Australia Meat Holdings Ltd v McLauchlan 84 IR 1

Australia Meat Holdings Ltd v McLauchlan 84 IR 1 - [2010] NSWIRComm 1046 - NSWIRComm 2010 case summary — Zoe

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1 This matter arises in part from an application filed on 4 December 2009 for an unfair dismissal remedy pursuant to s84 of the Industrial Relations Act 1996 (the Act) made by Mr Eric Hindes (the applicant), a bus driver, in respect to his dismissal by Busways Wyong Pty Ltd (the respondent) on 30 November 2009. The Transport Workers Union of New South Wales (the Union) also filed a notification pursuant to s146B of the Act on 4 December 2009, concerning the applicant's dismissal. This decision concerns the arbitration of the dispute notified by the Union on 4 December 2009. 2 The respondent's grounds for dismissal were set out in the applicant's termination letter dated 30 November 2009 in the following terms: a. On 15 October 2009, you displayed inappropriate and aggressive behaviour towards Mr Marsh. Mr Marsh felt threatened, intimidated and unsafe during the incident on 1 October; b. During the incident on 15 October, 2009, you openly displayed hostility and disrespect towards Busways management; c. Despite your protestation, Busways' systems for managing unders and overs is satisfactory; d. Although Mr Marsh did approach you in the drivers room on October 15, 2009, he did not conduct himself with the hostility described by you; e. Your conduct, behaviour and attitude towards management in the meeting on 25 November 2009 was negative, confrontational, disrespectful and offensive. In our view, your actions and comments during the incident on 15 October 2009, and at the meeting on 25 November 2009, show that the employment relationship has broken down. Eric, Busways has decided to terminate your employment effective immediately on the basis that your actions and conduct during the incident involving Mr Marsh on 15 October, 2009, together with your open hostility towards senior management on 25 November, 2009, amount to serious misconduct. 3 The applicant's defence in response to the respondent's allegations concerning his conduct on 15 October and 25 November 2009 is conveniently set out in his application as follows: i. Mr Eric Hindes (the applicant) is a member and co-delegate of the Transport Worker's Union of New South Wales (the Union). The applicant is 52 years of age and has been employed by Busways Wyong Pty Ltd (the respondent), at the Wyong Depot, as a bus driver since on or about October 2006. The applicant was initially employed as a casual. On or about May 2009, the applicant was employed as a full time permanent bus driver with the respondent. Prior to the applicant's employment with the respondent, the applicant was a member of the NSW Police Force and had extensive training in the conduct of investigations. ii. Well prior to the matters alleged in relation to the respondent's termination of the applicant, the applicant had repeatedly raised concerns with the managers of the respondent about unsafe work practices and failure of the respondent to follow its own procedures. In particular, the applicant raised concerns that the company had failed to assist and support drivers in dealing with difficult school children and other unruly passengers. iii. On 15 October 2009, an exchange took place between the applicant and Alex Marsh at the controller's window at the Wyong Depot. Mr Marsh asked the applicant to explain why his float (cash bag) had been "short" on 3 October 2009. The applicant expressed concerns about recent practices of the respondent that made it more difficult for drivers to verify the amount of cash they had taken on any particular day. iv. The applicant denies that his conduct was directed towards Mr Marsh, and that his conduct was threatening, or intended to intimate (sic) Mr Marsh. v. Mr Marsh then followed the applicant out into the yard and made a number of threatening comments to the applicant to the effect that Mr Marsh was " sick of your bullshit " and called the applicant a " fat c… ". Mr Marsh pushed the applicant with his chest aggressively. At this stage the applicant was in fear of being further assaulted by Mr Marsh. Apart from the applicant and Mr Marsh, there were no witnesses to Mr Marsh's conduct in the yard as all other drivers had left. vi. That day the applicant commenced driving his shift. The applicant contacted his partner, Patricia Hyatt-Hindes, who is also an employee of the respondent, and was advised to leave the road for the day. The applicant went home. vii. On the morning of 16 October 2009, Patricia Hyatt-Hindes made a formal complaint to the respondent concerning the conduct of Mr Marsh on 16 October 2009 (sic). viii. The applicant continued to work. The respondent indicated that he was under investigation and ostensibly the applicant was the one that had made a complaint. ix. On 25 November 2009, the applicant was asked to attend a meeting at the Wyong Depot with the managers of the respondent. Prior to this meeting the applicant was not informed that he was under investigation. x. At the meeting of 25 November 2009, the applicant did question the investigation skills of the respondent personnel conducting his interview and the investigation. xi. On 30 November 2009, the applicant was summarily terminated. xii. The applicant's termination was not for a valid reason and in all the alternate circumstances harsh, unreasonable and unjust. 4 The applicant, a former policeman, commenced employment with the respondent in October 2006 as a casual bus driver and was made permanent in May 2009. The applicant was a co-delegate of the Union and on the evidence brought in these proceedings, he effectively discharged his duties on behalf of the Union's members and employees generally. He sought reinstatement to his former position or, in the alternative, monetary compensation. Evidence

