Fair Work Act 2009

s.394 - Unfair dismissal

• [1] On 16 June 2020, the Fair Work Commission (the Commission) received an application from Mr Bashkim Elmazovski (the Applicant) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the FW Act), in respect of his employment with Fletcher Insulation (the Respondent). The Applicant was represented by Mr Patrick Reilly of the Australian Workers Union (AWU). The Respondent was represented by Ms Alison Francis, Workplace Relations Manager - People and Performance of the Respondent.

• [2] Mr Elmazovski was terminated and was given payment in lieu of notice. It was agreed that this was termination with payment in lieu of notice. In the alternative it was a summary dismissal for serious misconduct with payment in lieu of notice.

• [3] It is agreed that all the jurisdictional requirements are met under s.385 and elsewhere in the Act so that the only matter to be determined is whether or not the termination was harsh, unjust or unreasonable within s.387 of the FW Act. A Notice of Listing was issued to the parties on 12 July 2021, listing the matter as well as directing the parties to file submissions and evidence. A Mention was conducted on 30 September 2021, and a Determinative Conference on 31 September 2021.

• [4] A summary of the submissions is attached.[1] I have had regard to all submissions and evidence.

• [5] Section 387 of the FW Act provides the criteria I must have regard to when considering whether dismissal of an employee is harsh, unjust, or unreasonable.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant."

• [6] The respondent alleges four valid reasons for termination of employment, namely:

• the abusive words used by the applicant in a telephone call to a Mr Ermin Alagic (Ali) on 30 April 2021 (First Incident);

• abusive words and aggressive conduct, which included shouting, pointing, making a fist and threatening, and grabbing the arm of a Mr Ermin Alagic, witnessed by Mr Pendim Emini on 30 April 2021 (Second Incident);

• abusive words and aggressive conduct by the applicant in further incident on 30 April 2021 directed towards Mr Ermin Alagic and Mr Damien Injac (Third Incident); and

• the breach of a direction that the contents of a meeting be confidential (Fourth Incident).

• [7] The above allegations were stated differently when the Applicant was invited to attend a show-cause meeting.[2] Nothing turns on the various formulations which I discuss this later.

• [8] In relation to the First and Second Incidents on 30 April 2021, the Respondent alleges that:

"14. The Applicant again telephoned the Forming platform and spoke to Damien and then Ali. The Applicant was unhappy and upset. When Ali took hold of the telephone from Damien, in an aggressive manner the Applicant disputed that he had told Ali to shut down the line and said to Ali words to the effect of "you have to clean out your ears, I said slow down not change jobs, you are a fucking idiot". Despite Ali saying to the Applicant that he was acting on his instructions, the Applicant continued to verbally abuse Ali.

15. At around 2:10pm, CCTV footage from below the Forming platform shows Ali and Pendim walking when the Applicant emerges from the canteen entrance. It is clear from the CCTV footage that the Applicant is walking towards Ali and Pendim pointing in an aggressive manner at Ali. The Applicant proceeded to confront Ali saying to Ali, "why did you shut down, who the fuck are you, you are making things up, I told you to slow the line down not shut it down".

16. Despite Pendim attempting to gently manoeuvre the Applicant away from Ali, the Applicant persisted in his threatening manner towards Ali. At one stage the Applicant grabbed Ali and turned him towards the exit of the premises shouting "let's go outside and sort this out" implying a physical fight. Both Pendim and Ali were of the belief that the Applicant wanted to fight Ali outside and physically assault Ali.

17. Within 10 seconds of attempting to have Ali go outside by grabbing him by the shirt and turning him towards the outdoor area, the CCTV footage shows that the Applicant proceeded to threaten Ali by clenching his fists and making a punching motion. 10 At the same time the Applicant said to Ali "I will crack your head open and make you bleed"."[3]

• [9] Mr Alagic gave evidence about these incidents as follows:

"12. When Damien answered Bobby's call, I could see from his face that something was wrong so I asked to speak to Bobby so I could clear up any confusion. When I picked up the phone, Bobby asked me why I had shut the line down and who had told me to do so and I replied it was him and that this is what I had heard him say to me. Bobby then said to me words to the effect of "you have to clean out your ears, I said slow down not change jobs, you are a fucking idiot" and I replied to him that I had heard from him that the line should be shut down and that he could not talk to me that way. Bobby was absolutely enraged'

16. When I was walking down the stairs from the Forming platform, I met Pendim and he asked me where I was going and I told him that I was going to talk with Bobby and he followed me.

17. Bobby was walking towards Pendim and I from the direction of the canteen and before he reached us he started abusing me in a very malicious way. He was saying "why did you shut down, who the fuck are you, you are making things up, I told you to slow the line down not shut it down". I told him again that I had heard from him to shut the line down for a job change but nothing I said would calm Bobby down.

18. We were positioned in between the D1 electrical switch room and the D1 hockey table (the pre-oven) and Bobby was very upset and made remarks to me such as "you know nothing" "you are an idiot" "you are putting words in my mouth". I remained completely calm and asked him why he was getting so upset which I think made Bobby even more mad.

19. Bobby said to me "I will crack your head open and make you bleed" and at the same time he was clenching his right fist in a body posture like he was going to hit me. I said to him "Bobby, you want to hit me? Why?"

20. Bobby then with his left hand grabbed my right arm pointing with his right hand to the roller door which is the exit door at the back of the factory and repeated several times "Let's go outside, you and me". I took this to mean that he wanted to hurt me and it upset me. I felt at that point if I'd said the wrong thing or made a move, things would have descended into mayhem.

