Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - verbal and physical altercation between plumbers - employer unable to reconcile versions of events - summary dismissal of both employees - undisclosed recording of altercation - audio admitted into evidence - Commission finding of serious misconduct - valid reason for dismissal - opportunity to explain - dismissal not harsh, unjust or unreasonable - application dismissed

[1] The reader of this decision is cautioned that it includes foul language drawn from the evidence.

[2] On 1 June 2017 Justin Simounds (Mr Simounds) applied to the Fair Work Commission (Commission) under section 394 of the Fair Work Act 2009 (FW Act) for a remedy in respect of his summary dismissal for gross misconduct on 25 May by Aus Water & Gas Pty Ltd trading as Streamline Plumbing (Streamline). Until dismissed, Mr Simounds had been employed by Streamline as a roofing plumber (employed as a casual but working full time).

[3] On 20 June Streamline filed a response to the application. It opposed the claim.

[4] On 21 June the Commission made attempts to conciliate, but the matter remained unresolved.

[5] The matter was initially allocated to Commissioner Hampton for hearing and determination. At a directions conference the employer asserted that Mr Simounds had named the wrong respondent (albeit the correct ABN number) and sought the application be dismissed on that ground. Mr Simounds applied to amend the name of the employer in his application. That was opposed. A hearing of the preliminary matter was held. On 25 August Commissioner Hampton decided that the Commission had the power to grant the application to amend, and that the correct name of the respondent (Aus Water & Gas Pty Ltd) should be substituted.[1]

[6] The matter was reallocated to me for hearing and determination of the merits.

[7] A hearing was conducted in Adelaide on 5 and 6 October. At the conclusion of the hearing I reserved my decision.

[8] Both Mr Simounds and Streamline were granted permission under section 596 of the FW Act to be legally represented.[2]

[9] Mr Simounds's application was lodged within the statutory period required from when his dismissal took effect (21 days).

[10] It was common ground that Mr Simounds was an employee protected from unfair dismissal within the meaning of section 382 of the FW Act. It was also common ground that Mr Simounds was dismissed; that his dismissal was not governed by the Small Business Fair Dismissal Code; and that his dismissal did not concern a claim of genuine redundancy. On each of these points I am satisfied this is the correct position. In these circumstances, Mr Simounds's dismissal can only be an unfair dismissal within the meaning of section 385 of the FW Act if it is found to have been harsh, unjust or unreasonable.

[11] Mr Simounds denies any misconduct let alone gross misconduct. He says that he was the victim of an unprovoked verbal assault by another employee (Adrian Thornton), and then the victim of a physical assault in which a hammer was pressed against his throat and thrown at him. He says his response was in self-defence. He says he was not fighting, but attacked.

[12] Mr Simounds further contends that he was denied procedural fairness in the employer's investigation of the matter (in that the employer did not test his version of events); in the employer's decision-making (in that the employer sacked both employees because it could not decide who to believe); and in the communication of his dismissal (because his work vehicle was repossessed before he was dismissed and because his dismissal letter was sent to the wrong address).

[13] He claims that his dismissal was harsh, unjust or unreasonable, and seeks an order for compensation, an apology and a non-disparagement undertaking.

[14] Streamline contended that its decision to dismiss was appropriate because Mr Simounds engaged in a brief but violent fight with Mr Thornton whilst at work on 11 May. It says that fighting on the job was a fundamental breach of obligation as an employee and was a well-established ground for summary dismissal under both company policy and at law.

[15] It also says that foul and abusive language used by Mr Simounds to Mr Thornton in the lead-up, during and after the fight was misconduct, contrary to his obligations as an employee.

[16] The employer further contended that it applied a fair procedure because, whilst it is not a sophisticated employer and does not have a human resource capability, it suspended both employees and investigated the incident to the best of its ability. It says it was hamstrung in the investigation by the disparate versions of events and the fact that the fight was witnessed by no-one. When it could not determine which employee's version to believe, it sacked both of on the known facts because they had both been involved in and responsible for a violent fight, contrary to policy.

