| [2019] FWC 4406 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Haider Ali
v
Chobani Pty Ltd
(U2019/1734)
COMMISSIONER MCKINNON |
MELBOURNE, 25 JUNE 2019 |
Application for unfair dismissal remedy.
[1] Haider Ali was employed by Chobani Pty Ltd (Chobani) as a Storeperson from 5 June 2017 until 11 February 2019. He commenced working at the premises as a casual contractor to Chobani from 2013 until he was employed directly by Chobani in 2017. On 11 February 2019, his employment was terminated on the grounds of serious misconduct and breach of company values and behaviours.
[2] On 19 February 2019, Ali applied to the Commission for an order granting a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). He submits that the dismissal was unfair because the events have been mischaracterised, he was bullied, intimidated and provoked, he was underpaid and under immense work pressure and he was treated differently to the other employee involved in the incident who is a union member.
[3] Chobani submits that the dismissal was not unfair because Ali’s conduct in an incident on 17 January 2019 was unacceptable and despite its investigation having established that he engaged in serious misconduct, he was paid two weeks wages in lieu of notice on termination.
[4] The matter was conciliated on 20 March 2019 and 10 May 2019 and was not settled.
[5] After seeking the views of the parties, I determined that a hearing would be the most effective and efficient way to resolve the matter. The matter was heard on 24 May 2019 and 6 June 2019 in Melbourne.
[6] The application was filed within the standard 21 day time limit required by the Act.
[7] Under section 382 of the Act, a person is protected from unfair dismissal if, at the relevant time:
• They have completed at least the minimum employment period; and
• They are either covered by a modern award, employed under an enterprise agreement that applies to them or earn an annual income of less than the “high income threshold”.
[8] It is not in dispute that Ali’s period of employment with Chobani was longer than the minimum employment period and that the Chobani Australia Pty Ltd & National Union of Workers Enterprise Agreement (Enterprise Agreement) applied to his employment. His hourly rate of pay was $27.74, which on an annual basis would be less than the high income threshold. Ali is protected from unfair dismissal.
[9] Under section 385, a person has been unfairly dismissed if the Commission is satisfied that they have been dismissed; that the dismissal was harsh, unjust or unreasonable; and if relevant, that the dismissal was not consistent with the Small Business Fair Dismissal Code or not a case of genuine redundancy. 1
[10] There is no dispute that Ali was dismissed from his employment.
[11] At the time of dismissal, Chobani employed 306 employees. 2 I am satisfied that the dismissal could not have been consistent with the Small Business Fair Dismissal Code3, because Chobani was not a small business employer at the time of the dismissal.4 Likewise, there is no contention nor evidence to the effect that Ali’s employment terminated on the grounds redundancy. I find that the dismissal was not a case of genuine redundancy.
[12] The phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 5 as follows:
“....It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[13] In determining whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account the criteria in section 387 of the Act. Those are considered in turn.
Was there a valid reason for the dismissal related to capacity or conduct?
[14] Ali was the leading hand on afternoon shift, commencing from 2.00pm on 17 January 2019. There is some confusion about the relevant reporting lines on afternoon shift, because there is a shift overlap between 2.30pm and 6.00pm. Ali says he was the only team leader in charge of logistics that afternoon. Two other storepersons, Robert Cushen and Guilbert Louison, were working day shift from 6.00am to 6.00pm and Louison says he was also leading hand on the day shift. The best evidence as to the supervisory structure in place at the time was that of Shane Burge, Logistics Manager. He confirmed that Ali was Cushen’s supervisor at the time of the incident and I find that to have been the case.
[15] On 17 January 2019, there was an incident involving Ali and another employee, Rob Cushen while unloading ‘fruit totes’. Ali described the job as checking the totes, scanning them and putting them into the system. He says it can only be done by one person for quality control.
