Australian Industrial Relations Commission|2009-03-16

the Applicant, believing himself to be slighted, departed significantly from an acceptable civil response in that he then walked past Mr McDonnell, proceeded to his (Mr McDonnell's) desk and responded abusively over the open telephone line. He may have done so in the belief that the query had come from Mr Reader directly and that Mr Reader was (or was still [36]) on the telephone.

[73] In all, I accept the evidence of the Respondent as to the Applicant's conduct in Mr McDonnell's office on 6 April 2008.

[74] Having found that the Applicant's evidence to lack credibility and given I have preferred the narrative of events provided by Messrs McDonnell and Reader, it remains for me to determine whether such language conveyed in the context it was, establishes a valid reason for the termination of the Applicant's employment.

[76] The language as used was directed personally to an individual and was demonstratively abusive. Its object was to denigrate Mr Reading in a particularly aggressive and demeaning manner, and it was structured so as to convey a threat. The manner of the comment understandably excited Mr Reader's concern.

[77] The language as used was also in direct violation of the Qantas Standards of Conduct, the relevant clause of which has been cited above.

[78] I have reached this conclusion irrespective of whether the Applicant genuinely felt himself to have been provoked for reason of his claim that Mr Reader (as he believed it to be) having questioned the bona fides of his injury claim. The language used was abusive and particularly demeaning, and cannot be excused even for reason of provocation.

(b) whether the employee was notified of that reason

[79] It appears not to be in contest that the Applicant was notified of the reason for the termination of his employment. The decision was presaged by an extended investigation.

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

[80] The Respondent contends that the Applicant was afforded procedural fairness throughout the investigations relating to each incident as well as to the process leading to the termination of his employment.

[81] The Applicant was issued a letter detailing the allegations now before me, amongst others, on 11 April 2008. [37] The Applicant was required to provide his response on 28 April 2008. His response, prepared by Mr Scott Connolly of the TWU on Mr Leadbetter's behalf, assiduously detailed responses to every issue raised in the letter of 11 April 2008, including the allegations in relation to 6 April 2008.[38] Mr Leadbetter's case in reply was strongly and clearly put on his behalf and he was well served by his union representative.

[82] The Respondent, after consideration of the Applicant's response, conveyed in writing to the Applicant the findings of its investigation. [39]

[83] The TWU on 8 May 2008 made an application to the Commission to have a dispute resolution procedure conducted in relation to a variety of claims that the Applicant had been victimised by the Respondent. As I understand it, these claims were themselves thereafter subject to an internal investigation process, which to some measure interacted with an internal appeal process in relation to the findings of the Respondent's investigation. [40]

[84] The appeal report in this regard was handed down on 27 June 2008. The termination of the Applicant's employment did not take place until 23 July 2008.

[85] The process leading to the termination of the Applicant's employment on 23 July 2008 was lengthy and open and there can be no finding that he was not provided an ample opportunity to reply to the allegations that were put to him. Indeed, he vigorously contested the allegations over the period of the inquiry.

(d) if the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination

[86] The termination of the Applicant's employment was for reason of his conduct, not the performance of his duties as such.

(e) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination

[87] The size of the Respondent's undertaking did not impact negatively upon the procedures it followed in effecting the termination of the Applicant's employment. Nor is it likely to have given the operation of s.643(10) of the Act.

(f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination

The Respondent did not labour under any absence of dedicated human resource management specialists or expertise. Thus, there was no negative impact on the procedures followed in effecting the termination arising from the absence of such resources.

(g) any other matters that the Commission considers relevant

[88] It is possible that despite my finding as to there being a valid reason, there might be mitigating factors to which I should have regard prior to making a wider finding as to whether the termination of the Applicant's employment was harsh, unjust or unreasonable.

[89] One of these factors might be whether the Applicant was aware of the employer's expectations as to language to be used and the civil conventions that ought to apply in its workplace.

[90] The Applicant's evidence demonstrated that he had a clear appreciation of the expectations prevalent in the workplace as to the use of offensive language, in the broad language. The evidence for this is as follows.

