Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - serious misconduct - dismissal not unfair - application dismissed

• [1] Mr Christopher Cullen (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) stating that he was unfairly dismissed from his employment with RACQ Operations Pty Limited (the Respondent).

• [2] A conciliation was held on 16 January 2025 and the matter was not resolved. The matter was listed for an in-person hearing on 20 February 2025. The Applicant was represented by his friend, Mr Gary Symons. The Respondent was represented by its General Counsel, Mr Matthew Payten.

• [3] Section 396 of the Act requires satisfaction of four matters before considering the merits. I am satisfied that the Applicant made his application within the 21-day period required by s.394(2) of the Act, earned less than the high-income threshold, is a person protected from unfair dismissal, that his dismissal was not a case of genuine redundancy, and the Small Business Fair Dismissal Code is not applicable as the Respondent has more than 15 employees.

• [4] The Applicant was employed with the Respondent from March 2023 until his termination in October 2024. His role was a vehicle recovery officer (VRO) performing roadside assistance.

• [5] The Respondent terminated the Applicant following an investigation of an incident which involved a physical altercation between the Applicant and a tow truck driver (the incident).

• [6] The incident was captured by two cameras on an RACQ truck. The Applicant's telephone call during the incident was also recorded. The original footage, as well as the audio recording of the phone call, was provided to the Commission through an order for production requested by the Applicant. I have reviewed the original footage and I have listened to the audio of the phone call.

• [7] The incident unfolded on Thursday 19 September 2024 at approximately 8.00 am. The Applicant had been called to a roadside event. The reason for the member call out was stated to be a flat tyre. The Applicant began to mark off the area around the car with cones and began attaching the vehicle to the cable to recover the vehicle onto the RACQ recovery truck.

• [8] During this time, tow truck operators with recovery trucks arrived at the scene.

• [9] One of the tow truck drivers spoke to the Applicant and said that the vehicle had clearly had an accident and therefore was off limits to the RACQ. Relevantly, RACQ VROs are only authorised to tow vehicles that have had breakdowns and not vehicles which have been in accidents.[1] This is because RACQ is not licenced to conduct "regulated towing" within the meaning of the Tow Truck Act 2023 (Qld).[2]

• [10] The tow truck driver and the Applicant engaged in a conversation. The Applicant called dispatch and spoke with Mr Mark Pennings. The Respondent provided the transcript of that call to the Commission and I am satisfied that the transcript reflects the original audio recording, minus the expletives. The transcript of that conversation is as follows:

CC: Mark, it's Chris, um I've got a bit of a situation. Yeah um this car has got a major problem with it. It's got a severed ball joint the wheel is well and truly up into the arch, um I can pull this up but it's going to be a bit of a [expletive] nightmare, so.

MP: I saw the photo and immediately thought, that's not a flat tyre, that's yeah something else, um, one sec I will just put you on hold for a moment.

[inaudible background speech by third party male].

MP: [Places call on hold 28 seconds into call, audio cannot be heard].

MP: Resumes call at 1min & 30 seconds into call, audio returns.

[inaudible background speech by third party male]

CC: I've just got a truck driver that's turned up, he's hit a sign here claims that this is an accident tow and he's in my work site and he won't get out of here. So, I'm just trying to find out what the go is here at the moment but...

[third party male heard in background stating "I have every right to be here mate"]

MP: Is it obvious of any damage, it's hard to say I know you're at a roundabout and

CC: Well, I think he's, I think he's right in regard that it has hit the curb and um yeah, so that's what caused the damage so.

[Male responds - "I have every right to be here"]

CC: Mate. He's being non-compliant so yeah, he's obstructing.

[Male - "Don't be talking to me like that, you put your hand on me and we will walk to the corner right now"]

[Male - "Get your [expletive] hands off me mate"]

MP: [Expletive] are you OK Chris, I'm calling the police

• [11] The tow truck driver is the "third party male" featured in the transcript. As the transcript clearly indicates, there was a physical altercation towards the end of the phone call.

• [12] There is no audio in the footage itself. I have reviewed the footage and, in summary, the following events occurred:

• The Applicant and the tow truck driver stand beside the car

• The tow truck driver leans down to inspect the wheel and the Applicant gestures at him to stand back

• The tow truck driver stands up and moves closer to the Applicant

• The Applicant points over the tow truck driver's shoulder, seemingly gesturing for the tow truck driver to move away

• The tow truck driver bends down to inspect the wheel again. The Applicant places his right hand in the centre of the tow truck driver's chest, then uses both hands to push the tow truck driver back

• The tow truck driver then starts shoving the Applicant and grasping at his face and at the collar of his shirt. The tow truck driver pulls the Applicant's shirt partly over his face

• The second truck driver on the scene tries to talk to the Applicant and the first tow truck driver. The RACQ member also attempts to pull the Applicant back

• The Applicant and tow truck driver walk over to the footpath (they had been standing on the road). The tow truck driver and the Applicant still have their arms around each other

• The Applicant kicks the tow truck driver's legs out from under him. The tow truck driver falls on his back onto the concrete footpath and the Applicant, who is still holding onto him, falls as well

• The tow truck driver rolls over and punches the Applicant in the face seven or eight times

• The second tow truck driver reaches between the Applicant and the tow truck driver

• The tow truck driver stops punching the Applicant

• The Applicant and tow truck driver stand up and walk towards the road.