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How the hell would I know 2 weeks later why the money was down, it could be any reason, I have no way of knowing what I have to pay in every day, that function on the ticket machine has been disabled and that has been done because those arse holes at Cockroach Castle don't trust anyone and they think we are thieves and lepers and that if the money is 10 cents over we are going to take it, this would not happen in fact if the money was under we would put it in but that mob at Cockroach Castle quite simply does not trust us. They disabled the manual function on the ticket machines for the same reason as they think we are going to issue dodgy tickets and pocket the money. If they stopped being a bunch of arse holes to us and trusted us, the whole place would get on better. 9 According to the applicant, Mr McNeilly agreed that "he had no idea" why there was a discrepancy. Also at the time, two casual drivers, Mr John Gowans and Mr Ivan Watkins, were in the immediate vicinity and began laughing in response to the applicant's explanation. 10 Shortly thereafter, the applicant stated he heard Mr Marsh say "hey you" and proceeded to approach him as follows: I saw Alex Marsh marching quickly towards me along the walkway to the drivers' rooms, with both his hands clinched as fists; he strode up to me and hit his chest against me. I stepped back and then he said pointing his finger at me very close to my face: ' I am fucking sick of you lot and I am fucking sick of your bullshit you cunt '. Alex Marsh was shaking. He then said: ' I am sick of you, you fat cunt. I will have you, do you want to have a go, " I said twice: ' let's take this outside the yard just the two of us and sort this out in private' . You are not supposed to fight in the yard. Alex continued to abuse me for some time. All this occurred at the front of the drivers' room. 11 The applicant further stated Mr Marsh proceeded to block him from leaving the drivers' room and continued his abuse. He subsequently contacted Mr McNeilly to report his encounter with Mr Marsh. Upset and finding it difficult to concentrate, the applicant arranged for a relief driver to replace him and subsequently went home. 12 On 16 October 2009 Ms Hyatt made a complaint on his behalf to Mr Brett Thomson, the Group Operations Manager. 13 On 25 November 2009 the applicant attended a meeting at the Wyong depot. Present at that meeting were Mr Brad Cooper, Mr Thomson, Mr Andrew McAulay, Ms Hyatt and the applicant. 14 During the meeting, Mr Cooper outlined that what the applicant had said on 15 October 2009 was inappropriate - "you should not have called the company Cockroach Castle". The applicant subsequently replied that all employees, including managers and assistant managers "refer to the head office in Pymble as Cockroach Castle". 15 Shortly thereafter, Mr Thomson reported to the meeting that there had been a thorough investigation of the matter, to which the applicant replied, "Your investigation skills are such that you could not follow a child without being arrested as a pervert", a quote from the Tom Clancy novel The Cardinal of the Kremlin. Mr Thomson immediately called an end to the meeting on the grounds that the applicant had called him a pervert. The applicant subsequently denied the accusation and instead commented, "it was a quotation from a book about poor investigation skills". 16 A further meeting was convened on 30 November 2009 where the respondent alleged the applicant was guilty of serious misconduct. He was later dismissed without being afforded an opportunity to reply to the allegations. 17 In a statement in reply filed on 12 March 2010, the applicant recalled he had spoken to Mr Marsh prior to the incident on 15 October 2009 concerning a bald tyre on his motorbike and had urged him to replace it. This statement also set out a defence to a number of accusations made by the respondent's witnesses concerning the applicant's behaviour and demeanour on 15 October and 25 November 2009. 18 In cross examination, the applicant disagreed with the respondent's reasons for dismissal set out in the letter of termination dated 30 November 2009 and disputed that the employment relationship had broken down. 19 Shortly stated, it was the applicant's evidence in cross-examination that his use of the terms, "Cockroach Castle" and "arse holes" on 15 October and 25 November 2009 were not meant to be offensive or derogatory. He also denied he was angry when he first responded to Mr McNeilly's comments that his takings were short on 3 October 2009. 20 The applicant denied he had provoked Mr Marsh nor did he move closer to Mr Marsh and seek to intimidate him. Rather, the applicant contended he sought to diffuse the situation that had evolved concerning Mr Marsh. 21 The applicant denied he had a deep-seated resentment towards persons working in head office including Mr Thomson and Mr Cooper. 22 It was the applicant's evidence that at no time during the incident on 15 October 2009 was he angry. However, he later admitted 'he was starting to get a little angry' after being threatened, threatened with assault, screamed at and finger wagged by Mr Marsh. 23 The applicant contended he was "in no way responsible" for prompting the incident on 15 October 2009. He further contended some of the statements made during the respondent's investigation of the 15 October 2009 incident had been fabricated. 24 The applicant argued he had sought to "go outside with Mr Marsh" because he thought he was going to be assaulted and according to his training, the best means to diffuse a situation was to walk away and give the situation at hand some time to settle down. 25 A consistent theme in the applicant's evidence in cross-examination was his denial that he was the aggressive party during the altercation on 15 October 2009. Patricia Hyatt

