Fair Work Act 2009

s.394 - Unfair dismissal

Unfair dismissal application - dismissal not unfair - application dismissed

• [1] James Chol has made an application under s 394 of the Fair Work Act 2009 (Act). Mr Chol was employed by Vivesco Pty Ltd (company), a landscape and gardening business, from October 2022 until February 2024. He was dismissed for breaching the company's policy on workplace harassment and bullying. Mr Chol denies that he harassed or bullied his coworkers, and contends that there was no valid reason to dismiss him. He also contends that his dismissal was unfair because he was not given any opportunity to respond to the allegations against him. Mr Chol believes that the company had been trying to orchestrate his resignation, including through discriminatory rostering and work practices, about which he had complained. The company contends that Mr Chol was fairly dismissed because of his mistreatment of coworkers which contravened its policies.

• [2] Mr Chol gave evidence that in the months leading up to his dismissal on 9 February 2024, he had raised many concerns with the company about the way in which it rostered employees for work, and specifically the manner of assigning jobs to him. Mr Chol believed that he was constantly being directed to work at the company's largest sites, which were the most physically demanding, and that the company deliberately understaffed the sites at which he worked. He said that he would be rostered to work with only one other employee, who was often a woman, an older person, or someone with a physical limitation. He said that he was made to work with poor equipment, and that he had to use an old ute with no air-conditioning. He said that all of these things were unfair and had made his job more difficult.

• [3] Mr Chol said that these arrangements were part of what he described as a coercive and manipulative attempt to have him resign. In December 2023, he sent an email to the company's managing director, Tim Sutcliffe, about the unfair rostering arrangements, but Mr Sutcliffe replied that he disagreed with everything Mr Chol had said. Several weeks later Mr Chol told Mr Sutcliffe that he wanted to see changes, but he received no reply. Mr Chol said that on 1 February 2024, he met with Mr Sutcliffe to discuss the problems he was experiencing at work, but Mr Sutcliffe provided no feedback and instead resorted to accusations, passive-aggressiveness and 'gaslighting'.

• [4] Mr Chol gave evidence that on one occasion he was racially abused by another employee but when he reported this to management, he was asked how he knew that a racist remark had been made, and the matter was left unresolved. Mr Chol explained that the worker concerned, who was from South America and spoke Spanish, had used the word 'negra' in a conversation with other workers when he was nearby. Mr Chol, who is of African origin, knew that this word meant 'black', and believed that it was being used in relation to him.

• [5] On 7 February 2024, Mr Chol told Mr Sutcliffe that he needed some time off for his mental health. Then on 9 February 2024, he received a termination letter from Mr Sutcliffe, which referred to allegations of bullying and harassment. Mr Chol said that he was shocked, as no such matters had been raised with him previously. He said that the accusations were baseless and unsupported by any detail or evidence, and that he had not even been asked if the allegations against him were true. Mr Chol said that he strongly believed that his dismissal was unfair and that he was terminated simply for expressing his concerns about his working arrangements. He denied mistreating any coworkers or any suggestion that he had bullied or harassed anyone.

• [6] Mr Sutcliffe gave evidence that when Mr Chol commenced employment as a casual gardener everything had seemed to be going well. He was soon converted to permanent employment. But later he did not seem happy. Then over a six week period commencing in mid-December 2023, Mr Sutcliffe received numerous complaints from employees about Mr Chol behaving aggressively and erratically. Many employees asked not to be rostered to work with Mr Chol. One employee took leave of absence to get away from him.

• [7] The first complaint that Mr Sutcliffe received was from an employee, Tom Case, who said that Mr Chol had sworn at him, and called him a liar and a 'fat exploiter of foreigners'. Mr Sutcliffe discussed the matter with Mr Case and it was decided that he would ensure that Mr Case was not rostered to work with Mr Chol. Mr Sutcliffe said in his evidence that he did not raise the matter with Mr Chol, and that he should have done so. Other employees then contacted Mr Sutcliffe and said that they did not want to work with him because he was aggressive. One employee, Jeff Long, had received a bizarre message from Mr Chol which showed a picture of an aeroplane with text stating that he was one of Australia's wealthiest men and was flying to his billion dollar resort in Port Douglas. In early February 2024, Mr Long reported another incident in which Mr Chol had stood over him as he was filling fuel cans, behaving aggressively, saying that he was able to see through people and that he should not be underestimated. Mr Chol then told Mr Long that there were narcissists at the workplace, including one who was standing right in front of him (i.e. Mr Long). Mr Long did not give evidence. But the incident report in respect of this matter was included in the company's materials and Mr Chol did not dispute its contents.