• [13] Following the physical altercation, the men continued their discussions and ultimately the Applicant disconnected the RACQ vehicle and left the scene for the tow truck driver to recover the vehicle.

• [14] The Applicant received two further phone calls from Mr Pennings at dispatch after the incident. Those calls were also recorded. First, Mr Pennings called to ask if the Applicant was okay.[3] Mr Pennings had called Mr Lincoln Bath, Manager of Vehicle Recovery Operations, who drove 30 minutes to attend the scene.[4] The Applicant said on the phone call to Mr Pennings that the tow truck driver was "correct" that the vehicle had been in an accident as the member had hit the gutter, but the member herself was not sure it was an accident. Mr Pennings called the Applicant again after the police had arrived. The Applicant then stated that the RACQ member had "admitted" that it was an accident.[5] Mr Pennings and the Applicant discussed whether an ambulance should be called. The Applicant said he did not require an ambulance as his injuries were superficial. [6] The Applicant also said that he would not be pressing charges.[7]

• [15] Mr Brett Cunningham, Manager of Patrol Operations for the Respondent, took the Applicant to a general practitioner to be assessed.[8] The general practitioner assessed the Applicant and provided a report to the Respondent noting that the Applicant has a soft tissue injury on his right jaw but is otherwise fit to resume normal duties.[9]

• [16] After being assessed by a doctor, the Applicant completed an incident report on the day of the incident. The Applicant said in his incident report:

An unknown male from the tow truck has approached me and asked me if I was going to tow the vehicle and proceeded to state to me that I can't tow the vehicle because it has been involved in an accident. The member to this point had made no mention to me whatsoever that she had been involved in an accident. The male person was advised numerous times to step away from the vehicle, which he has refused to comply. The male person has then proceeded to access the wheel well of the vehicle and start touching damaged parts. The male person was advised again to stop touching the vehicle, in which male person has continued to refuse to comply with directions.

I then proceeded to create a physical barrier between the male person and the vehicle by positioning my arm across in front of his chest and telling him again to step back away from the vehicle. The male person has responded with verbal threats and then has immediately grabbed me by the shirt and body, in which I have responded by grabbing his clothing and trying to push him away from me. Another male person standing nearby has attempted to stop the situation and the member was heard to be screaming "stop".

I moved the male person over to the grass area nearby and knowing that the male person was not willing to stop this altercation, I leg swept him and transitioned him to the ground in an attempt to defuse the situation and prevent the incident from continuing.

The male person however was very strong and has managed to roll me over onto my back and then has proceeded to repeatedly punch me in the face.

I eventually was able to stop the male person by talking to him and he has eventually stopped and let go of me and walked away.

It was after this time that the owner of the disabled vehicle has made the admission that she may have made contact with the gutter nearby, which had resulted in the damage to the vehicle.

There was no damage to RACQ property or further damage to the member's vehicle as a result of the incident.

• [17] It is relevant to note that the Applicant has a background of working for the Queensland Police Service as an operational skills and tactics instructor.[10] This perhaps informs the language of the Applicant's incident report and provides context for why the Applicant believes the tow truck driver was required to "comply with directions" from the Applicant.

• [18] The Applicant attended work the following day on 20 September 2024 and then was absent on pre-approved leave from 23 September 2024 to 4 October 2024. He returned on 4 October 2024.

• [19] Whilst the Applicant was on leave, the Respondent reviewed the incident report and footage of the event and determined that the events portrayed by the Applicant did not align with the video material.

• [20] On 4 October 2024, the Applicant attended a meeting with Mr Kane Reynolds, Senior Vehicle Recovery Officer and the Applicant's manager, Mr Andrew Heafield. Mr Heafield concerns that the Applicant had behaved inappropriately on 19 September 2024. On 4 October 2024, following the meeting, the Applicant was provided with a letter of serious concerns from Mr Joel Delaney, Head of Towing for the Respondent.[11] The Applicant was suspended on full pay. The Applicant was advised of a meeting on 8 October 2024 and was told to provide a response at the meeting. The letter notes the Respondent's concerns as follows:

It is alleged that on Thursday 19 September 2024 at approximately 8:05am while attending to a member tow at Delancey Street Ormiston (Reference T002746044), you acted in an unsafe manner which may have put the safety of the RACQ member, a member of the public and your own personal safety at risk. Specifically:

a) It is alleged that you engaged in and escalated a heated verbal altercation with a tow

truck driver from another organisation which then led to a physical altercation. The

video footage identifies you posturing towards the other tow truck driver before

pushing him as he knelt down to observe the disabled vehicle.