[17] It says there was no unfairness in repossessing the company motor vehicle, and it was Mr Simounds who was uncooperative when that occurred. It accepts that it posted a letter of dismissal to the wrong address, resulting in Mr Simounds being told by the employer on 25 May that he had been dismissed in correspondence sent (but not received) approximately one week earlier. It says this does not make the dismissal unfair, as it altered nothing and caused no prejudice.

[18] It opposes any remedy and (in a statement of position advised in consequence of directions issued by Commissioner Hampton[3]) it invites the Commission to order that Mr Simounds be responsible for its costs of representation in the matter.

[19] Mr Simounds was the only witness to give evidence in support of his case. His evidence was focussed on the 11 May incident and his subsequent conduct in dealing with the employer, the police and seeking medical attention.

[20] Mr Simounds also sought to tender into evidence a sound recording of the incident which he had secretly recorded on his phone. Neither the fact of the recording nor the content of the recording was disclosed to the employer during its investigation and prior to the decision to dismiss because Mr Simounds said the SD (memory) disc had been corrupted and he had not, at that stage, recovered the audio content. It was only in this litigation that the employer was provided the audio and what is said to be a written record of the audio.

[21] At the hearing, the employer contended that the recording was unlawfully made under the provisions of the Listening and Surveillance Devices Act 1972 (SA). The employer did not oppose the recording being admitted into evidence but warned that evidence of it could disclose a criminal offence (and that a warning against self-incrimination should be administered to Mr Simounds); that the audio was of poor quality and not reliable; and that a written record of the recording made by Mr Simounds (at JS4 of his witness statement) was not wholly accurate and included commentary about actions which the audio recording did not disclose.

[22] In addition, the employer pointed to the fact that Mr Simounds had the benefit of accessing the audio recording and listening to it when preparing his witness statement and preparing his oral evidence. It pointed out that Mr Thornton had not and did not, until he was being cross examined in the witness box, know of or hear the recording. It further contended that Mr Simounds had kept the recording secret from the employer during the investigation, denying the employer knowledge of a material fact. It submitted that the Commission, now armed with the recording, is in a better position than the employer was to determine what occurred on 11 May.

[23] In reply, counsel for Mr Simounds (and Mr Simounds in his evidence[4]) indicated that the audio was only able to be recovered seven or eight weeks after 11 May (and well after the dismissal) by using file recovery software. Counsel advised that Mr Simounds had been informed about self-incrimination prior to giving evidence[5] but that he considered the recording was made for the protection of his "lawful interests" and accordingly it was not unlawful as it fell within an exclusion in section 7(1)(a) of the Listening and Surveillance Devices Act 1972 (SA).[6]

[24] On 5 October I made a decision on transcript[7] to the effect that I would admit both the recording (as Exhibit A5) and Mr Simounds purported written record of the recording (JS4) into evidence on the grounds that they were relevant, would assist fact-finding and that the witnesses could be cross examined on them. I indicated that I would attach whatever weight appropriate once all the evidence was in. While it is not the Commission's role to determine whether a breach or prima facie breach of State law occurred when the recording was made, I indicated that Mr Simounds should give his evidence with a caution against self-incrimination. In addition to the intimation given by his counsel on that matter, in the course of his evidence I also cautioned Mr Simounds. His response was that he saw no reason to restrict his evidence about the recording or his decision to make it.[8]

[25] Four witnesses gave evidence in support of the employer's case. Three were current employees Mr Derrick Watson (Operations Manager); Mr Stephen Forrest (Plumbing and Gas Works Supervisor) and Mr Dale Saunders (Roofing Supervisor). At the employer's request, I also issued a subpoena on Mr Adrian Thornton to appear. Mr Thornton, who is now elsewhere employed, appeared in answer to the subpoena.

[26] 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 the Full Bench of this Commission which recently 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."[9]

[27] Some of the oral evidence and evidence in witness statements was hearsay, opinion and assumption. I place reduced levels of weight on such evidence except where it is corroborated by direct evidence, is uncontested or is inherently believable.

[28] I determine this matter on the basis of all the evidence and submissions before me. Although the audio recording (A5) is of poor quality and in some respects difficult to make out, it broadly correlates to the transcription submitted by Mr Simounds in JS4. I do not however consider the audio persuasive in forming a view about the 'action' descriptions interposed by Mr Simounds in JS4. Whether those actions occurred and (if so) in what sequence or context are matters I determine based on the oral evidence of the witnesses and the evidence (including the audio) as a whole.