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27 In a statement filed on 2 February 2010, Mr Rodger stated he contacted Mr Thomson on 30 November 2009 at the request of the applicant who had earlier suggested to him, "I don't feel comfortable about the way this is going". Mr Rodger was unable to represent the applicant at the meeting scheduled that day due to other Union business. 28 According to Mr Rodger, Mr Thomson's response was cordial. Mr Thomson did not believe Mr Rodger was required as the meeting had been called for the purpose of discussing the results of the investigation into the Alex Marsh incident. 29 In a related statement also filed on 2 February 2010, Mr Rodger stated he and Ms Hyatt met with the Chief Executive Officer, Mr George Tisse on 1 December 2009 to discuss the matter. It was Mr Rodger's evidence that during the meeting Mr Tisse said words to the effect: Eric was only going to receive a written warning for the incident with Mr Marsh. 30 There was no cross-examination. Brett Lund 31 In a statement filed on 2 February 2010, Mr Lund stated he had known the applicant for almost 2 years and suggested he was "an honest, efficient and organised person in both his professional and personal life". In that regard, Mr Lund recalled the applicant had both supported and assisted him in a sexual harassment claim against a fellow worker, despite not being a member of the Union. It was his evidence the applicant was a person of good character. Mr Lund resigned from the respondent in March 2009. Fred McNeilly 32 Mr McNeilly's submitted he did not feel intimidated by the applicant when he approached him concerning his "unders" on 15 October 2009. 33 It was Mr McNeilly's evidence that the applicant "gets a little bit angry" sometimes. He recalled that he sent an email to Mr Thomson on 16 October 2009 setting out his account of what had transpired the previous day. He later thought it was unfair to "point the finger at Eric" and then sought to withdraw his initial account of the evidence. 34 In cross examination, Mr McNeilly described the applicant as a person who speaks his mind and, on occasions, gets upset as was the case on 15 October 2009 when the issue of his "unders" was raised. 35 Mr McNeilly was handed a copy of his email statement dated 16 October 2009 and the following elements were put to him in cross examination: You asked the applicant on 15 October 2009 whether he could " recall his unders " some two weeks previously. The applicant stated that he could not and in response, you replied, " Eric, I'll just make a statement on their currency report ". 36 Mr McNeilly subsequently read the following paragraphs from his statement dated 16 October 2009: At around 15.50pm (sic) Thursday afternoon I was speaking to Eric about his unders & overs and asked if there was a reason why his money was down on the 3 rd Oct 2009. At the time Eric said to me sorry but I cannot remember back 2 weeks ago. My reply to Eric was ok I will put his comment down on the occurrence report. I then noticed Alex in the Controller's Room; this is when Eric spotted him. Eric then just eye balled Alex and started putting shit on head office staff who he was calling (Cockroach Castle). And was accusing head office of tampering with ticket machines and not allowing drivers to do a print out at the end of each shift to see what the total of their takings are. So if a driver was down on their money they (Drivers) can put this money back. While saying all this he did not take his eyes off Alex. 37 Mr McNeilly confirmed that approximately six weeks after making his statement he sought to make changes to it. He agreed that his recollection of events six weeks after the event was not as good as the following day, as was the case with his emailed statement. Mr McNeilly sought to make the changes on the grounds "…the more I thought of it, the more I was a little bit unfair to Eric in making that original statement". 38 Mr McNeilly stated the applicant was also looking at other drivers at the time of the incident as well as looking towards Mr Marsh. John Doggett

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39 In a statement filed on 2 February 2010, Mr Doggett stated he observed the applicant in the driver's room at approximately 5.05 pm on 15 October 2009. The applicant appeared very distressed and his hands were trembling. The applicant explained he had been talking earlier with Mr McNeilly and had made some comments about head office. A head office staff member heard his remarks and a heated discussion ensued. The applicant informed him the staff member followed him to the driver's room and had abused him and was also "getting in his face". That staff member also would not let him pass through the doorway to his allocated bus. 40 In cross examination, Mr Doggett simply confirmed the applicant had told him he had an argument with a staff member from head office and as a result of that argument his departure was delayed and he came off the road as he had felt unwell. Ivan Watkins 41 In a short statement filed on 2 February 2010, Mr Watkins set out the following recollection of events on 15 October 2009: I was in the office of Busways Wyong on the above date when I overheard a conversation between Eric Hindes, Fred, Les and Alex Marsh. Whist I was talking to Les, Eric approached the window and was talking to Fred. Fred handed Eric a piece of paper, which I am not sure what was written on it, however Eric proceeded to object to what was written on the paper, during this conversation Eric got a bit loud and referred to head office as Cockroach Castle. I did not hear Eric swear or use bad language in any way nor in my opinion did he aim his anger at any single person, there or anywhere else. He was just voicing his opinion of what was written and got a bit carried away. 42 Mr Watkins could not recall the precise words used by the applicant and in his view the applicant was looking towards the yard at the time, rather then towards any particular person. 43 In cross examination Mr Watkins could not recall the date he prepared his statement, but did confirm it was written sometime this year at the request of the applicant. Mr Watkins could not recall precise details of the conversation. However, he did recall the applicant referring to head office as "Cockroach Castle". Alison Ramsey