b) The other tow truck driver stood up and you both engaged in some aggressive push-

pull behaviours and the members car being involved while you were held down

against it, which had the potential of damaging the members car. .

c) The member and another tow truck driver then attempted to break the fight up at this

You both aggressively held on to each other as you moved towards the curb side, off

d) Once you were on the curb side you allegedly further escalated the incident by

performing a "leg sweep" (as described in your incident report) on the tow truck

e) You were both on the ground with the tow truck driver appearing to punch you

f) You then both returned to a standing position and the physical altercation appeared

Your actions have the potential to cause RACQ brand and reputational damage with the member and other onlookers , and broader public which could have significant financial implications for RACQ as a trusted road-safety provider

It is alleged such actions are in breach of your Position Description, the Safety Management System - Health and Safety Policy the RACQ's Code of Conduct and Values, specifically Show Care. In addition, your actions were inconsistent with your obligations pursuant to Section 28 of the Queensland Work Health and Safety Act 2011, which requires that 'while at work, workers are required to take reasonable care of their own health and safety and that of others who may be affected by their actions or omissions'.

This alleged type of behaviour could be considered serious misconduct as defined in the Fair Work Regulations, specifically;

ii. the reputation, viability or profitability of the employer's business;

Engaging in theft, fraud, assault or sexual harassment in the course of the employee's employment;

If serious misconduct is established, this may result in summary dismissal

• [21] The Applicant gave a written response on the 7 October 2024.[12] The Applicant's response denies each the allegations of misconduct put forward in the letter. The Applicant also requested an extension of time of 21 days and requested access to the footage, the call recording, the incident report and "any incident report furnished by RACQ representatives in relation to this matter".

• [22] The Applicant both denies that he pushed the tow truck driver and states that he acted in self-defence. Relevantly, the Applicant says:

Further, what gives RACQ the authority to determine that I am at fault in the context of a serious criminal offence of which I am a victim? Criminal offences are a matter for law enforcement and the courts to investigate and determine liability and fault, not for administrative middle management in an operations environment.

It is also crucial to emphasise that no RACQ policies, procedures or Fair Work Regulations can override my right to self-defence. Self-defence is a justified action under the Criminal Code.

The male has managed to swiftly roll over during this motion and sit on top of me and has begun to violently punch me in both sides of my head. I did not at any time strike the male back in self-defence.

Further, my mere presence standing beside the disabled vehicle, in no way amounts to 'posturing.' This was my work area to manage and it was a vehicle which I was responsible for. It is categorically false that I have pushed the other driver as he knelt down to observe the disabled vehicle.

Once on the grass/footpath area he was still aggressively grabbing me, and I saw no other option than to transition him to the ground to break his hold of me to allow me to make space and get away from him. I performed a leg sweep manoeuvre which transitioned him to the ground but rather than letting go, he continued his firm grasp on me and has swiftly swung around so I was laying on my back on the ground with him sitting directly on top of me.

• [23] The Applicant goes on to allege that the Respondent has put profits above his welfare and lists detail of his injuries and the costs of medical treatment. The Applicant goes on to state that he would be making a criminal complaint about the tow truck driver and "reminded" the Respondent that intentionally destroying evidence is a crime.

• [24] The Respondent postponed the meeting to discuss the serious concerns from 8 October 2024 until 14 October 2024. The Applicant attended the meeting with his support person. During the meeting, the Applicant was given an opportunity to view the footage. The Applicant spent 50 minutes viewing the footage during the meeting.[13] The Applicant was given an opportunity to retract or amend his written response to the letter of serious concerns. He declined to do so.

• [25] On 17 October 2024, the Applicant was provided with a show cause letter from Mr Delaney. The show cause letter notes that the Applicant's written response to the allegations and his responses during the meeting were taken into account. The Respondent retracted the first allegation put to the Applicant, that the Applicant engaged in a heated verbal altercation with the truck driver, following receipt of the Applicant's responses. The Respondent wrote:

The initial allegations contain some inaccuracies on how they have been delivered, however still amount to the same result. For example, it was alleged that you engaged in and escalated a heated verbal altercation with a tow truck driver from another organisation. This is not established with the evidence available and based on your responses. It should be noted, that you took the correct steps in contacting your Fleet Controller to seek support on what you should do as you agreed with the other Tow Truck Drivers assessment that the car had hit the curb and that is what has caused the damage. However, you did not follow your training by retreating, instead you were taking an authoritative approach towards the other Tow Truck Driver by referring to the other tow truck driver as being 'non compliant' and asking for their name and telling them to get back and where to stand which did look like 'posturing' as you pointed over the person's shoulder and is further supported by the audio evidence available. While this was not a heated verbal altercation, your comments and approach did escalate the situation unnecessarily.

You deny the allegation that you pushed the other Tow Truck driver as he knelt down and refer to being set upon by the other Tow Truck Driver and that all you did was put your hand above the drivers shoulder and use your foot to gain some space between the two of you. However the video evidence is clear and shows that you did shove/ push the other Tow Truck Driver initiating physical violence and this resulted in the other Tow Truck Driver aggressively reacting (as per the allegations) which then led to the pushing and pulling behaviours.

