[2010] FWA 9013 |
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DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment
Mr Jeffrey J Parry
v
Hans Continental Smallgoods Pty Ltd
(U2009/10261)
COMMISSIONER SPENCER |
BRISBANE, 8 DECEMBER 2010 |
Termination of employment - Arbitration.
[1] This is an application made by Mr Jeffrey Parry (the Applicant) pursuant to s.643 of the Workplace Relations Act 1996 (Cth) (the Act) that the termination of his employment by Hans Continental Smallgoods Pty Ltd (the Respondent) was harsh, unjust or unreasonable. The Applicant sought reinstatement. The Respondent dismissed the Applicant for serious misconduct, described as gross and insubordinate, for swearing at a manager. The Respondent’s contention was that as a result of this incident, the Applicant had breached the fundamental basis of trust and confidence in the employment relationship.
[2] The Applicant was represented by Mr Tom Schultz of the Bacon Factories’ Union of Employees, Queensland (the Union); and the Respondent was represented by Mr Jacques Franken of Livingstones Australia. Whilst this decision does not refer to all of the submissions and evidence, all of such have been considered in this decision.
Background
[3] The Applicant was employed with the Respondent for some nine years, initially as a casual employee and then transferring to a permanent/weekly hire position. He worked at the Colmslie site. The Respondent’s business had been sold as a going concern by the Administrators to the current owners, Primo Smallgoods.
[4] The Applicant was employed in the Ham Room and in the Cookhouse and in the area of Cook/Smokehouse Operation at level 5. The Applicant was an active Union member, including holding the role of Branch Secretary/State Counsellor since 2006, and was the delegate on the site for a number of years.
[5] The Applicant’s employment was terminated following an incident wherein he called, Mr Dion Nolan (Site Manager), “a fucking idiot”. During the course of the investigation into the incident the Applicant admitted to using this language. The Applicant also acknowledged that his behaviour was inappropriate and unacceptable for the workplace. The Applicant raised a series of issues as mitigating circumstances for the swearing. He stated that he had had a bad day, that they had been experiencing frustrating times at the workplace, the workload had increased, and that the Applicant and Mr Nolan had previously spoken to each other like that behind closed doors. The Applicant also stated the he had informed Ms Inta Devine (Human Resources Manager) during the investigation that he had been involved in a chemical splash incident earlier that day that had affected him.
The Termination Advice
[6] The letter of termination from Ms Devine stated as follows:
“An allegation was made by Dion Nolan, the Site Manager, that on Tuesday 23 June 2009 you had called him a “fucking idiot” in his and the presence of others. This incident occurred in a public thoroughfare outside the staff canteen. At the same time you made reference to the author of an issued memo, Brad Hunt, a Director of the company, also being a “fucking idiot”.
Our subsequent investigation into the allegation has confirmed this incident, as has your own admission.
We note your acknowledgement that your behaviour was inappropriate and unacceptable. We have also considered the explanation that you have given whereby you suggested that there were a number of factors that caused you to say what you said – you had “had a bad day”; you and Dion had previously engaged privately in conversations where such language was used and that Dion was acting arrogantly during the course of the conversation.
During the course of our investigation we have not been able to ascribe any validity to the reasons you have provided.
You have previously, in September 2007, been issued a warning stating that any form of insubordination on your part would result in disciplinary action which may include termination of employment.” 1
[7] The behaviour was deemed to constitute gross insubordination and therefore the Applicant’s employment was terminated with immediate effect for reasons of serious misconduct.
Prior Warning
[8] The Respondent referred to a warning for insubordination provided to the Applicant approximately 18 months earlier. That warning was in relation to an alleged contravention by the Applicant of an instruction to stop posting leaflets of a political nature on company notice boards. Ms Devine stated that the Applicant had placed a political pamphlet on the notice board.
[9] Ms Devine had previously provided the following correspondence to the Applicant after having given the Applicant a verbal instruction that “the display or distribution of political literature is prohibited”.
“Dear Jeff,
I refer to our conversation of today. You have been previously instructed not to post political leaflets on company noticeboards.
Despite this verbal instruction you have continued to place such material on the noticeboard in the staff canteen. Your belief, that you have some sort of entitlement to do so by virtue of your position as an elected site union delegate, is misplaced.
This letter serves to formally advise you that it is company policy that the distribution or display of political literature is prohibited. This letter also therefore constitutes a clear instruction that you are not permitted to distribute or display any material of a political nature on company premises. If you have any doubts as to the definition of “material of a political nature” you are to consult me.
Should you continue to distribute or display material in contravention of company policy it will be regarded as a refusal to accept or follow orders or direction from a proper company authority. This or any other form of insubordination on your part will result in disciplinary action which may include termination of employment.
Yours faithfully,
Inta Devine
HUMAN RESOURCES MANAGER” 2
[10] The Union (on behalf of the Applicant) submitted that this correspondence 3 did not represent a warning. They submitted that it was ambiguous and was not provided on the prescribed company disciplinary document. The Union compared the process of preparing warning documentation for other employees against that used for the Applicant in this instance, and stated that it was deficient.
[11] The Respondent emphasised that the Applicant as part of that disciplinary process had been advised that “Any other form of insubordination on your part will result in disciplinary action which may include termination of employment”, and as such they relied on this prior incident in the disciplinary considerations regarding the swearing incident.
The Memo - Mobile Phone Usage
[12] In respect to the incident that led to the dismissal, Mr Brad Hunt, Director of the Respondent sent a memo to all employees. The memo was attached to the employees’ payslips and stated that employees were not permitted to have personal mobile telephones on the production floor.