21. During this time, Pendim was trying to calm Bobby down and telling me to go back upstairs to the Forming platform. Bobby said to me at that point "Don't you think that this is over because you and I are not finished, I'll see you later".

22. Around the same time and so right at the end of the incident, another worker from Bobby's shift turned up who is Mr Gani Bakiri (Gani) and he tried to do the right thing and calm Bobby down. In response Gani's statement at paragraph 12 it is untrue that Bobby said to me "Go away, leave me alone", but Gani did tell me to go upstairs. I also dispute Gani's statement at paragraph 14 where he said that Bobby and I seemed calm. I was calm throughout the whole incident but Bobby most definitely wasn't as he was in a complete rage and this is plain to see on the CCTV footage."[4]

"18. I then seen Bobby storming out of the canteen and he was absolutely raging. Bobby completely lost his temper and proceeded to shout and swear abusively at Ali calling him a fucking idiot. There was a lot of 'f' words being used by Bobby whilst he was pointing his finger at Ali.

19. At one-point Bobby clenched his fist as if he was going to hit Ali and he made the motion of pushing it towards Ali. Bobby then grabbed Ali's arm and said to him words to the effect of "let's go outside and sort this out" then tries to drag Ali towards the outside area. I wasn't in any doubt that there was every possibility that Bobby was getting ready to hit Ali.

20. This went on and on and during this time I made several attempts to calm Bobby down where I was pleading with him to stop talking to Ali and that what was done was done and that he'd had his say. But he would not listen to me and ignored me and he continued acting aggressively towards Ali. I was just desperate for Bobby to stop and for the situation not to escalate any further as I didn't want anyone to get hurt. During Bobby's outburst Ali was trying to calm Bobby down but couldn't get a word in, at no stage did Ali become angry or say anything of bad taste towards to Bobby.

21. In response to Bobby's statement that it was Ali who was the aggressor in this incident, this couldn't be further from the truth, it is completely false. Ali was completely calm and whilst Bobby was raging at him, at one point Ali looked at me and said words to the effect of "what is he doing, what is this?". Other than these words, I did not hear Ali say anything else during the whole incident and he certainly never used a swear word or say anything nasty at all to either myself or Bobby. I thought the way Ali conducted himself throughout the whole incident was amazing because for anyone else being subjected to the abuse that he took from Bobby, it would likely have ended very badly.

22. In response to Gani's statement that both Bobby and Ali seemed calm, I disagree with this. Gani arrived at the tail end of the incident when Bobby was starting to wind down. Gani and Bobby worked closely together and I said words to the effect of "Gani, come help me calm him down (meaning Bobby)". Gani ignored this and it seemed to me that he didn't want to get involved. Gani is very close to Bobby, they work in pairs and they have known each other for their entire careers. However, Gani was there to witness Bobby behaviour just before he started D2 Line at the D2 Pre-Oven Area, and Bobby was definitely not calm as Bobby continued his rage towards Ali.

23. I do recall Bobby saying to Ali when I had told Ali to go back upstairs to the Forming platform words to the effect of "don't you think this is over, you are not finished. I'll see you' which I thought was very threatening and intimidating."[5]

• [11] This evidence was contradicted by the Applicant:

"27. While waiting for a call from Ali, I went to the toilet and then to the canteen. After about 4 or 5 minutes, my Supervisor, Pendim Emini (Pendim) walked up to me and said words to the effect of, 'Why did you shut down?' I said words to the effect of, 'I didn't shut down, I changed the job. They must have had a problem upstairs.' By upstairs, I meant Forming, which is upstairs from the Wool Line. Pendim walked away. After a couple of minutes, Pendim came back and said words to the effect of, 'I spoke with Ali, he said you told him to shut the line.' I said words to the effect of, 'I didn't tell him that, I told him to change the job.' Pendim said words to the effect of, 'Can you ring Ali?'

28. I rang Ali and said words to the effect of, 'Ali, why did you tell Pendim that I told you to shut the line down?' Ali said words to the effect of, 'You told me.' Ali and I are both Muslim, and it was the month of Ramadan, so we were both fasting. This means that we are unable to eat or smoke from dawn to dusk. Ali and I are both smokers, and because we were unable to unable to eat or smoke, I could see how we might get into an argument about the line shut. I said words to the effect of, 'Ali, we're both fasting, it's not good to lie, I did not tell you to shut the line down.' Ali said words to the effect of, 'You little shit.' I said words to the effect of, 'Don't be an idiot Ali' and hung up the phone. There were 4 or 5 people in the canteen when I spoke to Ali on the phone, including Gani. Pendim then came over to me and said words to the effect of, 'The line is ready to start.'

29. I left the canteen and went back to my work area to start the line. When I arrived, Ali was there, waiting for me. As I went to start the line, Ali said words to the effect of, 'Come here you mother fucker.' I said words to the effect of, 'Don't talk to me in this language Ali, calm down. We are friends, what's your problem?' Ali said words to the effect of, 'You are my problem mate. I'm gonna get you.' I said words to the effect of, 'Go away, leave me alone.' It was loud on the Wool Line and Ali was wearing earmuffs, so I had to speak loudly and repeat myself several times.

30. Ali still had not left me alone, so I took him by the arm and turned him towards the stairs to Forming and said words to the effect of, 'Go upstairs, leave me alone.' Ali stayed on the Wool Line and kept yelling at me. I'm not sure what he was saying, other than words to the effect of 'You want to get me outside?' I said words to the effect of 'If you want to go outside, go outside', and kept telling Ali to go upstairs to Forming, or to go outside, and to leave me alone. I then walked off to start the line. Ali followed me for a bit, and I continued to tell him to leave me alone.

