Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - dismissal substituted by resignation - forced resignation - dismissal found - misconduct - bullying alleged by dismissed employee - insubordination - procedural fairness - valid reason - dismissal not unfair - application dismissed

[1] Mr Jarrod Grundy (the Applicant) has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by Brister & Co Pty Ltd (Brister or 'the employer'). He claims to have been unfairly dismissed on 7 February 2019. At the date of dismissal he was employed as a Boilermaker and Welder.

[2] Mr Grundy claims that his dismissal was harsh, unjust or unreasonable. He seeks six weeks' pay as compensation.

[3] Brister oppose the application. It contends that Mr Grundy resigned on 7 February 2019 when given the chance to do so some fifteen minutes after he had been dismissed for misconduct. In the alternative, the employer says that if Mr Grundy was dismissed the dismissal was neither harsh, unjust nor unreasonable. In the further alternative, it submits that as it subsequently paid two weeks in lieu of notice no compensation should be ordered.

[4] The jurisdictional issue is whether Mr Grundy was dismissed or resigned.

[5] I am satisfied that Mr Grundy was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. He served the statutorily required minimum employment period (section 382(2)(a)) and his annual rate of earnings did not exceed the high income threshold (section 382(2)(b)(iii)). His employer was a "national system employer" within the meaning of section 14 of the FW Act. His application was filed within the statutorily required 21 days after dismissal.

[6] Conciliation of the application by a Commission-appointed conciliator had been scheduled for 22 March 2019 but did not proceed in light of the employer's decision not to participate on the ground that "it will be a complete waste of time and resources".[1] The matter was then referred to me for hearing and determination.

[7] I issued directions in the matter on 25 March 2019. I directed that all matters (dismissal or resignation, merit and remedy) be dealt with in the one hearing. In advance of the hearing, and consistent with my directions, I received witness statements, documents and materials in reply from both Mr Grundy and the employer.

[8] I heard the matter by determinative conference on 3 May 2019. I reserved my decision, which I now deliver.

[9] Both parties were self-represented.

[10] Despite my directions, the employer failed to appear at the appointed time on 3 May. Upon being contacted by my Associate, Mr Michael (Mike) Brister for the employer advised that he had recorded the wrong day in his calendar and that employer witnesses had thus been wrongly informed. He and other employer witnesses, albeit in different locations, were able to participate by phone at short notice. I called the matter on thirty minutes after the appointed time, with Mr Grundy in person, and employer representatives and witnesses by phone. I provided Mr Grundy the option of proceeding with the employer parties by phone, or adjourning to a day the following week to resume with all parties in-person. Mr Grundy elected to proceed that day. The employer did not disagree. I agreed to do so.

[11] The evidence before me was oral and documentary. Mr Grundy gave evidence. Mr Mike Brister, a co-owner and Production Manager gave evidence, as did his brother and co-owner Mr Anthony (Tony) Brister and Workshop Supervisor Mr Adam Beros.

[12] Some facts are agreed although others are in dispute. On some disputed facts, issues of credit are relevant.

[13] Given that the parties were self-represented, and given that I proceeded in an inquisitorial manner via determinative conference, I questioned all witnesses in some detail on their evidence. In determining factual matters I take into account the disadvantage faced by Mr Grundy and the Commission in not having the employer witnesses present in person and observing their demeanour in response to questions from the Commission and from Mr Grundy.

[14] The evidence of all witnesses was relevant and broadly reliable. Mr Grundy's evidence was open and direct. However, each witness placed gloss on events. I determine disputed facts based on the tone and manner of giving evidence, the consistency (or otherwise) between oral evidence and witness statements, the existence (or otherwise) of corroborating evidence, and the inherent plausibility of versions of events.

[15] I am not bound by the rules of evidence but consider them to be a good and useful general guide. I adopt the approach of a Full Bench of this Commission which has said:

"The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s. 577(a) of the Act. Although it is not bound by the rules of evidence and procedure, the Commission tends to follow the rules of evidence as a general guide to good procedure. However, that which is ultimately required is judicial fairness, and that which is fair in a given situation depends on the circumstances."[2]

[16] Some of the oral evidence and evidence in witness statements strayed into the field of irrelevant considerations, hearsay, opinion and assumption. I place reduced levels of weight on such evidence except where corroborated by direct evidence, is uncontested or inherently believable.

[17] I make this decision based on all of the oral and documentary evidence before me.

[18] Brister is a small scale manufacturing business owned by Mike and Tony Brister operating from industrial premises in suburban Wingfield, Adelaide. From the same premises (and shared factory floor) a related company Computer Cut Australia Pty Ltd is managed by Tony Brister.

[19] Mr Mike Brister has day-to-day charge of Brister. In his absence, Mr Tony Brister has authority to oversee Brister activities, including directing its employees.