[29] Each of the witnesses submitted statements in advance accompanied by relevant documents. I had the benefit of observing each on oath in the witness box when answering direct questions, from counsel as well as myself. As there were no independent witnesses to the fight between Mr Simounds and Mr Thornton on 11 May, issues of credit are important in the determination of this matter.

[30] Mr Simounds gave evidence confidently albeit somewhat combatively under cross examination. I found his grasp of detail selective and his evidence generalised when convenient to his case.

[31] Mr Watson was the principal company witness. He was both the investigator and the decision maker. He gave his evidence clearly and without embellishment. It was reliable.

[32] Mr Forrest's evidence largely related to his presence in meetings during the investigation, his role in reducing into writing the versions given by the protagonists, and his presence with Mr Watson when the company motor vehicle was repossessed. Although his evidence was calmly and honestly given his recall was not as precise as Mr Watsons.

[33] Mr Saunders had little involvement in the events leading up to the dismissal. His evidence largely concerned background material, such as the working relationship between Mr Simounds and the company and its employees, and company policies concerning expected norms of conduct by plumbers and other tradespeople.

[34] Mr Thornton gave his evidence confidently. He did not have the benefit of listening to the audio of the fight prior to being cross examined. His witness statement and evidence in chief was based on an unrehearsed recall unprompted by documents or audio. Although I found him to be a confident witness he too had the tendency to underplay his conduct; for example, his evidence about his arms remaining by his side during the verbal abuse that preceded the physical altercation was not convincing. As noted later in this decision, I find on the balance of probabilities that he was waving his arms in close proximity to Mr Simounds face and that in one hand he was holding the hammer he had been working with. His recall was also deficient in at least one other respect. For example, he acknowledged that he swore at Mr Simounds but did not use the c-word. Only after having his memory refreshed by the audio in cross examination did he acknowledge that he had done so.

[35] Aside from these matters, overall I found Mr Thornton to be a more reliable witness with a more credible version of events. I treat Mr Simounds evidence with greater caution for reasons which include:

• Mr Simounds downplayed his conduct in order to present himself as a victim of an unprovoked verbal and physical assault; for example, he claimed that he was only "a little bit upset"[10] during the 11 May incident and "wasn't really angry"[11] when clearly this was not the case. He also downplayed the foulness of his language saying he did not particularly think it to be inappropriate in the circumstances[12];

• in circumstances where Mr Simounds had access to the audio tape (A5) in advance of the hearing (and listened to the tape on prior occasions) and then prepared the JS4 transcript I find it unusual that some differences exist between the record of the narrative he prepared in JS4 and his own witness statement[13];

• Mr Simounds evidence that Mr Thornton had a claw hammer in his hand on 11 May. He was certain of this[14]. This was not the evidence of Mr Thornton. He says he was using a dolly hammer in preparing the job, which is smaller and compact[15]. I have no hesitation in preferring Mr Thornton's evidence on this point. He knew what he was working on before the altercation occurred and he was confident in this evidence. He knew his tools. Mr Simounds assertion is either evidence of his lack of recall or an attempt to exaggerate the object he claims was thrown at him;

• Mr Simounds varied evidence about whether he was hit in the head by the hammer. He variously claims that he was hit in the head[16], did not know if he was hit in the head[17] and decided he must have been hit in the head after the event when either in his car or at home looking in the mirror[18]. While it is possible that he did not know that he was hit by the hammer if, during the fight, his hand was over the hammer head (as he claims) his evidence of being struck by Mr Thornton's swinging arm holding the hammer[19] is not convincing;

• Mr Simounds evidence that he told Mr Watson on 16 or 17 May that he had recorded the incident but Mr Watson was uninterested.[20] This was denied by Mr Watson[21]. I do not consider it credible that Mr Watson was or would have been uninterested in an audio having been made (even if at that time it was not recovered), given the decision-making dilemma he faced. I do not accept Mr Simounds evidence on this point;

• Mr Simonds evidence[22] that he was harassed and threatened by Mr Watson and Mr Forrest when they attended his home to repossess the company motor vehicle. This was denied by Mr Watson and Mr Forrest[23]. Mr Simounds evidence on this is unconvincing;

• Mr Simmonds inconsistent evidence about why he recorded the events of 11 May. On one hand his evidence was that he wanted to secure evidence of the verbal abuse he was expecting.[24] On the other had he says "there wasn't anything particular" which prompted him to record the event.[25]

[36] Where there are differences of versions between Mr Simounds and Mr Thornton I consider Mr Thornton's evidence to be more reliable, other than in the two areas mentioned above. Mr Thornton's evidence was less reconstructed and less generalised.

