[2018] FWC 943

The attached document replaces the document previously issued with the above code on 13 February 2018.

Amending endnote 6.

Leesa Thompson

Associate to Deputy President Masson

Dated 14 February 2018.

Fair Work Act 2009
s.394—Unfair dismissal

Ridwan Ridwan
v
Coles Supermarkets Australia Pty Ltd
(U2017/10105)

Application for an unfair dismissal remedy.

[1] This matter was heard in Melbourne on 31 January 2018. At the conclusion of the proceedings, the matter was adjourned and the parties were advised that the Commission would hand down its decision on transcript later that day which it did. This is the published version of the decision in transcript edited for style and clarity.

[2] This is an application in respect of an unfair dismissal remedy by Mr Ridwan Ridwan v Coles Supermarkets Australia Pty Ltd.  On 17 September 2017, Mr Ridwan (the Applicant) made an application pursuant to section 394 of the Fair Work Act for a remedy in respect of his dismissal by Coles Supermarket Pty Ltd (the Respondent).  The application indicated that the date that the Applicant's dismissal took effect was 29 August 2017.  On 6 November 2017 the Respondent filed a response to the unfair dismissal application.

[3] On 20 November the unfair dismissal application was listed for conciliation before a Fair Work Commission conciliator but remained unresolved at the end of the conciliation.  Consequently, the matter was listed for hearing on 31 January 2018 and directions were issued to the parties in relation to the requirement for submissions and witness statements to be filed.  The Applicant filed materials with the Commission on 19 December 2017.  The Respondent filed written submissions and witness statements with the Commission on 16 January 2018.

[4] A Direction/Mention hearing was scheduled to be conducted on 18 January 2018 by telephone however it did not proceed due to the Applicant failing to attend.  Telephone attempts to contact the Applicant in relation to the scheduled hearing were unsuccessful.  A subsequent application was made by the Respondent to the Commission on 18 January 2018 seeking that the application be dismissed under section 587 of the Act.  The application was considered and declined by the Commission in a decision 1 issued on 23 January 2018.

[5] Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application.  Neither party put forward that any of these initial matters required such consideration.  In relation to the elements within section 396 of the Act, I find that the Applicant's application was lodged with the Commission within the 21 day period for making such applications, that at the time he was dismissed he was a person protected from unfair dismissal, and that the questions of the Small Business Fair Dismissal Code or genuine redundancy do not apply.

[6] At the commencement of the hearing in the proceedings the Commission sought submissions from the parties as to whether the Commission should conduct either a conference under section 398 or a hearing under section 399 in relation to the matter.  Taking into account the number of witnesses and the parties' wishes it was decided that a hearing would be the most effective and efficient way to resolve the matter.  At the hearing the Applicant was self-represented and gave evidence himself, while the Respondent was represented by Ms Leah Anderson and led evidence from four witnesses.

[7] The background to the application is that the Applicant was employed as a permanent part-time team member at the Respondent's Glenferrie Road, Glenferrie store in Victoria.  Relevantly, the Applicant commenced with the Respondent as an employee on 4 December 1996.  The Applicant was terminated on 29 August 2017 for alleged breaches of the Respondent's Code of Conduct and Equal Opportunity Policy.  Specifically, the Applicant was found by the Respondent to have engaged in inappropriate behaviour including swearing, yelling, using racial slurs and behaving in an aggressive manner towards fellow team members.

[8] I just want to deal briefly with the task before me in relation to consideration of the Fair Work Act.  An order for reinstatement or compensation may only be issued where I am satisfied that the Applicant was protected from unfair dismissal at the time of the dismissal.  Section 382 of the Act sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal.  Without going through the relevant subsections of section 382 there is no dispute and I am satisfied that the Applicant has completed the minimum employment period, that being six months, and is covered by a modern award.

[9] I am satisfied that the Applicant was protected from unfair dismissal.  I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the Act. 

[10] A dismissal is unfair if I am satisfied on the evidence before me that all of the circumstances set out in section 385 of the Act existed.  Section 385 provides for the following:

“A person has been unfairly dismissed if the Fair Work Commission is satisfied that;

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[11] In this case there was no dispute and I am satisfied that the matter was confined to a determination of the element contained in section 385(b) of the Act, specifically whether the dismissal of the Applicant was harsh, unjust or unreasonable.  Section 387 of the Act sets out criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable.  I do not intend to read into transcript section 387, having provided copies of the section to the parties at the outset of the proceedings today.

[12] As regards section 387(a) which goes to whether there was a valid reason for the dismissal related to the person's capacity or conduct, the ambit of the conduct which may fall within the phrase "harsh, unjust or unreasonable" was explained in detail in Byrne v Australian Airlines 2 by JJ McHugh and Gummow. 

[13] I am under a duty to consider each of these criteria in reaching my conclusion.  By criteria I mean section 387.  I will now consider each of the criteria separately.