[91] In January 2007, the Applicant was issued a warning in relation to the use of his language in the workplace. This warning arose from an incident (discussed above) in which the Applicant was requested to attend a meeting with management (which the Applicant contended he declined to do so for reason he was not provided an opportunity to designate a support person). The Applicant reflected on the incident in the following way under cross - examination:

"[…] at paragraph 3 that you stated "tell them to get fucked" or "tell them to ring me and I will tell them the same"?---I don't know that it's verbatim correct but certainly I did use some profanity and I apologised profusely to the manager at the time and he accepted the apology and I explained that I would never have directed those comments to him. I did not expect those comments to be repeated to him. I reacted poorly under the circumstances however, given that he was attempting to deny me the benefit of an industrial agreement which says I'm allowed to have a support person present, I was rather hostile to the suggestion that I needed to finish my lunch and come and see him immediately.

Was this another circumstance in which you used certain profanities but they weren't directed to the person that ultimately was the subject of them?---Yes, largely it is yes.

You accept that you were provided with a copy of the Qantas standards of conduct policy at the time at which this letter was given to you?---Yes, I do.

You might return that and I'll just show you exhibit EN12 to Ms Neale's statement. You accept that that was the letter of warning you received concerning that incident of 21 December 2006?---I do." [41]

[92] The Applicant here states that he understood the limits of offensive language in the workplace, and was apologetic for his conduct at the time. He was also made aware at the time, should he have needed reminding, of the Respondent's policies in respect of standards of conduct.

[93] In respect of the incident of 6 April 2008, the Applicant reflected on the implications of personally abusive language:

"Your answer recognises, does it not, that such language directed towards somebody is a very different category of conduct than the one you have said might be your mutterings under your voice not directed to anyone?---Absolutely. If I had directed those comments to Mr Reader face to face or to any person I would expect that that would amount to a very serious form of misconduct and I would not be wasting your or my time in the Commission today if that was the case.

When you say "directed to them face to face", does that mean if you had picked up the phone and said it to him?---Yes.

Or you had directed it to a phone that you expected him to be at the other end of?

---Yes, I certainly does." [42] [My emphasis]

[94] Here the Applicant himself construes personally abusive language as "serious misconduct", and by implication the disciplinary consequences of the same.

[95] I must conclude on this evidence that the Applicant was aware of the ramifications of inappropriate and abusive language in the Respondent's workplace, and that ignorance of the existence of any such ramifications has no role to serve in mitigation.

[96] That said, another related mitigating factor might be that the employer had by neglect or otherwise, fomented a workplace environment which did not censure personally abusive language. If personally abusive language was common in the workplace, and went without comment, this might be a factor that might put the Applicant's conduct in a context which may have bearing upon my considerations.

[97] The evidence in this matter supports a finding that conversational swearing, in strong terms, is prevalent in the workplace, or parts of the airside workplace at least.

[98] But the evidence on the whole does not support a finding that personally abusive swearing is tolerated at large and is not subject to sanction. A survey of some of the evidence, which follows, establishes this.

[99] In one instance, Mr Kyle who appeared as a witness for the Applicant, gave evidence that he had sworn in a heated public exchange with management. The comment was in less abusive terms than here alleged. Mr Kyle was subsequently approached by management, he explained his actions, and agreed to act more cordially in the future. [43]

[100] Mr Kyle also gave the following evidence:

"[…] I would say that our conversations aren't tempered by trying to omit expletives as such, rather than - but you're probably correct in saying that on the norm it's not so much derogatory and abusive. Generally it's colourful." [44]

[101] Mr Ingram, who appeared as a witness for the Applicant, stated that he had spoken abusively to a BSM (Mr Reader) during a period of unusual personal stress, but had subsequently apologised when Mr Reader had expressed his concern. [45]

[102] Mr Hoiberg, who also gave evidence for the Applicant, claimed as follows (under cross examination by the Applicant):

"In relation to swearing in your experience as a Qantas employee have you knowledge, first hand experience of managers swearing to me or around me?---To recall specifics, no, I don't specifically but generally, from my own experiences, I've been with managers and I have seen managers swear. It's unfortunately part of the culture. So to say that you weren't sworn to, I can't comment on that to be precise […]" [46]

[103] Mr Hoiberg did not provide direct, substantive evidence that personally abusive language was common in the workplace.

[104] Mr Percival, who appeared as a witness for the Applicant, gave evidence that whilst swearing is rife in the workplace, he appreciated the limitations of the use of abusive language amongst his work colleagues and managers and had apologised to them in the past for swearing, for swearing at management and the tone of his voice. [47]

[105] Mr Scott, who appeared as a witness for the Applicant and was a union delegate, gave evidence to the following effect:

"Yes, and in terms of the Qantas workplace you have sworn and you have been sworn at?---Yes. Yes. Yes.

