resulted in dismissal.
 The submissions made by the applicant focused upon the alleged absence of valid reason for dismissal. According to the submissions made on behalf of the applicant, the employer asserted that valid reason existed because the applicant admitted using words and phrases towards his co-workers such as: (i) “go back to where you came from you black cunt”; (ii) “fuck off to where you came from”; (iii) “black cunt”; (iv) “row your canoe back home you fucking black cunt”; (v) “towel head”; (vi) “coconuts”; and (vii) “gooks”. As to whether conduct involving the use of this terminology represented valid reason for dismissal, the submissions for the applicant asserted that it could not be established that anyone ever heard the applicant using racial slurs other than by the applicant’s own admissions.
 Further, the submissions for the applicant asserted that no one had ever complained about being called any of these remarks. In addition, the submissions for the applicant stated that the use of such language needed to be considered in the particular context of a transport company, and that such language would be used in many pubs and clubs in the areas surrounding the Minchinbury depot.
 The submissions made on behalf of the applicant asserted that the applicant’s use of robust language in the workplace was a part of well-meaning workplace banter which was not intended to offend but rather to entertain. The generally accepted nature of the alleged workplace banter was, according to the submissions made for the applicant, supported by the absence of any complaint before the incident of 19 July 2017.
 According to the submissions made by the TWU on behalf of the applicant, the applicant’s conduct did not amount to a valid reason for dismissal. The absence of valid reason was said to be supported by factors including: (a) the applicant’s length of service; (b) the applicant’s unblemished disciplinary record; (c) the cursory nature of the allegations; (d) the absence of any previous complaint made against the applicant for bad language or for using racial slurs; and, (e) the use of swearing and racial slurs is common practice at the respondent’s depot. Therefore it was said that the termination of the applicant’s employment for the reasons as alleged by the employer represented reasons that were capricious, fanciful and spiteful.
 The submissions made on behalf of the applicant further asserted that the termination process was flawed and that the applicant was not appropriately provided with notification for his dismissal. In this regard it was said that the applicant had not been informed that the initial complaint regarding the incident on 19 July had not been substantiated, and further, the employer continued investigating the applicant for other matters including conduct of the applicant that occurred a number of years previously. The applicant’s submissions further criticised that the key decision maker who made the decision to terminate the employment of the applicant, did not draft nor sign the letter of dismissal.
 It was further submitted that the applicant was denied procedural fairness as he was not given an opportunity to view the CCTV footage in relation to the making of a finding of the first allegation that was made against the applicant. Further, it was asserted that the applicant was not provided with an opportunity to respond because the alleged conduct happened a number of years ago and therefore treated the applicant unfairly.
 The submissions made by the applicant also criticised the respondent’s policies and procedures which were said to be out of date and in conflict with both State and Federal legislation. Further, it was asserted that the respondent was not certain when its policy had been breached. The submissions for the applicant also stressed that a number of the historical admissions of the applicant could not be substantiated, because the respondent had not provided specific evidence of what was said, where it was said, and to whom it was said, before the incident of 19 July 2017.
 The applicant’s submissions also made criticism of particular aspects of the witness evidence provided by the employer including the absence of particular notes that were taken during the investigation meetings, and the purported failure of the applicant to provide an apology when informed of the complaints raised about his use of racial slurs. The submissions provided by the applicant also made further specific criticism of evidence provided by a witness (Izzy) who had been the subject of some of the applicant’s racial slurs. According to the submissions made on behalf of the applicant, the evidence provided by Izzy was evasive and that as Izzy had never complained about the language that was used by the applicant his evidence should not be accepted. Further, it was submitted that Izzy never had any issues relating to his personal safety whenever he was in the presence of the applicant.
 The applicant made submissions that rejected any suggestion that reinstatement of the applicant would be inappropriate. In particular, it was submitted that there was no basis to establish that there had been any loss of mutual trust and confidence. Further, as the respondent employer had multiple depots and a fleet of thousands, it was asserted that the applicant could be returned to employment without causing any disruption. In addition, it was submitted that the particular personal circumstances of the applicant involving his long and dedicated service and his age, were matters that should also provide for his reinstatement as remedy for his unfair dismissal.
 The submissions made by the employer were contained in an outline of submissions document dated 27 November 2017, and this material was supplemented with a closing submissions document provided on 8 May 2018.
 The submissions made on behalf of the employer asserted that the dismissal of the applicant was not in any way unfair. The employer’s submissions acknowledged that the only issue for determination was whether the dismissal of the applicant was harsh, unjust or unreasonable.
 The employer submitted that the applicant was dismissed for valid reason, and that valid reason involved the applicant habitually using terms and phrases in the workplace which were racist, degrading, and disparaging towards co-workers. The employer submitted that a dismissal for such reason constituted sound, defensible and well-founded reason for dismissal.
