[2011] FWA 5778 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Anyuon Mabior
v
Baiada Group Pty Ltd T/A Adelaide Poultry
(U2010/12656)
COMMISSIONER STEEL |
ADELAIDE, 25 AUGUST 2011 |
Termination of employment - Deliberate and wilful misconduct - Whether dismissal procedurally and substantively unfair - Alleged racism in workplace.
The application
[1] Mr Mabior (“the applicant”) was dismissed summarily for deliberate and wilful misconduct on 16 September 2010.
[2] Mr Mabior is seeking a review of his dismissal and claims it is unfair as he was dismissed for complaining about racist remarks in the workplace. Ms Price, for the applicant, asserts that Mr Mabior’s dismissal was both procedurally and substantively unfair.
[3] Ms Price asserts that the respondent failed to carry out a proper investigation of the circumstances of the alleged misconduct; failed to allow the applicant to have a support person to attend and failed to provide a proper opportunity to respond to the allegations. She asserts further that the applicant was only advised at a late juncture of the details and allegations against him, that the decision to terminate his employment had already been made at this time and the applicant was not provided with sufficient resources or opportunity to explain his position and respond to the respondent's allegations.
[4] The applicant asserts his dismissal was unfair as there was no valid reason for the dismissal because the alleged misconduct did not occur. He asserts he was sacked because he made and persisted with a valid complaint about racism in the workplace.
Contextual matters
[5] This matter involves an applicant and witnesses from various ethnic backgrounds. The services of an interpreter were provided to the applicant and assisted other witnesses. Limitations as to skill and competency with the English language and various cultural usage of the language were at times obvious in respect to the evidence, responses and assertions of some witnesses. The transcript unfortunately indicates a significant number of occasions where the parties were indistinct. However, appropriate regard and consideration has been given to the above circumstances in determining the merits of this matter.
[6] This matter was further heard in the context of disputation between the respondent and the National Union of Workers (“the union”) at the respondent’s various workplaces. That disputation resulted in an application for limitation on the evidence of the witness Mr Tony Snelson for the applicant. The tribunal, within discretion, determined that it could not identify a prejudice to the applicant in this matter or any other matter by the witness continuing to provide evidence. Mr Snelson was intended to provide evidence under oath in this matter that shall deal only with the dismissal application of the applicant. The tribunal considered that not to proceed with his evidence may cause a detriment to the respondent’s case in this matter and may affect convenience. The tribunal determined Mr Snelson’s evidence would proceed.
[7] In regard to the above mentioned disputation between the applicant’s union and the respondent, O’Callaghan SDP issued a decision in respect to various matters of dispute on 29 June 2011. 1 The learned SDP made various findings including the following:
[8] In the above proceedings, O’Callaghan SDP found Mr Dada Hu to be a credible witness, he found Ms Ann Smith to be a credible witness in matters which touched on this matter, he found Mr Nicholas Markou to be a credible witness and that the evidence of Ms Chris Sinkovic was not contentious. In his decision the learned SDP is critical of the evidence of Mr Snelson in regard to his explanations of participation in covert filming of the respondent's premises and his assertions as to the legality of that filming.
[9] The tribunal has considered the above matters as they prevailed not only in the minds of the parties at the time of the arbitration of this matter but also were background to submissions and the evidence of some witnesses.
[10] The tribunal has however determined this matter substantively on the evidence available in these proceedings.
Preliminary matters
[11] Ms Price opposed the appearance of Mr Short, solicitor for the respondent, on the assertion that this matter did not involve complex matters of law and that it was a dispute about facts as to whether the applicant was dismissed for complaining about racism in the workplace.
[12] Ms Price further took issue with the respondent solicitor meeting with and allegedly “effectively cross-examining” the applicant's witnesses who are currently employees of the respondent.
[13] Mr Short provided information to the tribunal as to the circumstances of the discussions at interview with one of the applicant's witness Mr Jacob Mayen. The tribunal was assured that Mr Mayen was a willing participant and comfortable with the circumstances of such discussion.
[14] Having heard the evidence in total in this matter the tribunal is satisfied that the approach by Mr Short on behalf of the respondent to an employee who was an applicant's witness was not a prejudicial act and was carried out in a reasonable manner.
[15] The tribunal having considered the nature of the proceedings, the extent of the witness evidence and the assertions of both parties as to the appropriateness of legal representation by the respondent in face of legal representation for the applicant, allowed representation by Mr Short. The tribunal considered that Mr Short’s appearance would assist the tribunal in the expeditious hearing of this matter.
[16] Ms Price further objected to the late notice by the respondent of an additional witness they intended to call on the basis that the timing was prejudicial to the applicant and the provision of late documentation.
[17] Mr Short submitted that the relevance of the witness had only recently been determined and that the material was appropriate in the sense of informing the tribunal. However it may not be necessary for that witness to be called depending on the progress of the proceedings.
[18] The tribunal ultimately allowed the additional witness and all the additional documents to be referenced given the scenario of events, the importance of identifying the best evidence and the assistance to the expeditious nature of the proceedings. Ms Price, at a later juncture, also introduced additional documents without notice.
[19] Ms Price objected also to Mr Short having two instructing principals in the hearing on the basis that one of those instructors, Ms Smith, was a material witness. Mr Short submitted that he required Ms Smith as an instructing witness as she was a local employee of the respondent and the other principal, Ms Takla, was from interstate. The tribunal determined that Ms Smith and Ms Takla could instruct Mr Short and would remain in the tribunal.
[20] Ms Price also sought at a later time to have Mr Garland appear to assist with the evidence of Mr Snelson. The tribunal denied that appearance on the basis that multiple representatives were not required.
The evidence
[21] This matter turns on the credit of the persons involved. The diversity of facts is such that a party has got the facts extremely wrong or is lying. The opposing parties accuse each other of being liars, the applicant asserts that all of the witnesses for the respondent are liars and the respondent’s reasons for dismissal of the applicant rely heavily on the inconsistencies of his versions of the facts. The tribunal has hence been compelled to examine the evidence in some detail as to credit. The tribunal, for convenience, has utilised the various witnesses’ initials to identify them.
Evidence of the applicant Mr Anyuon Mabior (AM)
[22] The applicant met with and subsequently joined the union in December 2009. He alleges that attempts were made by NM to have him resign from the union. He consequently was moved from “Adelaide Poultry” to “Steggles” because he would not resign and was told he could return if he resigned from the union. He alleges that AS repeatedly (three days per week) in the company of NM tried to influence him to resign his union membership.
[23] The applicant states:
“...they promised me, if I resign from the union they will move me from Steggles back to Adelaide Poultry.” 2
[24] The applicant asserts that after he provided a revised authority to deduct fees from his wages he was given a reward and moved from the warehouse to the production facility. The applicant asserts that NM, AS and DH are lying in regard to their denials of alleged attempts by them to have the applicant relinquish his union membership.
[25] The applicant says the respondent told him in relation to his reported WorkCover claim that it would be too expensive for the company and he should keep his receipts and that he would be reimbursed (injury in December 2009, claim lodged 26 February 2010). The applicant asserts AS is lying in her denial of the allegations that she endeavoured to influence the applicant not to register a WorkCover claim.
[26] The applicant asserts he talked to AS about assigned tasks which may aggravate his injury. He refused to lift certain objects because of medical advice. The applicant denies lifting boxes of his own initiative and says NM is lying about attempting to have the applicant not do so. He asked NM to tell CS not to request him to lift boxes.
[27] The applicant was involved in an incident where he was called by an offensive name and he asserts that a similar occasion occurred with a person called George and he was accosted by CS in regard to not working using the words “don’t you work in Africa.” The episodes were all reported to company personnel. The episodes involving a Mr Baker and CS were addressed by the respondent however the applicant says they were never resolved satisfactorily in that a supervisor named Gavin never followed up and AS never dealt with the other matter. AS in her witness statement says she did resolve such matters. 3 The episode involving “George” was inconclusive as to facts.