[13] The memo regarding mobile phone usage that prompted the outburst by the Applicant stated as follows:
“Re: Mobile phone use in the workplace
Ladies and Gentlemen,
All staff are reminded of the following company policy.
You are not permitted to have personal mobile phones on the production/factory floor. There will be NO EXCEPTIONS TO THIS RULE.
The use of mobile phones is a safety issues and a disruption to work that is NOT acceptable.
If you elect to bring your mobile phone to work you must:
1. Leave it in your car or
2. Leave it in your locker.
No responsibility will be accepted for any loss or damage to a personal mobile phone.
If you need to be contacted by family in an emergency, they should call reception and have your supervisor paged/contacted …
Outside reception hours of 8.00am to 4.30pm, phone numbers to call are …
You are formally warned that any incidents of this nature will be dealt as per the company’s Disciplinary and Termination Procedures and may involve instant dismissal from the Company.
Signed
Brad Hunt
Director” 4
[14] As part of the exchange between the Applicant and Mr Nolan that forms the basis of the dismissal, the Applicant is alleged to have said, when referring to the last paragraph of Mr Hunt’s memo that “he better watch himself, threatening termination like that”. 5 Further it is alleged that the Applicant stated to Mr Nolan “and if you support this you are as big a fucking idiot as he is”. Mr Nolan stated he then confirmed to the Applicant, “you just called me a fucking idiot” and repeated this. Mr Nolan gave evidence that he further said, “Do you honestly think I am going to talk to you, after what you have just said to me.”
[15] Mr Nolan had stated that he tried to explain the memo to the Applicant; the Applicant denied this. The Applicant said the managers had not previously endeavoured to explain the memo prior to its provision, and that the author of the memo (based in Sydney) was not known to him.
[16] Ms Devine conceded that the memo stated that all staff were “reminded”; however, there had been no published policy on site and no prior incidents of mobile phone usage that she knew of or that had been discussed at the Applicant’s site. The memo was given to employees with their pay slips without any prior discussion.
[17] Ms Devine also agreed that inconsistent with the memo, one supervisor had been authorised to use a mobile phone in the circumstances where there was not enough cordless phones in the factory site. The Union stated that this exception to the policy provided confusion for employees.
[18] The Applicant was stood down on pay whilst an investigation was undertaken. His employment was subsequently terminated for serious misconduct. It was submitted on behalf of the Applicant that there had been no prior issues with mobile phones at this site and no consultation regarding the introduction of this policy or the provision of the memo.
Relevant legislation
[19] The Act relevantly provided as follows:
“s.643 Application to Commission to deal with termination under this Subdivision
(1) Subject to subsections (5), (6), (8) and (10), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment:
(a) on the ground that the termination was harsh, unjust or unreasonable;…”
(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee—whether the employee had been warned about that unsatisfactory performance before the termination; and
(e) the degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(g) any other matters that the Commission considers relevant.”
The Termination Decision
[20] It was submitted on behalf of the Applicant that the decision to terminate his employment was influenced by an email Ms Devine received from Mr Nick Cakovski, National Risk Manager, a Senior Manager, to Ms Devine and others. This email stated:
“Subj RE: Jeff Parry Statement
Ect:
Dan
I am not sure who this guy is – he needs to be dealt with as aggressively as possible.
I will not stand for anyone disrespecting our Directors. Furthermore, Dion runs Colmslie, they cannot talk to him like that.
Verbal abuse is taken very seriously by Primo and in my opinion, is grounds for instant dismissal.” 6
[21] Ms Devine characterised the email as saying it implied she had endorsement for the instant dismissal of the Applicant, should they decide to take that decision.
[22] Ms Devine conceded that at the time she received the email from Mr Cakovski, they did not have an admission from the Applicant for this conduct and the mitigating factors (regarding his conduct) conveyed by the Applicant had not been communicated to Mr Cakovski.
[23] Ms Devine stated that she and Mr Nolan took into account the mitigating factors that were raised by the Applicant. Ms Devine further stated that after hearing from the witnesses to the incident, there was no justification for the Applicant’s conduct. She stated that the Applicant had “intervened” in the conversation and had admitted that he called Mr Nolan “a fucking idiot”. However, Mr Schultz emphasised that Ms Devine had used the term that the Applicant had “butted in” and/or intervened; rather than, as the Applicant explained, that he had simply joined in the conversation.
[24] Ms Devine said the Applicant had stated that he and Mr Nolan had sworn at each other behind closed doors but he had not stated that Mr Nolan had sworn in the exchange with him, on the day of the incident.
The Investigation
[25] Ms Devine questioned three witnesses to the incident. She did not investigate if there were any other witnesses to the incident; she stated she saw no need, as the allegations had been confirmed.
[26] Ms Devine’s evidence was that Mr Nolan felt his position had been undermined by the manner in which the Applicant had spoken to him and also due to the location where the exchange had occurred, namely outside the staff canteen in a thoroughfare on the site. Ms Devine stated that Mr Nolan had communicated this to her. However, Mr Schultz for the Applicant emphasised that such a statement does not appear in Mr Nolan’s statement.
[27] Ms Devine stated that as a result of the investigation, she formed the view that the Applicant’s language was abusive and it was directed at both Dion Nolan and Brad Hunt, a Director of the company.
Alternatives to Dismissal
[28] Ms Devine said a variety of alternatives to dismissal were considered; for example, the provision of a final warning, the Applicant making a public apology in the break room, transferring him to another position, or suspending him. However, none of these options were considered to be appropriate.
