Loty & Holloway v Australian Workers Union

CASES CITED: Loty & Holloway v Australian Workers Union (1971) Industrial Commission of NSW, [Sheldon J], 71AR @ 95.

HEARING DATES: 02/28/2005; 03/01/2005; 03/02/2005; 05/02/2005; 05/06/2005

APPLICANT & NATIONAL UNION OF WORKERS Mr A Joseph, Counsel LEGAL REPRESENTATIVES: RESPONDENT Mr J Fernan, Counsel Baker & McKenzie Solicitors

DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Notification under section 130 by Cuno Pacific Pty Ltd of a dispute with National Union of Workers, New South Wales Branch re industrial action.

Application by National Union of Workers on behalf of W Khan re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

1 "Women should be at home looking after the kids". It was this statement that led to the dismissal of Wayne Alwyn Khan (the applicant), from his employment with Cuno Pacific Pty Ltd, (the employer). The applicant made this statement at a "Tool Box Meeting" that included three female employees who took offence at the statement. The statement provoked an argument that culminated in the three women walking out of the "Tool Box Meeting" and making formal complaints about the conduct of the applicant. 2 The employer attempted to resolve the complaints made by the three female employees who had been angered by the applicant's comments voiced during the "Tool Box Meeting". The attempts to amicably resolve the disagreement were unsuccessful and the disagreement between the applicant and the three female complainants escalated. 3 The employer investigated the issues surrounding the complaints of the three female employees and treated the applicant's behaviour including his statement, as misconduct. The applicant involved his Union, the National Union of Workers, New South Wales Branch, (the NUW), and various meetings were held as part of the employer's investigation and consideration of the applicant's alleged misconduct. The issues were not resolved and regrettably escalated. 4 The employer determined that the applicant's actions including and following the statement that he made at the "Tool Box Meeting" represented serious and wilful misconduct and the applicant was dismissed. The NUW then took industrial action involving a strike of its members engaged by the employer. The employer notified the Commission of an industrial dispute as contemplated by section 130 of the Industrial Relations Act 1996 [NSW], (the Act) . The industrial dispute was the subject of proceedings before Tabbaa C of this Commission. Eventually the industrial action ceased and the NUW made a claim for unfair dismissal on behalf of the applicant. 5 The claim for unfair dismissal was taken under section 84 of the Act. Proceedings in the Commission then involved concurrent listing of both the industrial dispute notification and the unfair dismissal claim. 6 Attempted conciliation of the issues underpinning the matters was undertaken by Tabbaa C. who issued a certificate of attempted conciliation in respect to the industrial dispute matter, no. 4056 of 2004. 7 The NUW then exercised the provisions of section 173(1) of the Act and sought to have a different member of the Commission arbitrate the question which had been identified as the alleged unfair dismissal of the applicant. 8 The matters were then reallocated to Patterson C. Patterson C attempted further conciliation of the underlying issues in dispute and then the employer activated the provisions of section 173(1) of the Act and sought to have a different member of the Commission arbitrate the matters. The matters were subsequently reallocated to the Commission as currently constituted. The matters were the subject of arbitration proceedings involving a Hearing that occupied a total of five days concluding on the last day of Hearing, 6 May 2005, at which time the Commission reserved Decision.

BACKGROUND 9 The applicant is a man who was some fifty five years of age at the time of his alleged unfair dismissal on 7 July 2004. The applicant had been employed for approximately twelve years and eight months. The applicant worked in a position described as "Mechanical Assembler". 10 The employer operates a filter manufacturing, assembly, warehouse and distribution business. The applicant worked at the employer's manufacturing site at Blacktown. 11 The applicant was described as a generally competent worker and there appeared to have been little recorded difficulty during the first seven years of his employment. However, in a period commencing in approximately April of 1998, the applicant was involved in a series of events that required recorded complaint about his workplace conduct. 12 In broad terms the applicant's employment record from that point onwards deteriorated dramatically. This deterioration culminated in a "final warning" that was issued in March of 2001. The employer contended that the final warning operated indefinitely despite the NUW claiming that the warning would be valid for only twelve months. 13 There were no significant recorded issues regarding the applicant's workplace conduct between March of 2001, up until the events that started with the statement that he made during the "Tool Box Meeting" held on 30 June 2004.