You advised that you deliberately held on to the other Tow Truck Driver and moved them to the curb side where you undertook the leg sweep on them to try and de-escalate the situation, however this resulted in you being punched in the face 7 times by the other Tow Truck Driver.

These actions are not aligned with RACQ training and Procedures. Specifically "Managing threatening situations" (completed March 29, 2023) and Towing and Incident Workplace Health and Safety Training which also addresses managing threatening situations and conflicts (completed in April 2023 and again more recently in July 2024).

You agreed that you put your safety at risk - noting you stated that you 100% put yourself at risk and your view is to put the property first (member's car), then yourself, then the member. This is contrary to all of the training provided to you.

You were provided multiple opportunities and ample time to reflect on the situation and your actions. You maintain that you cannot see how you could have done anything differently.

On the balance of probabilities, the allegations that have been put to you have been substantiated, to the exclusion of the reference that you engaged in a heated verbal altercation. Based on the outcome and findings, I have determined that your conduct was inappropriate, unprofessional and are contrary to RACQ's values and Code of Conduct. Your actions also fail to align with the conditions set out in your contract of employment

• [26] The letter goes on to allege that the Applicant has breached the RACQ code of conduct by failing to prioritise his own safety and by failing to follow training on managing threatening situations. Mr Delaney notes that the Applicant's prior employment history has been taken into account but that, due to the seriousness of the incident, the Respondent is considering terminating his employment. The Applicant was invited to provide a written response by 21 October 2024.

• [27] A further meeting was scheduled for 23 October 2024. The Applicant was informed that the final outcome regarding his employment would be discussed at that meeting. He was informed that he was entitled to bring a support person.

• [28] On 21 October 2024, the Applicant provided a written response to the show cause letter. The Applicant acknowledges that the first allegation of misconduct was retracted. The Applicate goes on to state that the balance of the allegations are not established on the evidence.

• [29] The Applicant proceeds to explain his actions on 19 September 2024 by reference to alleged concerns for the tow truck driver's safety. He writes as follows:

The overwhelming and most vital reason that I directed the tow truck driver away from the vehicle initially then blocked his path and guided him away from the damaged vehicle was my immediate concern for his safety.

It is possible that the vehicle suspension could have collapsed at any time. Should this have happened whilst the tow truck driver was interfering with parts under the wheel well he could have been seriously injured. Remember, this was my worksite and I was responsible for its safety.

I used the analogy during our last meeting that should the person interfering the with vehicle been the member, the members young daughter, a member of the public or a Police Officer, I would have been seriously negligent not to have prevented any person from entering this dangerous space and I would have been criminally negligent if any person had suffered injury as a result of me not keeping my workspace safe.

In your correspondence you suggested that I let this all happen and get in the cabin of the RACQ truck. I trust that any competent and professional driver would never leave a dangerous scene in this way. (it is important to note that at this time the tow truck driver had offered no violence or threats).

Of course I had to undertake an immediate risk assessment at the time. If I did not prevent any person from interfering with the vehicle (that was under tension and attached to my truck) and the suspension collapsed the consequence would be catastrophic.

If I did prevent the person from interfering with the vehicle (by creating a barrier and guiding him away) I considered that the other tow truck driver may have objected.

I considered the consequence of his objection may have been verbal only.

What I did not account for was that the person would violently attack me, attempt to gouge my eyes and punch me in the face a minimum of six times with a closed fist. In considering risk vs consequence, I failed to properly consider that the tow truck driver would commit a serious criminal assault on me. (An assault that is currently being investigated as a serious assault by Queensland Police).

At no stage did I deny touching the driver of the other vehicle. I stated this on multiple occasions in front of all participants at the last meeting. I stated that I guided him back from the dangerous situation with such gentleness that he did not fall or sustain the slightest injury.

• [30] The Applicant contests the Respondent's assertion that the incident was 100% avoidable and argues that: "It is not a probable consequence of guiding a person away from a dangerous area that I would be violently assaulted. Yet that fact is the sole basis for RACQ action against me."

• [31] The Applicant also contested the assertion that while he agreed with the truck driver that it looked like the vehicle had been in an accident, he could not conclusively determine this, as that, he says, would have been to "assume the RACQ member was lying and have her pay for an independent tow."

On 23 October 2024, during the scheduled meeting with the Applicant, Mr Delaney provided the Applicant with a termination letter. The stated reasons for termination are as follows:

We consider your performance and conduct on the day of the incident to be inconsistent with workplace training and practices which put yourself and others at risk. In addition, your interaction with the other Tow Truck Driver by initiating physical contact in the manner in which you did is unacceptable. Your behaviour has lacked professional integrity and seriously falls short of the standards of conduct expected of you as an employee at RACQ.