The Ongoing Employment Relationship
[29] It was submitted on behalf of the Respondent that the employment relationship with the Applicant had irretrievably broken down. Ms Devine said that it was well-known in the factory that the Applicant had been dismissed for verbally abusing a manager and she stated that it was deemed that to return him to work would be interpreted as condoning the conduct to him and the rest of the workforce. Ms Devine stated that this openly abusive conduct had not been tolerated by the Respondent and that the trust and confidence in the Applicant was lost.
[30] Ms Devine further stated:
“I would not have trust and confidence in Jeff as an employee that he would not misconduct himself in a similar manner in the future, given his comment that we were making a mountain out of a molehill.
I am aware of at least one other employee, [name withheld], who was dismissed for insubordinate behaviour towards a Team Co-ordinator ...in the Packaging department... had reprimanded him for not complying with hygiene procedures. His response to her was a raised middle finger.” 7
Comparative Differentiation
[31] It was submitted on behalf of the Applicant, that the Applicant had been treated differently, as compared against other employees, in particular Mr David Hill and Mr Paul Thwaites.
[32] Ms Devine referred to the incident with Mr Hill. She stated he was provided with a written warning “due to [the] severity” of the incident. 8 There was one incident involving “inappropriate behaviour, inappropriate language, poor attitude and leaving the workplace without notifying the supervisor”. The Applicant’s conduct also only involved one incident for which the Union stated he was dismissed, in contrast to Mr Hill receiving only a warning. The Union also stated Mr Hill was able to speak to his accuser which they stated distinguished the circumstances from the Applicant’s case. However, the Respondent stated the Applicant never requested a meeting with Mr Nolan.
[33] The Applicant stated that Mr Hill had abused the then Team Manager saying he was “(just) a fucking clown.” 9 This comment was made in front of a full room of employees. Following intervention by the Union on the subsequent day, Mr Hill’s dismissal was withdrawn and he was issued with a written warning for bad language, walking off the job and bad attitude.
[34] Mr Burgess said in relation to the comparatively different treatment of the Applicant:
“On 20 September 2009 I was contacted by a member David Hill who advised he was sacked the previous day for verbal abuse of a manager and allegedly walking off the job. After negotiating with the company, he was reinstated.” 10
[35] The Applicant’s representative argued that the disciplinary policy had been applied in a comparatively different way between these employees. The Applicant referred to the words used by another employee, Mr Cosgrove, and the fact that his employment was not terminated. However, Ms Devine stated that if Mr Cosgrove had admitted to the alleged statement made, he too would have been dismissed.
[36] The Applicant claimed that there was differential treatment of him in relation to the treatment of Mr Cosgrove and others:
“Prior to my dismissal and during an extremely busy period of production, I had reason to call a meeting of staff from the production department.
Employees were angry about the language used by a team co-ordinator Tony Cosgrove. He was alleged to have called a group of employees “(a pack of) cunts”.
As Mr. Cosgrove was a member of the Union and I considered the fact we were all under pressure and stress due to the takeover of the business, I took steps to calm quite a hostile environment and ensured the matter was resolved to everyone’s satisfaction.
Those facts were well known to senior management including Dennis Pedersen and Inta Devine.
Mr. Tony Cosgrove maintained his position and no formal complaint was lodged at that time.
In light of these three issues of behavioural issues, I believe my dismissal in comparison is clearly harsher and totally inconsistent with the treatment of the persons named above.
I further believe that the employer failed to act consistently in examining options to dismissal as clearly expressed and intended by Clause 6.2 of the Hans Continental Smallgoods Pty Ltd (Colmslie) Union Collective Agreement 2008.” 11
[37] The Applicant also stated he was also treated differently to other employees including Mr Herman Teunis, whom received a warning only for verbal and physical abuse of another employee. He also claimed his case was approached in a more aggressive manner due to his Union activity. He had been a Union delegate for some years prior to being appointed as the senior union official on site.
Evidence
[38] The Applicant stated that he had sought, in the first instance, clarification as to the threats of instant dismissal within the phone usage memo. The Applicant stated:
“Management representatives were adamant about its contents not being threatening and showed no consideration for what we believed were legitimate employees concerns.
It was clear that none of management representatives had seen the memo prior to its release and it was quite clear they were not willing to discuss its contents or intentions.
It was clear that Mr. Nolan in particular had not seen the memo but was fully endorsing it regardless of the contents, reasons and/or applicability to the Colmslie site.
It was this action/attitude/statement which frustrated me the most and resulted in my verbal outburst of “if you are going to endorse this without even seeing it, you’re as much as a fucking idiot as he is”. (The “he” I was referring to was the unknown Brad Hunt).
At this point, I turned to walk to the lunch room and go and get changed. Steve Thurgood also left, he headed back to the smoking area.
Dion then said “you want to watch your fucking mouth” as I was headed to the door.
On hearing this I turned around and walked back to where he was standing. I noticed that Kathy Badrick had left the scene and gone to the office across the roadway.
I said “I’m sorry, but I am frustrated with notices and threats ….” but I was cut off by Mr. Nolan.
Mr. Nolan stated that three (3) times, “you expect me to talk to you after you called me a fucking idiot”. As I was unable to speak with him, I turned and went back to the lunch room. He then said “Who’s the fucking idiot now?”. I ignored this statement and went and got changed.” 12
[39] Mr Nolan gave the following evidence about the exchange:
“.....Dennis Pedersen, the Manufacturing Manager and I were walking out through the canteen door when I saw Kathy Badrick, the Training and Recruitment Officer and Steve Thurgood, a Ham Room Filler Operator having a discussion over a memorandum that dealt with mobile phones in the workplace.