THE EVIDENCE 14 There was a significant amount of evidence provided in this matter and much of it was unnecessary and irrelevant. The evidence of the applicant's employment history was verified by documentary material which was generally not capable of contest. The events that surrounded the dismissal of the applicant were also not matters involving significant factual contest. Although there existed differences in recollection about the detail of words that were said or not said during some of the events including and following the "Tool Box Meeting" of 30 June 2004, these matters were generally inconsequential. The primary determination of the unfair dismissal claim could be made upon the broadly consistent chronology of relevant events without the need for settlement of the minor points of detail that represented contest in the evidence. 15 The applicant and three other witnesses were called to provide evidence in support of the claim. The employer called a total of seven witnesses including the three female employees that had been offended by the applicant's comments made at the "Tool Box Meeting" on 30 June. In the absence of any requirement to settle questions of important factual conflict there is no need to provide any detailed analysis of the performance and conduct of the various witnesses. However two particular witnesses should be mentioned. 16 Firstly, one of the three female employees that had made complaint about the applicant was Susan Tyson. Ms Tyson particularly impressed as a genuine, honest and open witness. She provided evidence in a very believable manner. Importantly, her evidence was most particularly striking in respect to the sincere and profound offence that she had taken from the remarks made by the applicant at the "Tool Box Meeting" on 30 June 2004. Ms Tyson was a gentle individual who had been subjected to unjustified, unwarranted and deeply hurtful remarks made by the applicant. 17 The employer's General Manager, Mr Michael Hawes was also a witness of noteworthy credit. Mr Hawes impressed me as an articulate, intelligent and reasonable individual. Mr Hawes provided evidence which revealed a commendable application of balance and reason in respect to the discharge of his functions as the employer's General Manager.

THE CASE FOR THE APPLICANT 18 Mr A Joseph, a barrister, appeared for the NUW and the applicant. Mr Joseph commenced his submissions by outlining the employment history of the applicant. Mr Joseph highlighted that the applicant had been employed for some twelve and a half years and that the final warning that had been issued to the applicant pre-dated his dismissal by more than three years. 19 Mr Joseph noted the broad consistency in the evidence about important matters relating to the events that commenced towards the end of the "Tool Box Meeting" on 30 June, and culminated in the applicant being dismissed on 7 July. Mr Joseph said that the employer had at an early stage of the identification of the disagreement that arose from the applicant's statement made at the "Tool Box Meeting", adopted an approach that was not aimed at any resolution of the matters in contest. Mr Joseph submitted that the employer had approached the matter with an intention of taking punitive measures against the applicant, rather than seeking to resolve the workplace conflict. 20 Mr Joseph further submitted that the applicant had been dismissed on the basis that the employer considered that his actions had amounted to serious and wilful misconduct. Mr Joseph submitted that an obligation fell upon the employer to properly establish that the applicant was guilty of serious and wilful misconduct, even though in this instance the applicant had been dismissed with notice, as opposed to summary dismissal. 21 Mr Joseph submitted that comments made by the applicant about women being at home looking after kids must be considered in the context that the employer's representative had invited comments at the end of the "Tool Box Meeting". Mr Joseph said that the applicant had made the remark in order to "kick off a discussion" and therefore although the remarks may have been inappropriate, the employer could not make out a case that the remarks represented serious and wilful misconduct in the context that they were made. Mr Joseph said that the applicant was seeking to raise legitimate workplace issues, albeit in a clumsy way.