 The submissions made by the employer acknowledged that the workplace culture at its Minchinbury depot involved the use of swearing in casual conversation between workers. However, the employer submitted that an important distinction should be made between casual swearing in conversation as opposed to targeted comments that involved highly offensive denigration based on ethnic, racial or religious grounds. By way of example, the employer submitted that there was an important distinction to be made between calling someone a “fucking dickhead” and calling them a “black cunt.” The former was said to be a colloquial term which could conceivably be tolerated in certain workplaces, whilst the latter was terminology used to single someone out based on personal ethnic or racial attributes.
 The employer further submitted that the applicant’s assertion that the use of racist language was commonplace and part of general workplace banter should be rejected. According to the submissions made by the employer, although swearing was not uncommon, there was no evidence to support the proposition that racist language was regularly used. The employer submitted that the applicant’s own witnesses did not provide any evidence to support the proposition that the use of derogatory racist language was commonplace. Further, the employer submitted that it was irrelevant as to whether the applicant had any intention to vilify his co-workers when using racist language and that in any event, it should have been readily apparent to the applicant that the use of such racist language in the workplace was entirely inappropriate.
 The submissions made by the employer also stressed that it had provided ample training and direction regarding appropriate workplace conduct. The employer made submissions which stressed that it had provided employees, including the applicant, with a training video entitled “Expect Respect” which clearly stated that racist language or jokes were completely unacceptable, and that the employer adopted a zero tolerance for such behaviour.
 The employer also submitted that it was relevant to consider that it had a culturally and ethnically diverse workforce and it had taken significant time and resources in developing and implementing policies directed at ensuring that all employees felt safe and respected in the workplace. The employer submitted that even in the absence of such measures it should not be necessary to tell someone that it was inappropriate, for example, to refer to a dark skinned co-worker as a “black cunt.”
 The submissions of the employer asserted that it could not be denied that it had valid reason to terminate the applicant’s employment on the basis of his admitted behaviour. The employer made submissions which referred to what it described as a clear line of authority whereby derogatory and racist language had been established to represent valid reason for dismissal.
 The employer further submitted that it had provided the applicant with procedural fairness, and it rejected the proposition that the applicant had not been properly notified of the reason for his dismissal. Further, it was submitted that the applicant had been afforded the right to have a support person throughout the investigation and disciplinary process. Therefore, according to the submissions made by the employer, the termination of the employment of the applicant was procedurally fair in all respects.
 In further closing submissions, the employer rejected the various submissions made on behalf of the applicant which asserted that the behaviour of the applicant was condoned by management and/or it represented commonplace workplace behaviour. The employer submitted that the submissions made by the applicant represented a line of argument that was little more than blatant victim blaming. Further, the employer rejected that there were other similar situations that involved similar behaviour as the applicant had failed to provide any evidence of other incidents involving the use of racist language.
 The employer also made submissions which asserted that reinstatement of the applicant would be highly inappropriate, particularly as it asserted that the applicant had failed to demonstrate any genuine remorse, or insight, into his conduct. The employer made further submissions which rejected any prospect that the applicant should be provided with compensation in the event that the Commission found that he had been unfairly dismissed. It was submitted that if compensation was considered it would be significantly reduced because of the established misconduct of the applicant.
 Despite its submissions on remedy, the employer submitted that such consideration should not be entertained, and it reiterated its primary submission that the dismissal of the applicant was not harsh, unjust or unreasonable. The employer urged the Commission to find that the dismissal of the applicant was for valid reason and without procedural defect. The employer submitted that the application for unfair dismissal remedy should be dismissed.
 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.”
 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.
 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.”
 In this instance, the reason for the dismissal of the applicant has involved his admitted use of racially denigrating and offensive language directed towards co-workers. The evidence provided by the applicant during the Hearing confirmed his frequent use of the racist language as was attributed by the employer.
 The applicant attempted to defend his use of this offensive language by suggesting that it was commonplace workplace banter. The applicant suggested that the use of this language was something that was enjoyed by others 1, that it was just comedy2, that, to a certain degree, it represented terms of endearment,3 and that it was a strange form of humour4.
 The applicant further attempted to justify his use of the racially offensive and vilifying language because of the absence of complaint made to him about the use of such language. This approach to defence of the applicant’s conduct was exampled by the following extract of transcript involving the re-examination of the applicant when Mr Grumley asked the applicant:
“But in regards to these allegations, things like, “go back to where you came from, you black cunt. Fuck off to where you came from, black cunt. Row your canoe back home, you fucking black cunt. Towelhead, coconuts and gooks”, has anyone ever bought to your attention they were offended by any of these remarks?--- No, never until August or whatever it was this year.” 5
 The underlying premise of this question is very unfortunate. The attempt to defend or otherwise justify the applicant’s use of racially offensive language on the basis that the applicant didn’t believe that it was harmful, and that no one had complained, is an approach that has regrettable and disturbing parallels with the recent exposure of incidents of sexual harassment in the employment context, and which has created what is referred to as the “#MeToo movement.” Such an attempted defence or justification of abhorrent behaviour is an approach that disregards the fundamental wrongdoing, and it fails to appreciate that the victims of the wrongdoing do not complain because they feel powerless to prevent the conduct.