[20] Although a small scale business (employing approximately 21 persons) Brister is not a small business for the purposes of the FW Act.

[21] Mr Grundy has trade qualifications. He worked for Brister across two distinct periods. In 2015-16 he worked for Brister for approximately 18 months. He then left. After an absence of about one year, he was approached to return as his welding skills were considered desirable. He recommenced on 14 November 2017 and remained continuously employed in a full time role until dismissed for misconduct on 7 February 2019, following which he resigned.

[22] Mr Grundy reported to and took day-to-day instruction from his supervisor, Mr Beros.

[23] Although Mr Grundy was regarded as a competent welder, a number of incidents in the six months prior to dismissal brought his conduct to the attention of management.

[24] None of these instances were documented at the time. I am nonetheless satisfied, based on the oral evidence before me, that they occurred.

[25] Incident 1: Abuse of Mr Beros. In September 2018 Mr Grundy approached Mr Beros whilst Mr Beros was at the workbench of another welder, Mr Kirby. Mr Kirby, whilst older than Mr Grundy is a person of mild disposition and eschews conflict. He and Mr Grundy are friends at work and socially. Mr Grundy formed the view over preceding months that the supervisor Mr Beros was unfair in his criticisms of Mr Kirby's work, that he singled out Mr Kirby for criticism and that this amounted to bullying. Mr Grundy on a number of preceding occasions had told Mr Beros and also Mr Mike Brister that he considered Mr Beros to be 'picking on' Mr Kirby.

[26] Having approached Mr Beros and in earshot of Mr Kirby and other employees in the workshop Mr Grundy became heated, swore at Mr Beros, accused him of bullying conduct, said 'I'm out of here', walked off the job without notice and left the premises.

[27] Later that day the then general manager (Mr Williams) had a phone discussion with Mr Grundy in which Mr Grundy agreed to return to his job at Mr Williams's request. Mr Beros told Mr Williams that he would agree to Mr Grundy returning so long as the conduct did not occur again. Upon Mr Grundy's return the next day, he and Mr Beros spoke. Mr Grundy agreed with Mr Beros that if he behaved that way again he could be sacked.

[28] Incident 2: Altercation with Mr Yarlett. In November 2018 Mr Grundy had an altercation with another person working in the workshop (Mr Yarlett, employed by Computer Cut). Mr Grundy and Mr Yarlett had a falling out some months earlier over a private dispute. On this day Mr Yarlett walked past Mr Grundy's workstation and Mr Grundy took exception to their exchange. Mr Yarlett had, according to Mr Grundy, abused and sworn at him. Mr Grundy believed that Mr Yarlett was deliberately and frequently walking past his workstation to provoke him.[3] Mr Grundy went to Mr Beros's office ("stormed in"[4]) and complained about Mr Yarlett. Whilst in the office, Mr Yarlett walked by, waved and this triggered abusive swearing by Mr Grundy towards Mr Yarlett. Mr Yarlett entered the office. I accept Mr Beros's evidence that the two employees were standing face-to-face about a metre apart. Mr Beros allowed both employees to get their feelings off their chest. Mr Grundy then made personal allegations accusing Mr Yarlett (such as being bipolar), and became heated and aggressive in demeanour, clenching his fists. Fearing a physical altercation, Mr Beros intervened, told both employees to 'break it up' and that he (Mr Beros) would speak to Mr Grundy separately. He did so. Mr Beros told Mr Grundy that abusing Mr Yarlett in this manner was unacceptable and that conduct of that type would not be tolerated.

[29] Incident 3: Altercation with Mr Tony Brister. In about mid-November 2018 Mr Grundy placed on his toolbox a handwritten note which read:[5]

[30] The note was directed at Mr Yarlett. Even though in his evidence Mr Grundy accepted that it was intended to accuse Mr Yarlett of acting like a child, being a liar and having an attitude problem, Mr Grundy did not consider the note offensive.[6] It was not instantly visible to the factory as a whole but intended (and able) to be seen by an employee such as Mr Yarlett when Mr Yarlett walked past. On 12 December 2018 Mr Mike Brister was absent. Mr Tony Brister was in charge. Mr Tony Brister's attention was drawn to the note by Computer Cut's production manager who indicated that it had caused unrest. Mr Tony Brister approached Mr Grundy at his workstation and asked him to remove the note. Mr Brister was not interested in discussing why the sign was on the tool box, but simply wanted it removed. Mr Grundy became abusive and aggressive. He started arguing the point. He was told that whatever the reason for the note, it was inappropriate in a workplace. Mr Grundy continued his abuse of Mr Tony Brister. Mr Tony Brister told Mr Grundy to not be disrespectful. Mr Grundy then told Mr Tony Brister, to his face, to 'fuck off'. Shocked at the outburst, Mr Tony Brister told Mr Grundy that he "could be sacked for such behaviour". Mr Grundy then told Mr Tony Brister words to the effect "go ahead and sack me then". The note was subsequently removed by Mr Grundy.