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Brad Cooper 47 In a statement filed on 1 March 2010, Mr Cooper said he first became aware of the incident on 16 October 2009 when Mr Thomson, the Regional Operations Manager, advised Ms Hyatt had lodged a complaint on behalf of the applicant related to threatening intimidation and aggressive behaviour by Mr Marsh on 15 October 2009. 48 Mr Cooper referred to the meeting on 25 November 2009 where he put to the applicant that four independent witnesses to the incident had suggested "his behaviour was unacceptable and inappropriate and that his behaviour was intentionally directed at Mr Marsh". Mr Cooper also informed the applicant that Mr Marsh had felt threatened and intimidated by his actions. In response the applicant alleged the statements obtained by the respondent had been fabricated and were incorrect. During the meeting the applicant contended the respondent's staff working at the Pymble head office were "arse lickers working in Cockroach Castle". 49 During the meeting, the applicant demonstrated how Mr Marsh had "chested" him on 15 October 2009 and subsequently provided his version of the events surrounding the incident. After challenging the credibility of Mr Thomson and himself to conduct the investigation, the applicant stated, "both of you would not be able to find a child if you were perverts". The meeting subsequently closed. 50 It was Mr Cooper's evidence that following the applicant's comments concerning the credibility of Mr Thomson and himself to conduct the investigation, it became apparent that the applicant's: attitude towards Busways and in particular Busway's management and any employee who worked in head office in Pymble was extremely poor, negative and degrading. 51 Mr Cooper stated the applicant had shown no remorse for his actions during the incident on 15 October 2009 and he had openly displayed insubordinate conduct towards Mr Thomson and himself. 52 It was Mr Cooper's evidence that following the meeting conducted with the applicant on 25 November 2009, management met to determine an appropriate course of action given the applicant's conduct and attitude earlier that day. It was subsequently determined by management that despite a conclusion that the employment relationship "had broken down considerably", it was not at that point irretrievable. Accordingly, it was agreed that a further meeting should be convened to establish the applicant's attitude towards the respondent, management and head office. 53 A further meeting was convened on 30 November 2009 where the applicant explained his "pervert" comments related to a quote from the Tom Clancy novel, Cardinal in the Kremlin. In response to the 15 October incident, the applicant denied any wrong doing and further he refuted the allegations and relevant witness statements held by the respondent, sought to discredit the respondent's processes, identified Mr Marsh as the aggressor and stated an intention to report the alleged assault by Mr Marsh to the police. 54 The meeting subsequently adjourned to allow Mr Cooper and Mr Thomson to consider the applicant's response. The subsequent conclusion reached was that the applicant's attitude had not changed since the meeting on 25 November 2009 and he had showed no remorse nor did he assume any responsibility for his behaviour on 15 October and 25 November 2009. He was subsequently advised that his employment would be terminated. 55 In cross-examination, Mr Cooper stated he was unaware of the term "Cockroach Castle" used to describe the Pymble head office until he began investigating the 15 October incident. He was, however, now aware that the term was used by a number of staff employed at the respondent's Wyong depot and, in that regard, he expressed some concern about the apparent culture of disrespect that existed at that depot. 56 Mr Cooper stated the purpose of the 25 November 2009 meeting with the applicant was to give him an opportunity to air any grievances he may have. It was not a disciplinary meeting. However, he did confirm that the statements made by the applicant during that meeting contributed to the decision to terminate his employment. In the respondent's view, the meeting was also to be a confidential one. Mr Cooper also confirmed the applicant was not informed during this meeting that his job may be on the line. 57 Mr Cooper confirmed the respondent had sought a conciliated outcome on 25 November 2009 where some fault could be recognised and the parties could move forward. However, the applicant did not believe he had been involved in something that was inappropriate. Mr Cooper acknowledged the applicant had stood his ground during the meeting and "didn't change his view". 58 Mr Cooper stated the applicant was unaware when he left the meeting on 25 November that any further meeting would be convened concerning the alleged incident on 15 October 2009. 59 Mr Cooper stated he found the applicant's comments concerning his investigation skills on 30 November 2009 both offensive and degrading. 60 In relation to the meeting on 30 November 2009, Mr Cooper stated the applicant was given an opportunity to respond as to why he should not be dismissed. He further contended the respondent had exhausted all avenues to convince the applicant "he was responsible for some of his actions" on 15 October and 25 November 2009. 61 Mr Cooper confirmed he did not examine the applicant's service history with the respondent prior to his dismissal. 62 In re-examination, Mr Cooper was asked what views of management did the applicant express during the course of the meetings on both 25 and 30 November 2009. Mr Cooper responded as follows: Mr Hindes' view of Busways certainly came across to me as being very negative. They were offensive, there was a poor perception of the way the company was treating him, aggressive and hostile. 63 Mr Cooper also referred to paragraphs 11 and 12 of his statement which dealt with information gathered during the investigation of the 15 October incident and the meeting convened on 25 November 2009 where at the outset, he said he informed the applicant there were "three separate issues (that) needed to be discussed…". He also confirmed those issues had been the subject of discussions with the applicant on 25 November 2009. Brett Thomson 64 Mr Thomson stated he first learned that an incident had occurred when Ms Hyatt phone him at approximately 7.45am on 16 October 2009. His recollection of that telephone conversation was as follows: Ms Hyatt: There was an incident at the depot yesterday between the applicant and Alex Marsh. You know how the applicant talks about Cockroach Castle and arse-lickers. There was an altercation with Alex. You know what the applicant's like. Mr Thomson: I am sick of the applicant degrading head office. I have heard him before calling passengers scumbags. No wonder he gets into trouble. That type of conversation must stop. He needs to give people respect. If he has concerns or a complaint he needs to put it in writing. 65 Mr Thomson subsequently instructed the acting Operations Manager, Mr McAulay and Mr McNeilly to give an account of the incident by return email. A similar request was also made to Mr Marsh, Mr Gowans and the applicant. Copies of those accounts were attached to his statement. 66 It was Mr Thomson's evidence that during the 25 November 2009 meeting the applicant claimed the statements of Mr McNeilly and Mr Gowans who had been present in the Controller's Room, were factually incorrect. He claimed Mr Gowans had responded with malice and supported that proposition by reference to a previous issue he had raised unsuccessfully with management and a further incident where he had observed him "doing the wrong thing". 67 The applicant also explained the term "Cockroach Castle" was a term used by NSW Police to describe the North Sydney Highway Patrol Office - it "was like a badge of honour". When Mr Thomson subsequently branded the applicant's comments offensive, he said in future he would refer to head office as "Mount Rushmore - the place of big heads". 68 The applicant demonstrated how he was "chested" by Mr Marsh. The applicant explained he used the phrase "go outside and sort it out" because Mr Marsh was stressed and "sometimes the best way of calming down is to go for a walk". 69 Mr Thomson claimed the applicant made the following remarks concerning the incident on 15 October 2009: Mr Marsh made no attempt to reconcile the problem; He was attempting to leave the drivers room and Mr Marsh would not let him out; The statements collected by management were contrived to protect management; The barrage in the control room was in a controlled manner; The invitation to go outside was to prevent an altercation; and Mr Marsh's demeanour was threatening and aggressive. 70 According to Mr Thomson the applicant was critical of the respondent and the performance of persons within the organisation and he claimed the applicant stated he had no faith in Mr Cooper's ability to investigate the matter and that "we would not be able to find a child if we were perverts". In response to the applicant's offensive comments, Mr Thomson closed the meeting. Mr Thomson also concluded the applicant had shown no respect to Mr Cooper or himself and his attitude towards Busways and its management was totally insubordinate. 71 Mr Thomson said management subsequently met to discuss the situation to "determine the health of the employment relationship" given the substantial deterioration that had become evident during the meeting on 25 November 2009. 72 When the parties met on 30 November 2009, Ms Hyatt stated she had been given advice that if an assault had taken place "then charges would be laid". Mr Cooper confirmed the respondent would cooperate with any police investigation. 73 Following discussions, Mr Cooper advised the applicant that the respondent had decided to dismiss him. It was Mr Thomson's recollection that Mr Cooper made the following statement: On the basis of the findings discussed and the fact that there appears to be no acceptance of any fault by you: Management takes offence to the way you have behaved in the workplace; Management are convinced the employer/employee relationship is no longer tenable; and We are terminating your employment immediately. 74 In cross-examination, Mr Thomson stated the meetings convened on 25 and 30 November 2009 to discuss the alleged incident were not part of any disciplinary process. Rather, the meeting on 25 November 2009 was convened to investigate a complaint that had been made by Ms Hyatt and the meeting on 30 November 2009 was called to convey the findings of the investigation undertaken to the applicant. He also confirmed the respondent was concerned the applicant was not prepared to accept some responsibility for his behaviour or express a degree of remorse. Alex Marsh