[16] Ali and Cushen have different recollections of the incident. Ali’s version 6 is that at or around 4.00pm7 or 4.20pm8, he asked Cushen to check the ‘fruit totes’. In the meantime, he unloaded the truck and took all the totes out. Cushen was standing in the yard in front of the dry goods warehouse and asked Ali to turn the tots around. Ali did so and went back to making loads for shuttle. Cushen came to him with a list of totes and asked him to scan them. As he was busy, he went back to Cushen and asked another colleague, Guilbert Louison, to teach him how to scan the totes. Cushen said he knew how to do it, and Ali asked him to scan them as he was making loads.
[17] Ali says Cushen refused, saying “No, you do it”. Ali then said “Can you finish what you started”. Cushen replied in words to the effect “you’re not my fucking supervisor”. Ali said “All I’m asking you to do your job and once Scott goes home I’m your in charge in afternoon shift.” Cushen said “I don’t fucking care, you’re not my supervisor”. He kept saying Ali was not his supervisor, and they started to argue. Ali says Cushen threatened him that he would “go to HR and Ali would lose his job”. He says he replied “I will take you down with or without HR”. He says he walked away from the incident after getting frustrated, angry and losing control. 9
[18] Ali denies threatening Cushen, challenging him to go outside or to hurt him using the words contained in a show cause letter dated 21 January 2019. 10
[19] Cushen described the ‘totes job’ as getting the totes off the truck, washing and putting them in their location, scanning them and putting them into the system. He says it was common for different people to do different parts of the job, and that it was not always one person doing all tasks. Whoever did the task signed the paperwork. 11
[20] Cushen’s incident report 12 states that while checking off the totes at 4.00pm, he asked Ali if he would put the tote taps towards the wall for easier washing access. He checked off totes “as per norm” and handed Ali the clipboard with checked off details so that Ali could enter them on to the system. In the hearing on 24 May 2019, he stated that Ali told him he would do the scan and then came back and said “No, you do the scan”. The incident report then records that while nearing completion of the tote put away, Cushen was confronted by Ali, handed back the clipboard and told it was “your fucking job”. Cushen says the verbal abuse continued, and Ali said he would “shove [Cushen’s] head up [his] fucking ass”. Cushen replied “Are you threatening me” and Ali replied “We’ll go out the front and I’ll punch your fucking head in”. Cushen says he then said “How about we go the HR”. Ali continued to verbally abuse him and indicated that he didn’t “give a fuck” about HR or the job. He accused Cushen of not fulfilling his work duties. He says he was left shaken, bemused and anxious about his next work day.
[21] Cushen denies saying “It’s not my fucking job” or that scanning the totes “wasn’t his job” but concedes that he may have said Ali was “not his fucking supervisor”. He says everyone swears at work and he can’t recall if he swore at Ali. He says he was not aggressive at the start of the incident but that aggressive words were exchanged by both he and Ali. He says he didn’t start anything but accepts he may have retaliated to Ali’s aggressive manner. At the time of the hearing, he could not recall anything he had said during the incident specifically, explaining that he had been rattled. He says he thought Louison was his leading hand at the time of the incident and did not know Ali was his leading hand.
[22] The incident was witnessed by Louison who was leading hand on the day shift, from 6am to 6pm. He described the totes job as one that was shared because of the volume of work involved, agreeing that it was important for one person to start and finish their job. In his view, whoever is free checks the paperwork and if not completed, they will pass it over to someone else to complete.
[23] Louison did not complete an incident report in connection with the events of 17 January 2019 but was asked to provide his account as part of the investigation into the incident. He described the incident as occurring at approximately 4.00pm while he was working with Ali and Cushen unloading fruit totes. 13 Each was on a forklift at the time. He says Cushen asked Ali to put the totes in a certain direction so they were all facing the same way to make it easier to scan. Ali did this and then drove away on his forklift. A few minutes later, Ali returned on his forklift and gave Cushen the clipboard with the totes paperwork, saying “You can do this”. Cushen said to Ali “I thought you were doing it”. Ali said “I’m your fucking boss you listen to me when I talk to you”. Cushen replied “What’s with the attitude?” and told Ali to “settle down”. Cushen spoke to Louison, saying “I don’t understand the attitude”.