Events leading to the dismissal
[28] On 17 August 2010 the applicant was working in the proximity of JK who was working on a computer. He saw his name on the screen and asked what JK was writing. JK minimised the window and indicated it was confidential.
[29] The applicant states the document on the screen read:
“Nick. I understand Anyuon Mabior, since he started, he has been wondering (sic) around doing nothing. As per this request, I don’t understand Sudanese boys in general.” 4
[30] The applicant was concerned and offended by this document and called a colleague JR and then supervisor CS to come and look at it and talk to JK. The applicant asserts JR attended and asked JK to open the minimised window to which JK refused. He further alleges JK and CS are lying when they allege JR was not there.
[31] The applicant at sometime took physical control of the mouse and keyboard from JK. Yet apparently he was unable to open the screen. The applicant did not observe any other person in the proximity at this time and notably not ES.
[32] CS attended and the applicant alleged JK had written racist remarks about him. He asserts he was sent away by CS to a closed door office 5 while CS talked to JK and retrieved on the computer what JK was writing.
[33] The applicant says that CS then printed the document that was on the screen, confirmed to him she had it, refused to give him a copy and indicated she would refer it to NM for investigation. 6
[34] The applicant asserts the document is racist because it mentions “Sudanese boys at the workplace” and by specifically identifying such people it is some form of stereotyping and rumouring and poses a threat to Sudanese people and discriminates. 7
[35] The applicant in his testimony used the term “boys” quite normally to describe other workers. 8 He also described workers under his supervision as a leading hand in November 2009 as “some Indonesian boys” and also “Indian boys” while describing an event in the workplace.9
[36] However the applicant in cross examination twice denied that he would use such a form of words 10 and then admitted to doing so.11
[37] On 18 August 2010 the applicant asserts that he met with NM on two occasions and was told that CS had lost the print out of the document. 12 NM, CS and the applicant went to AS’s office. He was then given a four line document by CS that was asserted to be the document in question and he indicated to those present that the document was in fact not the document he had observed on the screen. The applicant says he accused CS of changing the document and the company personnel of endeavouring to make him look like a liar. He was then told the matter should be further investigated.13
[38] On 19 August 2010 the applicant asserts he went to AS and enquired as to the investigation. He says he was told by AS that NM (considered to be an error and should be CS in exhibit A3, p19) had admitted writing the document. CS attended and the applicant asserts, “Chris said she wrote the letter to reflect what Nick has asked Joel to write”. The applicant then had an excited exchange with AS and consequently was told by her to leave the office “and never come back”.
[39] The applicant asserts he then called DH, the General Manager, about this instruction and he was asked to come to DH's office where after discussion he was requested to put his position in writing to DH and provide the document in question. He said to DH “the letter was deleted, I could not find it.” 14 In examination, the applicant indicated he had not in fact searched a computer at this time for the document, and assumed others had deleted it.
[40] The applicant was however seeking a copy of the alleged document and on 23 August 2010 he accessed a computer already assigned to another person. He asserts this was common practice. The respondent says this is a breach of their IT policy. He went to the “saved document area” and printed a copy of various documents including his former disciplinary interview. 15 The applicant says he located the document in question in a recycling bin filed as “title Nick”.
[41] The applicant asserts he called colleague JR to attend when he had the document on the screen and JR viewed the document at that time. The applicant then printed the document, retrieved the copy printed and then deleted the document. 16 He then asserts he took it to colleague SS in the lunch room. The applicant asserts he showed the document to SS and had a discussion with him for 10 to 15 minutes. The applicant says SS is now lying in respect to this meeting never occurring. The applicant then took the document home and photocopied it at university the next day. He copied (typed) the document onto his home computer, saved it to his USB stick and gave the printed copy from the work printer to DH in the meeting of 30 August 2010.17
[42] The applicant wrote a letter of complaint to DH on 30August 2010, 18 in respect to the above episode alleging JK of “stereotyping and spreading rumours about me, he was also discriminating against Sudanese”. He alleged that JK’s alleged document was attached and consisted of the following:
“Date 17/8/2010
Nick, I understand Anyuon Mabior, since he started, he has been wondering around doing nothing. As per this request, I don’t understand Sudanese boys in general.” 19
[43] He also claimed the document had been altered from the original and CS had knowledge of the alteration, that JK had been “spreading rumours about me and Sudanese as a whole,” that he felt bullied by the JK episode, victimised due to his injury and extremely stressed due to the recurring and endless oppressions. 20
[44] The applicant subsequently met with DH, NM, and AS in a meeting advised by them to him as an “investigation” of his complaint. The applicant asserts he took notes and was not asked if he wanted a support person. In the meeting he was asked where he obtained the documents and advised he had retrieved it from the recycle bin on 23 August 2010. He advised he had shown it to colleague JR and a copy to colleague SS.
[45] The meeting concluded and he was presented with a document of notes of the meeting. He was asked to sign as a record of attendance only. He signed the document on that basis and went back to work. He asserts he would not sign a document unless he had read it 21 and did so on the above basis and in trust of AS. He says he was not given a copy of the document which was the notes of the meeting nor was he told these documents were a record of the meeting. The applicant’s personal notes of this meeting are at annexure AM2 of exhibit A3. The applicant asserts that AS and DH are lying if they assert that he read and signed the notes under any other circumstances.
[46] At a meeting of 13 September 2010 the applicant asserts he requested a support person and NM refused that request. The applicant took notes of that meeting and next day made more expansive notes. The applicant was accused of lying in the previous meeting in regard to saving the alleged document to a USB stick. It was alleged he previously stated he had done so from an office computer, not his own at home. The applicant denied he admitted to doing so which contrasted with the record of the interview he had signed the previous day. The applicant thereafter refused to answer further questions and was suspended from work until a further meeting was organised for 14 September 2010.
[47] On 14 September 2010 the applicant was provided with a witness Mr Mayen (JM) by arrangement with NM. He was provided with the record of the previous day’s meeting which he refused to sign. Discussions proceeded and it was put to the applicant that JK was not the author of the document claimed by the applicant to be racist.
[48] The issue of the printing of copies and the use of the USB were discussed again. The applicant was accused of lying in his complaint and investigation and having damaged the employment relationship. He indicated he did not trust the employer. The meeting adjourned and then reconvened. The applicant asserts that DH then advised him his employment was terminated, however AS advised he was suspended until a further meeting to be advised.
[49] At the meeting on 16 September 2010 the applicant was attended by a union officer, Mr Snelson (TS). The applicant asserts the company found him to have lied about the incident and that the statements of the company personnel all contradicted his version of events. The respondent, after some deliberation, considered his conduct to be serious and wilful misconduct and his employment was to be terminated. The applicant was subsequently removed from the workplace.
[50] The applicant received a letter from the company on the 23 September 2010.
[51] The applicant has stated he does not trust the company as a consequence of his experience. He has applied for various jobs and has not obtained full-time employment but has been working in various capacities.
[52] The applicant, despite being allegedly approached to resign from the union in December 2009, did not complain to the any party until May 2010 when he talked to Mr Palmer of the union. This was in the context of Adelaide Poultry purchasing Steggles and the applicant being assigned to that site. He attended a meeting regarding union membership arranged by the respondent. He was not restricted in any way to attend this meeting, in fact he attended the meeting whilst he was on a short break at another facility and went over time apparently.
[53] The tribunal found the applicant a serious, confident and responsive individual, capable of conceptual reasoning, sufficiently articulate in the English language, but readily imprecise at times in its use. He also at times indicated a resistance to questioning, he was contradictory at times and fell back on embellishments within his skill with the language. He was provided with an interpreter in this matter despite those services not being required in the workplace nor apparently determined to be required by the parties during the events in question. The tribunal found the witness generally unreliable.