31. At some time during my argument with Ali, Gani walked into the area. Pendim was there throughout, but he did not do anything to send Ali back upstairs to Forming, where he should have been.

32. I went to start the line. When the line starts back up it produces scrap first. Part of my role is to remove the scrap with a pitchfork as it comes on to the Wool Line. I walked over to do this, and Ali was standing directly above me, staring down at me. I was worried that Ali might throw something at me from where he was standing, so I pointed to him and gestured with my hands for him to move.

33. We then started the line. I removed the scrap, the product started coming through, and everything else went fine until my shift finished at 3:00pm."[6]

• [12] Mr Bakiri gave the following evidence:

"5. At some time in the afternoon, I walked over to Bobby at the D2 Line Coordinator's desk and said words to the effect of 'There are two bundles to go. Job is almost finished.' This means that it is almost time for a job change, which is when we stop making one product an start making a different product. Bobby picked up the phone on the D2 Line Coordinator's desk to call the Forming area, which is upstairs from the Wool Line. Bobby said words to the effect of 'Ali, I'm going to slow the line down for a job change.' Ali is what we call one of the Forming Operators, Ermin Alagic (Ali).

6. Bobby and I left the D2 Line Coordinator's desk. I walked over to the top of the baggers and Bobby walked over to the scale to check the weight of the product, so he would know when the product was ready. From where I was, at the top of the baggers, I could see that there was no more product coming down the line from the oven. I went downstairs to make sure that the product had stopped coming down the line and said to Bobby words to the effect of 'The line stopped.'

7. Bobby said words to the effect of 'Maybe there is something wrong upstairs. When they are ready, they will call me.' This is how we would normally respond. If product stops coming down the line and Forming has not been told to stop the line, this would be because of a problem in Forming, and if there was a problem in Forming, we would wait for them to call us to say it was fixed.

8. I went to the pre-oven to clean up and then I went to canteen to sit down. When I got to the canteen, Bobby was already there.

9. Soon after, our Supervisor, Pendim Emini (Pendim), came into the canteen. Pendim said to Bobby words to the effect of, 'What's wrong with D2 line?' Bobby said 'We changed the job and they stopped from upstairs. We're waiting for them to call.' Pendim said words to the effect of 'There's nothing wrong upstairs.'

10. Bobby picked up his phone and called Ali. I could not hear what Ali said, but I heard Bobby say words to the effect of 'Ali, tell the truth, don't lie. We're fasting and it's not good to lie. I told you to change the job, not to stop the line.' I do not know what Ali said, but Bobby then said words to the effect of, 'Don't be an idiot, tell the truth.' Bobby then hung up the phone.

11. Pendim then came back to canteen and said to Bobby words to the effect of 'Come on Bobby, let's go and start the line.' Pendim and Bobby then left the canteen. I got up, drank one glass of water, and walked out of the canteen and back to the Wool Line.

12. When I walked out of the canteen, I saw Ali and Bobby talking at the Wool Line, about 10 metres from me. Pendim was near them. I could not hear what Bobby and Ali were saying, because it was very noisy. It is usually very noisy around the Wool Line. I walked towards them and when I got closer, I heard Bobby say words to the effect of 'Go away, leave me alone.' After that, everyone went silent. I said to Ali words to the effect of 'Can you please go upstairs?' and Ali walked upstairs.

13. It is not normal for the Forming Operator to come down to the Wool Line. They would normally only do this if there was an issue with the product that they had been asked to come down and take a look at.

14. Bobby and Ali both seemed calm. They did not seem aggressive."[7]

• [13] During the Determinative Conference, Mr Bakiri said that he was the Applicant's cousin.[8] He also used the word 'angry' to describe the Applicant on 30 April, but then appeared to correct himself to 'upset'.[9] I was not convinced that Mr Bakiri was giving full and frank evidence and prefer the evidence of employer witnesses to his evidence.

• [14] In relation to the Third Incident Mr Injac gave the following evidence:

"5. Ali was courteous and talking calmly to Bobby on that telephone call and was talking about the job and about starting up the line. I did not hear what Bobby was saying. After Ali finished the telephone call with Bobby, Ali left the Forming platform.

6. I just wanted to start the line without any drama and all I could see when I looked down towards the D2 line was Bobby with his arms waving and making hand signals, he was very upset and he wanted me to start the line and not Ali."[10]

• [15] Mr Alagic gave the following evidence in relation to the Third Incident:

"17. Bobby was walking towards Pendim and I from the direction of the canteen and before he reached us he started abusing me in a very malicious way. He was saying "why did you shut down, who the fuck are you, you are making things up, I told you to slow the line down not shut it down". I told him again that I had heard from him to shut the line down for a job change but nothing I said would calm Bobby down.

18. We were positioned in between the D1 electrical switch room and the D1 hockey table (the pre-oven) and Bobby was very upset and made remarks to me such as "you know nothing" "you are an idiot" "you are putting words in my mouth". I remained completely calm and asked him why he was getting so upset which I think made Bobby even more mad.

19. Bobby said to me "I will crack your head open and make you bleed" and at the same time he was clenching his right fist in a body posture like he was going to hit me. I said to him "Bobby, you want to hit me? Why?"

20. Bobby then with his left hand grabbed my right arm pointing with his right hand to the roller door which is the exit door at the back of the factory and repeated several times "Let's go outside, you and me". I took this to mean that he wanted to hurt me and it upset me. I felt at that point if I'd said the wrong thing or made a move, things would have descended into mayhem.

21. During this time, Pendim was trying to calm Bobby down and telling me to go back upstairs to the Forming platform. Bobby said to me at that point "Don't you think that this is over because you and I are not finished, I'll see you later".