During the process you have failed to identify the correct safe work methods you could have and should have used instead of physically engaging with the other Tow Truck Driver. You have failed to demonstrate during this process that you would follow appropriate safe work methods if faced with a similar situation or unreasonable customer conduct again in the future and failed to satisfy RACQ that you would reduce the risk of such behaviour occurring again.

As a result, RACQ has lost trust and confidence in you as an employee to operate and conduct yourself to the standard expected. Your actions on the day were highly visible to the member, the general public (being a busy road) which may cause irreversible reputational damage into the future for RACQ. Further to this, your conduct has breached RACQ's values, Code of Conduct, specifically;

• Know, understand and manage your responsibilities including adherence to compliance obligations

• you failed to priortise your personal safety and behave in a safe manner

You failed to follow the Safety Management System - Health and Safety Policy, Part 4 - Roles and Responsibilities - All leaders and employees

• "Follow all reasonable instruction and training received as part of their employment or engagement with RACQ and do not knowingly act in such a way as to put their own or others health and safety at risk;"

You have breached Section 28 of the Queensland Work Health and Safety Act 2011 -

• "While at work, workers are required to take reasonable care for their own health and

safety and that of others who may be affected by their actions or omissions. They must

also cooperate with any reasonable instruction given by the PCBU and any reasonable

policy or procedure of the PCBU to comply with the WHS Act and WHS Regulation."

Given the above, it has been determined that a disciplinary penalty is warranted. When

determining the disciplinary penalty RACQ has considered the seriousness of your breaches, your previous workplace performance and conduct, your participation in this process and any other relevant information. The disciplinary penalty made against you is termination.

• [32] The termination letter notes that the Respondent considered that the Applicant had engaged in serious misconduct, but nevertheless, he would be paid notice in lieu.

• [33] The Applicant argues that his priority was to ensure a safe workplace and environment for the member and the public. The Applicant placed four cones around the area of the car to secure it. The car was partially collapsed and under tension from his vehicle tow line. He states that he formed the view that the ball joint had failed on the vehicle, a late model Mercedes. The Applicant gave evidence that he had attended sites with ball joint failures before and it is not necessarily an indication that the vehicle had been in an accident.

• [34] The Applicant's argument proceeds from a view that, as he had attended the scene and laid out his cones, the site then became his worksite. Further, he argues that as it was his worksite, he has a duty to take reasonable care to avoid harm to all those within his worksite. He argues that by taking the actions that he did, he was simply fulfilling his duty of care. He further maintains that it was not a probable consequence that the tow truck driver would punch him and therefore he did not put his health and safety at risk. The Applicant stated that all he did was "gently" guide the tow truck driver away from the vehicle.[14] The Applicant notes that he, personally, was not charged by Queensland Police Service.

• [35] As to the basis of the Applicant's safety concerns, he says that:

I was required to take reasonable care of the tow truck driver that could have been injured by the vehicle that I had put under tension or by a vehicle driving into the rear of the vehicle under tow. I saw the driver as being in imminent risk of injury. Should he have been injured or killed as a result of my omitting to block his access to my site I would see this as a serious offence[15]

• [36] The Applicant also says in his written response to the letter of serious concerns that:

If I did not prevent any person from interfering with the vehicle (that was under tension and attached to my truck) and the suspension collapsed the consequence would be catastrophic.[16]

• [37] The Applicant did not provide any evidence to support the proposition that the consequence of him doing nothing would have been fatal or "catastrophic".

• [38] The Applicant continually argues that his only concern was the safety of others. Initially, he said he was concerned with the safety of the tow truck driver and the member. During the hearing, he advised that he also was concerned about the safety of the children in the childcare centre nearby.[17] The concern for the children was no more than hypothetical. There is no evidence that there were any children at the scene.[18] The RACQ member's children, who had been in the car with her, had been taken elsewhere after the Applicant arrived.[19]

• [39] The Applicant also alleges that the allegations against him have been falsified or that he is being set up.[20] The Applicant notes that he had applied for a higher-level position within RACQ prior to the incident and was not found to be successful.

• [40] I note that the Applicant also requested an order for production for all notes taken by RACQ employees in relation to the incident, all drafts of the WHS report and all internal correspondence in relation to the incident.[21] I granted an order for production of only the footage and audio of the call recording, as that is what is relied on by the Respondent in their reasons for dismissal. The incident report was provided by the Respondent in their materials. Further, the Applicant was provided with the final version of the serious concerns letter, the show cause letter and the termination letter. It is unclear how the drafts or internal correspondence relating to those letters would be relevant if the final version is what is sought to be relied upon.

• [41] In relation to procedural fairness concerns, the Applicant states the Respondent ignored his concerns and "[o]nly when the most blatant falsehoods were identified, did RACQ slightly modify their responses."[22] He says the dismissal was fait accompli, and that the Respondent was not interested in his responses. The Applicant states that his requests to be supplied with the footage were denied.[23]

• [42] The Applicant claimed to have been "set upon" during the initial disciplinary meeting. He also alleged, with no evidence, that the meeting was illegally recorded.[24]

• [43] I found the testimony of the Applicant to be self-serving. He kept reiterating that it was his concern over safety for the tow truck driver and the immediate area as his reason for not handing over the vehicle to the tow truck driver. The Applicant's answers under cross examination were consistently evasive.