Witness Mr Jacob Reng (JR)
[54] The tribunal found JR’s evidence indicated a reluctance to provide any material detrimental to the applicant’s case. His evidence on the important matter of the document in question was less than specific. He was a confident and sufficiently articulate individual. He did not require assistance of an interpreter. The tribunal found the witness generally unreliable.
[55] JR is a former employee of the respondent and a witness for the applicant as to the events that relate to the existence of the alleged racist document. JR was a leading hand on 17August 2010 and had clocked off at 6.04pm, but states he returned to assist the line working as requested by Mr Liberty Sayee (LS). Such labour was unrecorded as he did not clock back on. Such arrangements were not mentioned in his statement.
[56] He alleges that he attended the office when called by the applicant and asked JK to open the computer screen window to which JK refused. CS attended and instructed JK to open the window. JR asserts he was in a position to then observe words on the screen like:
“I can’t understand what Sudanese boys are doing, especially Anyuon. (I can not remember the exact words)” 22
[57] JR asserts that CS printed the document and said she would handle it. 23 JR, under examination, confirms the applicant was located in an adjacent office.24 JR asserts that the evidence of JK, CS and ES as to him not being involved and present in the incident are lies25 and that he remained in the office until CS left.26 JR did not see ES in the office at this time. JR also asserts that a few days later (23 August 2010) he, in the company of the applicant in an office observed on a computer screen various words. He stated:
“Anyuon showed me the computer screen again. It said the same thing as the first time.” 27
[58] JR at that time encouraged the applicant to get another witness, namely SS. When questioned by the tribunal as to the specific words that were observed JR gave a further version notably:
“I cannot understand the Sudanese boys, especially Anyuon.” 28
[59] He then asserts the applicant printed the document and went to the lunch room. He observed the applicant talking to SS and showing SS the document. 29
[60] JR asserts that SS admitted to him that he SS has since denied such an event as he was worried about his job security. 30 JR asserts that the use of the words “Sudanese boys” is racist and discriminatory because of the use of a specific nationality, yet in his evidence he refers to AS using the words “There’s all your boys, the Sudanese boys, they are all going to the union and union will take your money” without him taking offense or apparent inference of racism.31
Witness Mr Jacob Mayen (JM)
[61] The tribunal found JM’s evidence of little probative value as his recall of events was extremely limited especially of the second meeting he was involved in (16 August 2010). JM was provided with the services of an interpreter and relied upon his statement and notes that were made some time after each meeting.
[62] JM attended the disciplinary meetings on 14 and 16 September 2010 as a witness for the applicant. He made notes of those meetings after he got home from work on both occasions of “what I remembered happening at the meeting”. 32 During his evidence he indicated he did not have a clear recollection of the events.33 He signed the documents of the meeting of 13 September 2010 as requested as the applicant refused to sign them. He confirms AS and the applicant took notes of the meetings of 14 and 16 September. JM indicates the applicant read the notes of the previous meetings but refused to sign the notes when requested by DH as a record of the meeting.
[63] JM confirmed that it was put to the applicant that JK did not author the alleged letter considered racist by the applicant. The applicant stated JK was the author as the applicant had seen JK writing the letter.
[64] Further that the applicant in answer to questions from DH indicated he had no trust in the respondent or that truthfulness was not important between the respondent and employees. JM cannot remember specific questions being put but remembers the applicant not responding to some questions. 34
[65] DH advised the applicant that he had lied in the investigation and that he had created a fraudulent document. JM asserts that the applicant was told “your work is going to be terminated” and the meeting ended with the applicant being suspended by the respondent. The witness’s notes and further evidence under re-examination indicated the applicant was told he was to be terminated in some way.
[66] On 16 September 2010, with a Union representative TS present for the applicant, the respondent gave to TS all the documentation previously relied upon. JM cannot however remember the questions and dialogue that occurred at this meeting. However he asserts that after a short break in the meeting the respondent terminated the applicant’s employment relying on the inconsistencies identified, the logging on to company computers by the applicant, the applicant’s stated lack of trust in the respondent and inconsistencies of fact in respect to the incidents and evidence provided by the applicant.
[67] Mr Short, for the respondent, asserted to JM that he had confused the date of their meeting. JM denied that he was so confused.
Witness Mr Timothy Palmer
[68] Mr Palmer is an official of the NUW and gave evidence of conversations with the applicant where the applicant asserted he was being pressured and hassled about remaining a union member. He provided to the applicant a letter to cease payroll deductions by the respondent employer dated 31 May 2010. Mr Palmer’s evidence indicated a strategic approach to the applicant’s situation by the union.
Witness Mr Tony Snelson (TS)
[69] TS is also an official with the NUW in South Australia. He is a serious, dedicated, direct individual obviously involved with the respondent at this time in matters beyond the applicant’s dismissal issue. His cross-examination evidence was the subject of objection as to prejudice related to another matter as previously mentioned. The tribunal determined that his evidence should not be so limited in this matter.
[70] TS denied that the union commenced a campaign against the respondent after the applicant’s dismissal but that it commenced after further issues were raised by the workers. 35 Those matters were previously mentioned in respect to the decision of O’Callaghan SDP.
[71] TS attended with the applicant at the meeting of 16 September 2010 and his evidence went to the scenario of events previous to and during the above meeting. He confirms that DH stated that there were identified inconsistencies or discrepancies in the information provided by the applicant in regard to the investigation of his complaint. Also that JK refuted the applicant’s claims and that CS refuted the events as portrayed by the applicant and that SS also refuted the claims of the applicant. Further, that the applicant had been found to have breached company guidelines by accessing computers in various ways, that the applicant had conveyed he did not trust the respondent nor valued trust and that the record of the meeting of 10 September 2010 that the applicant signed was not given to the applicant.
[72] TS raised concerns about appropriate procedural fairness in regard to the alleged inconsistencies relied upon and the reliance on a computer policy being raised in this matter when it was of habit not administered in the workplace. TS confirmed that after a break, DH stated that he considered the applicant’s behaviour to be serious and wilful misconduct and he was to be terminated in employment without notice immediately. TS was provided with the documents he requested at that time. The witness indicated he felt the decision to terminate the applicant had been taken beforehand and the meeting was expeditious.
[73] The tribunal found TS a credible witness as to his involvement with the applicant in this matter, notwithstanding the findings in the other matter.
The respondent’s evidence
Mr Sukhdev Singh Saggu (SS)
[74] SS denies having held or read a document or being provided with a document by the applicant in the lunch room on 23 August 2010. He asserts the conversation that occurred was from a distance across a room and in that conversation he asked to see the document but the applicant did not bring it close enough for him to do so. He also says the applicant stated he had changed something in the letter.
[75] The witness denied the assertion by JR that he is lying as he is worried about his job and states he has never talked to JR about the matter and did not observe JR in the vicinity of the lunch room at the above incident with the applicant.
[76] The tribunal found SS gave direct evidence in a reasonable manner and was a credible witness.
Ms Erin Swatts (ES)
[77] ES confirmed she was aware of the applicant’s case but was not interviewed until shortly before the trial as to the relevance of her testimony of the events of 17 August 2010 in the dispatch office.
[78] She asserts she was on the phone to JK and could hear the applicant talking loudly in the background. She proceeded to the dispatch office as she had concluded something was wrong. Once there, she observed JK at his computer and the applicant yelling at him. There was no one else in the office. The witness says JR was not there at anytime that she was there. CS arrived and asked ES to leave. ES did so and called NM and informed him of her observations.
[79] ES accepts that neither CS, JK nor the applicant refer to her attendance at this time but asserts that she was briefly in attendance. She states that she has never heard of an employee coming back to work and not clocking on or being supervised by staff as JR asserts he did the night of the incident.
[80] The witness provided direct evidence, never faltered in delivery and was a credible witness.