22. Around the same time and so right at the end of the incident, another worker from Bobby's shift turned up who is Gani Bakiri (Gani) and he tried to do the right thing and calm Bobby down. In response Gani's statement at paragraph 12 it is untrue that Bobby said to me "Go away, leave me alone", but Gani did tell me to go upstairs. I also dispute Gani's statement at paragraph 14 where he said that Bobby and I seemed calm. I was calm throughout the whole incident but Bobby most definitely wasn't as he was in a complete rage and this is plain to see on the CCTV footage.

23. When I climbed the stairs back up to the Forming platform, Damien and I waited for a while for Bobby to start the line and I could see from the window on the Forming platform that Bobby was talking with Gani and some others. Whilst I was waiting, Bobby came to the pre-oven to start up the line again and whilst he was climbing up the stairs towards the roll gate where we get the product going, Bobby was going wild where he was shouting at me and pointing his finger in an aggressive way saying that only Damien can start the line and not me."[11]

• [16] In relation to the Fourth Incident Ms Francese of Wise Workplace Solutions said that she was engaged by the Respondent to conduct an investigation into the allegations made against the Applicant. Her evidence was:

"15. In relation to the breach of confidentiality, Bobby stated that he did not have a copy of the suspension letter and therefore did not know he wasn't supposed to call Ali. However, Gary's evidence was that the letter was read out to Bobby at the suspension meeting and he was therefore clearly aware of his obligations in this regard."[12]

• [17] The record of interview between Ms Francese and the Applicant in relation to the Fourth Incident provides:

At approximately 3:10pm on 4 May 2021, Bobby acted inappropriately and in breach of his obligation of confidentiality as set out in the correspondence to him from Fletcher Insulation dated 4 May 2021 by phoning Ali from his mobile phone, and informing Ali that:

I admit contacting Ali on that day at that time. My call to Ali was at the request of Rick Kubala the shop steward.

Gary Zarkadas had call me to the office at 2:45pm at the end of the shift that day and provided me the letter in relation to being stood down. Rick was with me at that discussion.

Rick asked me after the meeting if Ali and I were ok and he asked me to give Ali a call as I am a shop steward too. Rick didn't tell me what he wanted me to talk to Ali about.

As I am not a very good reader and I gave the letter to Rick to have a look at and so he could pass in on to David Swan. I didn't keep the letter and don't have a copy at all. I told Rick to send me a copy of the letter which he did via picture message on 4 May 2021 at approximately 6pm that evening.

iii. they were both going to be sacked from Fletcher Insulation;

iv. Ali had to call Rick (the Union representative); and

v. Pendim Emini had made a production report but Bobby didn't know what it contained, and said this on more than one occasion during the phone call.

I didn't say that. I didn't know what Pendim had done. I did say that I thought I had been set up by Pendim. Pendim was just standing there and he didn't stop Ali. I think Pendim has tried to do something and set me up. He has done this before. Pendim didn't try to stop the situation. He should have told Ali to start the line and then called us into the office. Instead he wrote a report without asking us. The way that I can see it, this has been set up by Pendim. A leader shouldn't just stand there and look at what was going on and put in a report. If I saw people on the floor fighting I would step in and stop them.

Pendim's father worked here. There was a hotly contested delegated election recently and that has caused a bit of contention here.

In addition, I wasn't stood down immediately. If the issue was that serious they should have stopped me from working on the Friday.

Gani (one of my operators) was around at some point. I saw him when I went to start the line, he was behind me. He is Line Operator. I didn't have any conversations with Gani at all about what had happened."[13]

"23. On 4 May 2021, I met with Bobby in my office. George Mally, the Hot End Manager was also in the office. I asked Bobby if he wanted a witness and he said he didn't and so I started to read a letter to him stating that he would be suspended. When Bobby realised what was happening, he got up and pointed his finger at me and said "You're after me and acting against me" and walked out of the room. Bobby then came back with the union delegate Richard Kubala (Rick) and I read the letter out to him which detailed that the matter was confidential and that he was not to talk with anyone about the matter. For Bobby to say that he did not know that he was not allowed to contact Ali is not correct."[14]

• [19] Mr Kubala gave evidence that he heard Mr Zakardas read the paragraph from the letter to the Applicant concerning the matter being confidential and that he was not discuss the matter with any Fletcher Insulation employees.[15]

• [20] There was CCTV footage of two of the incidents. Respondent footage 1, 2, and close up footage,[16] shows the applicant walking out of the canteen and towards Mr Emini and Mr Alagic and they are walking towards him. He was going back to his line and they were coming to talk to him because of concerns they had about the telephone conversation. The footage shows the applicant to gesticulate to a great degree and in a forceful and aggressive manner. It shows the applicant grab Mr Alagic by the arm, perhaps push him, and ball his hand in a fist. It shows him pointing towards Mr Alagic on numerous occasions, and obvious talking to him in a forceful manner, perhaps aggressively and loudly. It may show him using the 'f' word [close up footage]. It shows Mr Emini attempting to draw Mr Alagic away but the applicant is focussed on talking in a forceful manner to Mr Alagic. Mr Alagic does not raise his hand in a similarly aggressive manner but keeps his hands down or palms up. In relation to the footage of the incident with Mr Injac and Mr Alagic it again shows the applicant gesticulating towards Mr Alagic or Mr Injac and making statements in a forceful manner, apparently aggressively. The applicant conceded in submissions that he was 'upset' and 'animated' but the conduct by the applicant seems also to be aggressive, forceful, and even threatening. The footage provides some support to the version of events given by the witnesses for the respondent.