[31] I make these findings preferring Mr Tony Brister's version of this conversation than Mr Grundy's. Mr Grundy accepts that he told Mr Brister to 'fuck off' but said that he said so under his breath not intending that it be heard and as he was turning away from Mr Brister. I reject this evidence. It was not convincingly given. Mr Tony Brister's evidence was clear and direct that it was said to his face and intended to be heard.[7]

[32] In oral evidence Mr Tony Brister also said that he was twice told to 'fuck off'. He said that in his written statement he only recorded this once, to not risk overstating the situation. Mr Grundy's evidence was that he only said this once. It is more probable than not that Mr Grundy said this twice, although my conclusion as to the seriousness of Mr Grundy's conduct during this conversation is not dependent on whether he repeated this profanity once or twice.

[33] Mr Brister walked away to de-escalate the situation. He reported what Mr Grundy had said to him to his co-owner Mr Mike Brister and to Mr Beros. That evening it was agreed that Mr Beros would speak to Mr Grundy the next day, warn him about his behaviour, ask him to apologise and, if he did so, he could continue working, having been warned.

[34] The next day Mr Beros spoke to Mr Grundy about the incident. Mr Grundy was told that he should apologise face-to-face to Mr Tony Brister, that his language had been disrespectful and totally inappropriate, and that he was warned not to repeat it. Mr Grundy accepted the warning and agreed to apologise. He approached Mr Tony Brister in Mr Brister's office and apologised. Mr Brister accepted the apology. Both shook hands, agreed to move on and said they would put it behind them. In his oral evidence, Mr Tony Brister said that, at that time, the incident was "done and dusted".[8]

[35] During the afternoon of 6 February 2019 Mr Grundy burst into Mr Beros's office in an agitated state, swearing at Mr Beros amidst aggressively telling him words to the effect 'this bullying has got to stop'. Mr Beros asked Mr Grundy what he was talking about and Mr Grundy accused Mr Beros of again bullying Mr Kirby. Mr Grundy was yelling, swearing in a threatening manner at Mr Beros and heated. Mr Beros started to explain his dealings with Mr Kirby. Mr Grundy became more agitated and left the office slamming the sliding door loudly.

[36] I make these findings preferring Mr Beros's version of events. Although Mr Grundy accepted that he spoke rudely to Mr Beros on 6 February and accused him of bullying Mr Kirby, he denied that he slammed the door. He said that he glided the sliding door closed but that it closed a little firmer than usual. Mr Beros was clear that the door was slammed shut.[9] Given the agitated and heated state of Mr Grundy and the clear recollection of Mr Beros, the evidence of Mr Beros is preferred.

[37] Mr Grundy left work at the end of his shift. He was still agitated about the alleged bullying of Mr Kirby by Mr Beros. He phoned Mr Mike Brister at about 6pm that evening. He was demanding but controlled on the phone. He demanded a meeting with Mr Mike Brister the next day to 'sort the issue out'. He did not indicate that his conduct towards Mr Beros had been abusive.

[38] Mr Brister had, over the previous six months (and after complaints by Mr Grundy), spoken to Mr Beros about Mr Grundy's allegations that he (Mr Beros) was bullying Mr Kirby. Mr Beros had denied such allegations and explained himself to Mr Brister's satisfaction. Mr Brister had also spoken to Mr Kirby who had not supported the assertions that he was being bullied by his supervisor. Mr Brister had also asked other workshop employees, but none provided feedback of bullying conduct of them or others.

[39] Despite having previously satisfied himself that such assertions were not well-founded, Mr Mike Brister decided that this was a new complaint albeit on an old issue and he would speak to Mr Beros. He phoned Mr Beros that evening. Mr Beros told him that the allegation was groundless and of the abuse he had again received from Mr Grundy.

[40] Mr Mike Brister formed the view that Mr Grundy's disruptive conduct and in particular his abuse of managers and supervisors could no longer be tolerated. He discussed the matter that evening with Mr Beros and the next morning with Mr Tony Brister. All three collectively agreed that Mr Grundy's conduct was repeated and unacceptable, that it was disruptive and disrespectful to the workshop, that he had been warned to not repeat the abusive conduct, that he had failed to correct his behaviour and that the events of that day were the last straw. It was decided by the collective, but Mr Mike Brister in particular on the recommendation of Mr Beros on the evening of 6 February, that Mr Grundy would be sacked for serious misconduct.