Mr Joel Krueger (JK)
[81] JK refutes the applicant’s version of events and reference to the presence of JR on 17 August 2010 in the dispatch office. He says JR was never present. JK refutes the assertion by the applicant that he authored or wrote on a computer screen the alleged document by the applicant. He says the style of English is not his. He asserts he was working on a requested information document about functions, start and finishing times of personnel, and requested such information from the applicant explaining it had been requested by NM. He says he had commenced the document formation on the screen. He considered the matter confidential and he asserts he told the applicant it was confidential. However the applicant tried to take over the computer terminal and physically pushed himself onto the computer and endeavoured to take the keyboard away.
[82] JK called NM and the applicant called CS. JK was concerned that the confidential document could be misinterpreted and wanted to await CS before showing it. When CS arrived, JK explained what he was working on. The applicant then advised CS that JK had written something racist about him. JK opened the computer screen such that all parties could view the document. CS looked at the screen and requested the applicant to also look, advising him that there was nothing to be concerned about. JK says the applicant looked at the screen but still seemed upset and walked off.
[83] JK denies the applicant had been sent away to another office and asserts the applicant could view the screen when it was opened to reveal the document in question. JK denies CS ever printed any document on the date in question as stated by the applicant. JK asserts that he did not save the document he was working on, which was about matters requested by NM as it was not completed and had been the subject of the issue with the applicant. He cleared the document. Hence he says that the applicant could not have found it in a recycle bin on the computer at anytime. He also denies any racism towards the applicant at anytime asserting that he had previously had a cordial relationship with the applicant.
[84] JK, in examination, remembers ES coming in for a brief time just before CS attended. JK says the applicant overreacted to the issue.
[85] The tribunal found JK a serious, responsive and direct witness who gave considered responses to examination. He gave no indication of contrivance in the simple facts which he conveyed.
Ms Ann Smith (AS)
[86] AS gave evidence as to the campaign by the NUW against the respondent company as mentioned by TS at the conclusion of the meeting with the applicant on the 16 August 2010. She indicated that JR requested he be terminated in employment as he was in recovery of his health and intended to study and wanted to access Centrelink social services entitlements.
[87] She also stated that the company had a standard approach to WorkCover claims and had not altered or endeavoured to dissuade such claims as claimed by the applicant.
[88] Further, that the company operated a sealed “CAS area” to anaesthetise or settle the birds before slaughter, using CO2 (carbon monoxide). She states that in this area, an employee cannot be gassed, as claimed by the applicant on the ABC “Lateline” program after his dismissal.
[89] AS also asserts that the applicant, subject to resolution of this matter, cannot be returned to work as it is untenable given his behaviour before and after his dismissal. She rejected the conspiracy theory by the applicant that he had been dismissed and deprived of his entitlements. She indicated that the applicant had approached DH and requested an investigation into an incident.
[90] AS denies that at anytime she asked the applicant to resign from the union. AS denies the applicant was moved and his duties altered after he allegedly resigned from the union. Those duties were available, and as she was advised, within the applicant’s physical capabilities.
[91] In regard to discrimination, harassment and disciplinary matters in the workplace, AS indicated each employee was inducted in the relevant material and disciplinary guidelines, including a grievance process within the induction booklet. Such procedures are refreshed every two years.
[92] AS explained that witness ES was only identified recently as being in the proximity of the incident and confirmed that both CS and JK had confirmed that JR was not present. AS confirmed that she considered the applicant’s version of events was a fabrication.
[93] AS advised that the respondent had only recently been made aware that JR was asserted to have been present at the incident of 17 August 2010 when they received witness statements on 22 December 2010.
[94] Under cross-examination it was put to AS that a reference to “Jacob” in exhibit R9, annexure AS5 from a response by the applicant that Jacob was there should have alerted her. However it seems to the tribunal such questioning was confusing and erroneous as the document was in relation to another incident where a document was stated to have been accessed and printed by the applicant, not to who was present at the original incident involving JK.
[95] AS states that on 18 August 2010 the applicant spoke to NM who brought him to AS, as the applicant wanted to speak about an issue concerning JK. AS states the applicant was not happy about JK using his name without his permission in print. He was upset about such use of his name and that it had been used for something not good. AS indicated she would get some information and get back to the applicant. She then talked to CS who indicated she had seen the document screen and there was nothing that should concern the applicant. She advises she talked to the applicant and he indicated that he accepted that the matter did not need to proceed. AS was therefore surprised to hear later that the applicant had approached DH with a complaint document. 36 The subsequent meeting on 10 September 2010 was the investigation of the applicant’s complaint and concerns expressed to DH.37
[96] AS states that she took the complaint document, supplied by the applicant, to JK who subsequently denied ever seeing such a document or authoring such a document. 38 AS denies that she ever advised the applicant that CS had rewritten any document for NM. AS denies any knowledge of the applicant’s assertions about an altercation in her office and denies she told him to leave her office and not return. AS says the applicant is wrong about the meeting of 10 September 2010 as NM was not present. The meeting was attended by DH, AS and the applicant to discuss the allegations made to DH.
[97] At that meeting of 10 September AS asserts that the applicant took no notes during the meeting where DH and AS interviewed him. AS took notes of the meeting and later typed up a document as a record of the meeting. 39 That record is not as a verbatim record of the conversations but is considered a reliable record. It was produced immediately after the meeting concluded. The applicant waited for its completion and it was offered to him to read and to sign as to accuracy of content. He did so.
[98] AS says the applicant is untruthful when he asserts he took notes of the meeting, untruthful when he asserts she did not allow him to read the record she produced, untruthful when he says she insisted he sign them without reading them and untruthful when he claims he was not asked if he wanted a support person present at the meeting. AS states the applicant was given time alone to read the document, then signed them as per the exhibit.
[99] Exhibit R9 annexure AS5 states:
“Anyuon the purpose of today’s meeting is to discuss and confirm information in regards to the documents you provided to me (Dada Hu) on Wednesday. Would you like to have anyone else present for the discussion?”
[100] Notably in this document it records that the applicant claims he located the contentious document, allegedly authored by JK, in a recycle bin and saved the untitled file to his USB stick on 23 August 2010 and that he called SS to look at it while he printed it on the same day on a printer in the distribution office. He then deleted it so no one could change it and that JR was in attendance when this occurred. The applicant printed another from his USB stick at Flinders University and that this is a true and accurate record.
[101] Another meeting was organised for 13 September 2010 to clarify the applicant’s information provided on 10 September 2010. Present were NM, AS and the applicant. This meeting was recorded in a similar way to the first except that both NM and AS made notes which were compiled into two separate records collectively identified as exhibit R9 annexure AS6. AS asserts that at this time it appeared that the applicant was lying as there were some concerning discrepancies in the applicant’s version as to the locating of and to the content of the disputed document.
[102] AS indicated the applicant was requested if he wanted a support person present. AS states it was put to the applicant that SS denied that the applicant had called him over or printed a document in front of him. The applicant then indicated he did not know if SS read the document, that maybe he showed SS the document in the lunch room.
[103] The applicant did not respond to the assertion CS had no knowledge of the document provided by him. It was put to the applicant that it was impossible to download a file to a USB stick from a company computer as this facility had been disabled. 40 The applicant then said he did not download the file, that he had changed his mind. He then advised he had typed the words from the original at the University, copied the original and then placed it on his USB stick. The applicant when questioned as to why he had deleted an alleged document and not provided it to others, declined to answer.
[104] The applicant indicated he understood the seriousness of misrepresentation or omission of facts or falsification of records in terms of acceptable standards in the workplace. 41. The applicant declined to sign any record and refused to sign such records of the meeting when they were produced to him.
[105] A further meeting was scheduled for 14 September 2010 with DH, NM, AS and the applicant. A record was made in similar fashion to the previous meeting. 42 The applicant had a nominated person in support, JM. The applicant was provided with the record of the previous meetings by DH which he was asked to read. He was provided time to do so and made notes whilst he read them.
[106] DH requested the applicant to comment on the circumstances in which the contentious document came into his possession. The applicant responded with a question regarding printing from his USB at Flinders University.