[24] According to Louison, Ali then “fired up” and aggressively said “You want a piece of me? Want to go outside?” Cushen said calmly to Ali “Let’s go to HR”. Ali responded “I don’t give a fuck about HR or my job.” He then said “Come outside, I’ll show you who I am, I’ll sort you out” at least three times. Cushen replied “I thought Guilbert was my Team Leader” and Ali said “No, you listen to me.” Cushen drove away on his forklift and Louison followed behind him. He says Cushen kept his cool the whole time.
[25] Ali was a credible witness but was emotional at times and some of his denials or explanations about the incident of 17 January 2019 are difficult to reconcile with documents he prepared shortly thereafter. Cushen was a generally credible witness but in my observation his evidence was clouded by self-preservation. He had very specific recall of what Ali had said to him in the incident, but very little recall of his own part in that exchange. Louison was a dispassionate witness whose evidence was largely consistent with his witness statement. However, his oral account of the incident varied slightly in content and sequence under cross examination and his evidence of Cushen’s demeanour during the exchange changed.
[26] Having regard to the totality of the evidence, I make the following findings in relation to the incident on 17 January 2019.
[27] On or about 4.00pm, Ali, Cushen and Louison were working on forklifts unloading a truck carrying fruit. Ali asked Cushen to check the fruit totes. In making the request, his expectation was that Cushen would check the totes, scan them and put them into the system. The shift was short staffed by two people and Ali was responsible for both the production line and another area. He was feeling under pressure and wanted the totes job completed quickly so that he could reload the truck with refrigerated produce.
[28] Ali was unloading totes and Cushen asked him to turn them around to make them easier to scan. Ali agreed and turned the totes around, then drove away.
[29] Cushen approached Ali with a list of totes and asked him to scan them. Ali took the clipboard from Cushen and drove away again.
[30] Ali then drove his forklift back in between Cushen and Louison. He said to Cushen, in words to the effect “You can do this” or “This is your job” and gave him back the clipboard.
[31] Ali says that he gave the clipboard to Louison (not Cushen) because Cushen had told him the week prior that he did not know how to scan the totes and that he was asking Louison to help Cushen by showing him. However, Louison denied that he was given the clipboard, and Cushen says it was given to him.
[32] Regrettably, CCTV footage which might have shed light on the dispute in relation to the clipboard was not available. John Athanasopolous, Ali’s support person, gave evidence that Burge had told him he had viewed the CCTV footage and it “did not look good” for Ali. Burge denied this and gave evidence that while he had viewed the CCTV footage, there was no footage of the incident because the recording had ‘skipped’ at the time the incident occurred. It is established that there was an ongoing issue with CCTV footage skipping at or around the time of the incident on 17 January 2019 and on material before me, I am not satisfied that Chobani’s CCTV recorded the incident. It takes the matter no further. I accept the evidence of Louison and Cushen that Ali gave the clipboard back to Cushen.
[33] Cushen did not want to scan the totes. He told Ali “you’re not my fucking supervisor”. Ali responded angrily that he was in charge and that Cushen should listen to him and do his job by finishing what he started.
[34] In his own words, Ali then ‘lost control’, while Cushen became increasingly angry and defensive. The exchange continued, including in words to the effect:
Ali: “You want a piece of me? Want to go outside? I’ll shove your head up your fucking arse.”
Cushen: “Are you threatening me?”
Ali: “We’ll go out the front and I’ll punch your fucking head in. Come outside, I’ll show you who I am, I’ll sort you out.”
Cushen: “How about we go to HR.”
Ali: “I’ll take you down with or without HR. I don’t give a fuck about HR or my job.”
[35] The exchange then came to an end, and Ali and Cushen went their separate ways.
[36] I am not satisfied that Cushen expressly threatened Ali that he would lose his job. However, I find that Ali understood his suggestion to go to HR as a threat to his job, given the context in which it was made. Despite saying what he said in this regard, I am satisfied that he did care about his job.