I was aware of the existence of this memo as I had read it prior to it being sent out, but I was not aware that it had actually gone out with employee pay slips, at that time…
Kathy and Steve were right in our path. They were looking at the memo and Kathy looked a bit confused, so I stopped to offer my assistance. Dennis was right beside me.
Steve was making comments along the lines of, “Does this mean no one can have a phone in the production area at all? What if you are waiting on a call from your pregnant wife?”
I explained to Steve that Primo (who are the parent company of Hans) had an instance of an employee in Chullora, operating a machine and talking on the phone at the same time. I explained that Brad Hunt is a Director of the business and that he was sending a memo to all employees, although it was probably directed more at the employees in Chullora.
As I was talking to Steve and Kathy, Jeff Parry joined the conversation. He said words to the effect “He better watch himself threatening termination like that”.
I understood by this that Jeff was referring to Brad Hunt, a Director of Primo and the author of the memo.
I asked Jeff what he meant by this statement and he replied with words to the effect “He is threatening termination in this letter”. By the tone in Jeff’s voice I could tell that he was aggravated.
Jeff said words to the effect “Who is this bloke?” and I replied by stating words to the effect “He is a Director and owner of the business”.
Jeff said words to the effect “No, there is only one owner, and that is not his name”.
I advised Jeff that Brad Hunt is the son of John Hunt, who is also an owner of the business. Jeff would not accept this and on a number of occasions I had to repeat that Brad Hunt was a Director and owner of the business.
It was as if Jeff had not read the memo. He was fixated on the fact that as far as he was concerned the memo threatened termination.
I tried to explain to Jeff that in the memo it states “disciplinary and termination procedure”, meaning in accordance with this site’s procedure.
I had the memo in my hand and was pointing to the relevant part of the memo.
Jeff then grabbed the memo out of my hand and started to read it.
Jeff continued to say that “the letter is threatening termination”.
I explained again that it refers to our disciplinary procedure.
Jeff was by this stage noticeably agitated and upset.
I have known Jeff since being employed at the Colmslie site and I know him to have a short fuse. I have seen him angry before and I knew that he was angry.
Jeff started to walk off and then he turned back around and yelled words to the effect “And if you support this you are as big a fucking idiot as he is”.
As he said this he pointed to the bottom of the page where Brad Hunt’s name appeared.
Jeff then started to head towards the canteen door which is about 5 metres away from where we were standing, when I replied “You had better watch what you say”.
Jeff then turned back towards me and tried to ask another question about the memo. I cannot remember the exact details of the question.
As he came back towards me I said “You just called me a fucking idiot”.
Jeff said nothing, and just stared at me.
I repeated You just called me a fucking idiot”.
This happened almost simultaneously with Jeff’s question about the memo.
I then said words to the effect “If you think I’m going to continue talking to you after what you’ve just said you’re highly mistaken”.
At no stage of our interaction did Jeff attempt to apologise or in fact apologise to me.” 13
[40] The Respondent put to the Applicant that both Mr Nolan and Mr Pedersen told the Applicant that Mr Brad Hunt (Director) was the son of the owner and in authority. The Applicant in evidence said how could he accept Mr Hunt’s authority when he did not know him. The Applicant stated that his concern with the memo was that it threatened instant dismissal but he confirmed he did not clarify the issue of potential termination in this manner. Instead he agreed he initiated the issue by saying that “he better watch himself threatening termination like that.”
[41] The Respondent stated that the Applicant’s approach demonstrated his aim to antagonise management and not to discuss the memo. The Applicant stated that in his view the mobile phone memo threatened the jobs of his 300 friends and his.
[42] The Applicant claimed after swearing at Mr Nolan he said “I am sorry but I am frustrated with the notices and threats”. Both Mr Nolan and Mr Pedersen deny that they heard any such apology. Mr Nolan stated:
“At no stage of our interaction did Jeff attempt to apologise or in fact apologise to me.
He was clearly agitated and his demeanor was not one of someone who realized they had done something wrong and wished to apologise.
I was of the very clear view that he wanted to continue to debate the memo with me.
I then walked away from Jeff and went to see Inta Devine, the HR Manager.
I was angry and upset by the interaction with Jeff.
The way that Jeff had conducted himself, the way that he had spoken to me, and where he had said it was very disturbing to me.
The area that we were standing in is about 5 metres outside the canteen door, and approximately 20 metres from the smoking area where people were sitting observing the interaction.
I was also aware that Steve Thurgood would have heard the comment as he was still standing with us.
Kathy had walked away from us towards the training room and I was of the view at the time that she also would have heard the comment, however she later stated that she did not.
I believe that Jeff’s conduct was totally inappropriate and was extremely disrespectful of me as the Site Manager.
It was also extremely disrespectful of a Director of the company.
I do understand that in a factory environment such as ours, people do swear from time to time, but for Jeff to stand there and publicly call me a “fucking idiot” showed total disrespect for me as an employee and my position.” 14
[43] The evidence of Mr Darryl Burgess, Organiser, for the Union stated that a poor working relationship was developing between Ms Devine and the Applicant.
“In subsequent dealings with Inta Devine, it was quite clear to myself and others (Jeff Parry and Tom Schulz) that Inta Devine was extremely frustrated and annoyed by the “interference” by Jeff Parry and the Union.” 15
[44] Mr Burgess also stated:
“Following Jeff Parry’s appointment and subsequent election to the position of Branch Secretary at “Hans” in 2006, I had received reports and made observations about the poor working relationship which was developing between the two.” 16
[45] There had been an issue between them regarding an attempt by Ms Devine to swap the Exhibition show holiday to the Christmas Eve public holiday. Mr Burgess stated:
“I discussed this matter with General Secretary Tom Schulz and expressed serious concerns at the grievances being expressed by members at “Hans” over the alleged involvement of the Union in this holiday swap proposal.