• [8] Mr Sutcliffe's evidence was that he was concerned about the impact that Mr Chol was having on other workers and his obligation to maintain a safe working environment. His approach was to try not to roster Mr Chol on the same shifts as employees who had complained about him. He also tried not to roster him at the sites he did not like. Mr Sutcliffe said that on one occasion he told Mr Chol that other employees did not want to work with him, but it appears that he did not counsel or warn Mr Chol about his conduct.

• [9] Mr Sutcliffe said that although the company is not technically a small business because it employs 18 people, it is in substance a small business and does not have an internal human resources capability. He said that he decided to seek the assistance of an external human resources advisor and together they reviewed the situation and determined that Mr Chol's conduct was not acceptable as it posed a health and safety risk to other workers. He said that the advice of the human resources adviser was that there was a sufficient basis to terminate Mr Chol's employment. He said that there was no one incident that was the trigger for this decision. It was rather the accumulation of the complaints about Mr Chol from other workers that led to his decision to terminate Mr Chol's employment. On 9 February 2024 Mr Sutcliffe sent Mr Chol a letter stating that his employment was terminated because his behaviour was causing harm to the wellbeing and safety of his colleagues. Mr Chol was paid two weeks in lieu of notice of termination of employment.

• [10] Mr Sutcliffe denied that he had assigned Mr Chol the least desirable work sites or otherwise allocated work, tools or equipment unfairly. He denied taking any action with a view to having Mr Chol resign. He said that the reasons for dismissal were those set out in the termination letter.

• [11] Mr Case gave evidence that on 19 December 2023, Mr Chol telephoned him early in the day and called him a 'liar'. Mr Chol had previously asked whether he could borrow a particular lawnmower that day, and Mr Case had said no, because he needed to use it himself. Mr Case had then forgotten to bring the lawnmower to work that day. Mr Chol saw that Mr Case was not using the lawnmower and evidently concluded that he had lied about needing to use it. After being called a liar, Mr Case said goodbye and then hung up. At the end of the day Mr Case saw Mr Chol, who again brought up the lawnmower. Mr Case told Mr Chol to leave the matter alone. But Mr Chol was angry, and shouted at Mr Case that he was a 'fat exploiter of foreigners'. Mr Case said that several other employees witnessed the exchange. One of them, Chris, said to Mr Chol that he cannot say things like that, and then tried to calm Mr Chol down. Mr Chol then said to Mr Case, 'Go on, tell Tim, I fucking dare you.' Mr Case said that this sounded like a threat. Mr Case wondered what he should do. He sought advice from the safety officer. He then decided to file an incident report.

• [12] In response to the evidence of Mr Case, Mr Chol said that he had been frustrated on that day, but that he had not shouted at Mr Case, and had not called him a 'fat exploiter of foreigners'. He said that it would not make sense for him to call Mr Case an exploiter because Mr Case was not his boss. Mr Chol remembered saying 'Go on, tell Tim', but denied swearing, or saying 'I dare you'. He said that it had not been his intention to intimidate Mr Case. Mr Chol agreed that he had called Mr Case a liar, and said that he was right to do so. He said that he did not believe that Mr Case had accidentally left the lawnmower at home. As to his interactions with Mr Long, Mr Chol said that Mr Long suffered from 'imposter syndrome' and that he liked to appear successful and wealthy. Mr Chol said that he did not respect people for things like this and that his text was designed to show Mr Long that he was aware of Mr Long's 'manipulations'. Mr Chol said that he did not believe that there were any problems with his behaviour towards other employees.