22 Mr Joseph said that the applicant's conduct could not be considered to be victimisation of the women complainants, because victimisation would generally involve a conscious, deliberate and repeated campaign with some sinister nature attached. Mr Joseph said that the applicant's conduct was only a single act and could not be construed to have involved a conscious, deliberate campaign aimed at harassment of the three female complainants. Mr Joseph said that the action was more appropriately described as an indiscretion, therefore the punishment of dismissal far outweighed the crime. 23 Mr Joseph made submissions regarding the employer's alleged reliance upon the final written warning issued to the applicant over three years earlier. Mr Joseph said that it was unreasonable for an employer to have an indefinite operation to a final written warning. Mr Joseph said that the employer's attempted reliance upon the final written warning was invalid. 24 Mr Joseph submitted that the employer had provided far more lenient treatment to the applicant's Supervisor, Mr Wong, who was present during the "Tool Box Meeting" and who had initially made comment which seemed to support the statement made by the applicant. Mr Joseph said that there was an imbalance between the treatment of the applicant and the treatment that Mr Wong received for his role in respect to the argument that erupted after the applicant made the statement about women being at home looking after the kids. 25 Mr Joseph made further submissions which asked the Commission to recognise the lengthy service of the applicant and his age, as being matters which would contribute to the harshness of the decision to dismiss. Mr Joseph then urged the Commission to provide remedy by way of reinstatement of the applicant, together with Orders for back pay and continuity of service. In this respect Mr Joseph made extensive submissions regarding the question of any impracticality for reinstatement. Mr Joseph stressed that reinstatement was the primary remedy and was earnestly sought by the applicant in this instance.

THE CASE FOR THE EMPLOYER 26 The employer was represented by Mr J Fernan, a barrister. Mr Fernan commenced his submissions by indicating that it was important to understand that the most important aspect of the basis for the applicant's dismissal involved the applicant's refusal to acknowledge his own bad behaviour arising from his statement made during the "Tool Box Meeting" on 30 June. Mr Fernan said that the Commission should have regard for the principle of a fair-go all around as established in Lotty's case. 27 Mr Fernan made submissions about the responsibilities of the employer in respect to all of its employees and in particular, he made reference to obligations arising under the Occupational Health and Safety Act, and the Anti Discrimination Act. Mr Fernan submitted that the actions of the applicant were such that the employer was required to protect its other employees from the actions of the applicant which intended to intimidate, annoy and offend. Mr Fernan described the applicant's actions as a totally inappropriate, unwarranted and deliberate insult made directly at three female staff members. 28 Mr Fernan then made further extensive submissions which recounted the process that the employer initiated after being advised of the complaints made by the three female employees. Mr Fernan referred again to Lotty's case and said that this Judgment established that a fair-go all round was not just for employees, but also a fair-go all round for the employer. 29 Mr Fernan made further extensive submissions about the employment history of the applicant. Mr Fernan submitted that the employment history of the applicant when considered in total, established that the applicant participated in a repeated course of conduct that ultimately the employer could no longer tolerate. 30 Mr Fernan stressed that the absence of remorse on the part of the applicant was an important aspect that underpinned the decision to dismiss. In this respect Mr Fernan submitted that the applicant, even when giving his evidence in February, had not retracted from the conduct that had initiated the argument and then subsequently led to his dismissal. Mr Fernan submitted that the applicant simply had no recognition for women's legitimate rights in the workplace. 31 Mr Fernan also stressed that the applicant had called the employer's representative, Mr Powell, "a low life" during the meeting held on 6 July at which time the NUW official, Mr Hansen was present. Mr Fernan was critical of the role that Mr Hansen played, particularly during the meeting of 6 July. Mr Fernan submitted that Mr Hansen had attempted to trivialise the applicant's misconduct and acted in a way which exacerbated the difficulties that had arisen since the applicant had made the unfortunate statements about the role of women in the workplace. 32 Mr Fernan strongly urged the Commission to find that the employer had not acted unfairly in dismissing the applicant. Mr Fernan said that the employer had acted only after it had carefully considered the initial comments made by the applicant during the "Tool Box Meeting", and the subsequent conduct of both the applicant, and his NUW representatives. Mr Fernan submitted that the employer also had regard for the applicant's previous employment record and that it had arrived at a fair and reasonable decision to dismiss the applicant. 33 Mr Fernan made further alternative submissions which contemplated the prospect that the applicant may succeed in respect to any primary determination. In this regard Mr Fernan submitted that there was significant impracticality in respect to reinstatement, and urged that if the Commission was disposed to find in favour of the applicant, that the only appropriate outcome would involve monetary compensation as opposed to any form of reinstatement or re-employment. Mr Fernan returned to his primary submissions and urged the Commission to dismiss the application.