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80 In a statement filed on 1 March 2010, Mr McAulay said he was informed about the incident that occurred between Mr Marsh and the applicant in a telephone conversation with Ms Hyatt who alleged Mr Marsh had threatened the applicant. 81 At approximately 7.15am on 16 October 2009, Mr McAuley saw Mr Marsh at the Charmhaven bakery and Mr Marsh said he had had a "run in" with the applicant. Mr Marsh agreed to put in writing what had occurred. Mr Marsh subsequently stated: At the Controllers Room window, the applicant was yelling abuse in relation to the unders and overs system and about the people in Head Office. He was very abusive. I then followed him and said to him that it had nothing to do with me. He then wanted to settle things outside the gate. I referred to him as an arsehole when I walked away. 82 On 16 October 2009 Mr Thomson asked him to elicit statements from Mr Gowans, Mr McNeilly and Mr Marsh. 83 Mr McAulay's evidence concerning the meetings with the applicant on 25 and 30 November 2009 confirmed the earlier evidence of Mr Thomson and Mr Cooper. 84 In cross examination Mr McAulay confirmed his view that the applicant had been told during the 25 November 2009 meeting that it was confidential and he could freely speak his mind. It was not a disciplinary meeting. Mr McAulay also understood that the applicant was not told on 30 November 2009 that the meeting had a disciplinary purpose or that his dismissal was a possibility. In re-examination, Mr McAulay said he understood the applicant was dismissed "because of his distaste and attitude to management, senior management in head office". John Gowans 85 In a statement filed on 1 March 2010, Mr Gowans recalled that shortly after Mr McNeilly had raised the cash float shortage issue with the applicant on 15 October 2009 the applicant started to stare at Mr Marsh and raised his voice, referring to head office as "Cockroach Castle" and the staff that worked there as "arseholes" and "arselickers". The applicant's behaviour, which lasted at least two to three minutes, was embarrassing, intimidating and inappropriate. The applicant subsequently turned to slam the Controller's Room window shut and walked away. 86 It was Mr Gowan's evidence that he subsequently conferred with Mr McNeilly. Mr Marsh later entered the Controller's Room and said: That was a waste of time. I tried to talk to Eric about his behaviour but he only wanted me to go outside with him and sort it out. 87 In cross-examination Mr Gowans confirmed he had sent an email to Mr Thomson on 20 October 2009 setting out his version of events surrounding the incident. He also acknowledged he had had a previous issue with the applicant concerning a complaint made by Mr Brett Lund. However, the issue did not colour his assessment of the incident on 15 October 2009. Submissions