Complaints were made to our office by members as a result of being informed by Inta Devine that Jeff Parry’s actions were responsible for her decision not to proceed with the holiday swap proposal.
Our Office discussed this development and determined to issue a notice to members to provide the facts of the situation and ensure that Jeff Parry was not blamed for the situation which was entirely the company’s making. 17
…
It was only a few weeks later when we received a call from Jeff Parry advising that he was being threatened with a written warning for placing a “Your Rights at Work” pamphlet on the notice board at work. We advised Jeff to conform to the advice and our office would discuss the matter with Inta Devine. In our opinion, as he was complying with the advices given and as a consequence no written warning was issued.” 18
Considerations
Prior Warnings
[46] The Respondent submitted that the Applicant had been previously warned for insubordination and therefore was aware that further acts of insubordination would be treated seriously and may result in termination.
[47] The Respondent argued that the letter to the Applicant regarding his posting of political leaflets on company notice boards was a warning. The Respondent presented this incident as also demonstrating the Applicant’s insubordinate conduct. He had undertaken this practice despite an instruction not to and in response to this action he had been clearly directed that the continuation of any further insubordination may result in the termination of his employment.
[48] The Applicant’s evidence was that he had placed a pamphlet that was entitled “Who is better able to protect your rights at work” on the notice board. Ms Devine stated that the pamphlet that was posted resembled a ballot paper – and stated “Vote no to Howard.” The Applicant stated that the next day his pamphlet was removed. The Applicant confirmed that Ms Devine communicated to him that it was ‘political’ material and that it was against company policy to distribute or display such material. The Applicant stated he was not aware of such a company policy. The Applicant agreed that Ms Devine insisted that she vet every notice in future, and to obtain her approval.
[49] The Applicant’s evidence was that the letter provided to him on this incident confirmed Ms Devine’s instructions regarding the pamphlets; and that the letter further stated if he continued to not ‘follow orders’, disciplinary action would follow.
[50] The Applicant did not consider the letter to be “a formal warning and is contrary to company procedure. Secondly, the behaviour did not continue therefore no warning was issued validly.”
[51] The Respondent confirmed that prior incidents relating to the Applicant not wearing the correct uniform on the production floor that formed the basis of a letter to the Applicant did not relate to the Applicant’s termination of employment.
[52] The Applicant did not acknowledge he had received any form of previous formal warnings from the Employer as he had refused to sign the document provided by Ms Devine (previously referred to); and it had not been prepared on the recognised prescribed warning form.
Mitigating circumstances to the incident
[53] The Applicant did not deny saying to the manager “You are a fucking idiot...” The Respondent said the investigation also confirmed that the words were spoken in a raised voice. The Applicant justified the remark by stating he was frustrated with the memo regarding phone usage. It was argued on behalf of the Applicant that four days prior he had been counselling the employees when a manager had sworn at an employee. The Applicant stated that he had told “the boys not to make a mountain out of a mole hill.” 19 He said he had urged “the employees to cut everyone a bit of slack that the bosses were under just as much pressure as the employees.”20
[54] The Applicant provided evidence that leading up to the termination of his employment he was under stress at work, due to his concerns about job security. He explained that Primo was a new national employer that operated a number of sheds. He said Hans Continental Smallgoods had gone into administration and retrenched some employees and that the new employer did not communicate very frequently with employees. The Respondent queried the Applicant as to what were the “constant threats” from management he referred to in his evidence, as the Respondent said at that time of the incident they were three months into the 12 month period following the transmission of business and accordingly that there was no basis for any alleged job insecurity.
[55] With respect to a further issue of loss of earnings; the Respondent tendered payslips showing the actual time the Applicant had worked, contrary to that set out in his statement in relation to the Queens’ Birthday and further hours. This had been a point of contention by the Applicant.
[56] The Applicant submitted he was also concerned about the loss of earnings experienced during the administration period as there had been reduced overtime earnings.
[57] The Respondent further queried the Applicant’s evidence as to a ‘perceived threat to wages and conditions’, as stated there had been a 12 month guarantee of wages and conditions under the workplace agreement. The Respondent cross-examined the Applicant as to where this threat emanated from, given the agreement on wages and conditions. The Applicant replied he considered the threat was always there. The Respondent submitted that there was no basis for this, as the agreement reached with the new owners included a provision that the prior agreement would be honoured by the new owners.
[58] The Applicant further referred to additional work pressures, including that he felt he had an obligation to work Sundays to assist the work team. He also stated he had felt aggrieved that his application for annual leave had not been granted.
[59] The Applicant also provided evidence that he had experienced a “chemical splash’ to the eye on the day of the exchange, but that the incident did not appear on the daily injury log. The Applicant conceded that he had completed an incident report in regard to the chemical splash, whereas normally the Safety Officer would complete the incident report. The Applicant stated that Mr Vaughan the Safety Officer had completed the incident report on the last occasion when he received a chemical splash.
The Memo and the exchange
[60] The Applicant had raised his frustration with the last paragraph of the “Primo Policy” on mobile phone usage that had been included on the memo attached to the payslips. He said he found the last paragraph to be threatening to his and other employees’ employment. The Applicant was also particularly concerned that there had been no consultation regarding the introduction of the mobile phone policy.
[61] The memo was attributed to Mr Brad Hunt, Director. The Applicant said he and another employee, Steve Thurgood had expressed their frustration and concern with the threatening tone of the memo and sought clarification of its contents. He said he queried the memo with Kathy Badrick (Training Officer). He said Dion Nolan and Dennis Pedersen joined in the discussion.