CONSIDERATION 34 The applicant appeared to believe that he was dismissed because he expressed a particular view about the role of women in the workplace. The applicant protested at what he perceived to be an injustice in being dismissed because he held a "politically incorrect" view about the role of women at work. 35 However an analysis of the totality of the evidence reveals that the applicant's dismissal was not related to the issue of his personal beliefs and his right to maintain those views, but instead, the expression of his beliefs in a manner that created conflict in the workplace. 36 The applicant has the undeniable right to hold personal views about all range of matters including the role of women in the workplace. To all rights attach responsibilities. The right to free speech is contingent upon the responsibility to express in a manner acceptable to community standards. The right to free speech does not entitle anyone to express their opinions in a manner which would, on any reasonable and objective assessment, be likely to cause offence or insult another person. The observance of this responsibility is particularly important in the workplace.

37 There is little doubt that the applicant's comments made at the "Tool Box Meeting" would cause offence and insult for the women that were present at that time. The offence and insult arises from the inference that women who work are failing in their parental responsibilities. The applicant is entitled to hold whatever gender discriminatory views he likes but making such comments in the workplace is not only unlawful but represents misconduct.

38 Sadly, even when giving evidence in these proceedings, the applicant could not understand the hurt that women, particularly single mothers, might naturally feel when a comment is made such as "Women should be home looking after the kids". The manner and context in which the applicant expressed these sentiments would, on any reasonable estimation, insult and offend others, and create significant workplace conflict. 39 Further it is important to consider that the applicant's conduct after making his regrettable remarks was anything but conciliatory. Instead he inflamed and exacerbated the workplace conflict that the employer was trying to resolve. For instance, it is informative to note the applicant's own evidence about his approach to a meeting that was held later on 30 June as an initial attempt to have the complaints of the women resolved. The following testimony provided by the applicant during cross-examination about his participation in that meeting is indicative of the applicant's uncooperative approach: "Q. What I'd suggest, sir is that whilst Mr Evans and the women indicated that they would be positive your response wasn't as such you're trying to resolve the matter? A. At that point, sir, I only stated opinion. I didn't think I had anything to apologise for". Transcript of proceedings (28/02/05) @ pages 24-25. 40 On 6 July the applicant had been suspended from duty on full pay and attended a meeting that involved NUW representatives including Mr Borg Hansen. At this time, the applicant again displayed no contrition for his actions, nor did he act in any way that might assist the resolution of the dilemma that he had caused the employer. The applicant's approach to the meeting of 6 July is reflected by the following extract from transcript: "Q. You certainly didn't go along to the meeting on 6 July with any intention of apologising to these three women at that stage, did you? A. On 6 July, sir, I don't think I owed the women an opinion - in my opinion I didn't think I owed the women an apology.