[107] When it was put to him the accusation that he created the document he responded by saying he did not but retyped it from another document. He then stated that he was not happy with the process.
[108] It was put to the applicant that he had changed his version of events to which he did not respond or answer but concerned himself by writing some notes.
[109] DH indicated to the applicant his claims of discrimination were serious and the investigation was important to discover the relevant facts. DH put to the applicant that truthfulness and trust between an employer and employee was of the utmost importance. The applicant disagreed and indicated his view that it must be earned.
[110] DH put to the applicant that exhibit A3, annexure AM1 was a fraud created by the applicant and represented to have been created by JK. The applicant failed to respond.
[111] DH put to the applicant that he had failed to give an explanation as to his change of mind on the details of his assertions in relation to the document, its creation and possession. The applicant failed to respond. DH indicated the employer considered he had lied in the course of interviews and had changed his version of events. DH requested the applicant to provide an explanation for his actions. Again the applicant did not respond but continued to apparently make notes. DH asked if there was any comment the applicant wished to make before a consideration is made of continuation of his employment. The applicant responded, “so you could terminate my employment because of this?”
[112] DH closed the meeting indicating he would consider all the information. The applicant was suspended on pay pending further investigation and consideration. AS asserts the applicant was not terminated by DH at this time, as asserted by the applicant, but was suspended pending consideration and a subsequent meeting.
[113] On 16 September 2010 a further meeting was held with TS, AM, JM, DH and AS. It was put to the applicant that he had lied and other parties had contradicted his version of events, that the applicant’s actions and statements had broken all trust in the employment relationship and that his conduct was serious and wilful misconduct and he was to be terminated in employment.
[114] The tribunal found AS provided consistent and direct evidence and considered her a credible witness.
Ms Chris Sinkovic (CS)
[115] CS asserts that at the time of the incident on 17 August 2010, when she attended, the applicant was angry and upset. He was leaning over JK and attempting to grab the keyboard. It took a little time to get the applicant to calm down and to back away from JK. CS indicated she looked at the screen in close proximity to the applicant, when it was opened by JK and assumed the applicant had viewed what was on the screen as she did. She then confirmed to the applicant there was nothing for him to worry about to which the applicant responded, “ I don’t care I‘m still going to take the matter into my own hands”. The applicant then walked away out of the office, clocked off and left. CS states she never saw JR in the area that night.
[116] CS denies the applicant’s version that she printed the document and refused to let him see the document. Further, she denies that the document on the screen contained anything using the words “Sudanese people” as claimed. She asserts that she never spoke to the applicant about a document that was provided to NM and that she had never seen the document in question. CS says she later advised NM of the events in question and what the issue was about.
[117] CS denies that she admitted to AS and the applicant that she had changed a document to reflect what NM had asked JK to compile. 43 She also denies the applicant’s assertions that she produced a four line document which the applicant subsequently denied as being the document in question. She asserts these events did not happen.44
[118] The tribunal found CS to be serious and believable witness and she did not falter in her evidence.
Mr Nicholas Markou (NM)
[119] NM stated the allegations of ill treatment of workers the applicant made after his sacking were untrue and false, that JR’s claims of being present with the applicant are also untrue and that the applicant’s reference to admissions by CS that she had lost the document and then produced a four line document which she showed to the applicant are untrue. 45
[120] NM confirmed he had required of JK a confidential task to identify and provide data on the working personnel in the area including personal start and finishing times. 46
[121] NM confirms the content of the meeting of 13 August 2010 with the applicant and the discussions that went to the applicant’s contradictory information as to him locating and printing the document in question and copying it onto his USB stick. 47 He further confirms that the applicant on 14 August 2010 was suspended on pay pending further investigation.48 The tribunal found NM to be a reliable witness.
Mr Liberty Sayee (LS)
[122] LS’s evidence is that he had arranged assistance with JR on occasion but cannot remember doing so on the night of the events between the applicant and JK. He could hence not corroborate the evidence of JR.
Mr Dada Hu (DH)
[123] DH is the General Manager and senior executive of the respondent. His evidence goes to the meetings with the applicant leading to his dismissal. DH denies the applicant’s version of his involvement in the incident. He asserts he had a meeting and received the applicant’s allegations and advised that it would be investigated as soon as they received the documents mentioned. 49 DH denies the applicants version contained within exhibit A3 para 20.50
[124] DH does indicate in answer to the question as to whether he had checked what was printed out from the computers 51 that he had checked on 23 August 2010 with the respondent’s IT Manager as to:
“Ms Price: Did you check with the IT manager whether there were any records of what was printed from the computer on 23 August?
Mr Hu: Yes, I did. I did. That's one of the first things I did.
Ms Price: And you checked what was printed out?
Mr Hu: Well, I checked with Carl (indistinct) whether that's printed - was that still in the system, was it printed? He said, "No, I couldn't trace that. I couldn't - there's no record of it in the system."
Ms Price: So there was no record of it being printed?
Mr Hu: It had been deleted, I think. Mr Mabior is saying he deleted that item from the file - the folder - and I asked Carl to check whether it was deleted by anybody and Carl said, "No, there's no document there; been deleted."
Ms Price: So did he say that he could check it or that - - -?
Mr Hu: He checked it.
Ms Price: And it wasn't deleted? Did he check what files had been saved on the computer?
Mr Hu: He did.
Ms Price: And what did he say to that?
Mr Hu: Nothing had been saved.” 52
[125] DH states that regarding the meeting of 10 September 2010, the applicant is incorrect and untruthful regarding the presence of NM who was not present and that the applicant was asked if he wanted a support person. DH asserts that it was also explained that records would be kept for accuracy and that the applicant should read and endorse them. DH asserts the applicant agreed to do so. Further that the applicant did not take notes during this meeting.
[126] Regarding the meeting of 14 September 2010, DH denies he got angry and yelled and denies he terminated the applicant’s employment at that time.
[127] In regard to the meeting of 16 September 2010; DH states he did provide information as to what others had stated about the events in question and refers to exhibit A7 at paras 8-9 (statement of TS) which asserts that key witnesses conflicted with his (DH’s) version of events.
[128] DH asserts the applicant indicated the statements attributed to him in the first meeting were incorrect which was denied by DH. DH further indicated that at the 10 September 2010 meeting the applicant had gone though the record of the meeting and read it all whilst he now claims he did not do so.
[129] DH denies the decision to terminate was already made at the commencement of the meeting of 16 September 2010. He states that the decision was made when the parties had a break at that meeting and after they had further considered the content of the meeting.
[130] DH denied the accusations and allegations made by the applicant after he had left employment as to the respondent’s treatment of employees. He states they are completely untrue. DH considers the applicant has broken all trust between the parties, that he has lied throughout the investigation, that the allegations were completely false and caused detriment to other employees and that the applicant has engaged in activities to harm the respondent. Subsequent to the termination the respondent was faced by a campaign by the union, including protests, harassment of workers, radio campaigns, ABC television footage and commentary, “Facebook” entries and notes, organised activities in front of customers and clients and consumer focused activities. DH considered this campaign of activities was all about union membership amongst his employees and the applicant’s case gave the union a trigger to start such activities against the respondent.
[131] The tribunal found DH to be a direct, mature and reliable witness who gave credible evidence of his experience.
Applicant’s submissions
[132] As per the introduction in this decision the applicant says the dismissal was unfair procedurally and substantively. Procedurally because the respondent failed to allow a support person to be present, that no proper opportunity to respond to the allegations was provided and no proper investigation into the circumstances of the alleged misconduct was done.
[133] With reference to the provisions and requirements of section s.387(e) of the Fair Work Act 2009 (“the Act”), and the refusal to allow a support person, the applicant asserts he was not asked at the meeting of 10 September 2010 if he wanted a support person and that at meeting of 13 September 2010 he was refused a support person. In it asserted that the records of Mr Markou’s show the question does not appear to have been asked in contrast to Ms Smith’s notes on that meeting.