[14] Firstly, I turn to consider whether there was a valid reason related to the person's capacity or conduct.  The Respondent must have a valid reason for the dismissal of the Applicant although it need not be the reason given to the Applicant at the time of the dismissal.  The reasons should be “sound, defensible and well founded” 3 and should not be “capricious, fanciful, spiteful or prejudiced.”4  Having been dismissed for misconduct the Commission must first satisfy itself that on the balance of probabilities the alleged misconduct occurred.5  In doing so the Commission will take into account the need to be properly satisfied of the proofs of the conduct without applying a standard of proof higher than the balance of the probabilities.6

[15] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the matter before it.  The test is not whether the employer believed on reasonable grounds after sufficient enquiry that the employee was guilty of the conduct which resulted in termination.

[16] Ordinarily I would traverse the Applicant's evidence and submissions first but in this case I have chosen to go through the Respondent's material first and then I will deal with the Applicant's evidence and submissions.  It will be more coherent if I do it that way.

[17] Evidence was led by the Respondent from four witnesses, those being Ms Rachel Nelson, Mr Anthony Christou, Ms Bethany Dennien and Mr David Atkinson.  I intend to deal with the evidence of each of the witnesses. 

[18] Ms Nelson gave evidence that she commenced working at the Coles Glenferrie store in December 2016 as the Acting Customer Service Manager.  She was subsequently appointed to the role of Customer Service Manager in January 2017.  In that role she was the Applicant's line manager from December 2016.

[19] It is notable that during her time as the Applicant's line manager he had disclosed a number of personal issues to Ms Nelson, specifically the Applicant had a bipolar medical condition.  Further, in around May 2017 the Applicant approached Ms Nelson and advised her that he was involved in a criminal matter involving an alleged assault of an off duty police officer.  Ms Nelson in her evidence stated that she had no issues with the Applicant regarding his behaviour towards her until 5 June 2017.

[20] During a series of text message between Ms Nelson and the Applicant on 5 June 2017 regarding his concerns over a shift roster, the Applicant used crude, inappropriate and abusive language in referring to a previous Customer Service Manager, according to the evidence of Ms Nelson.  A copy of the offensive text message was appended to Ms Nelson's witness statement. 7 In the text message the Applicant used language including words such as "bloody retard", "absolutely retard", "bloody OCD faggot" and "cunt" in describing the former Customer Services Manager.

[21] On the same day as having received the offensive text, Ms Nelson became aware of the Applicant having come into the store and during an exchange with fellow team members in the tea room had asked "Where is Rachel?  I want to sort that cunt out". A disciplinary meeting was subsequently convened with the Applicant on 10 June 2017 flowing from which the Applicant received a first and final warning.  Ms Nelson did not participate in the disciplinary meeting on 10 June 2017.

[22] In late June 2017, one of the team members, Mr Singh, on Ms Nelson's evidence, reported to her that the Applicant had shouted at him and other team members using words to the effect of "Shut up and just do your jobs. I'm the boss. I'm in charge".  Ms Nelson then spoke with other team members who were on shift that day who confirmed Mr Singh's allegations.  On 2 July 2017 another team member, Mr Doshi, called Ms Nelson and advised her that on 24 June 2017 the Applicant during an exchange had called him a "fucking curry" while working with him.

[23] Mr Singh's allegations regarding the Applicant were sent to Ms Nelson on 4 July 2017. 8  Mr Doshi also forwarded an email to Ms Nelson on 4 July 2017 detailing his complaint regarding the Applicant's behaviour.9

[24] On 4 July 2017, Ms Nelson accompanied Mr Christou in a meeting with the Applicant, the purpose of which was to inform the Applicant of the allegations made against him by other team members. During the meeting on 4 July 2017, according to Ms Nelson, the Applicant did not deny making the comments alleged to have been made, however he mentioned his bipolar and said that was why he acted the way he did. 

[25] The Applicant's disclosure regarding his medical condition prompted the suspension of the meeting.  The Applicant was informed by Mr Christou that he was suspended from work until information had been obtained regarding the Applicant's medical condition.

[26] Ms Nelson further gave evidence that on 9 July Ms Nelson received a phone call from Mr Singh reporting that the Applicant was in the store and had sworn at Mr Singh. Mr Singh indicated that he was afraid of the Applicant. 10 Mr Singh, on Ms Nelson's evidence, subsequently took two weeks off work out of a concern for his safety.  

[27] Ms Nelson was not involved in the disciplinary meeting with the Applicant conducted on 29 August 2017 although she was aware of the meeting.  She was subsequently advised by her regional manager that the outcome of the disciplinary meeting was that the Applicant had been terminated effective immediately.