[37] It is clear from the exchange between Ali and Cushen that the altercation between them was wholly inappropriate in a workplace setting. In my view, it was triggered by Cushen’s aggressive rejection of Ali’s authority. As leading hand, Ali was required by Chobani to direct the work of other employees, including Cushen. His instruction to Cushen was both lawful and reasonable. Cushen had a duty to follow the instruction and his failure to do so was unacceptable.
[38] That is not to say that Cushen’s insubordination justified Ali’s response. Ali had reason to be upset with Cushen but the appropriate course was to escalate the matter by reporting it to management, as Ali acknowledged in his response to the show cause letter.
[39] Chobani relied on Ali’s purported breach of its “Values and Behaviours” as well as the ‘soft skills’ required of his classification under the Enterprise Agreement as additional reasons for dismissal. I am not satisfied on the evidence that Ali had ever seen Chobani’s “Values and Behaviours”. In those circumstances, no separate valid reason for dismissal for breach of policy existed. The evidence is inadequate in relation to whether there was a breach of the Enterprise Agreement and there is separately a question of inconsistent application of its terms by Chobani. The Enterprise Agreement empowers leading hands to give instructions to other workers, and it is clear that Ali was not supported to do so in relation to Cushen in connection with the events of 17 January 2019. I am not satisfied that either the alleged breaches of Chobani’s policies or its Enterprise Agreement are made out.
[40] I find that Ali’s conduct in the exchange with Cushen on 17 January 2019 was a valid reason for his dismissal. It is a matter that weighs against a finding of unfair dismissal.
Was that reason notified to the employee, and was there an opportunity to respond?
[41] On 18 January 2019, Ali was asked to meet with Burge and Kathryn Bourke, People & Culture Business Partner, to give his account of the incident the previous day. He was asked if he had said something to the effect of “Come outside, I’ll show you who I am, I’ll sort you out”. He was told that the matter was serious and that he would be stood down on full pay until further notice.
[42] A second meeting was held with Ali on 21 January 2019 to give him the show cause letter. He was told that the investigation into the incident had revealed serious allegations against him, which were outlined in the show cause letter. He was also told that given the seriousness of the allegations, Chobani was considering terminating his employment. He was asked to attend a further meeting the following day.
[43] The show cause letter set out allegations of serious misconduct in relation to the incident on 17 January 2019, including the various statements that I have found constituted a valid reason for Ali’s dismissal. Ali says he was not shown the evidence against him by Chobani, but there was no physical evidence for him to be shown, other than perhaps the incident reports he and Cushen had completed. The show cause letter set out the specific words that Cushen had alleged against him, in sufficient detail to enable Ali to respond.
[44] On 22 January 2019, the parties met again and Ali provided his written response to the show cause letter. His support person and friend, John Athanasopolous, attended the meeting with him. Athanasopolous read out Ali’s response. Ali expressed regret and remorse for the incident, told Chobani he loved his job and offered to apologise to Cushen.
[45] I am satisfied that Ali was notified that Chobani had a valid reason for dismissal relating to his conduct on 17 January 2019 and that he was given an opportunity to respond to that reason for dismissal in the weeks preceding his dismissal. These matters weigh against a finding of unfair dismissal.
Was there any unreasonable refusal to allow a support person to be present to assist at any discussions relating to dismissal?
[46] As noted above, Ali was assisted in discussions by Athanasopolous and the evidence establishes that Ali was expressly invited to have a support person on more than one occasion in discussions relating to the dismissal. I am satisfied that there was no unreasonable refusal to allow the Applicant to have a support person assist in discussions about the dismissal. It is a neutral consideration.
Was the Applicant warned about relevant unsatisfactory performance?
[47] The dismissal was not related to unsatisfactory performance, but to Ali’s conduct on 17 January 2019. This is a neutral consideration.
Degree to which the size of the employer’s business and any absence of dedicated human resources management specialists or expertise in the business would be likely to impact on procedures followed in effecting the dismissal
[48] At the time of dismissal, Chobani was a large business employing 306 employees. One of those was Bourke, its People & Culture Business Partner. The absence of dedicated human resource management within the enterprise is not a relevant consideration.