Q. But you went there with your union organiser, your union delegate and that's the view that you expressed at the meeting that you didn't think that you owed these women any apology? A. As I say again, sir, I expressed that I was entitled to an opinion and I said an opinion." Transcript of proceedings (28/02/05) @ page 47. 41 It was not surprising that the applicant adopted an uncooperative approach because his position was broadly supported by his NUW representative, Mr Borg Hansen. It was highly regrettable that Mr Hansen provided evidence that he stated at the meeting that; "Wayne's comments could not cause injury to anyone" Exhibit 5 @ paragraph 2. and that he believed that "...the women overreacted...". Transcript of proceedings (01/03/05) @ page 35. This overt support for the applicant's conduct not only failed to assist in any resolution of the conflict, it appeared to lead to an exacerbation such that the applicant was prompted to commit further acts of misconduct, including calling the employer's representative a "low life". 42 Mr Hansen provided the following evidence about the applicant's further inflammatory misconduct in respect of the "low life" insult: "Q. Also in that meeting, Mr Powell said words to the effect to yourself, "I'm really surprised that you'd make that comment, Borg, and you ought to take a look at yourself. I understand you're trying to trivialise this situation. This is on the back of Wayne's previous final warning that is still in place". A. Yes, I'm sure Mr Powell did say words to that effect. Q. Thank you. Then Mr Khan intervened, I suggest, in an angry tone of voice and referred to - used the words "low life"? A. Yes. Q. Was that directed to Mr Powell? A. Yes, it was. Q. By Mr Khan? A. Yes." Transcript of proceedings (01/03/05) @ page 32. 43 At this point, on July 6, the applicant's employment circumstances were going from bad to worse. The applicant had incited workplace conflict with his remarks on 30 June, he refused to show any contrition in respect to the conflict that he had created, and then on 6 July, in a Meeting involving his NUW representatives, he had referred to the employer's representative as a "low life". In many respects this action in these circumstances, would have constituted gross and wilful misconduct sufficient to justify summary dismissal. To its credit, the employer did not hastily react to the "low life" insult, but instead carefully evaluated what would have appeared as the rapidly deteriorating circumstances involving compounding incidents of misconduct on the part of the applicant. 44 The employer took time to evaluate the circumstances and was entitled to have regard for the employment record of the applicant. Ordinarily, it would seem unreasonable for an employer to rely upon a final warning that would have an indefinite operation. The employer did place some reliance upon the final warning of three years earlier. However, in large part that warning simply completed the picture of the applicant's regrettable employment record in more recent years. 45 The evidence established that the employer's decision to dismiss was based upon the combination of; (a) the applicant's employment record including a final warning of over 3 years earlier; (b) the misconduct of and following 30 June, particularly associated with the absence of contrition for the conflict that was created by inappropriate remarks made at the "Tool Box Meeting"; and (c) further misconduct regarding the aggression and hostility towards the employer exampled by the "low life" comment. The employer also had regard for the length of service of the applicant and his general competence. Careful, balanced consideration of all of these issues would have provided understandable, indeed compelling basis to take the decision to dismiss.

CONCLUSIONS 46 This case has involved a dismissal after a long period of service. Regrettably the latter years of the applicant's employment have been marked by incidents of inappropriate behaviour. The applicant's less than exemplary work record was a factor that appropriately contributed to the substantive basis for the applicant's dismissal.

47 The applicant mistakenly believed that he had been dismissed for expressing a "politically incorrect" opinion. The right of the applicant to hold personal views is undeniable. However, the applicant expressed his views in a manner which would, on any reasonable expectation, cause insult and offence to other employees, in particular, women. The applicant then displayed no contrition for his actions, nor did he show any preparedness to assist in the resolution of the workplace conflict that he had created. 48 Unfortunately the involvement of the applicant's Union did not assist in the resolution of the workplace conflict and the issues were exacerbated. Regrettably the applicant actually committed further misconduct which in large part, would have provided justification for summary dismissal. 49 Rather than react in a hasty or ill conceived way, the employer adopted a careful and highly commendable evaluation of the circumstances. The employer assessed the applicant's misconduct having regard for various factors including the applicant's poor employment record balanced against his long service and general competence. 50 The evidence established that there was valid substantive basis for the employer's decision to dismiss. Further the employer provided proper process to allow for the applicant to make out a defence, offer explanation or in any other way assist in maintaining his employment.

51 Consequently the dismissal of the applicant was not harsh, unreasonable or unjust. The applicant's claim for unfair dismissal is accordingly dismissed. Proceedings in these matters are concluded.

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