[37] I consider the direct evidence of the company witnesses to be reliable within the bounds of their recall. Except where I expressly find otherwise, Mr Watson's evidence is preferred to Mr Simounds evidence where there is an inconsistency.

[38] Mr Simounds is a 46 year old roofing plumber. He has worked in this trade for most of his adult life, other than a short period in the retail industry. Mr Simounds job as a roofing plumber with Streamline required him to attend private domestic residences and undertake repair and maintenance work on location. Work was allocated in advance to the plumbers by administrative staff. Mostly, the plumbers worked alone. Occasionally, where the job required, they worked in pairs or multiples.

[39] The employer in this matter is a labour hire company which subcontracts its employees to an associated entity, Streamline Plumbing (SA) Pty Ltd. It employs approximately 56 employees. Streamline Plumbing (SA) Pty Ltd performs residential maintenance on private homes in the Adelaide metropolitan area for clients, primarily Housing SA. To do this work, Aus Water & Gas Pty Ltd employs tradespeople including roofing plumbers. It employed Mr Simounds in October 2016.

[40] Mr Simounds reported to the Roofing Supervisor, Dale Saunders. Mr Saunders reported to the Operations Manager (and working director), Derrick Watson.

[41] Although with some experience in the trade, Mr Simounds had only worked for Streamline for seven months. There were longer serving employees, including Mr Thornton (who had worked with the employer for two years) and was highly regarded as one of the most capable and productive roofing plumbers.[26] In practice, he was Mr Saunders 2IC.[27]

[42] Mr Saunders evidence was that Mr Simounds produced reasonable quality work but was often late to work and slow at completing jobs.[28] Mr Watson's evidence[29] was that he took no particular issue with Mr Simounds work apart from it being slow, but believed that another manager (Mr Baum, who was not called to give evidence) had informally counselled Mr Simounds. Mr Simounds denied this. As Mr Simounds was dismissed on conduct not performance grounds I do not need to determine these matters. It is sufficient to find that Mr Simounds work was not regarded as highly as Mr Thornton's but he had not been formally warned or counselled in his seven months with the company.

[43] More relevant however is the relationship between Mr Thornton and Mr Simounds. They had previously worked together on two or three occasions. In the early weeks of Mr Simounds employment Mr Thornton had formed a poor view of Mr Simounds work ethic from working with him[30] and also from chatter amongst other roofing plumbers. He had informed Mr Saunders of his opinion[31] although Mr Saunders did not consider that they had particular issues between them[32] and that the initial tension between them had abated.[33] On the last occasion they worked together (prior to 11 May) Mr Simounds evidence[34] (which I accept) was that they got on without difficulty or incident.

[44] For his part, Mr Simounds had formed a negative view of Mr Thornton. He considered him to be rude, bossy and on occasions abusive. He didn't like taking instructions from Mr Thornton. He claims[35] that on more than one occasion he raised his concerns with Mr Saunders who told him that Mr Watson deals with such matters. He says he followed it up in a brief conversation with Mr Watson but Mr Watson did not take it further.[36] Mr Watson denies this.[37] I find that a brief informal discussion between Mr Watson and Mr Simounds had in all probability occurred but that Mr Simmonds did not follow it up because he did not believe that Mr Watson would act against Mr Thornton. I make this finding on the basis that this was the position acknowledged by both Mr Watson and Mr Simounds on this topic during the investigation interview.[38]

[45] Mr Simounds and Mr Thornton were rostered to work together on a job at a private residence in Thebarton on 11 May. The job note on the company's internal electronic system (used by tradesmen) indicated that this was a job Mr Simounds had previously worked on, but now needed to be completed with the assistance of a second person.[39]

[46] The work was due to commence at 8.00am and Mr Thornton was on site working towards the backyard end of the drive on a guttering box placed on a trestle (horse). Mr Simounds arrived about 8.15am and parked in the driveway behind Mr Thornton's car. He unloaded his tools and put his tool belt on. In the normal course he would set up at the horse immediately alongside Mr Thornton and they would work jointly on the job. That is what he planned to do. As Mr Simounds walked towards Mr Thornton a heated verbal argument ensued.