[28] As Mr Christou was then on leave, Ms Nelson signed the termination letter on behalf of the Respondent. 11  The letter was sent by registered post and also by standard post on 30 August 2017.  Subsequent to the dismissal, Ms Nelson started to receive text messages and phone calls from the Applicant that were crude and offensive.12  Comments directed at Ms Nelson included:

"Piggy", "Dumb cunt", "Contact the cop, you fat cunt", "Fucking cunt", "Piece of shit", "Get a mirror", "Fat cunt”. 

[29] Ms Nelson was aware that the Applicant had also sent offensive text messages to Mr Doshi on 30 August 2017, copies of which were attached to Ms Nelson's statement. 13

[30] I will now turn to the evidence of Mr Christou.  Mr Christou gave evidence that he commenced as a Store Manager at the Glenferrie supermarket in March 2016 at which point he first met the Applicant.  On his evidence, the Applicant initially performed and behaved like other team members of the store but in late 2016 the Applicant's behaviour started to become an issue. 

[31] The Applicant started turning up late for work without adequate explanation on a regular basis, and between September and October 2016, for 10 out of 21 shifts the Applicant was either late or not in attendance. Consequently, a formal coaching discussion was conducted with the Applicant on 9 October. 14 

[32] A further coaching discussion was conducted with the Applicant, according to Mr Christou, on 30 November 2016 to discuss conduct involving the Applicant and team member, Mr Roberts, in which it was alleged the Applicant had engaged in threatening behaviour on 28 November 2016. The Applicant admitted to the behaviour set out in Mr Roberts' statement in discussions with Mr Christou, he expressed contrition and apologised for his behaviour. In doing so he attributed his behaviour to his bipolar condition.

[33] The Applicant received a verbal warning and it was made clear by Mr Christou that if there was any further behaviour of that nature it was likely that there would be disciplinary action taken against him including termination of employment. 

[34] According to Mr Christou, following the discussion with the Applicant on 30 November 2016, the Applicant's behaviour started to become very erratic.  In early June 2017, Ms Nelson approached Mr Christou and showed him some aggressive text messages that included offensive language that was disparaging of a former Customer Services Manager.

[35] The texts had been received by Ms Nelson from the Applicant on 5 June 2017.  On 5 June 2017, it was also reported to Mr Christou that the Applicant had come into the tea room asking other team members where Ms Nelson was, following which he said words to the effect "I'm going to deal with that cunt" in reference to Ms Nelson as he left the tea room.  Given the seriousness of the allegation, Mr Christou asked the team members to prepare statements setting out what they had witnessed in the tea room. 15

[36] A disciplinary meeting with the Applicant was conducted by Mr Christou accompanied by Mr Darani on 10 June 2017.  The Applicant was accompanied by Ms Elise Van Arkell, a personal friend of the Applicant.  The Discussion Record of the 10 June 2017 meeting with the Applicant was appended to Mr Christou's witness statement. 16

[37] During the course of the interview the Applicant referred to a number of personal matters, was aware of and regretful of his behaviours and admitted to engaging in the behaviour on 5 June 2017, according to Mr Christou's evidence.  Mr Christou considered that a first and final warning was the appropriate disciplinary outcome having regard to the Applicant's length of service, his expressed regret about his behaviour and the fact that the Applicant had raised the issue of his bipolar condition.

[38] The Applicant was advised by Mr Christou that any further behaviour of this kind would not be tolerated and may result in further disciplinary action up to and including termination of his employment.  Mr Christou gave evidence that the Applicant was reissued with a copy of the Coles Code of Conduct and the Equal Opportunity Policy.  The Applicant was also encouraged by Mr Christou to seek help from his doctor to make sure he was appropriately managing his medical condition.  Mr Christou gave evidence that within a short period of time after the first and final warning was issued further issues arose with the Applicant's behaviour.

[39] As the new allegations against the Applicant involved similar behaviour to the previous incident, on 4 July Ms Nelson and Mr Christou met with the Applicant in the store to discuss the latest incidents which included language directed to Mr Doshi, describing him as "a fucking curry" on 24 June 2017.  During the meeting on 4 July 2017 the Applicant attributed his behaviour to his bipolar condition, at which point the meeting was suspended.  The Applicant was advised due to the seriousness of the allegations against him that he was suspended from work and not required to attend work until the Respondent obtained further medical information in relation to his condition.

[40] Mr Christou on his evidence then called the Advisory Team to obtain documents to send to the Applicant's treating doctor, which were provided to the Applicant at a further meeting with Mr Christou on 7 July 2017.  The correspondence detailed the allegations against the Applicant. 17 

[41] Mr Christou gave further evidence that despite the Applicant's suspension, he attended the store on 9 July 2017 and was reported to have been yelling at Mr Singh and Mr Iqbal about how they got him suspended. Specifically Mr Iqbal said that while Mr Singh was filling the drinks fridge at the service area, the Applicant approached him and shouted "You got me fucking suspended".  Mr Christou instructed Mr Iqbal to ask the Applicant to leave the store and to tell him that the police were to be called. 18 

[42] Although the Applicant was asked to provide his medical information by 13 July, Mr Christou stated that the requested information had still not arrived prior to Mr Christou's departure on annual leave on 6 August 2017.