And this is not a unique situation; it's a common occurrence?---I wouldn't say it's common but, you know, like, it can just be brought up in general conversation, you know? People know me, you know, like, I don't hold back in saying something but I don't mean to offend people. It's just my - the way I am.

So when you say you won't hold back and you don't mean any offence - - -?

So you're referring to occasions when you have sworn?---Yes. Yes, numerous times.

At managers?---Yes, indirectly and not directly at, you know, singling out one particular person. Yes but, you know, like, swearing's part of the culture there, hey? You know?" [48] [My emphasis]

[106] Mr Scott's evidence distinguishes conversational swearing, which arguably may be pervasive in the workplace, from abusive language directed at a particular person.

[107] Further, I note that Mr Scott was signatory to a document [49] which I have not permitted the Applicant to admit into evidence. Mr Scott's evidence, which deviates from what appears to have been claimed in the petition, demonstrates why such petitions in such terms are of little probative weight on their own.

[108] Mr Stephenson, who appeared as a witness for the Applicant, stated as follows in cross examination:

"You hesitated before when you said whether it was directed personally you never took offence. Is it fair to say that what you're talking about are fairly robust meetings between workers represented by the union and management, where some colourful language was used in the hope of, or in the course of, discussions about those issues?---Yes, I mean these - these things happen on a daily occurrence. It's just part and parcel of - in the workplace that we - we're in, in the environment that we work in. It's always been an accepted part of the culture, I believe.

Well when you're speaking about it being an accepted part of the culture, you're referring to the fact that swear words might be used by people in the course of conversation, or they might simply just swear in the workplace; is that what you're referring to?---Yes.

As opposed to incidents of particular direct abuse, being directed to a particular person in a way which is not just part of regular conversation?---Yes, I - having never been actually sworn at myself in that regard, yes.

Yes, all right. So we're to take the evidence that you've given with that limitation that you've just put on it; that it's in relation to discussions as we've described them, and in the absence of actually being sworn at directly yourself?---Yes." [my emphasis]

[109] Mr Stephenson's evidence was that conversational swearing is exhibited in the workplace, but he himself had not been sworn at directly.

[110] Mr Connelly appeared as a witness for the Applicant. Mr Connolly, an official of the TWU, had dealt with Qantas directly for some 6 years. [50] His evidence was

He had never dealt with a case in which an employee had been terminated for swearing at Qantas;

He had nonetheless been involved in incidents of swearing on the part of members he represented and consequent disciplinary matters with Qantas. They had culminated in warnings or reprimands or informal counselling;

He was aware of management's concern with abusive language; and

Qantas has terminated other employees (though not in Queensland) for misconduct relating to the use of language. [51]

[111] Mr Connelly's evidence is that the Respondent is concerned about abusive language in the workplace and has taken various disciplinary actions in relation to the same over time.

[112] It appears to me on the evidence that the Respondent has tolerated and perhaps contributed to the use of strong language in the workplace, particularly in the airside area of its operations where there is little public exposure of its operations. But the evidence before me is that while conversational swearing is likely to be frequent, there is a generally widespread appreciation in the workplace that personally abusive language is conduct in an altogether different category. And the Applicant's conduct as I have found it to be in the case has fallen squarely into that category.

[113] As to the Applicant's general level of awareness of the workplace expectations as to the use of abusive language in the workplace, it must be recalled that the Applicant himself was warned at a previous time in relation to his use of inappropriate language in the workplace.

[114] Thus, the Applicant's misconduct on 6 April 2008 was not:

a single incident to be considered against the backdrop of an otherwise unblemished conduct;

conduct that was carried out without an appreciation of its consequences; and

an expression of a type of behaviour that generally was accepted or tolerated in the workplace.

[115] I should add nonetheless that toleration of conversational swearing can more easily support or incite the use of abusive language than not, and the Respondent should give close consideration to this developing "culture" of swearing, as some of the witnesses described it.

[116] While it censures personally abusive language, the Respondent may also seek to take on the more difficult task, which is to influence the day to day interactions in the workplace in order to promote a greater measure of civility in interpersonal exchanges. This might make the step between what appears to be acceptable use of "colourful language" in the workplace and "abusive language" in the workplace even greater than it is currently, and give stronger effect to the Respondent's workplace policies.