[134] On 30 August 2010 the applicant gave his complaint documents to Mr Hu and an investigation commenced. However it was not made clear to the applicant that he and not Mr Joel Krueger was under investigation at that time. Ms Smith says it was the applicant that requested the investigation about Mr Krueger in regard to the events of 17 August 2010. However this is not what the investigation was directed to. The applicant says in the statements of 10 September 2010 that the respondent did not ask anything about events of 17 August and therefore the investigation was deficient.
[135] Ms Price asserts that the applicant was not notified of the reason for dismissal and given an opportunity to respond in that the applicant was terminated at the meeting of 14 August 2010 which is denied by the respondents but mentioned by Mr Mayen for the applicant.
[136] Ms Price asserts that the evidence of Mr Snelson supports that the applicant was dismissed on 14 September 2010. 53 She asserts further that the applicant was suspended on 14 September 2010, despite the absence of any “OHS issues pending” as per the applicable disputes procedure.
[137] Ms Price says the applicant was not given an opportunity to respond or explain nor given copy of the transcripts of the meetings of 10 and 13 September 2010.
[138] S387(a) of the Act requires a valid reason for dismissal, and in that respect the applicant was sacked for persisting with a complaint about racism at the workplace and they have led evidence as to why that is not surprising as other aspects of racism were apparent in the workplace. 54 Further there is no clear prohibition of racism in the workplace policies as evidenced.
[139] The applicant asserts the records of interview of the respondent are not accurate and there is no reason to rely on them and that the applicant made minor errors only. The recording of the interviews were not taped or by shorthand and produced two different versions, 55 neither of which referenced anything as to accuracy.
[140] The applicant asserts the Joel Krueger document on 17 August 2010 was offensive because Mr Krueger did not allow the applicant to see it, that there were inconsistencies in the evidence of 17 August 2010, e.g. the presence of Ms Erin Swatts, that the respondent neglected to interview Mr Reng in the investigation, the inconsistent statements of Mr Krueger and Ms Sinkovic and that the respondent did not follow up to see what was recorded on the computer system.
Respondent’s submissions
[141] This matter turns on facts and credibility of the parties. The applicant accuses all of the respondent’s witnesses to be liars. The respondent says the applicant is a liar and that Mr Reng, the applicant’s main witness, is a liar.
[142] The respondent says the applicant engaged in serious and wilful misconduct warranting summary dismissal and that this application should be dismissed. They say the applicant is not a truthful witness. They refer to the language issues and the obvious contradiction in respect to the use of the word “boys” 56 and the evasiveness of the applicant in his witness evidence.57
[143] The applicant admits when he found the evidence he was supposedly searching for; he deleted it instead of using or preserving it. Such action defies logic. The respondent asserts that we have only the applicant’s word for this act as there is no evidence of the document’s existence save his assertions and the later documentation he produced. The respondent says there was no original document to be found and that it is a fabrication.
[144] As to the events of 17 August 2010, the respondent says the matter of dispute between Mr Krueger and the applicant was clarified and that the applicant’s behaviour was not warranted nor appropriate in that event. They assert there is nothing to be gained by the employer in the scenario alleged by the applicant and say Mr Krueger’s and Ms Sinkovic’s evidence should be preferred.
[145] Mr Krueger denies that he would use the language asserted to have been used in the document attributed to him. The applicant asserts that it is the document Mr Krueger was writing. Mr Reng is much less specific but in vein with the applicant. The document in any case could not be found to be discriminatory but at best may be offensive.
[146] The respondent only found out later that Mr Reng was allegedly present at the original event and the evidence of that came from the applicant. It just defies credibility that Mr Reng was present on a specific isolated occasion to assist the applicant.
[147] The respondent says Mr Reng is lying about the event and lying about the involvement of Mr Sukhdev Saggu. The respondent asserts Mr Saggu has nothing to gain by disagreeing with Mr Reng.
[148] The respondent asserts the applicant is less than credible. He says he was not angry, the respondent’s evidence clearly says he was. On 19 August 2010 the applicant alleges he was chased away from Ms Smith’s office. The respondent says this never occurred. The applicant met with Mr Hu and provided documents to him. 58 However the document the applicant asserts he found, “the Joel Krueger document” was not saved to the computer system and could not have been printed or saved to a USB. Yet the applicant says he found it in a recycle bin.
[149] This document was shown to Mr Krueger on 6 September 2010. Mr Krueger denies the document was authored by him. 59 Ms Sinkovic was shown the document by Ms Smith. Ms Sinkovic denies that the document was the document of the screen on 17 August 2010.
[150] At the 10 September 2010 meeting regarding the applicant’s complaint and allegations he was offered a support person/witness. The meeting was not contentious and the record should be accepted. There are no identifiable motives for the respondent to engage in the alleged behaviour at that time.
[151] The applicant alleges he located the document in the recycle bin, put it on his USB and he called Mr Saggu over while he printed it. Mr Saggu says he did not. There is no identified reason for Mr Saggu to lie about this scenario.
[152] In evidence, the applicant, when questioned about the date (23 August 2010), when he asserts he located and identified the document, he reinforced that he provided only a version of events as he was definite about such date then indefinite when questioned.
[153] The respondent asserts the applicant came up with a story and refused to back down, got himself into a deeper hole and got caught out. He changed his story about the USB when he realised he could not print it from the respondent’s computers. He lied about another company employee, he lied about the evidence he produced. In this circumstance he should expect dismissal for such conduct.
[154] Subsequently he has demonstrated a clear animosity toward the respondent, illustrated by his participation and allegations on “Facebook” and the “ABC Lateline” footage.
[155] It is asserted the applicant is loose with the truth illustrated by his reference to his claim to be unemployed, whereas he has been working.
[156] The respondent considers the testimony of Mr Mayen not to be reliable as he was unwilling to say anything detrimental to the applicant’s case, that Mr Reng’s evidence is implausible and untrue, evidence in relation to the incident of 17 August 2010 is untrue, clocking off by him is untrue, the version about the Mr Saggu episode is untrue and as such his evidence should accordingly be rejected.
[157] The respondent says that Mr Timothy Palmer’s evidence adds nothing.
[158] The respondent further says that Mr Snelson’s evidence is a jaundiced account and is not objective. He was involved in a union campaign, contemplating action before the applicant was dismissed (which commenced at 2.30 am next morning). His account of events is not to be preferred.
[159] The Respondent’s witnesses are numerous and there is no asserted reason why they should perjure themselves. The applicant says Mr Saggu, Ms Sinkovic, Mr Krueger, Mr Markou, Mr Hu and Ms Smith are all liars whereas the respondent says they are reliable, honest and should be preferred.
[160] In regard to the requirements of s.387 of the Act, the respondent says there was a valid reason for dismissal, that of serious and wilful misconduct. The applicant made false allegations against an employee, lied in the course of an investigation and was involved in the fabrication of evidence. He was appropriately notified of the reasons contemplated and given opportunity to respond and was permitted to have a support person present.
[161] The respondent says that reinstatement is untenable. The applicant does not trust the respondent. 60 The respondent thinks the applicant is a liar. The relationship is broken illustrated by the “Facebook” assertions that assert that all the respondent’s witnesses are liars. The applicant has asserted publicly that he received inhuman treatment, was gassed as punishment and made to clock off and rework.61 All of the above indicate a dysfunctional relationship.
[162] In regard to compensation should it arise, the issue of the applicant having admitted to having other employment should be considered as required by the tribunal.
Consideration
[163] The tribunal is satisfied that none of the initial matters set out in s.396 of the Act are relevant to this application.
[164] Section 387 of the Act states:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
[165] The tribunal has considered each of these factors in relation to the evidence of this matter.
[166] The tribunal has considered objectively all the evidence, the demeanour and candour of the witnesses, has made a judgement as to the reliability of witnesses, has given regard to conflicts in evidence, the presentation of evidence and any limitations on witnesses that may arise from language difficulties and has given regard, when appropriate, to the probability of the events in question. Accordingly the tribunal concludes the following facts and findings in this matter.