• [21] The Applicant did not admit to knowing about the contents of the suspension and show cause letter[17] when Mr Swan, Mr Kubala, and Mr Zarkadas gave evidence that they were read to him.[18] The suspension letter was read out to him on at the meeting on 4 May 2021 and the show cause letter was read out to him at the show cause meeting on 28 May 2021. The Applicant was contradicted by his own witnesses. The Applicant's evidence was with respect self-serving and showed a lack of candour. The Applicant made some claims of limited English language skills. I suspect the employer evidence that he had sufficient skills to function in the workplace is correct, but even if it is true, the letters were read to him.

• [22] I found the Applicant's evidence to be unconvincing in its totality. The CCTV footage is also consistent with the evidence given by the employer witnesses as discussed above. Overall I prefer the evidence of the employer witnesses to that of the Applicant. I find that the four valid reasons alleged to exist by Mr Alagic, Mr Emini, and others are substantiated as submitted by the employer. I reject the evidence of the Applicant and others denying that there are valid reasons for termination of employment.

• [23] The applicant was given notice of two of these four valid reasons (the incident involving Mr Alagic, the applicant and Mr Emini on 30 April 2021 and the confidentiality incident) in a show cause letter of 25 May 2021,[19] and notice of the other two matters was given (in relation to the incident on 30 April 2021 with Mr Injac and Mr Alagic and the telephone conversation between the applicant and Mr Alagic on 30 April 2021) in a letter dated 12 May 2021.[20] It may have been preferable, as the applicant submitted for all four of the incidents to be notified in the show cause letter rather than two of the incidents, but little of significance turns on it. The applicant was given notice and responded by denying all four allegations.

• [24] It is agreed that the applicant was given an opportunity to respond by the above letters and did respond. The following letters were issued and meetings occurred on the below dates:

• 4 May 2021 - Provision of suspension letter and meeting;
• 12 May 2021 - Provision of letter inviting Applicant to discuss allegations;
• 17 May 2021 - Investigation meeting conducted with Applicant;
• 25 May 2021 - Letter sent to Applicant inviting him to show cause meeting;
• 28 May 2021 - Show cause meeting held with Applicant; and
• 7 June 2021 - Meeting to advise Applicant of termination of his employment.

• [25] In giving evidence Mr Swan said that he read the show cause letter to the applicant.[21] Similarly, Mr Kubala gave evidence that the suspension letter was read to the applicant at the meeting on 4 May 2021.[22] This was also the evidence of Mr Zarkadas.[23] Only the applicant denied that the letter was read to him.[24] I find that the letter was read to him at the show cause meeting and by Mr Swan, and overall prefer the evidence given by employer witnesses. I accept that there may be a difference between an employee responding to allegations, and an employee responding to allegations in the knowledge and under advice that this will lead to potential termination. Even if this is the case the applicant did respond to all the allegations and did respond by denying them and was given an opportunity to do so. The procedural fairness problem if there is one is limited in nature.

• [26] In relation to s.387(b), the applicant was given notice of only part of these allegations in the show cause letter of 25 May 2021,[25] in particular the telephone call and incident involving Mr Injac was not referenced. However, those two issues were specifically referenced during the investigation process conducted by Ms Francese where the telephone allegation was put to the applicant who responded as follows:

On Friday 30 April 2021 at approximately 2:00pm Bobby contacted Ali by phone and communicated with Ali in an inappropriate and aggressive manner, and in particular, Bobby yelled words to the effect of 'you have to clean your ears, I said slow down and change jobs' and 'you are an idiot'.

On that day I phoned Ali and asked him to slow down the line as we were changing jobs. Forming has the schedule so they know what is going on with production. We change jobs on the run. I was changing the job from fast to slow. When we do that I have to contact the Forming Operator (Ali on this day) so he can make some adjustment to the fans. I told him I was going to slow down and he said ok.

If the line did need to be shut down, then would have been my job to tell him that too. I am the one who makes those decisions. For example if the baggers is jamming we might shut the line down. If something goes wrong we have to do something.

When I make the call to slow down the line, I have to make changes also. For example I have to change the weights on the scales in the bagging area. One of my operators from the bagging area told me that the line had stopped and as I hadn't asked for the line to be stopped I thought there may have been a problem.

The line stopped three or four minutes after my call to Ali. When the line stops I wouldn't usually phone anyone to check what was wrong with the line and as there was no work to do (tidying or cleaning etc.) I decided to use the time to go to the bathroom and the canteen. We don't have designated break times on the floor here.

I went to the toilet and then went into the canteen and would have been in there for about five minutes when Pendim came in to ask me why the line had stopped. I told him that I didn't know as I hadn't asked for the line to be stopped and didn't know what had happened upstairs (in the Forming area) to cause the line to stop.

Pendim that asked me to speak to Ali to see what had happened. I then contacted Ali and said 'Ali why did you shut the line down?'. Ali then replied to me 'you told me'. I then said 'Ali, what's your problem?' and he said 'you little shit' and then I hung up.

I did not yell words to the effect of 'you have to clean your ears, I said slow down and change jobs' and 'you are an idiot'. I did say at some point 'don't be an idiot' but not 'you are an idiot'. However, I did not say anything about cleaning his ears, that's not my job to clean his ears. I also told him that as we were both fasting it wasn't good to lie.