[117] In relation to the requirements of s.652(3)(g) of the Act, I have also given consideration to the Applicant's wider conduct as an employee of the Respondent for a period of over eight years. Over the course of that period of time, the Applicant was recipient of a range of commendations for his work. [52]

[118] I note too that the Applicant has made much of his role as an elected OHS delegate, suggesting that the adversarial position that that role placed him in led to the termination of his employment, or else caused the Respondent to not consider sanctions it might otherwise have canvassed. The Respondent argues that the Applicant's negotiating stance he took in relation to possible sanctions placed it in a position where its options were limited and its decision to terminate was not influenced by the Applicant's role as a delegate. [53]

[119] The role of a workplace delegate might not always be an easy one and it will involve a willingness to be confrontational in a measured way when genuine issues arise. It might also reasonably be contended that the Applicant had endured some difficulties with the Respondent in his representative role, but I cannot speculate on the root causes of this, or whether one party is responsible, or more responsible, than another.

[120] But while such positions as the Respondent held carry with them professional and personal stresses, they do not act as a "magic cloak" and absolve an individual of his or her final accountability for their own conduct in interacting with others in the workplace:

"Any case that comes before an industrial tribunal involving the dismissal of a union delegate requires anxious consideration by the tribunal with a view to ensuring that no man be unjustly penalised for his participation in legitimate activity as a representative of his union ... But while [the] Commission will be vigilant to protect the position of any delegate unjustly dealt with by an employer for legitimate activity on behalf of his union, it certainly will not regard delegateship as a magic cloak erring upon the wearer immunity from liability for wrongful actions...". [54]

[121] In the current circumstances, I note that the incident of 6 April 2008 did not arise in the course of the Applicant carrying out his functions as an OHS representative. Again, the evidence provides no foundation for there having been a conspiracy on the Respondent's part to terminate the Applicant for reason of his representative function in the workplace.

[122] I add finally that the Applicant claimed that the impact of the termination of his employment upon his domestic and financial circumstances and his career path was considerable and that I should give weight to this, along with his history of commendable work with the Respondent (to which reference is made in his materials).

[124] I add that most employees whose employment is terminated suffer to some degree in the same manner as the Applicant before they re-establish themselves. I do not discern anything unique or novel or particularly extreme in the Applicant's experience that should cause me to give greater weight to his circumstances than I have.

[125] I note in passing only that the Applicant has obtained new employment in an occupational health and safety role, this time in the mining sector, and although this brings with it some inconveniences and costs, it has mitigated some of the effects of the loss of his original position with the Respondent.

[126] These observations notwithstanding, in my view, the Applicant must accept that he is solely accountable for the personally abusive language he used on 6 April 2008. He was aware expressly, by virtue of prior experience which was still rightly current in his mind at the time of the hearing, of the limits of his employer's tolerance in this regard. And I have found, further, that the workplace culture, regardless of its conversational tendencies, nonetheless still publicly censured personalised abuse, and others (who gave evidence in these proceedings) accepted the boundaries of civility in this regard.

[127] Having regard to all the circumstances of the matter before me, I am not of the view that the Applicant's employment was terminated harshly, unjustly or unreasonably. In so concluding I have had regard to the principle of providing 'a fair go all round' for the both the employer and the (former) employee.

[128] Consequently, the application seeking relief under s.643(1)(a) of the Act in relation to the termination of the Applicant's employment is dismissed.

A Horneman-Wren of Counsel for Qantas Airways Limited, instructed by Blake Dawson Lawyers

[1] Exhibit MR-1 to Witness Statement of Michael Reader

[2] Transcript of Hearing on 2 February 2009 at PNS954-955

[3] Witness Statement of Ronnie McDonnell at PNS5-6

[4] Witness Statement of Elizabeth Neale at PN24

[5] Witness Statement of Michael Reader at PN6

[6] Witness Statement of Michael Reader at PN8

[7] Witness Statement of Elizabeth Neale at PN22

[8] Mr Bartholomew appears no longer to be an employee of the Respondent and did not give evidence in these proceedings. His statement as appears to have been provided in the Respondent's investigation was an annexure to Ms Neale's evidence - see Witness Statement of Elizabeth Neale at PN24

[9] Mr Bartholomew and Mr Reader were in a different location at the airport some 3-5 minutes walk from the compliance office.