[43] Mr Christou was on annual leave during the subsequent disciplinary meeting and termination of the Applicant.  During that period Mr Christou gave evidence that he received a number of crude and offensive text messages from the Applicant, again which were appended to Mr Christou's statement. 19 

[44] On Mr Christou's return from annual leave he gave evidence that he was contacted by Ms Karen Ross, the Bakery Manager, during which she advised Mr Christou that the Applicant was in the store and yelling at her about his pay.  While on the phone to Ms Ross, Mr Christou could hear the Applicant in the background yelling. Mr Christou instructed Ms Ross to contact the police, which she did, following which the police then attended the store and removed the Applicant from the premises. 

[45] On 7 September 2017, Mr Christou received several text messages and phone calls from the Applicant complaining about not receiving his pay. 20  In a subsequent conversation with the Applicant regarding the pay, the Applicant on Mr Christou's evidence made a number of threats following which Mr Christou hung up and called the police.

[46] I will now deal with the evidence of Ms Dennien.  Ms Dennien gave evidence that she participated in a meeting with the Applicant on 29 August 2017 in the capacity as the company witness. 21  She was there to record the notes of what was discussed and in particular record the Applicant's responses.  During the disciplinary interview the Applicant was provided with a copy of the Discussion Record,22 which he had for reference during the meeting.

[47] The Applicant was asked for his responses to the allegations.  In response the Applicant was more interested, according to Ms Dennien, in talking about his personal circumstances including charges of assaulting a police officer, depression, anxiety and his bipolar condition.  He had also, on Ms Dennien's evidence, made comments that it had been a hard year for him and that people were jealous of him.  The Applicant initially did not respond to the specific allegations so Mr Eliades, who was conducting the interview, went through each of the allegations in Section 2 a second time and asked for a response to each. 

[48] In relation to the specific allegations put to the Applicant, Ms Dennien recorded the Applicant's responses as follows:

“Firstly he did not remember uploading the Snapchat for other team members to see comments regarding Ms Nelson that she was "a fat arsed bitch who got me suspended".  He did not recall displaying aggressive behaviour towards other team members in late June in which it was reported that he had said "Shut up and just do your job.  I'm the boss.  I'm in charge".  The Applicant during that meeting denied using the term "fucking curry" when referring to a fellow team member.  He denied making the statement when in the store on 9 July 2017 to a fellow team member that "You got me fucking suspended".

[49] I will now turn to the evidence of Mr David Atkinson who is the People and Culture Business Partner.  Mr Atkinson gave evidence that he first became aware of the Applicant because of the Discussion Record of the 10 June 2017 disciplinary meeting.  He was aware that the Applicant had received a first and final warning at the end of that process and that the Applicant was also reissued a copy of the Code of Conduct and Equal Opportunity Policy as part action items that arose out of that first and final warning.

[50] Subsequently the Store Manager of Glenferrie Coles, Mr Christou, contacted Mr Atkinson regarding further issues with the Applicant's behaviour and that he was engaging HR advisory to assist with another Discussion Record in early July 2017.  Through the course of the discussion with Mr Christou it was agreed that more needed to be understood regarding the Applicant's medical condition.  Following consent being obtained from the Applicant, medical information was obtained from the Applicant's treating practitioner in the first week of August 2017. 23 

[51] The medical report indicated that the Applicant had been diagnosed with bipolar disorder several years previously.  The report also indicated that the Applicant's judgment was partially impaired but that he was reluctant to consider mood stabilising medication.

[52] Mr Atkinson gave further evidence that following receipt of the medical information he made a number of attempts to contact the Applicant to arrange the disciplinary meeting.  The Applicant did not respond to attempts by Mr Atkinson to contact him and as a consequence a letter was sent by Ms Nelson to arrange a meeting.

[53] Arrangements were also put in place regarding the Applicant having a support person accompany him.  Mr Atkinson was not involved in the termination meeting.  Following the Applicant's termination, Mr Atkinson received a series of offensive texts from the Applicant. 24  

[54] I am now going to summarise the submissions that have been made by the Respondent.  The Respondent submitted that the Applicant received documented counselling on 19 October 2016 for repeated lateness.

[55] On 5 June 2017, the Applicant sent Rachel Nelson an aggressive and offensive text message.  In addition to the text message, the Respondent submitted that the Applicant entered the Glenferrie Coles store on 5 June at approximately 1.44 pm, went into the tea room and in the presence of three staff members having their break, stated "Where is Rachel?  I want to sort that cunt out".  Following these incidents a disciplinary meeting was held with the Applicant on 10 June 2017, from which flowed a first and final warning.