• [13] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account the matters set out in s 387. The matter in s 387(a) is whether there was a valid reason for the dismissal. A valid reason is one that is a good reason for dismissal, and also a reason that has been substantiated because the Commission is satisfied, based on the balance of probabilities, that the relevant misconduct or poor performance actually took place.

• [14] The valid reason for dismissal on which the company relies in this case is that Mr Chol's conduct towards other employees contravened its policies on workplace behaviour. The company contended that Mr Chol behaved inappropriately to many employees, however it only provided details of this behaviour in relation to Mr Case and Mr Long.

• [15] As to what occurred on 19 December 2023, I prefer the evidence of Mr Case to that of Mr Chol. Mr Case was a credible witness. His evidence was clear and detailed. It was consistent with the incident report that he filed the following day. There is no evidence of any prior animosity between Mr Case and Mr Chol. Mr Chol stated in his evidence that he looked up to Mr Case. There is no reason why Mr Case would invent a malicious lie about what Mr Chol said to him that day. He had no motive to do so. On the other hand, Mr Chol said that he was frustrated with Mr Case, and that he thought Mr Case had lied to him. He still believes this to be the case. I accept Mr Case's evidence that Mr Chol was angry, and that he shouted at him. I find that Mr Chol's anger led him to direct abusive language towards Mr Case, and that he yelled out to Mr Case that he was a 'fat exploiter of foreigners'. I reject Mr Chol's submission that it would not make sense for him to say this because Mr Case was not his boss. The label 'exploiter' would have some internal logic insofar as Mr Case might be seen as benefiting from Mr Chol's manual labour by keeping the mower for his own use. I also find that Mr Chol swore at Mr Case, in the threatening manner described by Mr Case.

• [16] I make these findings on the balance of probabilities, to the Briginshaw standard, noting that the allegation against Mr Chol was a serious one. I cannot be certain of what occurred, but certainty is not required. I am comfortably satisfied that the allegation is substantiated and that Mr Case's evidence of what occurred on that day is correct.

• [17] I further find that this conduct contravened the company's workplace bullying and intimidation policy, which lists as examples of workplace bullying: insults, yelling, offensive language, and derogatory, demeaning or inappropriate comments about a person's appearance. It also contravenes the Code of Conduct which lists behaviours that the company regards as unacceptable and which may lead to dismissal as including the use of threatening or abusive language towards a fellow employee. Irrespective of these policies, it is entirely unacceptable for a person to 'fat shame' a coworker. There is no justification for it. Mr Case was also called a liar, without any basis. He was shouted at, and sworn at, in a threatening way. This aggressive outburst was clearly a valid reason for dismissal. It constituted not only misconduct but serious misconduct that warranted summary dismissal.

• [18] The company did not terminate Mr Chol's employment in response to this incident. It was only later, after other employees had also complained about Mr Chol's conduct, that Mr Sutcliffe made the decision to dismiss him, because of the cumulative effect of his behaviour. But the fact that the company did not dismiss Mr Chol specifically because of the incident involving Mr Case does not mean that this behaviour was not a valid reason for dismissal in its own right. Section 387(a) requires the Commission to consider whether there was a valid reason for dismissal, not whether the reason relied on by the employer was a valid reason. The Commission must decide for itself whether there were circumstances that constituted a valid reason to terminate the employment. My conclusion in this case is that Mr Chol's treatment of Mr Case was such a reason. Eventually a valid reason will lose its window of 'currency', but it would be wrong to punish leniency, and to encourage hasty dismissals, by adopting too narrow an approach to this window. In the present case, the window remained open. One factor in this conclusion is that Mr Chol's treatment of Mr Case was the first of several incidents involving inappropriate conduct towards coworkers. I agree with Mr Chol that the company's claims that many employees had made complaints against him lack any detail and are not substantiated, but some are, including Mr Chol's text to Mr Long in December 2023, which I find was sarcastic and belittling, and also the interaction between Mr Chol and Mr Long in early February 2024 when Mr Chol called Mr Long a narcissist, which I find was offensive and abusive. These matters are not of the order of seriousness of the conduct that occurred on 19 December 2023, but they nevertheless constituted inappropriate conduct that was contrary to the company's policies. I further find, based on the evidence in respect of Mr Close and Mr Long, that Mr Sutcliffe's concern that Mr Chol's conduct was adversely affecting the welfare of other employees was well founded and that this too constituted a valid reason for dismissal.