The issue of union membership
[167] The tribunal finds there is no evidence that supports any findings that the respondent sought to, or engaged in conduct to, limit the applicant or any other employee from joining a union or to resign membership of a union. The evidence of the applicant, the evidence of Mr Palmer and the references by Mr Snelson in this matter are not persuasive.
The assertions by the applicant as to his WorkCover claim
[168] The delays and the asserted influence applied by the respondent to not make such claims are also not persuasive as to a finding against the employer that they engaged in such practices or that the applicant’s history in this regard is relevant to this matter.
The question of racist remarks in the workplace
[169] The tribunal finds there is no evidence of complacency by the respondent towards racism in the workplace. The applicant was involved in various events and altercations with other employees prior to his dismissal, however from the evidence it seems all cases were addressed by the company and sought to be rectified.
[170] Significantly in this matter, the tribunal finds that there is no evidence of racial remarks made by any employee on 17 August 2010 against the applicant in this matter. There is no reliable evidence that JK authored any such remarks. He certainly was engaged in the preparation of a report for his manager, including a reference to the applicant and himself, and therefore he had named the applicant but no evidence exists that such reference was anything other than benign. The various documents produced in evidence by the applicant, JR and others in the context are not racially offensive in that they do prejudice the applicant based on superiority of a particular race or create an antagonism towards the applicant.
The events of 17 August 2010
[171] From the weight of the evidence of JK, CS and ES the tribunal finds that the applicant was upset about an apparent use of his name and for some reason took offence to that usage. That is not a racist remark in the respondent’s working environment. The applicant’s own testimony supports the common reference to such words that were allegedly used.
[172] The applicant subsequently, in the exchange with CS, was not satisfied as to the supervisor’s view of his complaint to her about JK. CS considered it nothing to be concerned about. It is evident that JK and CS considered the matter was not one that required further action except discussion with NM about the applicant’s conduct towards JK and CS. The tribunal considers the matter at that stage was not one involving serious and wilful misconduct by the applicant but that he was concerned with the usage of his name for his own reasons and he had reacted significantly to its use.
Subsequent events
[173] The tribunal finds that the applicant had various discussions in the next few days with his manager NM and with AS about JK using the applicant’s name without his permission. It is not clear as to the nature of his specific concerns at this time and the tribunal prefers the evidence of AS as to the events at this time. AS confirmed with CS as to the events on 17 August 2010 and talked further with the applicant and perceived he was happy or at the least not concerned the matter should proceed in a formal way.
[174] The applicant had a brief conversation with DH in general terms in the workplace and as a result telephoned DH a few days later. The result of that phone call was DH requested he put his allegation of complaint in writing, attach any supporting documents, and it would be investigated by the respondent.
[175] The applicant produced a document for DH on 30 August 2011 62. Those documents include a complaint about JK writing on the computer, alleged stereotyping and rumours “discriminating against Sudanese.” It states “Joel’s letter is attached at the back.” The applicant alleges CS knows how this document was changed as the “original copy is altered/rewrite”. The applicant makes it clear this is the third time he feels extremely stressed about being discriminated against.
[176] This was the first time the respondent had been aware of the alleged written document of JK as before this time it has not been quoted by the applicant nor observed by CS who mentions another document about starting times. 63 The respondent recognised the applicant’s complaints and commences an investigation into the complaint.
[177] Subsequently AS meets with CS who supplies two statements on 6 and 13 September 2010 respectively. CS denies any knowledge of the supplied document. AS meets with JK who denies the document is his or he has ever seen it before.
DH arranges a formal meeting with the applicant and AS on 10 September 2010
[178] From the weight of evidence the tribunal finds that the applicant was aware this meeting was to “discuss and confirm information” in regard to the documents provided by him in an investigation of his complaint and accusation. He was specifically asked if he wanted a support person for such discussion and denied such an offer.
[179] The tribunal accepts the records of the meeting which the applicant signed. 64 The tribunal has formed the view he did so after reading them as requested by the respondent and in full knowledge he was participating in an investigation of his complaint. The meeting clarified the origin of the documents which formed a significant part of the complaint of the applicant including the nature of events and nomination of witnesses JR and SS. It also confirmed the applicant’s use of the respondent’s computers, use of a USB and a printer.
[180] The applicant confirmed he accused JK of writing the document which he considers racist. The applicant admits to deleting a document from the respondent’s computer. The applicant asserts his information is true and accurate and he is aware that this is a serious matter. The applicant also affirmed he was aware that a “misrepresentation of facts or falsification of any other organisational record” is regarded as a serious matter under the respondent’s workplace behaviour standards and disciplinary guidelines. It is clear these documents were not provided to him but he made such an affirmation. The respondent accepted such information without challenge at that time within its investigation.
[181] The Baiada Group Disciplinary Guidelines 65 of the respondent provide examples of various types of behaviour that may result in termination of employment. Such examples indicate that lying to the employer and making false accusations against fellow employees and falsification of documents will be within the category contemplated for termination of employment. They were apparently not provided at this meeting but referred to as above.
Subsequent meeting of 13 September 2010
[182] At this meeting involving NM, AS and the applicant, NM was delegated by DH to pursue the investigation. The respondent had in the interim considered the material provided by the applicant and compared it with the reality of their computer system and had concluded the applicant could not have located a document and saved it to a USB stick or printed it as the applicant had confirmed he had done.
[183] The tribunal prefers the evidence of the respondent in respect to this meeting. Although the record of the meeting has some limitations it generally supports the following:
[184] The applicant in face of contrary information from statements made by SS attempted to change his story from that given previously in regard to the meeting with SS. When advised he could not have downloaded any file to a USB stick from a company computer as such a function had been disabled, 66 he changed his version stating “I just decided I have changed my mind.”67
[185] Subsequently the applicant declined to answer some questions put to him, which was unfortunate for all parties and did not assist resolution of the matter. He understood and affirmed to the respondent he was aware of the seriousness of misrepresentation or omission of facts in terms of the investigation as per the reference to the Baiada Guidelines mentioned above.
[186] NM indicated the respondent was concerned as the applicant had apparently confirmed his original allegations, then he had changed the story from the previous statement, only after the new information was given to him by the respondent. The applicant did not want to continue the meeting and again the respondent told him that this investigation was a serious matter.
[187] The tribunal finds that the respondent at this point clearly suspected the applicant to have lied and fabricated the document he relied upon as the basis for his serious complaint against a fellow employee. The tribunal finds that the applicant understood his situation clearly and he was given the opportunity to respond, explain and resolve such concerns of the respondent. The tribunal finds that the applicant was aware his version of events was now under some scrutiny and critical examination and he was involved in serious discussions as to his complaint. He had made serious allegations against an employee and when they had been questioned as to accuracy and veracity he was now changing his position, but without much clarity.
Was the document fabricated by the applicant?
[188] From the weight of evidence and the nature of the document the tribunal concludes the document was not originated by, nor could be attributed to JK as asserted by the applicant. The applicant produced the document by some means to illustrate his perceived grievance against JK for using his name without permission. The applicant when confronted with the factual and technical limitations of the computer system attempted to change his ground as to the facts of the document’s origin. In this respect the evidence of the applicant and JR are not reliable nor accepted as to the origin of the document. The tribunal further considers that at this time when the applicant has prosecuted a grievance repeatedly and utilised spurious documentation it is conduct which can be considered of a serious misconduct nature. The applicant knew he was in a serious situation and the respondent was frustrated by his position.
[189] A further meeting of 14 September 2010 was arranged to continue discussion in relation to the applicant’s assertions. Present were DH, NM, AS, the applicant and JM. It was put to the applicant that the document had been created by him to implicate JK, to which the applicant indicated he was not happy with the process and declined to answer further questions. The applicant refused the opportunity to respond in face of the fact he was aware the circumstances were serious. His employer had accused him of fabricating a claim for discrimination and of lying to them in the investigation. He was asked for an explanation and he declined to respond.