[56] In providing that final warning, the Respondent took into account the Applicant's length of service, his difficult personal circumstances, the fact that the Applicant was remorseful and the medical condition he suffered from.  The Respondent submitted that the Applicant was specifically warned that any further conduct of this nature would result in further disciplinary action and may result in the termination of his employment.  A copy of the Code of Conduct and Equal Opportunity Policy were also provided to the Applicant at the conclusion of 10 June 2017 meeting.

[57] Two weeks after receiving a first and final warning for inappropriate behaviour it was submitted by the Respondent that on 24 June 2017 the Applicant displayed the same aggressive and abusive behaviour as he had previously shown to a number of team members.

[58]   Reports were received from both Mr Doshi and Mr Singh that the Applicant had again yelled and used racial slurs towards them.  In addition Mr Doshi reported that the Applicant had uploaded a Snapchat posting which stated that Ms Nelson was "a fat arsed bitch" who got him suspended.

[59] As a consequence of the increasing concern of team members regarding the Applicant's behaviour, the Respondent submitted that a meeting was conducted with the Applicant on 4 July 2017 including the Store Manager, Mr Christou, and the Customer Service Manager, Ms Nelson.  The purpose of the meeting was to discuss the allegations and ask the Applicant for consent to get medical information.  The Applicant subsequently attended the store on 7 July 2017 and was given a letter to give to his treating doctor to enable the release of the requested medical information.  The Respondent submitted that that correspondence included details of the allegations against the Applicant.

[60] Because of the seriousness of the allegation the Applicant was suspended from 4 July 2017 and directed not to attend work.  Despite that suspension the Applicant attended the store on Sunday 9 July and approached a team member, Mr Singh.  According to the Respondent the Applicant walked up to Mr Singh and aggressively said "You got me fucking suspended". 

[61] The Respondent submitted that the medical information was eventually received in the first week of August 2017.  A number of attempts, according to the Respondent, were made to contact the Applicant between 9 August 2017 and 17 August, which were not responded to.

[62] On 21 August 2017, the Applicant was sent a registered post letter requesting his attendance at a meeting to discuss the allegations previously raised with him on 4 July 2017.  The Applicant eventually made contact with Mr Atkinson, People and Culture Business Partner, and the meeting was arranged for 29 August 2017.

[63] The Respondent submitted that despite statements from employees, the Applicant denied that the incidents forming the basis of the allegations occurred as alleged.  No explanation of his behaviour other than he was having a hard year and that he had bipolar disorder was provided by the Applicant. After consideration of all of the available material, the Respondent decided to terminate the Applicant's employment effective 29 August 2017.  A letter confirming the termination was subsequently provided to the Applicant in correspondence dated 30 August 2017. 

[64] The Respondent submitted that on Wednesday 30 August 2017, the Applicant sent a barrage of crude and offensive text messages as well as leaving telephone messages to team members including Ms Nelson and Mr Atkinson.  The messages included the following to Mr Atkinson:

“Where is my pay out, faggot?  I want my pay out, cunt.  Just tell me when is my pay out, cunt, faggot?  You piece of shit.”

[65] On 6 September, the Applicant entered the Glenferrie Coles store and was behaving in a threatening, aggressive and erratic manner according to the Respondent.  He refused to leave and eventually had to be removed by the police. 

[66] The Respondent submitted that the Applicant's dismissal was for unacceptable behaviour and conduct of an aggressive and threatening nature that made other team members fearful for their safety.  The behaviour was repeated and was becoming progressively worse according to the Respondent.

[67] The Respondent further submitted that the type of conduct alleged against the Applicant was serious by its very nature and a breach both of the Code of Conduct, which states that team members should treat everyone with whom they interact with dignity, courtesy and respect, and the Equal Opportunity Policy which states that vilification, bullying and harassment are all examples of inappropriate behaviour that will not be tolerated at Coles. 

[68] The Respondent contended that the Applicant displayed conduct which occurred as a part of a repeated pattern of unsatisfactory behaviour and performance for which the Applicant had been formally counselled by the Respondent.  In summary, the Respondent submitted that the behaviour constituted serious misconduct establishing a valid reason for the dismissal of the Applicant.

[69] The Applicant submitted that his termination was unfair for a number of reasons including his length of service of 21 years, his denial of many of the allegations made against him and his belief that he had not been given a proper opportunity to respond.

[70] The Applicant submitted that he had been, in his words, through a “deep valley.”  The Applicant referred to his medical condition, that of being bipolar, which impacted his behaviour.  The Applicant also submitted that there was an important background to his exchange with Ms Nelson of 5 June 2017 and that was his frustration over the roster which he had been required to work, involving regular Saturday evenings, and there was also frustration over annual leave that he had applied for that had not been processed in the system.

[71] The Applicant submitted that he had been a good employee and not generated customer complaints and felt that in all the circumstances the termination was unfair.