• [44] The Applicant admitted under cross-examination that he did not mention any safety concerns in the statements made during the incident or in the incident report.[25] Further, the concern for the children was first introduced during the Applicant's testimony in the hearing.

• [45] Interestingly, while giving his evidence in chief, the Applicant admitted that he pushed that the truck driver and admitted that that pushing is an assault.[26] However, he maintains that the assault was "justified in law" within the meaning of s.246 of the Queensland Criminal Code.[27]

• [46] The Applicant gave evidence as follows under cross examination:

Do you feel that your actions were consistent with your training and instruction from RACQ on the avoidance and de‑escalation of conflict?‑‑‑Not in that regard.

I understand that you've stated on multiple occasions that you would not do anything differently. Is that correct?‑‑‑That's correct, yes

And you'd do it all again?‑‑‑That's correct[28]

• [47] When asked whether he showed any contrition or remorse, he said he only showed remorse "at the very end" of the situation and felt ashamed that it had gone that far because of the "[the tow truck driver's] actions and my responses to his actions."[29]

• [48] The Respondent says that the video shows clearly the Applicant placing his hands on the tow truck driver and pushing him. This triggered the physical altercation between the Applicant and the tow truck driver. The dispute increased in its seriousness when the Applicant attempted to sweep the legs of the tow truck driver and ended up being pinned on the ground with the tow truck driver delivering a series of blows to the Applicant's head.

• [49] The Applicant's manager, Mr Andrew Heafield, was absent during the period of the incident. Mr Heafield reviewed the footage of the and compared it to the incident report and noted an inconsistency between the account of the Applicant and the video evidence which indicated that the Applicant initiated contact and pushed the tow truck driver.

• [50] The Respondent states that this was not de-escalating the situation as per the Respondent's explicit policy. The Respondent contends that the Applicant had received extensive training on the Respondent's work health and safety policy and the RACQ Code of Conduct. The Respondent provided a copy of extracts from the training modules on which the Applicant had completed between April 2023 and July 2024. Those training modules include the following:[30]

Situational awareness is key but remember that many situations are dynamic and can change quickly.

Members of the public may be involved in road related incidents. This may lead to people venting their frustrations and reacting in an emotional manner. It is reasonable to allow this venting to occur, as long as it does not escalate or cross over into physical violence.

Listen patiently and attempt to sympathise without trying to dissuade or argue.

Paralanguage is the message we send by our tone of voice, pitch, inflection, and phrasing.

Attention and focus, indicating your involvement and concern for what they are telling you will almost always serve to increase communication, trust, and cooperation. Monitor body language for non-verbal cues of frustration.

Keep your tone and demeanour professional - don't take the bait with personal insults directed at you, but calmly deflect these and deescalate or disengage and depart

Quickly and calmly retreat to your vehicle and drive away to safety

Call your Manager & the Contact Centre & inform them of the situation and await further directions

If at any time the confrontation appears to be escalating to the point where a physical

altercation may occur and/or your personal safety is compromised, quickly and calmly

Call your Manager and/or call the Contact Centre and inform them of the situation and

If you are prevented from driving away and you feel you are at risk of physical harm, dial 000 and request immediate Police attendance.

• [51] The Applicant completed his training on managing threatening situations on 29 March 2023.

• [52] The training which the Applicant completed on the RACQ Code of Conduct and values provides: "RACQ expects you to be consistent and honest, treating others with respect and courtesy, in a manner consistent with the RACQ Values."[31] It is noted that engaging in "inappropriate behaviour" is a breach of the Code of Conduct. The example given of inappropriate behaviour is getting angry at a coworker, swearing at them and storming out of the room.[32]

• [53] Further, the Respondent submits that the Applicant was well aware that RACQ is not permitted to undertake the towing of a vehicle that had been in an accident.[33]

• [54] The Respondent contends that the Applicant's actions amount to serious misconduct in line with the Fair Work Regulations 2009. The Respondent submits that the Applicant assaulted on the tow truck driver by "physically contacting the third-party tow truck driver without consent on 19 September 2024."[34]

• [55] The Respondent says that the Applicant's actions were far from de-escalating. He escalated the situation pushing the tow truck driver and then deliberately leg sweeping him and bringing him into contact with a concrete footpath.

• [56] This behaviour occurred whilst the Applicant was wearing the Respondent's uniform and in front of an RACQ member.

• [57] In addition to the allegations of breaches of the RACQ Code of Conduct and policies and the Queensland Work Health and Safety Act 2011 noted in the dismissal letter, the Respondent relies on instances of dishonesty in the disciplinary process that it says create a loss of trust and confidence. Specifically, the Respondent notes that the Applicant stated in his incident report and his initial response letter that he never initiated contact with the tow truck driver.[35] Additionally the Applicant in his initial response letter that "no one thought to contact the Queensland Ambulance Service" despite being specifically asked by Mr Pennings if he wanted an ambulance. The Applicant said no to an ambulance.