After I hung up the phone from Ali, Pendim came to me and told me that the line was ready to be restarted and to go and start the line and at that point as I was walking to go and make those instructions, Ali came down to my work area."[26]

• [27] The incident concerning Mr Injac was put to the Applicant who responded as follows:

On Friday 30 April 21 at approximately 2:15pm (after the incident set out in Allegation 2), Bobby walked over to the D2 pre-oven area and while climbing the stairs to the mezzanine, engaged in conduct of an inappropriate, aggressive and intimidatory nature toward Ali, and in particular, while pointing his finger at Ali, Bobby shouted words to the effect of 'you can't start the line, only Damian can.'

After the altercation I went up to the stairs to the mezzanine and he was standing on the platform and Damian was there. I stepped up onto the ladder and Ali moved towards the front of the platform. I point my hands and said 'can you move please'. I was pointing my hand towards Ali, motioning for him to move away. He was standing in a location that he shouldn't have been in and I was worried he was going to throw something at me (the spinners are there).

I deny saying the words alleged that only Damian can start the line. I didn't know who was in charge of which line."[27]

• [28] The applicant was given an opportunity to respond and did so. There was no in fact no failure of opportunity to respond although the notice of valid reasons under s.387(b) may have been deficient. Overall the procedural failures are limited in nature and may not be of any real significance, although it would have been preferable if a fuller notice of valid reasons was given and a fuller show cause letter.

• [29] In seeking to find out what happened and to obtain a response from an employee it is quite common for an employer to change terminology and even allegations. The process of procedural fairness is a process of attempting to obtain the truth about an employee's conduct, when the employer may not have a clear picture and clear evidence about what happened and is attempting to obtain such by for example seeking the employee's response. Rather there are various allegations which have to be examined and evidence obtained, including responses from the employee concerned.

• [30] The applicant had a support person at the meetings on 4 May, 17 May, 28 May and 7 June 2021.

• [31] The termination was for misconduct not unsatisfactory performance.

Sections 387(f)(g) size of business, HR professionals

• [32] The business is medium in size and has professional HR staff.

• [33] The applicant had 37 years of service, with only one warning recorded on 12 November 2020, which is denied by the applicant. In relation to the warning issued on 12 November 2020, the Applicant states:

"58. Gary did not tell me that he was giving me a warning, that my behaviour was misconduct, or that I could be disciplined or have my contract terminated for similar behaviour."[28]

"18. On 12 November 2020, I gave Bobby a verbal warning after he was using loud and offensive language towards another employee and touching his chest with his finger. The other employee was Ranga Liyanaarachchi (Ranga).

21. On the same date, I met with Bobby in the office and advised him that his behaviour was unacceptable and he was apologetic and said that it would never happen again. I made it clear to Bobby that I was giving him a verbal warning."[29]

• [35] I prefer the evidence given by Mr Zarkadas. He was convincing in his evidence while I was not satisfied that the applicant would give evidence that was not to his advantage in this matter.

• [36] I take into account all my findings above. I also take into account all relevant matters including the age and length of service of the applicant, which is extremely long at 37-38 years. I take into account the personal consequences for the applicant given the difficulties of finding employment, and other matters. I also take into account his heritage and the issues raised about his cultural background by the applicant.

• [37] I have found that there are three or four valid reasons for termination of employment within s.387(a) of the Act, depending on how each incident is characterised. In my view the description of the employer of three valid reasons is correct. The applicant was orally abusive to Mr Alagic on the telephone and face to face with Mr Emini and Mr Alagic on 30 April 2021. This included repeated use of the 'f...' word, and a confrontational and aggressive manner. Secondly the applicant did in fact grab the arm of Mr Alagic, and made a fist in a threatening manner, and did say something to the effect of settling the matter outside. This was suggestive of some form of physical threat. Thirdly the applicant did in fact breach the direction of confidentiality made on 4 May 2021, which he was aware of.

• [38] The employer's policies on respectful behaviour were clear, and the applicant was inducted into them and aware of them, inducted as recently as 11 January 2021. The letter of termination outlines these policies in detail:

"...We are fully satisfied that a robust and independent investigation has taken place into the allegations against you and the investigation findings have concluded you are in breach of the following policies and procedures:

• The Company's Code of Conduct, specifically section 1.7.3 Personal Responsibility where all company employees will:

o Treat customers, the public and fellow employees with honesty, courtesy and respect

o Carry out their work in a safe, responsible and effective manner

o Work within the Company's policies and procedures

o Maintain a work environment free of discrimination, victimisation, bullying and harassment

• Fletcher Buildings Bullying & Harassment Policy, specifically:

o All Fletcher Building team members are expected to never behave in a way that is unwelcome, intimidating or offensive

o Harassment means any unwelcome comment, conduct or gesture that is insulting, intimidating, humiliating, malicious, degrading or offensive. It might be repeated or an isolated incident, but it is so significant that it adversely affects someone's performance, work environment or wellbeing. It can include physical abuse, degrading or threatening behaviour, abuse of power, isolation, discrimination, sexual harassment and racial harassment. It is behaviour that is unwanted by the recipient even if the recipient does not tell the perpetrator that the behaviour is unwanted. It may be unintentional, including insensitive jokes, pranks and comments

It was noted that you participated in the Annual Site Re-Induction session on 11th of January 2021 and so you had recently been reminded of your obligations as this session covered the relevant topics:

• What behaviour constitutes Bullying, Harassment and Discrimination. In a questionnaire you completed confirming your understanding, one of the questions you responded to indicated that you viewed bullying and harassment to include verbal abuse, direct violence including physical assault and unwanted and deliberate physical contact.

• • Code of Conduct which defines the standards of behaviour and conduct that Fletcher Insulation expects of all employees. It was outlined on the presentation delivered as part of this session that breaches of the code of conduct may lead to disciplinary action including dismissal"[30]

• [39] The applicant was in breach of these policies. The applicant was somewhat ambiguous about his knowledge of the policies[31] but I am overall satisfied that the matters set out in the termination letter regarding the policies are correct for the reasons given by the employer in submissions and by the employer witnesses.[32] The Applicant was aware of the policies.