[49] There is also no evidence to suggest that Chobani’s business size was likely to affect the procedures it followed in effecting the dismissal to any degree. It is a neutral consideration.
Other relevant matters
[50] Burge confirmed that Ali was hardworking, reliable and ‘did his job’. The incident on 17 January 2019 was the first and only incident of concern. Ali’s employment history weighs in favour of a finding of unfair dismissal.
[51] Ali gave evidence that he had been bullied, discriminated against and intimidated at work but that he did not have confidence in Chobani’s management. He claimed that Burge had once called him a terrorist and made inappropriate religious comments to him about ‘seventy virgins’. There is nothing to contradict this evidence, but nor is there anything to corroborate it. Burge was not asked to respond on the question. If Burge did say those things to Ali, his conduct in this regard was lamentable. However, there is no apparent connection between those comments and the incident on 17 January 2019. Given the state of the evidence, I make no findings about it.
[52] On 18 January 2019, and as part of his response to the allegations against him, Ali explained to Chobani that the ‘boys’ at work had not been listening to him the day before. 14 In my view, this helps to put in context his conduct on 17 January 2019, because he was dealing with a pattern of disrespectful behaviour and he was under a lot of pressure to get the job done. It is not apparent that the context for the outburst was given any relevant weight by Chobani, either in its investigation or disciplinary response. Both the contextual explanation and lack of regard for it in reaching the decision to dismiss Ali weighs in favour of a finding of unfair dismissal.
[53] Ali submits that the dismissal was one sided because there was no similar disciplinary response in relation to Cushen’s conduct. Cushen was not disciplined about the incident except by way of a general reminder to manage stress in an appropriate way and not to swear under his breath. 15 I do not agree with Burge’s assessment that, having looked into Cushen’s conduct, there was “nothing there”. The general reminder did not grapple with Cushen’s refusal to follow Ali’s direction. In my view, Cushen should have been warned about that matter and the failure of Chobani to act on that matter at all, in circumstances where it chose to dismiss Ali for his response, weighs in favour of a finding of unfair dismissal.
[54] Ali gave evidence that Chobani was not making much profit, and that it had decided to increase production while reducing staff numbers, including by limiting the use of casuals to fill short term vacancies. As a result, the logistics area was short staffed on the day of the incident. Chobani did not dispute this evidence. I am satisfied that Ali was under pressure at work on the day of the incident, in part due to factors beyond his control including Chobani’s financial position. There were staffing shortages on afternoon shift contributing to the pressure on Ali at the time of the incident on 17 January 2019. This weighs in favour of a finding of unfair dismissal.
[55] Ali was stood down on full pay during the investigation into the incident and was paid two weeks in lieu of notice, even though he was dismissed for serious misconduct. These matters tend against a finding of unfair dismissal.
[56] Ali is an Afghani refugee who arrived in Australia in 2000 and now has Stage 4 cancer. The medical evidence from his doctors and psychiatrist confirms that he suffers from post-traumatic stress disorder as a result of the experiences of his past. He is dealing with anxiety specifically related to the financial stress of losing his job, because of the effect it will have on his family both in Australia and overseas. It is clear that he is and has been under significant financial and emotional strain. Prior to his dismissal, he spoke to Burge, expressing his concern about being treated unfairly and explaining that he had a family to support and could not afford to lose his job. 16 He has provided documentation to the effect that a bank closure notice has been issued on his family home. His personal circumstances weigh in favour of a finding of unfair dismissal in this case.
[57] Having considered each of the matters specified in section 387, I am satisfied that even though there was a valid reason for his dismissal, the countervailing factors tend on balance in favour of a conclusion that Ali’s dismissal was harsh. Accordingly, I find that his dismissal was unfair.
[58] Reinstatement is the primary remedy available under the Act. I am not satisfied that reinstatement would be appropriate in this case. In all the circumstances, I consider that compensation is appropriate.