[10] Transcript of Hearing on 3 February 2009 at PNS1667-1669

[11] Exhibit EN11 at page 8 to Witness Statement of Elizabeth Neale

[12] Exhibit EN11 at page 17 to Witness Statement of Elizabeth Neale

[13] Respondent's outline of submissions at PN30

[14] Witness Statement of Elizabeth Neale at PNS29-33; Exhibit EN11 to Witness Statement of Elizabeth Neale

[15] Witness Statement of Elizabeth Neale at PNS29-33; Exhibit EN11 to Witness Statement of Elizabeth Neale

[16] Applicant's submissions in reply at PN9

[17] Applicant's submissions in reply at PN9

[18] Affidavit of Dean Rowland Leadbetter at PNS13-14

[19] Transcript of Hearing on 2 February 2009 at PNS 212-217 and 233-234

[20] Affidavit of Dean Rowland Leadbetter at PN15

[21] Affidavit of Dean Rowland Leadbetter at PN22

[22] Transcript of Hearing on 2 February 2009 at PNS295, 298 and 304; Affidavit of Dean Rowland Leadbetter at PN25

[23] See paragraph [46] above and Affidavit of Dean Rowland Leadbetter at PN25

[24] Affidavit of Dean Rowland Leadbetter at PN25

[25] Affidavit of Dean Rowland Leadbetter at PN22

[26] Transcript of Hearing on 2 February 2009 at PN302

[27] Affidavit of Dean Rowland Leadbetter at PN26

[29] The context of which is agreed between the parties.

[30] Transcript of Hearing on 2 February 2009 at PNS257-263

[31] Transcript of Hearing on 3 February 2009 at PN1665

[32] I note however that the materials before me do point to an alleged minor altercation between the Applicant and Mr McDonnell on 16 March 2008 (See EN2 to Witness Statement of Elizabeth Neale). But the Respondent concluded upon inquiring that the incident couldn't be substantiated and the matter was not otherwise raised in these proceedings.

[33] Transcript of Hearing on 2 February 2009 at PNS321 and 329

[34] Transcript of Hearing on 3 February 2009 at PN1197

[35] Transcript of Hearing on 2 February 2009 at PN295

[36] Witness Statement of Ronnie McDonnell at PN3 and Transcript of Hearing on 2 February 2009 at PNS80-810 (Mr McDonnell's evidence was that the Applicant was sitting opposite him when he initially telephoned Mr Reader). See also Transcript of Hearing on 2 February 2009 at PN881. It might be reasonably inferred that the Applicant identified Mr Reader as being the BSM with which Mr McDonnell was talking for reason he was exposed directly to the initial telephone conversation between Mr McDonnell and Mr Reader.

[37] Exhibit EN2 to Witness Statement of Elizabeth Neale

[38] Exhibit EN4 to Witness Statement of Elizabeth Neale

[39] Exhibit EN5 to Witness Statement of Elizabeth Neale

[40] Witness Statement of Elizabeth Neale at PNS19-27

[41] Transcript of Hearing on 2 February 2009 at PNS363-368

[42] Transcript of Hearing on 2 February 2009 at PNS299-301

[43] Transcript of Hearing on 3 February 2009 at PNS1197

[44] Transcript of Hearing on 3 February 2009 at PN1237

[45] Transcript of Hearing on 2 February 2009 at PNS660-669

[46] Transcript of Hearing on 2 February 2009 at PN493. See also Transcript of Hearing on 3 February 2009 at PNS1160, 1183 and 1202.

[47] Transcript of Hearing on 3 February 2009 at PNS1458-1459

[48] Transcript of Hearing on 3 February 2009 at PNS1282-1286

[50] Transcript of Hearing on 3 February 2009 at PNS1503

[51] Transcript of Hearing on 3 February 2009 at PNS1519-1527 and 1534

[52] The Applicant's material provided a number of statements and commendations in support of various aspects of his conduct in recent years.

[53] Transcript of Hearing on 3 February 2009 at PNS1977-2001

[54] Re Dispute at Broken Hill Pty Co Ltd Steel Works Newcastle (No 2) (1961) 60 AR(NSW) 48 at 66

Printed by authority of the Commonwealth Government Printer

Dean Leadbetter v Qantas Airways Limited [2009] AIRC 131; (16 March 2009)

Dean Leadbetter v Qantas Airways Limited [2009] AIRC 131;

At a glance

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Judgment (143 paragraphs)

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Dean Leadbetter v Qantas Airways Limited [2009] AIRC 131; (16 March 2009)