• [40] These valid reasons for termination are serious issues.

• [41] The process was procedurally fair in substance, or deficiencies were not of any great significance, as I discuss above in making my findings in relation to ss.387(b, (c) and (d), and the other paragraphs.

• [42] I further find that the applicant showed no remorse on any occasion. I further find that the applicant was warned about aggressive conduct on 12 November 2021 by Mr Zarkadas. I accept Mr Zarkadas's evidence. I was not confident that the Applicant would be willing to admit to any matter which would not assist his case. For example, he did not admit to knowing about the contents of the suspension and show cause letter[33] when Mr Swan, Mr Kubala, and Mr Zarkadas gave evidence that they were read to him.[34] The suspension letter was read out to him on at the meeting on 4 May 2021 and the show cause letter was read out to him at the show cause meeting on 28 May 2021. He was contradicted by his own witnesses. The Applicant's evidence was with respect self-serving and showed a lack of candour.

• [43] The lack of remorse and other factors outweigh his length of service and other matters. In my view the employer had to act to protect employees such as Mr Alagic, who should not have to deal with such aggressive and confronting and disrespectful conduct at work, conduct which is contrary to employer policy directions. The employer is entitled to put a stop to such conduct and put a stop to it by termination of employment, in the absence of sufficient remorse, to ensure that such conduct will not occur again in the view of the employer and that employees such as Mr Alagic will not find it necessary to experience such inappropriate conduct again. A finding that the termination was unfair would be contrary to the need for employees in this workplace to be protected from such conduct and for the employer to enforce necessary policy directions, in addition to all the other considerations I refer to above. I find that the applicant's termination was not harsh, unjust or unreasonable. I dismiss his application. An order dismissing his application is contained in PR734322.

1.1. The Applicant denies that he engaged in the conduct described in the First and Second Reasons. The Applicant admits that he engaged in the conduct described in the Third Reason but this does not represent a valid reason for termination.

1.2. The Termination was unjust because the Applicant was not guilty of much the conduct alleged. The termination was unreasonable because the evidence before the Respondent did not support the conclusion that the Applicant was guilty and the Respondent failed to interview an employee who had witnessed parts of the incident in question. The termination was harsh because e outcome was disproportionate to the gravity of the conduct engaged in by the Applicant having regard to the Applicant's long and satisfactory period of service.

1.3. The First Incident relied upon by the Respondent is not substantiated and is not a valid reason for termination. The Second Incident is only partially substantiated and is not a valid reason for termination. Although the Third Incident is largely substantiated, it is not a valid reason for termination.

1.4. With regard to the First Incident, the Respondent has not particularised the conduct of the Applicant that it considers to be inappropriate. The CCTV footage supplied by the Respondent discloses the Applicant and Mr Alagic engaging in a spirited discussion and no more than that. The conduct alleged to have been engaged in by the Applicant was not inappropriate, aggressive, or intimidatory.

1.5. With regard to the Second Incident, the Applicant submits that he did take the top of Mr Alagic's arm in his hand, but he did not do so in an aggressive manner, he did not physically push Mr Alagic, he did point to the door, he did not repeatedly say words to the effect of 'let's go outside', but he did repeatedly tell Mr Alagic to 'go outside', he did point his finger at Mr Alagic, and that he did not clench his fist at Mr Alagic as though he were going to punch him. The CCTV footage confirms the Applicant taking Mr Alagic's arm in his hand, pointing at Mr Alagic, the door, and the stairs to Forming. The Applicant submits that these elements do not represent a valid reason for the Termination.

1.6. With regard to the Third Incident, the Applicant submits that he did call Mr Alagic, he did so at the suggestion of his Site Delegate, he did not think that it would be inappropriate to do so, and he was not in possession of the correspondence from the Respondent. The Applicant did not knowingly breach confidentiality, nor did he disclose anything that would materially affect the Respondent's investigation. The Third Incident is not a valid reason for termination.

1.7. The Applicant does not dispute that that he was notified of the reasons for the Termination generally. However, the Applicant submits that the lack of particularity in relation to the First Reason rendered notification of the First Reason defective and deprived the Applicant of a meaningful opportunity to respond. The Applicant also submits that he was not notified that the Respondent considered that he had previously been given a warning for his conduct and was denied an opportunity to address that point. Although Mr Rowe, in his correspondence dated 7 June 2021, claims that the previous warning was not taken into account, it appears that it was.

1.8. The Applicant does not claim that the Respondent unreasonably refused a request to have a support person present.

1.9. The Respondent is a large employer with dedicated human resources staff. As such, the Respondent should be presumed capable of following fair and reasonable procedures.

1.10. The Applicant is 56 years of age and has had almost 37 years' service with the Respondent at the time of Termination. The Applicant had not been subject to any disciplinary action and had exceptional service.

1.11. The Applicant submits that he has been treated differently in other comparable cases that have occurred within the workplace.

1.12. The Applicant's conduct could not be said to be serious enough to be in breach of the Respondent's Bullying and Harassment Policy. Alternatively, the alleged conduct does even not fall within the Policy's definition of harassment.

1.13. The Applicant seeks reinstatement, continuity of employment, payment of remuneration lost, or an order of compensation.