[72] Under cross-examination the Applicant gave the following evidence:

•  In relation to his employment record he conceded that there were some issues.  He acknowledged that he was not perfect.  He conceded that he had abandoned his employment in 2011 but had been given a second chance by the Respondent.  He also conceded that he had been spoken to regarding the use of mobile phones while on the cash register.

•  He could not recall the counselling session on 19 October 2016 stemming from absenteeism and attendance issues during September and October 2016.  He also claimed during cross-examination that he could not recall a conversation regarding the incident with Mr Roberts in 2016.  The Applicant did concede that Coles had supported him during his employment with them. 

[73] I will now deal with each of the issues in the Applicant’s evidence that went to the first and final warning, the termination and post termination behaviour in the Applicant's evidence.

[74] In relation to the text message exchange with Ms Nelson on 5 June 2017, the Applicant conceded that he had forwarded the texts but that the context in which they had been sent needed to be understood.  He explained the frustration he felt over roster and annual leave issues as some justification for those text messages.  In relation to the tea room incident on 5 June 2017, the Applicant conceded that he went into the store that day but could not recall using the phrase "Where is Rachel?  I want to sort that cunt out".  Further, he stated that he would not use that language.

[75] As regards the warning issued to the Applicant he thought it was a first warning and not a first and final warning.  He did not concede that his behaviour constituted serious misconduct having regard to the context.  When questioned during cross-examination as to the Applicant's denial that he would use the word "cunt" to describe Ms Nelson, the Applicant was taken to a text message sent to Ms Nelson on 30 August 2017 in which he referred to Ms Nelson in those terms.  He conceded that he sent that text message but that it was sent following his termination in anger and frustration.

[76] The Applicant further conceded that he had been given a copy of the Code of Conduct and the Equal Opportunity Policy at the end of the 10 June 2017 meeting but he had not read them nor had he received training, according to his evidence.  The Applicant gave evidence that he could not recall being warned by Mr Christou in the meeting on 10 June 2017 that any further similar behaviour would lead to further disciplinary action up to and including termination of employment. 

[77] I will now deal with the incidents leading to termination. The Applicant gave evidence that he could not recall the incident involving Mr Singh on or about 24 June 2017.  Further, he stated that he could not recall using the term "fucking curry" in an exchange with Mr Doshi on 24 June 2017. When taken to a text exchange with Mr Doshi that occurred on 30 August 2017 25, the Applicant stated that the use of the term "fucking curry" was just banter with a friend.  He denied stating to Mr Singh that, during a visit to the store on 9 July 2017, "You got me fucking suspended".

[78] In relation to the posting of material on Snapchat, the Applicant claimed during his evidence that a friend had hacked his account to post the “fat arsed bitch” comment and other comments regarding the Respondent and Ms Nelson. 

[79] The Applicant conceded that attempts to set up a disciplinary meeting in August 2017 following the Respondent's receipt of the medical report was delayed in large part due to his availability issues. 

[80] With respect to the meeting conducted on 29 August 2017, the Applicant agreed that the allegations were read out to him during the meeting. He acknowledged that he had received correspondence on 7 July 2017 for the purpose of obtaining medical reports, which included details of the allegations, but he stated that he had not read that correspondence. 

[81] He conceded that after his responses were provided to the Respondent during the meeting of 29 August 2017, the Respondent representatives took a break before returning and advising him of the termination of his employment.  The Applicant claimed that he was not given a fair opportunity to prepare and respond to the allegations.  The Applicant did however agree that he had been provided with an opportunity to be accompanied by a support person.

[82] I will now turn to deal with the post termination texts and phone calls.  In relation to the period immediately following his termination, the Applicant gave evidence that he did not recall phoning and swearing at Mr Atkinson although he did concede that he sent offensive text messages at 9.53 am on 30 August. 26  The Applicant also conceded that the text messages sent to Ms Nelson after his termination were made and that they included offensive language.27  He attributed these text messages to his state of mind.  He claimed he was traumatised and angry in the wake of his termination.

[83] I am now going to turn to a consideration of all the evidence and submissions.  Firstly, I am going to deal with whether there was a valid reason. 

[84] The evidence of the company witnesses regarding the Applicant's behaviour was unchallenged.  The Applicant claimed to have been unable to recall certain incidents but did concede that texts had been sent by him to a number of team members including Ms Nelson, Mr Christou, Mr Atkinson and Mr Doshi.  The Applicant's explanation for the Snapchat comments regarding Ms Nelson and the hacking by a friend were utterly unconvincing.

[85] I am satisfied that the Applicant was given a first and final warning on 5 June 2017 arising from inappropriate behaviour directed to fellow team members in early June.  During those incidents he used foul and inappropriate language which I am satisfied justified the first and final warning having regard to the nature of the inappropriate and foul language.  Specifically, in a text message to his line manager, Ms Nelson, in referring to a former Customer Service Manager he used the following language:

“Bloody retard.  Absolutely retard.  Bloody OCD faggot and cunt."