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88 It was the Union's case that the evidence presented in this matter supported the applicant's reinstatement to a position not less favourable than his previous position as a bus driver, together with compensation for income lost and continuity of service. 89 In that regard the Union submitted the work of a bus driver was essentially solitary and a number of the applicant's colleagues and a manager had given evidence attesting to his character and the fact that they had no difficulty working with him. Moreover, the fact that a number of current employees had given evidence supportive of the applicant's case demonstrated that reinstatement is practical. For its part the respondent is a large enterprise with a number of work places where the applicant could work. 90 The respondent's concern that it had lost trust and confidence in the applicant is derived from a limited context of enquiry and, accordingly, the respondent's proposition that its loss in confidence is a reason why reinstatement is impractical should be viewed with caution. In Australia Meat Holdings Ltd v McLauchlan (84 IR 1 at 17), the Full Bench of the then Australian Industrial Relations Commission (AIRC) held that a continuing view by an employer that the employee was guilty of wrongdoing will not of itself be a barrier to reinstatement. The AIRC further confirmed that, when determining remedy, loss of trust and confidence is one matter to be considered among others, including the effect on the applicant on not ordering reinstatement. Reinstatement is the primary remedy in cases where termination has been found to be harsh, unreasonable or unjust. 91 In the applicant's case none of the managers he has been accused of being disrespectful to are managers to whom he either reports directly or has routine contact with. However the Union does acknowledge that an exception may lie with Mr Thomson. And certainly there was no evidence the applicant had a poor relationship with his immediate manager. 92 The Union contended that when the applicant responded to Mr McNeilly's enquiries concerning his "unders and overs" he was querying the policy of management. The applicant gave evidence that when he was speaking he was not directly addressing Mr Marsh. At worst, it was the respondent's case that the applicant "was looking" at Mr Marsh while he spoke to Mr McNeilly. However it must be recognized that the applicant was responding to an enquiry by Mr McNeilly. 93 The Union submitted Mr Marsh was offended by the comments of the applicant and as the applicant left the Controller's Room, Mr Marsh moved towards him and took it upon himself to berate him for his language and attitude. In that regard the evidence of both the applicant and Mr Marsh was that Mr Marsh initiated the contact and took it upon himself to discipline the applicant in relation to his statements concerning head office. 94 With respect to what followed, both the version of events portrayed by the applicant and Mr Marsh in evidence have Mr Marsh abusing the applicant. Mr Marsh stated in his evidence that he called the applicant an "arsehole" under his breath. In marked contrast the applicant's evidence was that a far more robust and offensive exchange took place with Mr Marsh's outburst punctuated by profane language. Mr Marsh also prevented the applicant from leaving the drivers' room as he stood in the doorway blocking it. 95 The Union submitted the Commission should give close consideration to the version of events recounted in the evidence of the applicant. The applicant's evidence was more complete, made narrative sense and importantly contained admissions contrary to the applicant's interest. The applicant did not quibble with the fact that he had referred to the respondent's Head Office as "Cockroach Castle" and that he had later suggested to Mr Marsh that the matter should be taken "outside the yard". However Mr Marsh's account of the incident is both incomplete and self-serving. Mr Marsh's account has him approaching the applicant and then following him outside and then only saying "this has nothing to do with me. There is no point getting upset with me". The applicant then suggested to Mr Marsh "let's take it outside". In that regard it was the Union's contention that Mr Marsh must have done and said more and his account was incomplete. 96 The Commission should also consider the evidence of independent witnesses who stated that on the afternoon of 15 October 2009 the applicant told them he had been abused by Mr Marsh. Further, the evidence of Mr Doggett that the applicant was very distressed with his face flushed and hands trembling corroborate the version of events explained by the applicant and also suggest the account of Mr Marsh is incomplete. Moreover the fact that Ms Hyatt contacted Mr Thomson on the afternoon of 15 October 2009 and made a formal complaint about Mr Marsh's behaviour also points to the incomplete nature of Mr Marsh's evidence. 97 It was the Union's case that the respondent's investigation into the formal complaint made by Ms Hyatt was never described as a disciplinary inquiry into the alleged actions of the applicant. During the course of the 25 November 2009 meeting Mr Cooper told the applicant the meeting was confidential and that he could speak freely and say whatever he wished to. The applicant was not warned that anything he might say could be used against him or that the respondent was considering his termination. During the course of that meeting the applicant held relatively fixed views about what had occurred and did not change those views. Moreover, the applicant's position during that meeting was not inconsistent with a genuinely aggrieved victim of abuse. 98 It was Mr Cooper's evidence that he found the presentation of the applicant during that meeting "peculiar" and was disturbed by both his lack of remorse and his hostile attitude towards management. However the respondent's concerns were not communicated to the applicant nor was he given the opportunity to explain or alter "his attitude". That meeting ended abruptly after the applicant made a comment concerning Mr Thomson's investigatory skills, a quote from a novel the applicant had recently read and was misunderstood by those at the meeting. 99 The Union drew the Commission's attention to Mr Cooper's evidence where he said that following the meeting on 25 November 2009 while it was apparent the employment relationship had "broken down" it was not "irretrievable" and a further meeting with the applicant was appropriate to establish the attitude towards Busway's management and Head Office. However, when the respondent sought a further meeting on 30 November 2009 it did not inform the applicant of it's concerns regarding the fragile nature of the employment relationship and gave him an opportunity to demonstrate the relationship was repairable. Shortly stated the applicant was not warned that this meeting concerned his behaviour and attitude. 100 On the evidence of Mr Cooper, the applicant was informed that the 30 November 2009 meeting was also confidential and that he could speak freely. It would appear that the applicant's presentation during that meeting was similar to that witnessed on 25 November 2009 and consistent with his strongly and genuinely held view that he was the injured party in relation to the incident. That was certainly the position adopted by the applicant during the meeting on 30 November 2009 and prior to the adjournment when Mr Cooper and Mr Thomson met to determine his attitude had not changed and he should therefore be terminated. 101 The Union contended that on the evidence in these proceedings the applicant was neither provided with a warning that he was to be terminated nor was he given an opportunity to address the reasons given for his termination. In essence, the first time he became aware his employment was at risk was the moment immediately prior to his termination. It was the Union's contention that there was no valid reason to terminate the applicant's employment. 102 The Union also contended the respondent was required to ascertain whether there were any mitigating circumstances associated with the applicant's dismissal: Bostik (Australia) Pty Ltd v Gorgevski (No. 1) (1992) 36 FCR 20 at 35. It was the Union's submission that the primary reason for the applicant's termination was the fact that the respondent had concluded the employment relationship was beyond repair. Further, the respondent also contended that the legal justification for the applicant's dismissal was that he had demonstrated a lack of trust and confidence in the respondent. He was given no opportunity to respond to that charge and further the respondent had failed to clearly set out the reasons why it concluded the relationship was beyond repair. 103 The Union stated the evidence does not show that the applicant was wilfully disobedient or disrespectful over a long period of time. The applicant was not told during the meetings on 25 and 30 November 2009 that his attitude was a problem until this was conveyed to him by Mr Cooper at the time of his termination. The fact the applicant was given no opportunity to clear up any misconceptions the respondent may have had about his conduct prior to termination impacts upon the validity of the reason for termination relied upon by the respondent. There is no evidence the applicant had a poor or unhealthy relationship with his direct manager or immediate supervisor. Respondent