Was the dismissal harsh, unjust or unreasonable?

• [58] Section 387 of the Act provides the criteria and considerations the Commission must take into account when deciding if the dismissal was harsh, unjust or unreasonable. As required by the Act, I consider the following:

(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);

• [59] A valid reason for dismissal should be "sound, defensible or well founded" and should not be "capricious, fanciful, spiteful or prejudiced."[36] As summarised by Deputy President Asbury in Smith v Bank of Queensland Ltd a "dismissal must be a justifiable response to the relevant conduct or issue of capacity".[37] The Commission must consider the entire factual matrix in determining whether an employee's termination was for a valid reason.[38]

• [60] I find that the Applicant's behaviour on 19 September 2024 escalated the situation and was contrary to his training.

• [61] The RACQ member was standing a few metres away from the Applicant during his discussion with the tow truck driver. Instead of confirming with the RACQ member whether the vehicle was involved in an accident and stepping away from the situation, in accordance with his training, the Applicant took it upon himself to place himself between the tow truck driver and the vehicle. The Applicant then pushed the tow truck driver, which initiated the physical altercation. The idea that performing a "leg sweep" would defuse the situation has no basis in reality. It defies logic that throwing someone to the ground is likely to make them calm down. Immediately after the leg sweep, the tow truck driver punched the Applicant seven or eight times in the face.

• [62] The claim that the push was "justified" is not made out. It was perfectly open to the Applicant to explain to the tow truck driver, using his words, that the vehicle may have a broken ball joint and that touching the vehicle could be dangerous. Instead, the Applicant simply issued "directions" to the tow truck driver to move away and then pushed him.

• [63] The Applicant's claim that being punched was not a probable consequence of pushing the tow truck driver has no sound basis. The tow truck driver was clearly annoyed by the Applicant telling him he was being obstructive. The Applicant also asked for the police to be called towards the start of the phone call with Mr Pennings which suggests he perceived a threat. As can clearly be seen on the transcript, the tow truck driver said:

Don't be talking to me like that, you put your hand on me and we will walk to the

• [64] As the Respondent's representative said during the hearing: "One would question what exactly he expected would happen when he pushed the tow truck driver. It's not known as a shrinking violet industry."[39]

• [65] Even if I believed that the Applicant was sincere in his concern for the tow truck driver's wellbeing, I reject that the Applicant was obliged to put himself between the tow truck driver and the car. The Applicant's primary duty under s. 28 of the Queensland Work Health and Safety Act 2011 is as follows:

While at work, workers are required to take reasonable care for their own health and

safety and that of others who may be affected by their actions or omissions. They must

also cooperate with any reasonable instruction given by the PCBU and any reasonable

policy or procedure of the PCBU to comply with the WHS Act and WHS Regulation

• [66] The Applicant did not take care for his own safety and did not comply with the Respondent's reasonable work health and safety policies. Even if one accepted the argument that the Applicant has a positive duty of care for the tow truck driver, the duty is just that, a duty to take reasonable care to avoid harm by his own actions or omissions, not a duty to do everything in his power to avoid the tow truck driver being harmed by the vehicle. The Applicant's claims that he would be "criminally negligent" if he did not block the tow truck driver are not made out.

• [67] I find that the concern for the children in the nearby childcare centre was a concern which the Applicant conveniently invented right before the hearing. In any event, the evidence is that there were no children in the immediate area of the incident.

• [68] The Applicant was deliberate in his actions which violated the policies of the Respondent. Furthermore, causing the tow truck driver to fall backwards onto the concrete could have seriously injured him. This was done in front of a client whilst wearing the Respondent's uniform, next to the Respondent's recovery truck, in full view of the passing public.

• [69] Regulation 1.07 of the Fair Work Regulations 2009 defines serious misconduct as follows:

(2) For the purposes of subregulation (1), conduct that is serious misconduct includes the following conduct of an employee:

(a) wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(ii) the reputation, viability or profitability of the employer's business;

(c) engaging in theft, fraud, assault or sexual harassment in the course of the employee's employment;

(e) refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.

• [70] I find that the conduct of the Applicant was serious misconduct. The Applicant pushed the tow truck driver which is, by his own admission, assault. The Applicant put his own health and safety at risk as well as the health and safety of the tow truck driver. The Applicant also engaged in conduct which would cause a serious and imminent risk to the Respondent's reputation.

• [71] Having found that the Applicant engaged in serious misconduct, I find that the Respondent had a valid reason for the dismissal.

(b) whether the person was notified of that reason;

• [72] The Applicant was advised in writing on the 4 October 2024 that the Respondent held serious concern about his conduct on 19 September 2024.

• [73] Following this, the Applicant was sent a further letter on 17 October 2024 advising the Applicant that his actions were considered to be misconduct and may warrant termination of employment.