[190] When he was asked if there was any further comment he wished to make before the respondent considered the continuation of his employment he inquired as to whether he could be sacked for such a matter. This seems unrealistic to the tribunal as it was evident it was a serious matter concerning a significant breach of employee responsibilities and morals. He had been directly accused by his employer of lying, fabrication of documents and erroneous accusations of racist behaviour against another employee. He had also been drawn to consider the implications of a breach of the respondent’s disciplinary guidelines on two occasions. These documents were not produced but relied upon by reference.
[191] The applicant did respond to a statement of the respondent in terms that he did not consider trust and truthfulness was an important aspect to the employment relationship. The applicant was suspended on pay pending consideration of his employment and the meeting closed. This is supported by the evidence in notes of TS 68 and by the respondent witnesses.
The final meeting of 16 September 2010
[192] This meeting was attended by TS with the applicant along with JM, DH, NM and AS. At this meeting DH, apparently for TS’s benefit, went through the scenario of events which had led to the applicant’s situation. It is noted that the applicant raised issues of being misquoted in the meeting of 10 September 2010, the original complaint meeting, records of which he had signed. The applicant continued to keep to his position of being discriminated against.
[193] After some separate deliberation DH informed the applicant that the investigation had concluded taking into consideration all the information and responses and that the respondent was satisfied that on the balance of probabilities the applicant was guilty of fabricating a discrimination claim and various breaches of company policy and guidelines. Those breaches were regarded as deliberate and serious misconduct and he would be terminated from his employment.
The relevant provision of s.387 of the Act
[194] In relation to the requirements of s.387(a) of the Act, was there a valid reason for the dismissal related to the person’s conduct or capacity (including its effect on the safety or welfare of other employees)? The tribunal finds that the respondent has discharged the onus to establish that the applicant engaged in actions that were determined to be serious and wilful misconduct (see Yew v ACI Glass Packaging; Culpeper v Intercontinental Ship Management) 69. The tribunal finds that the evidence objectively considered is such that such conduct by the applicant did in fact take place (see Edwards v Giudice and Others; Hinchey v North Goonyella Coal Mines Pty Ltd).70 The applicant produced a fabricated document and made false and inaccurate accusations against JK. The tribunal concludes the respondent had a valid reason for dismissal.
[195] With regard to s.387(b), the applicant was aware of the reasons which may lead to his dismissal by the respondent on 14 September 201 and notified of the reasons for dismissal before his dismissal on the 16 September 2010.
[196] As to s.387(c), the applicant was given the opportunity to respond and provide explanation as to the conflicts in his version of events on 13, 14, 16 September 2010.
[197] Giving consideration to s.387(d), the applicant was able to have a support person or representation at all the meetings on the 10, 13, 14 and 16 September 2010. He had a support person on 14 and 16 September and a union official on 16 September. The submissions of the applicant in this regard are not accepted.
[198] In relation to s.387(e), the conduct of the applicant was not in relation to unsatisfactory performance by the applicant, it was about misconduct.
[199] On consideration of ss.387(f) and (g), the tribunal has had regard to the balance of those provisions including any other relevant matters.
Conclusion
[200] The tribunal is aware of the circumstances of the applicant as a recent migrant from a non English speaking country, which has had a recent unfortunate history. The tribunal is aware and has considered the hardship that a dismissal has caused him and his dependants. The tribunal also considers the impact on the applicant was considered by the respondent in this matter before their decision was made.
[201] The tribunal considers the respondent should have provided the applicant within the above investigation process with the relevant policy documentation at the various meetings where he was reminded of the consequences as to his assertions being concluded as breaches of those guidelines and policies. His evidence is that he affirmed he was aware of the consequences and that he is very capable of such consideration. However such a process would have added substance to the indications by the respondent that the applicant’s employment was seriously at risk of ending.
[202] Further, the applicant’s evidence that he was not given a copy of the meeting records of 10 September 2010, at any time, was not contraverted by the employer. The tribunal is of the view they should have been provided as well as the records of further meetings when they were available. They were apparently provided on 16 September 2010. Given that the respondent is a large employer, with a substantial varied and diverse workforce and with a dedicated Human Resources team, such an approach is necessary and an omission in procedure.
[203] However taking all the information and circumstances in this matter into consideration, the valid reason for dismissal for serious and wilful misconduct by the applicant, the gravity of the applicant’s behaviour, the repeated opportunities presented for him to respond and not frustrate the employer in its attempt to be informed and resolve the matter, such minor procedural matters do not cause the respondent’s actions to be procedurally deficient such that the dismissal of the applicant could be found to be harsh, unjust or unreasonable. Further, even if they did cause the actions of the respondent to be procedurally unfair, for the above reasons the tribunal would not interfere in this dismissal as the dismissal was not disproportionate to the behaviour and circumstances of the applicant.
[204] Accordingly the tribunal finds that the respondent had satisfied the requirements inherent in s.387 of the Act. The dismissal of the applicant is not unfair and this application is dismissed.
COMMISSIONER
Appearances:
Ms E Price with Mr D Garland and later Mr T Snelson for the applicant
Mr A Short with Mr J Parker for the respondent
Hearing details:
Adelaide
2011:
April 11, 12 and May 31
ABBREVIATIONS:
JM - Mr Jacob Mayen
JR - Mr Jacob Reng
TS - Mr Tony Snelson
SS - Mr Sukhdev Saggu
ES - Ms Erin Swatts
JK - Mr Joel Krueger
AS - Ms Ann Smith
CS - Ms Chris Sinkovic
NM - Mr Nicholas Markou
LS - Mr Liberty Sayee
DH - Mr Dada Hu
2 PN 223
3 PN 293, 308
4 Exhibit A3, para 13
5 PN 325
6 PN 333
7 Exhibit A3, Annexure AM1 and PN 902-911
8 PN 241-243
9 PN 1063-1065
10 PN 1247, 1279
11 PN 1294
12 PN 337
13 PN 342
14 PN 349
15 PN 355
16 PN 373
17 PN 371
18 Exhibit A3, Annexure AM1
19 Exhibit A3, Annexure AM1
20 Exhibit A3, Annexure AM1
21 PN 383
22 Exhibit A5, para 4
23 PN 2748
24 PN 2369
25 PN 2641-2642
26 PN 2375
27 Exhibit A5, para 5
28 PN 2738
29 PN 2715
30 PN 2385
31 PN 2391
32 Exhibit A4
33 PN 2041-2042, 2048, 2053
34 PN 2130
35 PN 3214
36 PN 4567-4568
37 PN 4575
38 PN 4585
39 Exhibit A9, Annexure AS5
40 Exhibit R9, Annexure AS7
41 Exhibit R15
42 Exhibit R9, Annexure AS8
43 PN 3302
44 PN 3802
45 PN 380 (31 May 2011)
46 PN 443 (31 May 2011)
47 PN 529 (31 May 2011)
48 PN 553 (31 May 2011)
49 Exhibit R14, para 4
50 PN 756 (31 May 2011)
51 PN 976
52 PN 975-980 (31 May 2011)
53 See PN 2953
54 PN 1093-1095
55 Exhibit R9, Annexure AS6
56 PN 1258-1291
57 PN 1197
58 Exhibit A3, Annexure AM1
59 Exhibit R8, Annexure JK1
60 PN 1684
61 PN1044, 1046, 1056
62 Exhibit A3, Annexure AM1
63 Exhibit R10
64 Exhibit R9, Annexure AS5
65 Exhibit R15
66 See Exhibit R9, Annexure AS7
67 Exhibit A9, Annexure AS6
68 Attachment to Exhibit A7
69 (1996) 71 IR 201; (2004) 134 IR 243
70 [1999] FCA 1836; [2009] AIRCFB 94
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