[59] Section 392(2) of the Act deals with how compensation is to be assessed in connection with an unfair dismissal. The established methodology is as discussed in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc (Bowden). 17
Remuneration that would have been received, or would have been likely to receive, if not dismissed (s.392(2)(c))
[60] Apart from the incident on 17 January 2019, Ali had an unblemished record and was a reliable and hardworking employee. In my view, had Chobani opted for a disciplinary response that fell short of dismissal, for example by issuing him with a first and final warning, Ali would have taken it seriously and would have remained in employment for a further three months.
[61] Payslips produced by Ali show that his average weekly earnings were $1500.90 per week in the period from 29 October 2018 to 3 February 2019. I find that the likely amount Ali would have received had he not been dismissed is $19511.70 gross (weekly earnings multiplied by 13).
Viability (s.392(2)(a))
[62] I have earlier accepted Ali’s evidence that Chobani’s business was not making a profit, contributing to staff shortages. However, Chobani did not lead any evidence as to its financial position or seek a reduction in any award of compensation on that account. No adjustment in the amount of compensation is made.
Length of service (s.392(2)(b))
[63] Ali had less than two years’ service as a direct employee of Chobani, following his period of almost four years as a labour hire employee. It is neither a lengthy nor brief period of employment and no adjustment of compensation is made on this basis.
Mitigation efforts (s.392(2)(d))
[64] Ali has not been in a position to mitigate his loss because of his medical condition. No reduction in the amount of compensation is made on this account.
Remuneration earned in the period since dismissal (s.392(2)(e))
[65] Other than the two weeks’ wages in lieu of notice, there is no evidence that Ali has earned any remuneration in the period since dismissal. The amount paid in lieu of notice of termination of $2219.20 gross will be deducted from the compensation amount, leaving a figure of $17292.50 gross.
Remuneration reasonably likely to be earned in the period between compensation order and actual compensation (s.392(2)(f))
[66] I am not satisfied that any remuneration is likely to be earned in the period between compensation order and actual compensation.
Other matters (s.392(2)(g))
[67] No deduction is made for contingencies in this case. It is appropriate that superannuation be paid on the compensation amount because the order for compensation is made in part in recognition of lost ordinary time earnings.
Misconduct (s.392(3))
[68] I am satisfied that Ali’s conduct on 17 January 2019 was serious misconduct. Even though he was provoked, his aggressive response to Cushen was the cause of his dismissal. It is appropriate that the amount of compensation be reduced by 50% on this basis. That leaves an amount of $8646.25 gross.
Shock, Distress (s.392(4))
[69] The amount of compensation does not include a component for shock, humiliation or distress.
Compensation cap (s.392(5)&(6))
[70] The amount of $8646.25 gross plus superannuation is less than the compensation cap of 26 weeks’ pay and no further adjustment of the amount is necessary.
Instalments (s.393)
[71] No application was made by Chobani to pay the settlement sum in instalments and no reduction is made on this basis.
Conclusion on remedy
[72] In my view, the compensation figure arrived at in this case does not yield an amount that is clearly excessive or clearly inadequate.
[73] For the reasons set out above, I am satisfied that a remedy of compensation in the sum of $8646.25 gross plus superannuation in favour of Ali is appropriate in the circumstances of this case. An order [PR709692] is issued to that effect.
COMMISSIONER
Appearances:
J Athanasopoulos for the Applicant
A Denton of Counsel for the Respondent
Hearing details:
2019.
Melbourne:
May 24, June 6
Printed by authority of the Commonwealth Government Printer
<PR709691>
1 Fair Work Act 2009 (Cth), s.385
2 Form F3
3 Fair Work Act 2009 (Cth), s.388
4 Fair Work Act 2009 (Cth), s.23
5 [1995] HCA 24; (1995) 185 CLR 410 at 465
6 Exhibit 17
7 Evidence in chief, 24 May 2019
8 Exhibit 17
9 Evidence in cross examination, 24 May 2019
10 Form F2; Form F3
11 Evidence in cross examination, 24 May 2019
12 Exhibit 14
13 Exhibit 19
14 Exhibit 12
15 Exhibit 15
16 Applicant’s outline of argument: merits