• [74] Finally on 23 October 2024, the Applicant was informed that he would be terminated and was given the reasons that his behaviour amounted to serious misconduct, that he was in breach of the RACQ Code of Conduct, he acted inconsistently with his training and inconsistently with the Queensland Work Health and Safety Act 2011.

• [75] I find that the Applicant was notified of the reason for his dismissal.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

• [76] The Applicant had an in person meeting with the Respondent on 4 October 2024 in which the Respondent discussed their concerns.

• [77] The Applicant was given an opportunity to respond in writing to the letter of concern and also in a meeting with the Respondent on 14 October 2024.

• [78] The Applicant was also given the opportunity to watch the footage during the meeting on 14 October 2024, which he did for 50 minutes.

• [79] Furthermore, the Applicant was provided a further opportunity to respond to the show cause letter which he did in writing on the 21 October 2024.

• [80] I find that the Applicant was given multiple opportunities to respond to the allegations of misconduct on 19 September 2024.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal; and

• [81] There was no unreasonable refusal to allow the Applicant to have a support person present at meetings. He had a support person during the meetings on 4 October 2024, 14 October 2024 and 23 October 2024.

(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

• [83] As the Applicant was terminated for serious misconduct this factor is not relevant.

(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

• [85] The parties did not submit that the size of the Respondent's enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent's enterprise did not have an impact.

(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

• [86] The Respondent has dedicated human resources staff. I find this a neutral factor.

(h) any other matters that the FWC considers relevant.

At every stage when speaking or communicating with RACQ I got the clear impression

that they were not interested in my responses, rather I formed the opinion that they were intending to terminate me.[40]

• [88] The Respondent amended their allegations following their meeting with the Applicant on 14 October 2024. This is not behaviour consistent with an employer who is not interested in hearing an employee's explanations.

• [89] The Respondent clearly reviewed the Applicant's responses - they found inconsistencies between his various statements in response, which caused them further concern as to whether the Applicant was being truthful.

• [90] Further, Mr Delaney states in his witness statement that while the Applicant was warned that the Respondent was considering termination, the decision to terminate was not made until after they received the response to the show cause letter and reviewed all the information, including the inconsistency in the Applicant's responses.[41]

• [91] Accordingly, I reject the submission that the Respondent refused to listen to the Applicant's explanations or that its mind was closed to other possible disciplinary consequences.

• [92] I note that the Applicant said in his response to the letter of concerns: "It is categorically false that I have pushed the other driver as he knelt down to observe the disabled vehicle." This was a false statement which is clearly contradicted by the video evidence. If the Applicant did not remember whether he pushed the tow truck driver as he knelt down, it was open to him to say that. Instead, he categorically denied it. The Applicant said in his next response letter: "At no stage did I deny touching the driver of the other vehicle". The Applicant said during cross-examination, under oath: "I've never made any admission that I did not push the person."

• [93] It is puzzling why the Applicant would continue to parse and deny facts which are objectively observable when viewing the footage and listening to the audio of his phone call. The Applicant made baseless accusations that he had not been given appropriate medical attention and further stated that there was little care taken of his welfare when in fact the Respondent's employees had followed up with him several times that day. The Applicant said in his initial response to the allegations: "I find it utterly scandalous that, after being violently struck in the head multiple times, no one thought to contact the Queensland Ambulance Service." Again, this was a false statement. The Applicant had been asked if he required an ambulance and he said no.

• [94] The Applicant shows no capacity to accept any wrongdoing. When asked on multiple occasions, including under oath, he has stated that he would do the same thing all again.

• [95] Let me be clear that no one is saying that the tow truck driver did the right thing. He clearly did not. However, it was still open to the Applicant to admit that he could have made other choices.

• [96] I find that the Applicant's dishonesty during the disciplinary process and failure to accept any wrongdoing weighs against a finding that the dismissal was unfair.

• [97] The Applicant's dismissal was not harsh, unjust or unreasonable. The Applicant committed serious misconduct at work. The Applicant was given several opportunities to respond to the accusations against him. The Applicant was dishonest in the course of the disciplinary process and, even now, he shows little insight into his behaviour. Therefore, a remedy for unfair dismissal cannot be awarded and the Application is dismissed. I Order accordingly.

[3] Annexure MP-2 to Mark Pennings Witness Statement

[5] Annexure MP-3 to Mark Pennings Witness Statement

[8] Brett Cunningham Witness Statement [12].

[9] BC1 to Brett Cunningham Witness Statement

[11] Annexure AH3 to Andrew Heafield Witness Statement.

[12] Annexure AH5 to Andrew Heafield Witness Statement

[13] Annexure JD1 to Joel Delaney Witness Statement

[20] Applicant Outline of Submissions, page 85 of Digital Hearing Book

[22] Applicant outline of submissions, page 71 of Digital Hearing Book.

[30] Annexure AH2 to Andrew Heafield Witness Statement

[36] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.

[37] [2021] FWC 4 at 118.

[38] Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185, [46], citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.

[41] Joel Delaney Witness Statement [20].

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