[41] The following morning, 7 February 2019, it was Mr Grundy who first approached Mr Mike Brister. Having the previous evening demanded a meeting to 'sort out' the problem (as he saw it) with Mr Beros, Mr Grundy took the opportunity to repeat the demand. Mr Mike Brister, not letting on that there would be a dismissal meeting, simply said that a meeting would occur shortly.

[42] Mr Mike Brister asked the company accountant (Mr Walker) to prepare a letter of dismissal, which Mr Walker did, and provided to Mr Brister. The letter read:[10]

Your employment with Brister & Co Pty Ltd is being terminated due to misconduct.

The ongoing threatening behavior towards other staff cannot be tolerated any longer.

[43] Mr Mike Brister signed the letter of termination.

[44] Shortly after, Mr Mike Brister called Mr Grundy, Mr Kirby and Mr Beros to a meeting with him in the lunch room. Mr Grundy was given an opportunity to voice his allegations against Mr Beros. He did so, becoming agitated but not abusive. Mr Kirby said nothing but when asked by Mr Mike Brister he said that he didn't feel bullied by Mr Beros.

[45] Mr Mike Brister then told Mr Grundy that he was instantly dismissed for the abusive and threatening way he spoke to others including Mr Beros the preceding day and previously, and Mr Tony Brister previously. He told Mr Grundy to go to his workstation, pack his gear and leave. Mr Grundy left the lunch room and went to his workstation.

[46] Mr Mike Brister, Mr Beros and Mr Kirby remained in the lunch room. Mr Kirby became upset, disbelieving that events had come to this. Mr Mike Brister and Mr Beros discussed the option of giving Mr Grundy a chance to resign and a willingness to provide an oral reference if asked that was positive of his workmanship. It was agreed that the employer would do so.

[47] Mr Mike Brister went onto the workshop floor as Mr Grundy was packing up. Mr Brister had not handed Mr Grundy the letter of dismissal, but had it in his possession. He told Mr Grundy that he would allow him to resign if Mr Grundy wished to and not give him the letter of dismissal (which he indicated he had in his possession). In return the company would vouch for his good workmanship as a welder by way of oral reference if asked.

[48] In the presence of Mr Mike Brister Mr Grundy agreed. Mr Brister arranged for Mr Walker to draft a resignation letter, which Mr Walker then did. A short time later Mr Mike Brister gave the resignation letter to Mr Grundy, which he signed and gave back to Mr Grundy. He did not retain a copy. The letter read:[11]

I hereby resign my employment with Brister & Co Pty Ltd.

[49] Mr Grundy left the workplace for the last time. His entitlements were paid up to the end of that day.

[50] Since dismissal, Mr Grundy has established his own business as a self-employed contractor.

[51] In the days that followed dismissal, Mr Grundy believed he was entitled to be paid two weeks' notice.

[52] A week later, after a phone conversation with Mr Mike Brister, Mr Grundy sent Mr Mike Brister a text message (on 15 February) as follows:

"Hi mike Jarrod here again. I am entitled to my 2 weeks pay. There was nothing saying I forfeited my notice period when I was forced to sign a resignation. This is the last time I will be contacting you before a proceed with unfair dismissal. I do not want to have to go down this path but I will if you do not reply by text or email telling me when my 2 weeks pay will be in. Thank you".

[53] Initially, the employer did not meet this demand. It then sought advice from an employer organisation (the Australian Industry Group). On 19 February it decided to pay Mr Grundy two weeks pay. Mr Mike Brister tried twice to phone Mr Grundy but did not make contact. The employer transferred monies electronically on 20 February believing they would appear in Mr Grundy's account on 21 February.

[54] Mr Grundy commenced these proceedings on 21 February. At the time of filing he did not know that the two weeks had been paid into his account.[12]

[55] Under the FW Act, a person can only be "unfairly dismissed" if they have been "dismissed" (section 385(a)).

[56] Section 386 of the FW Act provides that:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer."

[57] Mr Grundy advanced his case on the basis of sections 386(1)(a) and (b) of the FW Act. He says that he was both dismissed on the employer's initiative, and that his subsequent resignation was a forced resignation.

[58] Principles governing the application of section 386(1) are well established. They were recently set out by a full bench of this Commission in Bupa Aged Care Australia Pty Ltd v Tavassoli:[13]

"A resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in section 386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element."

[59] There is no dispute, and I find, that a decision to dismiss Mr Grundy was made by the employer on the evening of 6 February, that its intention was confirmed the following morning when Mr Mike Brister arranged for and signed a letter of termination, and that the dismissal was given effect to orally at the conclusion of the meeting with Mr Grundy in the lunch room on 7 February 2019.

[60] It was a dismissal for serious misconduct without notice. It was a dismissal on the employer's initiative within the meaning of section 386(1)(a).