[62] In relation to the manner in which the incident unfolded, the Applicant stated he saw Mr Thurgood being “ganged up on” by the other managers. He conceded that he had seen the memo in Mr Thurgood’s hand; but he could not say what he heard. His witness statement sets out that he “was assisting my member Steve Thurgood when he was not getting any straight answers from 3 Managers. It is my role to assist the members in this situation.” 21 He considered that the managers weren’t discussing the memo with Mr Thurgood, but telling him. He stated after those managers had got involved in the conversation, he saw it as three against one. He agreed he couldn’t hear what was being discussed; or whether the memo was just being explained. The Applicant agreed if it was just being explained or clarified he would have had no difficulty, but that he did not assess the interaction as proceeding in that way.
[63] The Applicant stated that he had wanted to have a ‘conversation’ with Mr Nolan to resolve the swearing incident. He said he expected that an apology would form part of these conversations, but he conceded he never specifically conveyed to Ms Devine prior to the dismissal that he wanted to apologise to Mr Nolan. 22 Although in his statement he says:
“I wanted to provide a written statement of events or alternatively give a statement but I was refused to do so. Similarly I again sought to speak with Dion to offer an apology but again was refused.” 23
[64] The Applicant stated he was shocked by the decision to terminate his employment as he and Mr Nolan had had a productive relationship in the past and had been able to resolve previous disagreements.
[65] The Applicant was previously provided with correspondence cautioning him on acts of insubordination and therefore was aware that further acts of insubordination would be treated seriously and may result in termination.
[66] The Applicant did not deny calling the manager “a fucking idiot…” The words were spoken in a raised voice. He said he was frustrated with the memo and a range of work issues which contributed to this outburst.
[67] The Applicant’s evidence in cross-examination was that Mr Nolan swore at him in an enterprise bargaining meeting. He conceded he did not take this up with Mr Nolan, but the whole meeting was stopped because of it. He also conceded he did not recount any of the occasions that he had sworn at him in his statement. He said he worked in a meat works and swearing was part of general conversation and employees and employers continually swore at each other. The Respondent made the distinction that it was recognised that swearing was often used on the production floor such as this ‘fucking machine’ needs to be fixed. However, this usage was in contrast to swearing at someone in a personally, directed, derogatory manner. The circumstances of this incident are considered to be different and insulting to a manager.
[68] The Respondent emphasised that Mr Nolan’s evidence was that due to this incident he had lost trust and confidence in the Applicant and that he could not work with the Applicant, due to the words he had called him and that he had done this in a public manner. Mr Nolan considered the relationship with the Applicant to have irretrievably broken down. Ms Devine had also reached this conclusion.
[69] The Applicant’s evidence was that the position Mr Nolan had adopted in relation to the incident had been influenced by management. The Applicant stated that, if he could have had a discussion with Mr Nolan, the relationship could have been salvaged and that his nine years of employment and his previously constructive approach to resolving matters should have been taken into account.
[70] The Respondent submitted that the Applicant had never sought to apologise at any time and that during and after the incident his demeanour was hostile and retaliatory.
[71] The Applicant conceded that the relationships were strained, but that if he was reinstated he would resign from his Union position, so that he was potentially no longer involved in as many exchanges with management. The Applicant stated that he believed his Union activity influenced the aggressive handling of the matter by the Respondent. He said there was harshness in management’s approach given that he had been employed for nine years and he had made one statement for which he was ‘sorry’. The Applicant strongly believed his request for a conversation with Mr Nolan would have resolved the matter.
[72] In response to the Applicant’s allegations, Mr Nolan stated:
“I rely on my version of events as set out in my statement. I strongly deny that I said “Who’s the fucking idiot now”. This is a blatant untruth on the part of Jeff.” 24
[73] The Applicant stated he had been a trusted employee and that these issues and his length of service were not taken into account:
“As a clear sign of trust, I was a trusted employee as shown by:
• Holding access keys
• Holding company communication devices.
• Able to be called in at all times.
• Able to work independently.
• Able to work with little or no supervision.
• Reliability.” 25
[74] The Applicant stated that he had received numerous complaints from Union members regarding the mobile phone policy. He stated a number of members had significant reasons for having their phones on them on the production floor. He said one member’s son often experienced severe asthma attacks and that he needed to be advised of these when they occurred.
Alleged retribution towards the Applicant
[75] The Union also referred to the pressure that had been on the Applicant prior to this incident. It was stated that an issue had arisen with a requirement of the Agreement provision, whereby the employees received insufficient detail about the ballot of joining the Exhibition holiday to Christmas Day; accordingly the Applicant had advised the Union of this. The Respondent stated that the Union put out a communication to members with regard to the lack of consultation and information on this issue and therefore the Respondent withdrew the ballot. The Applicant considered that there was an element of retribution in the Applicant’s dismissal given his involvement in the ballot issue.
[76] Mr Burgess stated following that issue, a meeting was arranged between the Union officials and Ms Devine and the Applicant. Mr Burgess stated that the meeting went some way to resolving the issue.
[77] The Applicant provided details of his remuneration received at Mitchells Quality Foods after the dismissal. The Union referred to a conversation (the Applicant had been made aware of) between a representative of that company and Ms Devine that they suggested supported the elements of retribution in the dismissal.
[78] The Applicant further argued that the comparative differentiation highlighted the retribution in the dismissal. Mr Burgess provided evidence regarding the comparative differentiation of treatment of the Applicant with Mr Hill after he used inappropriate language and left the site. The dismissal was later withdrawn. However, the Respondent argued that the disciplinary action applied was for leaving the site.