2.1. The Applicant was dismissed from his employment for breach of the Respondent's Code of Conduct, Bullying and Harassment policy, and breach of a lawful and reasonable direction to maintain confidentiality. The conduct engaged in was aggressive and intimidatory workplace conduct both physically and verbally towards another employee. In dismissing the Applicant, the Respondent has recognised the Applicant had been employed by the Respondent since 1984.

2.2. The misconduct that occurred on 30 April 2021, supported with CCTV footage, provides an accurate account of the Applicant's aggressive and threatening behaviour. The Applicant was obliged to follow the Respondent's policies. The termination letter expressly identified the policies which were breached. The breach of the Respondent's policies, especially in the manner of conduct demonstrated by the Applicant, constitutes a valid reason for dismissal.

2.3. In relation to the breach of confidentiality it was clear to the Applicant that he was not to discuss the matters raised in the 4 May 2021 meeting. The Applicant had a support person present with him in the meeting where the direction of confidentiality was given. The Applicant's disregard for that direction, almost immediately, constitutes a valid reason for dismissal.

2.4 The Applicant was given an opportunity to respond, and did so, with the Respondent considering those responses prior to making the dismissal decision. The Applicant was provided with reasons relied on to justify dismissal, the details of allegations made against him, and was invited to attend various meetings where he was afforded with an opportunity to provide a response. At all meetings the Applicant denied the allegations despite CCTV footage showing otherwise. The Applicant was afforded a further opportunity to attend a show-cause meeting as to why his employment should not be terminated. Limited responses were provided by the Applicant in the show-cause meeting, and he did not provide any further detail. There were no mitigating circumstances and there was a general lack of remorse from the Applicant.

2.5. At no time was the Applicant denied the opportunity to have a support person present, with the Applicant having the benefit of having had a support person with him at each meeting held.

2.6. The Respondent submits that there are no factors relevant that give rise to any issues with the procedures followed. There is no suggestion that the procedure was substantively deficient.

2.7. The Applicant was not treated differently from any other employee. The Respondent has previously dismissed an employee for similar behaviour.

2.8. The Applicant was well aware of the Respondent's expectations having attended a session on the Respondent's Code of Conduct on 11 January 2021 and signed an acknowledgement that he understood the Respondent's Bullying and Harassment policy on 11 January 2021.

2.9. The warning issued on 12 November 2020 was not used as a basis to reach a decision on the conduct of 30 April or the breach of confidentiality. Those instances of misconduct alone justified dismissal. However, as the conduct was of a similar nature, the Respondent took the previous warning into account when assessing whether it could trust the Applicant to not engage in further misconduct in the future.

2.10. Consideration was given to the Applicant's personal circumstances such as his length of service, age and work history. The Respondent also considered the impact the Applicant's continued employment would have on other employees which lead to a conclusion that it was untenable to continue the Applicant's employment.

2.11. Despite being summarily dismissed, the Applicant was provided with 5 weeks' pay in lieu of notice. Reinstatement is not an appropriate remedy should the Commission find the dismissal to be harsh, unjust or unreasonable as the Applicant has failed to accept responsibility, as well as concerns that may arise for the health and safety of other employees within the business.

Appendix 2 - Allegations in the show-cause notice, dated 25 May 2021

"1. Specifically on Friday 30 April 2021 at approximately 2:10pm you repeatedly communicated and engaged with Ali in an inappropriate, aggressive and intimidatory manner when Ali came down stairs from the Forming Platform.

2. Specifically on Friday 30 April 2021 at approximately 2:10pm, you grabbed the top part of Ali's arm, physically pushing Ali in a backwards motion and then pointed towards the door while repeatedly saying words to the effect of 'let's go outside', implying you wanted to have a fight with Ali. During this interaction you repeatedly pointed your finger at Ali and clenched your fist (as though you were going to punch Ali); and

3. At approximately 3:10pm on 4 May 2021, you acted inappropriately and in breach of your obligation of confidentiality as set out in the correspondence to you from Fletcher Insulation dated 4 May 2021 by phoning Ali from his mobile phone."

Mr Reilly, P of the Australian Workers' Union for the Applicant

[1] Appendix 1 - Summary of Submissions.

[2] Appendix 2 - Allegations as per show-cause notice, dated 25 May 2021.

[8] Audio Recording of Determinative Conference, 31 August 2021; 01:43:30 - 01:43:42, and 01:54:56 - 01:55:23.

[9] Audio Recording of Determinative Conference, 31 August 2021; 01:42:12 - 01:42:23, and 01:51:12 - 01:53:43.

[15] Audio Recording of Determinative Conference, 31 August 2021: 00:18:50 - 00:19:07.

[16] File names: 1. 30.04.21_14.10.30.MOV, 2. 30.4.21_14.10.36-14.12.28.MOV, and 30.04.01 - Incident Footage - Close View.MOV.

[17] Audio Recording of Determinative Conference (Part 1 of 2), 31 August 2021: 01:15:23 - 01:19:47.

[18] Ibid: 00:34:30 - 00:34:53, 00:18:38 - 00:19:08; Digital Court Book 115 [23].

[21] Audio Recording of Determinative Conference (Part 1 of 2), 31 August 2021; 00:34:30 - 00:34:53.

[24] Audio Recording of Determinative Conference (Part 1 of 2), 31 August 2021; 01:15:23 - 01:19:47.

[31] Audio Recording of Mention, 30 August 2021 (Part 2 of 2); 00:03:59 - 00:08:18.

[32] Digital Court Book, 128 [21], 133-50.

[33] Audio Recording of Determinative Conference (Part 1 of 2), 31 August 2021: 01:15:23 - 01:19:47.

[34] Ibid, 00:34:30 - 00:34:53, 00:18:38 - 00:19:08; Digital Court Book 115 [23].

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