[25]

106 It was the respondent's case that during the applicant's conversation with Mr McNeilly on 15 October 2009 he responded aggressively and became abusive towards Busways management. His tirade of abuse was directed towards Mr Marsh who was visiting the depot from head office. In evidence the applicant stated he was being "comical and theatrical" during his abuse of management. However he maintained he was not angry. In his written evidence, the applicant admits using the terms "arseholes" and "Cockroach Castle". He also stated that in his opinion head office does not trust employees at Wyong. 107 Shortly thereafter Mr Marsh approached the applicant to more fully understand his outburst and attempt to resolve the issue. While there were no witnesses to this aspect of the incident involving Mr Marsh and the applicant, it was the applicant's evidence that Mr Marsh was aggressive towards him, that he swore at him and that he wanted to assault him. In cross examination the applicant could not provide any explanation as to why Mr Marsh acted this way towards him. Shortly stated the applicant denied that his conduct at the Controller's Room window had anything to do with Mr Marsh approaching him. 108 Mr Marsh's account of the incident was that he approached the applicant to discuss with him the basis for his outburst. He also stated the applicant continued with his abuse and offered to take the matter "outside the gate" where it could be further dealt with. It was Mr Marsh's evidence that the applicant was the aggressor, that he was angry and his anger was being directed at himself because he was from head office. 109 Following a complaint lodged by the Union delegate on 16 October 2009, the respondent immediately commenced an investigation into the incident. A number of statements were provided by Mr Marsh, Mr McNeilly and Mr Gowans who were present in the Controller's Room at the time of the applicant's outburst the previous day. In relation to those statements the respondent contends that the first statement provided by Mr McNeilly should be relied upon. In that statement Mr McNeilly stated in part I then noticed Alex in the Controller's Room, this is when Eric spotted him (sic) Eric then just eyeballed Alex and started putting shit on head office staff who he was calling (Cockroach Castle)… while saying all this he did not take his eyes off Alex. 110 In relation to the incident on 15 October 2009, the respondent contends the applicant was the aggressor and further the applicant's conduct was both deliberate, unequivocal and directed towards management. Further the applicant was insubordinate towards management and his behaviour was intended to provoke Mr Marsh into a physical altercation. 25 November 2009 Meeting

[27]

113 During the meeting conducted on 30 November 2009 the applicant confirmed his version of events concerning the incident on 15 October 2009 and reinforced his attitude towards management and the respondent's business. In cross examination the applicant stated he did not trust Mr Thomson or the local manager Mr Johnson. 114 The applicant's employment was terminated in the second part of the meeting on 30 November 2009 after the respondent had formed the view that the employer/employee relationship was no longer tenable. 115 In relation to the applicant's evidence in cross examination, the respondent contends he accepted no blame or fault for the incident that occurred on 15 October 2009 and despite conceding that he made statements to the effect that persons employed in Head Office were "arseholes working out of Cockroach Castle" he showed no remorse or contrition for his actions. 116 The respondent contends the applicant's version of events concerning the 15 October 2009 incident make no sense. The applicant contends he was not angry at the Controller's Room window, nor could he explain any basis for Mr Marsh approaching him outside the driver's room. It was the respondent's submission that the evidence given by Mr Marsh, Mr Gowans and Mr McNeilly should be preferred and if the Commission accepts that evidence it must also accept Mr Marsh's version of events and conclude that the applicant's conduct during this single incident alone was sufficient to warrant his termination. 117 The applicant further argued that the applicant's attempt to explain the term "arsehole" as a compliment demonstrates his lack of credibility and understanding of society's values and expectations. When these comments are combined with his reference during the 25 November 2009 meeting concerning "children and perverts" it shows the applicant's views have not changed. 118 The respondent argued the applicant's termination was neither harsh, unjust nor unreasonable. The applicant had engaged in a course of conduct that was designed to provoke management commencing at the Controller's Room window before he set upon Mr Marsh. During the meeting on 25 November 2009 the applicant was openly hostile and disrespectful in front of two senior managers and on 30 November 2009 he further reinforced his negative views and distrusting attitude concerning Mr Thomson. 119 It was the respondent's case that the decision to dismiss the applicant was made following consideration of the subsequent sequences of events: i. On 15 October 2009, Mr Hindes wilfully and deliberately abused his employer at the Controller's Room window at the Wyong Depot. He directed his abuse at Alex Marsh who happened to be in the Controller's Room at the time. Mr Hindes was unsparing about his opinion of Busways management and Head Office. In effect, he publicly expressed his views. ii. Immediately after the incident in i., Mr Hindes engaged in further dialogue with Mr Marsh. Mr Hindes reinforced his views about Busways management directly with Mr Marsh. He sought to take the matter further with Mr Marsh. His intention was to engage in a physical altercation with Mr Marsh, outside the Wyong Depot. iii. Busways investigated the matters in i. and ii. above. Witnesses provided their statements about their observations and knowledge of the incident(s) on 15 October 2009. iv. On 25 November 2009, what had planned to be a meeting concerning the gathering of further information and clarification of issues, turned into something quite different. The events of this meeting confirmed that Mr Hindes had an inherent distaste for management and he was quite determined to express this view. During the meeting Mr Hindes: a. reinforced that Busways did not trust its drivers; b. that the statements that had been gathered had been fabricated; c. that the statement of Mr Marsh was completely incorrect; d. that Mr Thomson and Mr Cooper were effectively incompetent; e. that he, Mr Hindes, was not responsible for the incident on 15 October 2009. v. On 30 November 2009, a further meeting was convened with Mr Hindes. Again, he reinforced his views about management. He expressly informed Mr Thomson and Mr Cooper that his relationship with management was distrusting. 120 The respondent rejected the applicant's contentions that he should have been warned during the meetings on 25 and 30 November 2009 that his conduct may lead to dismissal. In that regard, the respondent submitted that in cases of misconduct, warnings were not required: Electricity Commission of New South Wales t/as Pacific Power v Nieass and others (1995) 81 IR 46. 121 The respondent contended the applicant's conduct was both serious and wilful which struck at the core of the employment relationship. Moreover, his conduct was destructive of the implied duties at common law of mutual trust and confidence. Consideration 122 In this matter, the applicant has vigorously challenged the respondent's decision to dismiss him summarily. In determining whether the applicant's actions warranted summary dismissal, the Commission is required to consider whether: i) the applicant's misconduct alleged by the respondent has been proven; ii) the seriousness of the applicant's misconduct justified his dismissal;