[79] Mr Burgess also commented on the alleged statement of Ms Devine (in demonstrating that the Applicant as a Union Official was being targeted) when she had said to the Applicant “OK I can wait until tomorrow to sack you.” Mr Burgess had said to the Applicant not to worry, that he knew he had a good relationship with Mr Nolan and he was confident it could be resolved. However, he was concerned when he learnt that the decision regarding the Applicant’s dismissal was being made in Sydney.
[80] Mr Burgess’ evidence was that the Applicant asked Ms Devine if he could provide a statement and she responded, “a statement is not required.”
[81] Mr Burgess stated that he and the Applicant were told Sydney were making the decision. He stated he was immediately worried that “faceless people, 500 km from this site who had no knowledge of the employee’s work ethic” were making the decision.
[82] Mr Burgess stated that having seen the email from Mr Cakovski he considered that the dismissal decision was predetermined.
[83] Mr Burgess’ evidence was that the Applicant was remorseful, that he wanted to have a discussion with Mr Nolan and that it was obvious he wanted to talk to him and apologise.
Section 652 Arbitration
[84] The following provides an assessment of the criteria in s.652 of the Act, in relation to a termination of employment:
Section 652(3)(a) - Whether there was a valid reason for the termination related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees)
[85] There was a valid reason for the dismissal. The Applicant admitted that he swore at the Site Manager. There was no significant evidence of remorse on the part of the Applicant or endeavours to apologise or remedy the situation. The swearing was directed specifically at his manager in a personally demeaning manner. The action represented insubordinate conduct and there was no appropriate justification for it.
Section 652(3)(b) - Whether the employee was notified of the reason
[86] The Applicant was notified of the reason for the dismissal, being his openly swearing at a manager at the workplace. He was stood down on pay whilst an investigation occurred. The Union’s concern regarding the email from the Sydney based manager, Mr Cakovski which they submit immediately sanctioned termination, has been taken into account. At the time of the email this manager was not aware of the Applicant’s mitigating circumstances. This manager was also not familiar with the Applicant, his length of service or his work as a delegate of the site. Further to his email an investigation was conducted and the determination of the dismissal turned on an examination of the incident, circumstances and the Applicant rather than just a reliance on the email.
Section 652(3)(c) - Whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee
[87] The Applicant was given an opportunity to respond to the reasons related to his conduct. He provided a number of mitigating circumstances as detailed. His conduct was examined. The Union provided support and assistance to the Applicant in his responses. The Respondent submitted that the Applicant was denied detailed reasons to respond to. However the Applicant had a clear knowledge of the incident under investigation. There was no significant evidence of procedural flaws in the investigation or the further process adopted by the Respondent.
Section 652(3)(d) - If the termination related to unsatisfactory performance by the employee – Whether the employee had been warned about the unsatisfactory performance before the termination
[88] The Respondent submitted that the Applicant had been warned previously about insubordinate conduct, in that they alleged he did not follow a lawful direction by continuing to post pamphlets of a political nature at the workplace.
[89] It was submitted on behalf of the Applicant that the document provided to the Applicant on this conduct did not represent a warning. The Applicant also denied that the pamphlet referred to was political in nature.
[90] The opposing submissions of the parties on this prior incident have been taken into account, accordingly the document has not been attributed the strength of a warning however the correspondence represented at least a caution to the Applicant, as to his further conduct. The Applicant was clearly on notice that there was a standard of conduct required by the Respondent.
[91] Even if the prior incident regarding this caution from the Respondent is not taken into account and recognising that swearing in everyday language occurs at the workplace, swearing in such an insulting manner to a manager was not acceptable. The mitigating circumstances raised by the Applicant have been considered, but do not overcome the nature of the incident.
Section 652(3)(e) and (f) - The degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination
[92] The Respondent is a large employer, with a human resource manager and access to industrial relations advice. Their response to the incident, the investigation and dismissal procedures has been examined against a standard where these resources are available. It is also noted in this context, that in the provision of the memo, no prior consultation with employees or the Applicant (as the Union representative on site) occurred. Whilst this is not considered to be best practice, it does not justify the Applicant’s remarks given that he was aware that there were other avenues to have discussions about the memo, and to escalate the Union’s response if required.
Section 652(3)(g) - Any Other matters that the Commission considers relevant
[93] The issue of the differential treatment of the Applicant to other employees was considered.
[94] The issue of differential treatment of employees in respect of termination of employment was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd. 26 In Sexton’s case, his Honour said:
“It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable …
In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a ‘fair go all round’ within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing ‘apples with apples’. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.” 27
[95] The matters referred to regarding different disciplinary action taken with other employees are not directly applicable to all of the circumstances of the Applicant; and the evidence as to the unfair approach to the Applicant was not compelling. Whilst not all of the examples of alleged differential treatment have been referred to in this decision, the Applicant and Union did not have firsthand knowledge of a number of the examples provided. The submissions of both parties on each of the competing incidents have been considered. The swearing, however, in the current circumstances of the Applicant, represented misconduct.
Conclusion
[96] The case authorities 28 referred to by the parties regarding incidents of swearing have been considered against the factual matrix of the current matter. There are a series of variations in the facts of the cases as to the nature of the swearing, the employee’s disciplinary record and length of service. It is clear from such cases that matters involving swearing at the workplace are decided on the facts and circumstances of each particular case.
[97] In the current matter it was submitted on behalf of the Applicant that even though there was a valid reason for the dismissal, the decision was harsh, unjust and unreasonable in light of it being an isolated event and taking into account the Applicant’s length of service, the workplace culture of robust language and his lack of warnings for any such prior conduct.