• [19] I find that Mr Chol's various complaints about working conditions did not contribute to Mr Sutcliff's decision to dismiss him, and that Mr Sutcliffe did not deliberately roster work in a way that was unfavourable to him in an effort to force him to resign. I accept Mr Sutcliffe's evidence about these matters. In my assessment Mr Sutcliffe was not looking for a reason to dismiss Mr Chol. As to the allegation that a racist remark was directed at Mr Chol by a South American worker, this is unsubstantiated. The worker was speaking Spanish, a language that Mr Chol does not speak. The work 'negra' could have referred to anything. In any event, it is difficult to see how this matter could have any bearing on the question of whether Mr Chol's dismissal was unfair.

• [20] Section 387(b) and (c) of the Act require the Commission to take into account whether the person was notified of any valid reason, and whether the person was given an opportunity to respond to any reason for dismissal related to capacity or conduct. In this case, Mr Chol was notified of the reason for dismissal only after he was dismissed. He was not afforded any opportunity to respond to the allegations against him. These are significant matters that weigh in favour of a conclusion that the dismissal was unfair. Mr Sutcliffe should have raised the employee allegations and his own concerns about Mr Chol's conduct directly with him and asked Mr Chol for his side of the story. However in my overall assessment these procedural deficiencies are outweighed by the valid reasons, and in particular the gravity of Mr Chol's misconduct on 19 December 2023. Further, I find that the failure of the company to put to Mr Chol the allegations concerning his treatment of Mr Case and Mr Long did not lead the company to reach incorrect factual conclusions about these events.

• [21] There was no unreasonable refusal by the employer to allow Mr Chol to have a support person present to assist at discussions relating to the dismissal (s 387(d)), because no such request or discussions occurred. The dismissal did not relate to poor performance but to conduct (s 387(e)). The company made no submission about the relevance of ss 387(f) or (g) - the degree to which the size of the employer's enterprise, or the absence of dedicated human resources management specialists or expertise, would be likely to impact on the procedures followed in effecting the dismissal. I note that the company has 18 employees and does not appear to possess in-house expertise in human resources management however it sought external advice. Section 387(h) requires the Commission to take into account any other matters that it considers relevant. In this regard, I note that Mr Chol was terminated on notice, which the company chose to pay to Mr Chol rather than requiring him to work out the notice period. I also accept that Mr Sutcliffe was genuinely concerned about the wellbeing of his workers and the company's obligations under occupational health and safety legislation to maintain a safe working environment. The termination process was clearly deficient. Mr Sutcliffe ought to have put his concerns to Mr Chol to give him the opportunity to correct his behaviour. However, I consider that in this case, it is unlikely that Mr Chol would have done so. He said at the hearing that he did not see anything wrong with his conduct, and yet in light of my findings in respect of the incidents involving Mr Case and Mr Long, plainly there was.

• [22] Taking into account all of these matters, I consider that the company's decision to dismiss Mr Chol was not harsh, unjust or unreasonable, and therefore not unfair. There were valid reasons for the dismissal. Mr Chol's interaction with Mr Case involved serious misconduct. Although Mr Chol should have been given an opportunity to respond to the allegations, and the procedure adopted in relation to the dismissal was defective, this is outweighed by the valid reasons for dismissal.

• [23] Had I concluded that the dismissal was unfair because of the failure of the company to put the allegations to Mr Chol, I would have found reinstatement to be inappropriate. In applying the considerations in s 392 that are relevant to the assessment of compensation, I would have concluded that, had he not been dismissed on 9 February 2024, Mr Chol would have been dismissed a short time later, perhaps one week, because of ongoing concerns about the effect of Mr Chol's behaviour on other employees. The measure of compensation would therefore have been one week's pay. Section 392(3) would then have required that I reduce this amount by an appropriate amount on account of the misconduct that contributed to the decision to end the employment. I would have reduced the amount to nil.

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