[33]

128 The Commission is required to determine whether or not the applicant's dismissal was harsh as well as whether it was disproportionate to the gravity of the alleged misconduct. The Full Bench decision in Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 is authority for the proposition that it is open to the Commission to determine whether the sanction of dismissal was, in all the circumstances of the case, too severe. At 302-303, the Full Bench stated: The conciliation commissioner, therefore, in our view of his decision, was concerned that the ultimate sanction of termination of employment was too severe a penalty. That approach was properly open to the conciliation commissioner, notwithstanding his favourable finding as to the action of the appellant, is supported by the decision of Watson J in Metropolitan Meat Industry Board v Australian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 at 233 as follows: I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J in Loty's case [1971] AR (NSW) 95 at 99, the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to bee too harsh a consequence. (Our italics)

[40]

136 Procedural fairness entitles the employee to be given an opportunity to respond to allegations of improper conduct prior to dismissal. The Commission is compelled to take into account the statutory basis for considering procedural issues and whether the termination was either harsh or unjust or unreasonable. 137 It was the respondent's evidence that the 30 November 2009 meeting was convened to convey the findings of the investigation. As the events of the day unfolded and in response to the applicant's continued denial that his conduct was offensive, the meeting adjourned. The respondent subsequently determined the applicant was guilty of serious misconduct. He was given a limited opportunity to state why he should not be dismissed. However, as noted elsewhere in this decision, the applicant has vigorously argued from the outset that he was not the aggressor nor did he consider his subsequent conduct offensive. Meanwhile, the local Union organiser, Mr Rodger was unable to attend the meeting due to other work commitments. Mr Rodger was also unaware at the time that the applicant's position was in serious jeopardy or, that he faced the prospect of summary dismissal. 138 The applicant was later dismissed without being afforded an opportunity to seek the counsel of his Union organiser prior to dismissal. Whether the applicant would have changed his stance concerning the allegations or sought to mitigate the respondent's concerns regarding his behaviour after a discussion with Mr Rodger is merely speculative. 139 Prior to the meeting on 30 November 2009, the applicant was unaware the respondent thought the employment relationship had broken down, or was close to breaking down. The applicant was also unaware his job was in jeopardy and would be asked to 'show cause' why his employment should not be terminated. 140 There was no evidence before the Commission to support a proposition that in making its decision to summarily dismiss the applicant, the respondent considered his work history as part of the process to validate its decision to terminate his employment. Whether the conduct amounted to a repudiation of the applicant's contract of employment

[43]

For purposes of the application of the common law principles to the facts of this case, the remarks of the Master of the Rolls in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 at 287 and 289, are in point. He said:- To my mind the proper conclusion to be drawn from the passages which I have cited and the cases to which we were referred is that, since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. ... I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is `wilful'; it does (in other words) connote a deliberate flouting of the essential contractual conditions .(Italics added) 143 It is reasonably clear on the evidence that the applicant's conduct conveniently falls within the plain and ordinary meaning of the words "wilful" and "deliberate". 144 The decisions in North v Television Corporation Limited, and Natoli are authorities for the proposition that the conduct must be serious and inconsistent with the fulfilment of the express or implied conditions of the contract of employment and, it must be wilful, in that it involves a deliberate or intentional flouting of essential contractual conditions. 145 It is clear on the evidence that the applicant's conduct struck at the heart of the employment relationship and that conduct was totally inconsistent with his common law duty of trust and confidence. That duty implies mutual obligation. The observations of Dixon and McTiernan JJ in Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66 at 81-82 are relevant to that consideration: Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal ( Boston Deep Sea Fishing and Ice Co. v. Ansell (1888) 39 Ch. D. 339, at pp. 357-8 and 362-4; English and Australian Copper Co. v. Johnson (1911) 13 CLR 490 ; Shepherd v. Felt and Textiles of Australia Ltd (1931) 45 CLR 359). But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises. Finding

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