[61] Brister submit that this dismissal was rescinded shortly thereafter and substituted by an agreed resignation. Mr Grundy agrees that the dismissal was replaced by a resignation but submits that the resignation was a forced resignation within the meaning of section 386(1)(b) and therefore a dismissal for unfair dismissal purposes.

[62] I agree with Mr Grundy for the following reasons:

1. The proposition that Mr Grundy could resign was conceived and advanced by the employer, not Mr Grundy;

2. The resignation letter was prepared by the employer, not Mr Grundy;

3. The resignation letter was signed when both parties knew that a dismissal had already occurred and Mr Grundy was packing his belongings ready to exit the workplace;

4. The time frame between the dismissal, the offer of resignation and the signing of the resignation letter was very short. There was no time to take independent advice, and none was obtained. It was communicated and agreed at his workstation;

5. Had the resignation letter not been signed, the dismissal would have stood and Mr Grundy would have left the workplace summarily dismissed.

[63] Although Mr Grundy knew what he was doing and, in that moment considered it to be in his best interests to resign, events had been moving fast. Within some thirty minutes he had attended a meeting which he thought he had requested to call his supervisor to account only to learn that he was dismissed, was told to pack his belongings and leave, was approached by the owner with a resignation option (whilst knowing a termination letter awaited him), had a resignation letter prepared on his behalf and signed it in the shadow of management's dismissal.

[64] The pressure of this moment was intense. Mr Grundy said he "was not thinking straight at the time"[14] and I accept that the pressure of the moment provided little opportunity for clear thinking. The overall events were a variation of the 'resign or you will be sacked' scenario. It was a case of 'you are sacked but we will let you resign'.

[65] While there are circumstances in which a dismissal substituted by a resignation will not be a forced resignation, each matter turns on its own facts. In these circumstances the pressure of the timeframes, the absence of an opportunity to secure independent advice, awareness of Mr Grundy's temperament and the central role management played in the resignation being agreed at his workstation lead me to conclude that Mr Grundy had no effective or real choice but to resign.

[66] There being a forced resignation, there was a dismissal within the meaning of the FW Act.

[67] In so finding I level no criticism of the employer in bringing about the resignation. Its decision to offer Mr Grundy the option of resigning with a positive oral reference was recognition of his past contribution to the business and evidence of some sensitivity to the harsh consequences dismissal may have on him, and a desire not to impose a greater burden than necessary.

[68] Having been dismissed, I am required to consider whether Mr Grundy's dismissal was unfair (in the sense of being "harsh, unjust or unreasonable") having regard to the considerations in section 387 of the FW Act.

[69] The reason for Mr Grundy's dismissal was serious misconduct and in particular his ongoing abuse of managers and supervisors; in the words of the dismissal letter "your ongoing threatening behaviour towards other staff"[15].

[70] Mr Grundy's case was, in his words "I know I didn't do things exactly right but I believe I stood up for what was right and they didn't follow the rules I don't believe. Fair enough I swore and got angry but I never touched anyone".[16]

[71] I accept the evidence of Mr Mike Brister that Mr Grundy was not dismissed for making bullying complaints against Mr Beros or for trying to be protective of Mr Kirby[17]. Whilst Mr Beros took exception to the allegations made against him, Mr Mike Brister did what an owner should do: he drew a distinction in his workplace response between Mr Grundy's conduct and Mr Grundy's complaints. Although he did not initiate a formal investigation, Mr Brister showed a degree of respect to the complaints by making inquiries of Mr Beros, Mr Kirby and other employees.[18] In contrast, he pushed back firmly against the verbal abuse by Mr Grundy of his co-owner, managers and staff.

[72] A dismissal for serious misconduct needs to be premised on conduct which strikes at the heart of the employment relationship, rendering its continuation incompatible with the conduct that has occurred. When relying on serious misconduct as a reason for dismissal, an employer carries the onus of establishing that the conduct occurred to the requisite level of persuasion.

[73] Both the first incident (September 2018) and the last incident (7 February 2019) involved swearing at and abuse of a supervisor in direct one-to-one conversation with that supervisor. Whilst clearly misconduct, in the context of an industrial workplace an isolated occasion of bad language expressed in frustration and in the context of a belief of bullying by that supervisor may warrant disciplinary action but not summary dismissal.

[74] The November 2018 incident in which not only bad language was used towards Mr Yarlett but a threatening disposition adopted requiring intervention by a supervisor to avoid physical conflict was more serious. In isolation that was conduct warranting disciplinary action. The associated conduct of placing an accusatory and abusive sign on his toolbox directed at a particular employee was provocative and intimidatory. Seen together, grounds for dismissal existed. Mr Grundy was fortunate that he was not dismissed after that incident.