[86] Secondly, I am satisfied that in an exchange with fellow team members in the tea room on 5 June, while looking for Ms Nelson, he used the words to the effect:

"Where is Rachel?  I want to sort that cunt out". 

[87] I prefer the evidence of the company in relation to that exchange.  The Applicant was unable to recall the exchange, while the Respondent was able to provide documented records of the reports made to company representatives. 

[88] I am satisfied that in issuing the first and final warning the Respondent had appropriate regard to the Applicant's length of service, his expressed regret at his behaviour and the fact that the Applicant had raised his medical condition as a mitigating factor.

[89] I am also satisfied that arising out of the disciplinary action taken on 10 June 2017, the Applicant was reissued with the Coles Code of Conduct and Equal Opportunity Policy and that it was made clear to the Applicant that any further inappropriate behaviour may lead to further disciplinary action including the termination of employment. 

[90] Having been provided with copies of both the Code of Conduct and Equal Opportunity Policy, it should have been abundantly clear to the Applicant that there was a need for him to re-familiarise himself with his obligations consistent with both the Code of Conduct and the Equal Opportunity Policy. Further, he was encouraged by Mr Christou to seek support from his medical practitioner regarding his medical condition. 

[91] I am further satisfied that shortly after the first and final warning was issued, further incidents  of inappropriate behaviour on the part of the Applicant occurred in late June 2017. This led to the Applicant's suspension on 4 July 2017, pending completion of the investigation and receipt of medical information regarding the Applicant's medical condition.

[92] I am satisfied on the evidence that further offensive and inappropriate exchanges on the part of the Applicant were directed toward fellow team members in late June 2017.  This was in spite of a recently issued first and final warning.  The incidents included the Applicant calling Mr Doshi a "fucking curry" while working with him on 24 June 2017.  The Applicant's failure to recall using those terms is contradicted by the report of the incident provided by Mr Doshi to his manager.  The Applicant's denial is also at odds with the tone of language used by the Applicant in an exchange with Mr Doshi subsequently on 30 August.

[93] I am further satisfied that the Applicant yelled at team members saying words to the effect:

"Shut up and just do your job.  I'm the boss.  I'm in charge".

[94] I am also satisfied that the Applicant uploaded offensive comments to Snapchat regarding Ms Nelson in which he referred to her as "a fat arsed bitch".  As I have previously said I found the Applicant's explanation that his Snapchat account had been hacked by a friend as utterly unconvincing and in any event no evidence was brought forward to support that assertion. 

[95] I am further satisfied that the Applicant entered the Glenferrie Coles store on 9 July 2017 while under suspension and while instructed not to attend the store, and berated Mr Singh and used words to the effect of:

"You got me fucking suspended".

[96] The Applicant's conduct towards fellow team members was crude, offensive, derogatory and inappropriate in the lead up to his dismissal.  It was contrary to the Coles Code of Conduct and Equal Opportunity Policy.  To the Applicant's discredit, that pattern of offensive conduct continued in the wake of his dismissal.  The stream of abuse and invective directed by him to Ms Nelson on 30 August 2017 via text messages was undeserved and utterly unacceptable.  That pattern of offensive language was also directed towards Mr Doshi and Mr Atkinson.

[97] I am satisfied that the Applicant's use of crude, offensive, derogatory and inappropriate language directed towards his fellow team members constitutes serious misconduct.  I am consequently satisfied that at the time of the Applicant's dismissal the Respondent had a valid reason to terminate the Applicant's employment based on his conduct. 

[98] I will now turn to deal with notification of a valid reason.

[99] The Applicant was advised of the misconduct allegations in a meeting on 4 July 2017 following which the Applicant was suspended.  A further meeting was held on 29 August 2017 at which the Respondent again detailed the allegations and confirmed the reasons for the dismissal of the Applicant.  The Applicant was dismissed on 29 August 2017, confirmation of that being provided in a letter to the Applicant dated 30 August 2017.  Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made in explicit terms and in plain and clear terms.

[100] I am satisfied that the Applicant was notified of the reason for his dismissal in plain and clear terms prior to the decision being made to terminate his employment. 

[101] The opportunity to respond to any reasons related to the capacity or conduct is the next criteria that I will deal with, that being section 387(c).

[102] This criteria is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.  I am satisfied that the following steps were taken by the Respondent.  A meeting was conducted on 4 July 2017 at which Mr Christou and Ms Nelson attended with the Applicant and a support person where the allegations were initially put to the Applicant.  A further meeting was conducted on 7 July at which correspondence was provided to the Applicant for the purposes of obtaining a medical report in which were contained the specific allegations.

