Fair Work Commission|2013-09-10

The Applicant was counselled by Mr Lee Tregenza, Group Leader, about the incident at

about 12.30pm on 12 February 2013 as a result of him being contacted about the

Applicant making an inappropriate comment over the two way radio system.

of the Incident and directed that an investigation be conducted.

On 15 February 2013, the Applicant was asked to provide a written statement. The

[3] The Applicant asserts that the context of the remarks he made and the intent of the remarks, were not malicious nor with the aim to be offensive. Rather he says the purpose of the conversation was to endeavour to contact a person that could assist in concerns he had about his mother's welfare. The Applicant's mother had been subjected to some abuse, including racial abuse, on the weekend prior to the Applicant's remarks being made.

[4] The Applicant's case is essentially that whilst the conduct did occur in the context there were some mitigating factors giving rise to the conduct, which together with the Applicant's length of service make the termination of his employment harsh. The Applicant's representative summarises "this matter is concerned with the question of what was an appropriate penalty to be applied."

[5] I agree with the Applicant that there are mitigating circumstances in regards to his conduct. The Applicant's mother would be a senior and she lives in the township of Pinjarra. It is understandable that the Applicant would have been upset about the abuse his mother was confronted with. It is also understandable that the Applicant would have been anxious to try and ensure that his mother was not confronted again in that manner.

[6] I accept that a purpose of the Applicant's conduct was to contact a person who had some influence with aboriginal youths in the area and who may assist in ensuring the Applicant's mother was not confronted again.

[7] However, I do not accept that that was the sole purpose of the Applicant's conduct and comments on the two-way radio. It seems to me that part of the reason for the Applicant's comments were to vent his anger and displeasure at the incident involving his mother. It is difficult to see any other reason for some of the comments unless it was an even more serious act involving more intentional vilification.

[8] Clearly if the true and sole intent of the Applicant was to contact a person to assist in preventing further abuse to his mother there were alternative actions that could have and should have been taken which did not involve bringing the issue to work and breaching standards set by the employer in such a public way.

[9] I find therefore that there was a valid reason for the termination of the Applicant's employment. In isolation and not taking into account at this juncture other matters which I will address below, termination of employment was not in my view a disproportionate penalty. The comments made were not some mere slip of the tongue but rather deliberate, overt and highly offensive. Moreover the Applicant had been educated in Pinjarra and was aware of racial tensions and history and would clearly have known the offense the comments would cause. The comments were made over a public two-way radio and not in some private conversation between two people where a careless lapse in expression occurred.

[10] The Applicant was notified of the reason for his dismissal and he was given more than one opportunity to respond and not unreasonably refused permission to have a support person present in discussions relating to the dismissal.

[11] The Respondent is a sizeable employer and the procedures followed are what one would expect from an employer of such size. The employer had dedicated human resource management specialists who were involved in the procedures leading up to and including the dismissal.

[12] Other matters that are relevant in considering whether the termination was harsh unjust or unreasonable include the length of the Applicant's service and the impact it will have on him. The importance of the Respondent's policies and their application in a fair and consistent way are also relevant considerations.

[13] The Applicant has been employed by the Respondent if not all, almost all of his working life. I give significant weight to the length of the Applicant's service but it does not override all other elements to be considered. Similarly, the termination of his employment will have significant impact on the Applicant but that is not an overriding factor that makes the termination harsh unjust or unreasonable. The Applicant was contrite for his actions and honest and open in the investigation and discussions with the Respondent.

[14] The Respondent has gone to some lengths to train its workforce in cultural awareness. It also has a reputation for its efforts in the community in indigenous affairs. The Respondent has a right to expect compliance with its polices including compliance with the spirit and intent of its policies particularly here where awareness of sensitivities are important. The breach here goes against the very essence of what the Respondent expects of its employees.

[15] I consider my role to be to ensure that the Respondent has given the Applicant notification of the complaint they have against him, given him proper opportunity to respond and explain or dispute circumstances surrounding the conduct and given proper consideration to all elements that it should reasonably be expected to consider in arriving at a decision. It is not my role to replace the Respondent's decision with my own, rather it is my role to assess on an objective basis whether the Respondent's decision was harsh unjust or unreasonable.

[16] An objective assessment of the gravity of the conduct the nature of the procedures adopted by the Respondent before making a decision and all the considerations taken into account by the Respondent including length of service and effect on the Applicant does not cause me to regard the dismissal as being harsh, unjust or unreasonable.

[17] I do not consider the dismissal of the Applicant was harsh unjust or unreasonable. I find that the Applicant was not unfairly dismissed.

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MacQuarrie v Alcoa of Australia Limited [2013] FWC 6813 (10 September 2013)

MacQuarrie v Alcoa of Australia Limited [2013] FWC 6813

At a glance

Court

Decision date

Source

Judgment (22 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)

MacQuarrie v Alcoa of Australia Limited [2013] FWC 6813 (10 September 2013)