[75] The 12 December 2018 incident with Mr Tony Brister was at the higher end of insubordination. Not only was Mr Brister (a co-owner) subjected to profane abuse (once if not twice angrily told to 'fuck off'), Mr Grundy dared Mr Brister to sack him. This demonstrated not just a hot-heat and an indifference to those that employed him but an attitude on Mr Grundy's part that was corrosive of the employment relationship; one in which Mr Grundy considered himself immune to disciplinary action because, it would seem, the value he brought to the business. Mr Brister was correct in pointing out at the time that he could be sacked for such conduct. Mr Grundy was again fortunate this did not occur.

[76] I take into account that the employer chose not to dismiss Mr Grundy at the time of these three previous incidents. This is relevant to the overall issue of whether dismissal on 7 February 2019 was a reasonable and proportionate response. It does not explain or mitigate the seriousness of the misconduct. At no time did the employer indicate directly or indirectly that such conduct was approved, tolerable or consistent with Mr Grundy's employment obligations. Clearly it was not.

[77] The employer's decision on 7 February 2019 was expressly based on not just the incident of 6 February but Mr Grundy's "ongoing behaviour"[19]. I am satisfied that operative in Mr Mike Brister's mind at the time of his decision to dismiss were these previous incidents. The fact that Mr Grundy was not dismissed at the time of those incidents does not alter the fact that they occurred and formed an active part of the reason for dismissal when dismissal eventually occurred. Having occurred and been established on the evidence before me, they also form an active part of determining whether there was a valid reason for dismissal.

[78] I take into account that Mr Grundy held a genuine belief that Mr Beros was 'picking on' Mr Kirby and that Mr Grundy had a legitimate right to raise a complaint of bullying (formally or informally) with Mr Beros and more senior management. However, the right to allege bullying conduct and the desire to act protectively towards a co-worker is not unfettered. Abuse and insubordination in the name of good intentions remains abuse and insubordination. A right to make complaints against others and act protectively towards co-workers carries responsibility. That responsibility is to exercise those rights in a manner consistent with one's overall employment obligations, including the obligation to not abuse, threaten or act insubordinately. In simple terms, to control oneself.

[79] Whilst each incident varied in the degree of seriousness, I am satisfied that Mr Grundy's conduct on each occasion (September 2018, November 2018, 12 December 2018 and 6 February 2019) was conduct in breach of his duties as an employee.

[80] Mr Grundy's dismissal was not based on the isolated incident of 6 February. That incident was part of a pattern of insubordination of a serious nature over a six month period. That pattern of behaviour was characterised by abuse and swearing at managers and other persons in the workplace, by a threatening attitude and an indifference to the consequences of such behaviour. The abuse and swearing was not casual workplace banter at an industrial site. It was targeted, directed and threatening. Although not a daily occurrence and usually triggered by Mr Grundy's frustration, it was sufficiently serious to strike at the heart of the employment relationship.

[81] There was a valid reason for dismissal. Ultimately the employment relationship was rendered untenable. Mr Grundy repeatedly acted in an insubordinate manner towards managers, owners and other persons such that the capacity of managers to give direction and instruction or receive complaints or feedback without being profanely abused was compromised. Mr Grundy failed to control his behaviour. His conduct demonstrated not just a short fuse but an indifference to the consequences of such outbursts. Dismissal was a proportionate response.

[82] The final incident (6 February) was misconduct (swearing and slamming the office door closed). It was not particularly prolonged and the swearing and agitation occurred in the context of complaining about alleged bullying conduct. It warranted disciplinary sanction. Had it been a first and isolated incident it would have warranted either warning or dismissal on notice but not summary dismissal. However, in the context of Mr Grundy's pattern of behaviour it was more serious and justifiably seen as the final straw.

[83] I conclude that Mr Grundy's ongoing insubordination was misconduct of a serious nature striking at the heart of the employment relationship which by 7 February 2019 rendered his conduct incompatible with that relationship continuing. The continued insubordination was serious and the pattern of behaviour was wilful misconduct justifying summary dismissal.

[84] There was a valid reason for dismissal.

Notification of the reason for dismissal (section 387(b))

[85] Mr Grundy was notified of the reason for his dismissal by Mr Mike Brister in the lunch room on 7 February 2019. He was told it was for ongoing abusive, disruptive and threatening behaviour.

[86] The notification of dismissal on 7 February 2019 was sudden but a meeting to discuss the events of 6 February was not unexpected. Mr Grundy had asked for a meeting. Though the meeting ended with Mr Grundy being dismissed (rather than Mr Beros being taken to task, as Mr Grundy had hoped) the dismissal followed a discussion of the preceding days' incident. Mr Grundy was provided an opportunity to put his side of the story during that discussion, and he did so.