[103] Finally, a further meeting was conducted on 29 August 2017 with Mr Eliades and Ms Dennien during which the allegations were again put to the Applicant and a response invited.  I am satisfied that from 4 July 2017, the Applicant was on notice regarding the allegations that he needed to answer.  I am satisfied that the Applicant was afforded an opportunity to respond to the allegations prior to and at the meeting conducted on 29 August 2017. 

[104] I will now deal with whether there was an unreasonable refusal by the employer to allow a support person, that being section 387(d).

[105] The Applicant was expressly advised of his right to be accompanied by a support person in all meetings with the Respondent, and took up the opportunity to be accompanied by a support person.  I am therefore satisfied that there was no unreasonable refusal by the Respondent to allow the Applicant to be accompanied by a support person.

[106] I will now deal with section 387(e), that section dealing with whether there were any warnings regarding unsatisfactory performance.  The Applicant was not dismissed for performance shortcomings but for serious misconduct and so this factor is not relevant in my decision.

[107] Section 387(f) requires me to consider the impact of the size of the Respondent on the procedures followed.  The Respondent's F3 employer response form indicates that at the time of the Applicant's dismissal it employed a hundred thousand employees.  The Respondent is a large, well resourced organisation.  Its size did not adversely impact on the procedures followed by it in dismissing the Applicant.  This factor is therefore a neutral consideration in my decision.

[108] I will now deal with section 387(g), that is whether the absence of dedicated human resource management specialist expertise impacted on procedures followed.  The evidence in this matter indicates that the Respondent had access to and did in fact utilise the services of dedicated human resources specialists employed by the Respondent.  This factor is therefore a neutral consideration in my decision. 

[109] I now turn to consider whether there are any other relevant matters in determining whether the termination was harsh, unjust or unreasonable.

[110] Firstly, the Applicant contended that his length of service of 21 years was a relevant consideration.  The evidence satisfied me that that length of service was considered by the Respondent, firstly when it issued a first and final warning in June 2017 for behaviour which could have in their view justified dismissal on the basis of serious misconduct.  I am further persuaded that regard was had to the Applicant's length of service by the fact that notwithstanding the Respondent's view that he had engaged in serious misconduct, it made a decision to pay out five weeks' pay in lieu of notice.  I am therefore satisfied that the Respondent had regard to the Applicant's length of service in the disciplinary action that it has taken progressively.

[111] Finally, it was contended by the Applicant that his medical condition was a relevant factor.  The evidence revealed that the Respondent took steps to ascertain the nature of the Applicant's medical condition.  It suspended the disciplinary process commenced on 4 July 2017 to allow it to obtain relevant medical information prior to proceeding.  Having received that medical information it regarded itself as sufficiently informed to proceed to conduct the disciplinary process.  There is nothing in the medical information nor was there any evidence provided that went to the Applicant not being in a condition to be aware of his behaviour.

[112] I am consequently satisfied in the circumstances that the medical condition that the Applicant raised is not a mitigating factor that weighs heavily in these proceedings.

[113] Having considered each of the matters specified in section 387 of the Act, I am satisfied that there was a valid reason for the dismissal of the Applicant and that there were no other factors that would lead to a finding that the termination was otherwise unfair.  I am consequently satisfied that the Applicant's dismissal was not harsh, unjust or unreasonable and consequently he was not unfairly dismissed.

[114] The application is dismissed.  An order will be issued in conjunction with this decision to that effect.  That concludes the decision.  These proceedings are adjourned.

DEPUTY PRESIDENT

Appearances:

Mr R. Ridwan on his own behalf.

Ms L Anderson for the Respondent

Hearing details:

2018.

Melbourne.

January 31

<PR600369>

 1   [2018] FWC 452.

 2   Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465.

 3   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

 4   Ibid.

 5   Edwards v Giudice (1999) 94 FCR 561 [6]-[7].

 6   King v Freshmore (Vic) Pty Ltd S4213 [24].

 7   Exhibit R2, statement of Ms Rachael Nelson, Attachment RN1.

 8   Ibid, Attachment RN3.

 9   Ibid Attachment RN4.

 10   Ibid, Attachment RN5.

 11   Ibid Attachment RN7.

 12   Ibid Attachment RN9.

 13   Ibid Attachment RN10.

 14   Exhibit R3, statement of Mr Anthony Christou, Attachment AC1.

 15   Ibid Attachments AC2, AC3.

 16   Ibid Attachment AC4.

 17   Ibid Attachment AC6.

 18   Ibid Attachment AC7.

 19   Ibid Attachment AC8.

 20   Ibid Attachment AC8.

 21   Exhibit R4, Witness Statement of Ms Bethany Dennien.

 22   Ibid, Attachment BD1

 23   Exhibit R5, Statement of Mr David Atkinson, Attachment DA1.

 24   Ibid, Attachment DA2.

 25   Exhibit R2, Attachment RN10.

 26   Exhibit R5, Attachment DA2.

 27   Exhibit R2, Attachment RN9.

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