 It is relevant to observe that email communications from the TWU include a footer that contains a banner which states: “I swear never to commit, excuse or remain silent about violence against women.” These sentiments are highly laudable, and perhaps in the circumstances of this case such a mantra should be expanded to include: “I swear never to excuse racism.”
 There was further disturbing evidence that the applicant failed to comprehend or even remotely understand the fundamental malfeasance of his conduct. The following example of the applicant’s testimony demonstrates his general contemplation of his conduct:
“You don’t consider calling him a black cunt to be based on his race?---No.” 6
 Further, the applicant appeared to have little or no remorse for his conduct. He stated, inter alia, that he “…still had no regret.” 7 The applicant seemed to be unable to appreciate that the racial components of his workplace “banter” and swearing was something that is separate and distinguishable from any robust language or verbal jousting that may be used as “part and parcel” of a “knockabout” workplace.
 In simple terms, a line is crossed when race or ethnicity is included in any communications with co-workers, and any suggestion of being well-intentioned does not provide a defence or justification for conduct that is fundamentally unacceptable. For example, there is a world of difference between calling someone a “dead cunt” as opposed to a “black cunt.” Crudity can be tolerated, racism cannot.
 The behaviour of the applicant was, prima facie, misconduct that would justify dismissal from employment and the applicant’s approach to defence or justification of that misconduct must be rejected. Consequently, the findings of misconduct made by the employer against the applicant must be supported as representing valid reason for the dismissal of the applicant.
 Despite the very unusual submissions made on behalf of the applicant, the evidence clearly established that the employer provided written notification of the reason for the applicant's dismissal.
 The applicant was given numerous opportunities to respond to the allegations of misconduct made against him. There were at least four separate meetings that the applicant attended as part of the investigation process, and at one of those meetings the applicant provided written responses to the allegations. Further, there was little factual contest about the behaviour that gave rise to the allegations as the applicant had made various admissions about his behaviour which had acted as the catalyst for the employer’s further investigation.
 The employer conducted a fair, thorough and balanced investigation into what it had initially considered to be allegations of serious misconduct 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.
 The process adopted by the employer was without any procedural deficiency, and the soundness of the procedure was reflected in the fact that the employer ultimately determined that the behaviour of the applicant was misconduct as opposed to its initial contemplation of serious misconduct. The lesser finding of misconduct as opposed to serious misconduct emerged as a result of the careful and balanced consideration undertaken by the employer whereby it had appropriate regard for all factors surrounding the employment and personal circumstances of the applicant.
 The employer did not unreasonably refuse or otherwise avoid the presence of a support person to assist the applicant.
 This factor is not relevant to the circumstances in this instance as the applicant was not dismissed for unsatisfactory performance but instead, misconduct.
 The employer is a large size business operation. 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.
 There was evidence that the employer did have management specialists or other expertise and this factor has not been relevant in this instance.
 The confirmation of the particular nature of the misconduct which has provided valid reason for the dismissal of the applicant has involved findings of very regrettable conduct. Unfortunately, despite the examination of this misconduct during the dismissal process and the subsequent Hearing of the unfair dismissal claim, the applicant has been unable to grasp the fundamental malfeasance associated with the use of racial slurs in any context. The attempted defence of the applicant’s misbehaviour was highly regrettable, and in many respects, only served to exacerbate the misconduct.
 It should be recognised that the applicant was a long serving employee with a commendable employment record. Further, the applicant’s age and his level of formal qualifications would be likely to have a significant negative impact on his prospects for finding alternative employment. Therefore, it was very regrettable that the lengthy, unblemished employment of the applicant would be terminated on the basis of misconduct established as a result of his own admissions.
 The employer carefully considered all of the employment and personal circumstances of the applicant. Although these circumstances may have established some basis for the applicant to be afforded what could be described as a second chance, it appeared that, particularly because of the employer’s culturally and ethnically diverse workforce, it implemented its promulgated zero tolerance policy. Accordingly, the Commission is not prepared to disturb the balanced and properly considered determination made by the employer.
 The applicant was dismissed for misconduct involving the employer’s finding that he had regularly engaged in the use of racial slurs in the workplace. Upon analysis, the employer’s findings of misconduct have been confirmed.
 In view of the particular nature of the misconduct which has been established in this instance, that misconduct has provided valid reason for the dismissal of the applicant. Regrettably, the applicant has failed to appreciate the fundamental malfeasance associated with the use of racial slurs in any context or circumstance. There were no procedural deficiencies associated with the employer’s investigation and determination to dismiss the applicant.
 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.
Mr A Grumley of The Transport Workers’ Union of Australia appeared for the applicant.
Mr A Moulton, Head of Workplace Relations appeared for the employer.
1 Transcript @ PN299.
2 Transcript @ PN308.
3 Transcript @ PN316.
4 Transcript @ PN327.
5 Transcript @ PN536.
6 Transcript @ PN292.
7 Transcript @ PN407.
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