[87] However, this discussion occurred between the time that the employer had made a decision no dismiss (evening of 6 February) but before it communicated its decision to Mr Grundy (end of the meeting). As such, there was a denial of procedural fairness in that I am not satisfied that anything Mr Grundy said or could have said on that morning would have been likely to alter the decision which had been made. True it is that Mr Mike Brister waited until he heard Mr Grundy's position before communicating the dismissal and I accept Mr Beros's evidence that there was ever so slight a chance that Mr Grundy's explanation may have altered the intended course[20]. I accept Mr Mike Brister's evidence that he genuinely listened to and discussed the issue with Mr Grundy that morning. Nonetheless, the opportunity given to Mr Grundy to respond was compromised by the fact that a decision to dismiss had already been taken and a change in course was extremely unlikely.

[88] I also take into account that Mr Grundy and Mr Brister did speak about the 6 February incident the previous evening and that this was before the decision to dismiss was made. However, at that time Mr Grundy was demanding a meeting. He had the opportunity to say what he wanted, and did so, but it was not in the context of defending or explaining his misconduct. Indeed, he did not disclose at that time that he had again abused Mr Beros. That evening Mr Grundy was simply complaining about Mr Beros. It was not an opportunity to explain an allegation of misconduct.

Opportunity for support person (section 387(d))

[89] Brister did not refuse Mr Grundy a support person, reasonably or unreasonably because none was requested. However, none was requested because Mr Grundy had not been informed that this was a meeting to consider his future with the company. The employer was in charge of the speed of events that morning, and they moved fast. There was no opportunity created by the employer in which a support person could have been sought or accompanied Mr Grundy.

Warnings concerning performance (section 387(e))

[90] There was no written documentation created surrounding these four incidents of insubordination, nor was any written warning given to Mr Grundy.

[91] A written record of a disciplinary incident involving misconduct serves multiple purposes. This includes providing a contemporaneous record of events that serves to help establish facts months or years later once memories have faded or personnel changed. A written warning also serves to underscore to an employee the potential impact on employment security should misconduct be repeated, and the seriousness with which the issue is being treated by the employer. It is also a tool that contributes to procedural fairness should dismissal arise. In its own right, a written warning has value.

[92] The absence of a written warning however does not mean that an employer has necessarily denied a dismissed employee procedural fairness. Context and circumstance matter, including (but not limited to) business size and capability. The evidentiary task on an employer to prove misconduct without any written record is steeper, and the obligation to establish that procedural fairness has been provided is more fraught.

[93] In this matter, I am satisfied that the oral evidence leads me to conclude at the requisite standard of proof (the Briginshaw standard[21]) that misconduct occurred across each of the four incidents relied upon by the employer.

[94] I am also satisfied that whilst not warned in writing, Mr Grundy was at least twice warned orally and that such misconduct could lead to sanction. After that November 2018 incident, when Mr Beros took Mr Grundy aside he warned him that no further abusive, disruptive or threatening conduct in the workplace would be tolerated. Mr Grundy's evidence was that he was "told to tone it down a bit"[22], was not expressly warned of the sack but did understand that he could be in more serious trouble if it were repeated.[23] At the time of the 12 December incident, Mr Tony Brister told Mr Grundy that he could be sacked for abusing him and telling him to 'fuck off'. The next day, in the context of requiring Mr Grundy to apologise, Mr Grundy was warned that his conduct had been completely unacceptable.

[95] I am satisfied that Mr Grundy had been warned orally about his outbursts and threatening conduct and knew that they were considered unacceptable by his employer and capable of putting his employment at risk. That Mr Grundy took the view that the employer would place higher priority on his value to the business than his misconduct does not diminish the fact that these warnings, albeit oral, were communicated.

Size of employer's enterprise (section 387(f)) and human resource capability (section 387(g))

[96] Brister is a business of small scale (21 employees) but not a small business as defined (less than 15 employees). It does not have a dedicated human resource department but does have a payroll officer and an accountant. Between these officers and the owners, human resources functions are performed. Mr Mike Brister in particular is hand-on with business and personnel issues.

[97] The employer has access to (and post-dismissal of Mr Grundy) utilised the services of the Australian Industry Group.

[98] I am satisfied that the small scale of the employer contributed to the informal manner in which past disciplinary incidents between it and Mr Grundy were managed. However, the fact that (according to Mr Mike Brister's evidence) the employer has since these events commenced a process of documented disciplinary processes indicates that such a course is capable of being administered, notwithstanding its small scale.

[99] There are no other matters of relevance to be taken into account.

[100] My role is not to review whether the employer had a reasonable basis for its decision but to consider whether, on the evidence before me, the dismissal of Mr Grundy was harsh, unjust or unreasonable.