[98] All of the matters have been taken into account in the consideration of the dismissal of the Applicant, where it was argued on his behalf that the punishment was disproportionate to the alleged event.
[99] The Applicant’s conduct was hostile and intimidating towards his manager in front of other employees. The circumstances did not warrant such derogatory language, even taking into account that the Respondent had not consulted employees on the introduction of this policy. I have not assessed the standard of conduct required of the Applicant to be higher than an ordinary employee. That is, I have not attributed a greater onus to his code of behaviour by virtue of his role with the Union. However it is clear that by virtue of his experience in the Union role, the Applicant would have been well aware that the wording in the memo were standard disciplinary words that he would have been familiar with and as such, should not have evoked the threatening language directed toward his manager and the Company Director.
[100] The Applicant’s role as a Union official has been given particular consideration. In this regard I adopt the analysis of Senior Deputy President Richards in Leadbetter v Qantas Airways Limited 29 in which he confirms that the role of a workplace delegate does not provide any particular protection:
“The role of a workplace delegate might not always be an easy one and it will involve a willingness to be confrontational in a measured way when genuine issues arise. It might also reasonably be contended that the Applicant had endured some difficulties with the Respondent in his representative role, but I cannot speculate on the root causes of this, or whether one party is responsible, or more responsible, than another.
But while such positions as the Respondent held carry with them professional and personal stresses, they do not act as a “magic cloak” and absolve an individual of his or her final accountability for their own conduct in interacting with others in the workplace:
“Any case that comes before an industrial tribunal involving the dismissal of a union delegate requires anxious consideration by the tribunal with a view to ensuring that no man be unjustly penalised for his participation in legitimate activity as a representative of his union ... But while [the] Commission will be vigilant to protect the position of any delegate unjustly dealt with by an employer for legitimate activity on behalf of his union, it certainly will not regard delegateship as a magic cloak erring upon the wearer immunity from liability for wrongful actions... 30”
[101] The Applicant acknowledged and admitted that swearing at the manager was inappropriate and unacceptable. 31 Further, there was no clear evidence of remorse, an apology or the request to make an actual “apology”. In fact, some of the Applicant’s evidence32 was given in a relatively arrogant manner that did not support an ongoing employment relationship in a sensitive food production environment.
[102] It is deemed that the trust and confidence in the employment relationship had irretrievably broken down; and the Applicant’s abusive language was accountable for this.
[103] Taking into account all of the circumstances in the matter before me, I am not of the view that the Applicant’s employment was terminated harshly, unjustly or unreasonably. Accordingly, the Application made pursuant to s.643(1)(a) of the Act in relation to the Applicant’s termination of employment is dismissed. I Order accordingly
COMMISSIONER
Appearances:
Mr Tom Shultz, Bacon Factories’ Union of Employees, Queensland
Mr Jacques Franken, Livingstones Australia
1 Exhibit 14, Statement of Ms Inta Devine, Attachment ID05.
2 Exhibit 14, Statement of Ms Inta Devine, Attachment ID08.
3 Ms Devine refuted that the pamphlet provided by the Applicant in evidence was the pamphlet she objected to, and which was the basis for the warning.
4 Exhibit 15, Statement of Mr Dion Nolan, Attachment DN01.
5 PN339-341, Transcript of Proceedings.
6 Exhibit 15, Statement of Mr Dion Nolan, ID04.
7 Exhibit 14, Statement of Ms Inta Devine, paragraphs [160]-[161].
8 Exhibit 14, Statement of Ms Inta Devine, Attachment ID09.
9 Exhibit 1, Statement of Mr Jeffrey Parry, paragraph [76].
10 Exhibit 12, Statement of Mr Darryl Burgess, paragraph [13].
11 Exhibit 1, Statement of Mr Jeffrey Parry, paragraphs [78]-[80].
12 Exhibit 1, Statement of Mr Jeffrey Parry, paragraphs [19]-[27].
13 Exhibit 15, Statement of Mr Dion Nolan, paragraphs [3]-[31].
14 Exhibit 15, Statement of Mr Dion Nolan, paragraphs [31]-[42].
15 Exhibit 12, Statement of Mr Darryl Burgess, paragraph [9].
16 Exhibit 12, Statement of Mr Darryl Burgess, paragraph [4].
17 Exhibit 12, Statement of Mr Darryl Burgess, paragraphs [6]-[8].
18 Exhibit 12, Statement of Mr Darryl Burgess, paragraph [10].
19 PN990, Transcript of Proceedings.
20 PN1053, Transcript of Proceedings.
21 Exhibit 2, Supplementary Statement of Mr Jeffrey Parry, paragraph [81].
22 PN979, Transcript of Proceedings.
23 Exhibit 1, Statement of Mr Jeffrey Parry, paragraph [35].
24 Exhibit 15, Statement of Mr Dion Nolan, paragraph [50].
25 Exhibit 2, Supplementary Statement of Mr Jeffrey Parry, paragraph [100].
26 Lawler, VP, 14 May 2003, PR931440
27 Ibid at [33] and [36].
28 Including Woods v BlueScope Steel Limited [2006] AIRC 400, Vanzanten v Cargill Foods Australia [2004] AIRC 205, Mirko Petkoski v Wiredex Pty Ltd [2006] AIRC 402 and Leadbetter v Qantas Airways Limited [2009] AIRC 131.
29 [2009] AIRC 131, paragraphs [119]-[120].
30 Re Dispute at Broken Hill Pty Co Ltd Steel Works Newcastle (No 2) (1961) 60 AR(NSW) 48 at 66.
31 PN617, Transcript of Proceedings.
32 PN1069, Transcript of Proceedings.
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