[101] Taking into account all relevant factors arising from the consideration of sections 387(a) to (h) of the FW Act I have found that there was a valid reason for summary dismissal. I have found that Mr Grundy was provided an opportunity to explain prior incidents of misconduct. I have found that Mr Grundy was provided an opportunity to explain the conduct that triggered his dismissal but not prior to the decision to dismiss being made. I have also found that the manner in which dismissal occurred made it impossible for Mr Grundy to secure independent advice or the help of a third party such as a support person. Whilst warned orally, he had not been provided any formal or written warnings.

[102] I take into account and apply the observations by a full bench of this Commission in Federation Training v Sheehan:[24]

"It is trite to observe that any issue/s of procedural unfairness may not be of such significance as to outweigh the substantive reason/s for an employee's dismissal, particularly in cases of misconduct where the proven misconduct is of such gravity as to outweigh any other considerations in respect to 'harshness', such as age, length of service, employment record, contrition or personal and family circumstances."

[103] In the context of his pattern of behaviour, the procedural failings on the day of dismissal did not in an overall sense deny Mr Grundy a fair go. He was on notice from the earlier incidents that abusive conduct would not be tolerated. He had opportunities to explain his position on those earlier occasions. He also had the opportunity to explain his position on 7 February 2019 and did so, though (as I have found) it was after a decision had been made but before it was communicated. Although I consider it improbable that anything he said would have changed Mr Mike Brister's mind, Mr Brister was listening and did engage in discussion. Although nothing Mr Grundy said by way of explaining his conduct altered the employer's mind, nothing that was said objectively considered ought to have done so. Mr Grundy did not deny again swearing and abusing Mr Beros. He remained fixated in his view that Mr Beros had again bullied Mr Kirby. He had not previously sought an independent support person, and on one previous occasion when told that his behaviour could result in the sack he was sufficiently independently minded that he dared the employer to do so.

[104] I take into account the fact that Mr Grundy's conduct was in part motivated by what he believed to be unfair treatment of Mr Kirby. I deliberately use the phrase "in part"; he was also motivated by a less noble desire to continue a private falling-out with Mr Yarlett and bring that into the workplace. I also take into account that harsh words to a supervisor who is believed to be bullying another may be more words of protest than insubordination.

[105] Nonetheless, Mr Grundy had choices about how he would go about expressing his views. He made poor choices that led to confrontation, even in discussion with the owners. He repeatedly crossed the line of acceptable conduct. He ultimately made his continued employment untenable.

[106] A fairer process on 7 February 2019 would have been one in which Mr Grundy had been specifically advised that he was at imminent risk of being sacked and be provided time to consider whether he wanted a support person present in that context. However, his ongoing insubordination was serious misconduct, he was on notice that he could be sacked for such conduct, there was a process of discussion on the day (albeit a flawed one) and he had already shown an independence of mind to advance his own defence.

[107] Given the seriousness of the overall conduct manifest in Mr Grundy's pattern of insubordinate behaviour, I do not consider that these procedural failings are of sufficient weight to render this particular dismissal harsh, unjust or unreasonable. They weigh in favour of such a finding but the seriousness of the overall pattern of conduct weighs more strongly against such a conclusion.

[108] In all of the circumstances Mr Grundy was not denied a fair go.

[109] Mr Grundy was dismissed on 7 February 2019 by forced resignation.

[110] Mr Grundy's dismissal was not harsh, unjust or unreasonable.

[111] Accordingly, Mr Grundy's application is dismissed. An Order giving effect to this decision will be issued in conjunction with its publication.

[1] Email Mike Brister to UDT 27 February 2019 12.17pm

[2] Pearse v Viva Energy Refining Pty Ltd [2017] FWCFB 4701 at [14]

[12] A1 Statement of Jarrod Grundy page 2

[13] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941; see also ABB Engineering Construction Pty Ltd v Doumit cited in O'Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 at [23]

[14] Audio transcript 3 May 2019 12.06pm

[16] Audio transcript 3 May 2019 12.16pm

[17] R1; R4; Audio transcript 3 May 2019 12.17pm and 12.47pm

[18] Audio transcript 3 May 2019 12.48pm

[19] R4; Audio transcript 3 May 2019 1.08pm

[20] Audio transcript 3 May 2019 1.47pm

[21] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Edwards v Guidice [1999] FCA 1836; (1999) 169 ALR 89 at 92 per Moore J

[22] Audio transcript 3 May 2019 11.35am

[23] Audio transcript 3 May 2019 11.42am

[24] [2018] FWCFB 1679 at 55; see also McGrath v Sydney Water Corporation [2013] FWC 793 at [379] per DP Sams: "In addition, it goes without saying that any issue or issues of procedural unfairness may not be of such significance as to outweigh the substantive reason/s for an employee's dismissal, particularly in cases of misconduct where the proven misconduct is of such gravity as to outweigh any other considerations such as age, length of service, contrition and issues of procedural unfairness generally."

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