[47] Two relevant events occurred prior to the verbal argument: two phone calls between Mr Simounds and Mr Thornton in the preceding half hour; and Mr Simounds decision to secretly audio record their working together.

[48] The context for the argument was that at about 7.45am that morning Mr Thornton, already working on site, received a telephone call from Mr Simounds. Mr Simounds could not recall the job or the location and had called a supplier to see if he had to pick up roofing materials for the job. The supplier told him it had no materials for the job. Mr Simounds called Mr Thornton and asked if materials were on site. Mr Thornton said he didn't know. Mr Simounds decided to divert to the supplier. On the way Mr Thornton phoned him back and told Mr Simounds that he had looked around the property, that the materials were already there and that a check of the electronic job notes indicated that Mr Simounds had already worked on the job. His tone was critical and he called him a "dickhead". Mr Simounds said he couldn't remember having previously worked on the job. Mr Simounds then diverted back to the site, arriving 15 minutes late.

[49] Having been criticised moments earlier in a way that he considered abusive, as Mr Simounds arrived at site he decided to secretly audio record what was about to occur. His evidence[40] was that he expected a verbal argument and wanted to record it as evidence of Mr Thornton's abuse which he could then submit to Mr Saunders or Mr Watson to support his earlier concerns.

[50] To Mr Thornton, the calls that morning, the late arrival and Mr Simounds lack of knowledge about a job he himself had worked on reinforced his predisposed view that Mr Simounds was disorganised.

[51] The verbal argument started with Mr Thornton telling Mr Simounds that he was disorganised, "needing to get his shit together" and a "dickhead". Although the early part of the verbal argument is inaudible on (A5) it concludes as follows:

Simounds: you've got a problem with me hey mate? Ever since I started

Simounds: ever since I've started you've been 'you don't know what's going on with this job'. Ever since I started you've like copped an attitude with me, talk to me like shit. So pull your head in mate"

[52] The verbal argument lasted 21 seconds (audio 2.12 to 2.33). The evidence was inconclusive whether it started some metres away from the workstation (horse). It was not contested that it concluded at the workstation with both a few centimetres away from each other.

[53] What happened in the next 10 seconds (audio 2.33 to 2.43) determined the employment fate of both men. It was a short but intense fight.

[54] Having regard to my findings about credit what happened is as follows. I make these findings not on a mere balance of probabilities but according to a higher level of satisfaction as set out in Briginshaw v Briginshaw.[41]

[55] Mr Thornton was holding a dolly hammer in one hand. Although he claimed his arms were by his side during the verbal argument, I have found that this was not the case, and that in the heat of the verbal argument he was waving his arms and hence waving the hammer in the proximity of Mr Simounds face. He was not shaping to strike Mr Simounds but the hammer was being waved because his hands were moving.

[56] I accept that Mr Simounds felt threatened but I do not accept his evidence that Mr Thornton then came at him and pressed the hammer to his throat and then struck him on the head with the hammer and then motioned again to strike him. Rather I accept Mr Thornton's version that Mr Simounds grabbed Mr Thornton's hand in an attempt to get hold of the hammer and after a brief struggle prised the hammer from Mr Thornton's hand and then threw the hammer away. As he threw the hammer Mr Thornton pushed Mr Simounds vigorously in the chest. Mr Thornton believed that the hammer had been thrown at him. While I accept that the hammer was thrown towards him (causing him to put up his hand and grazing his thumb from the pointed end of the dolly hammer) I do not find that Mr Simounds intended to hit Mr Thornton with the thrown hammer (any more than I find that Mr Thornton intended to hit Mr Simounds when it was being waved). The hammer landed in a garden bed alongside the drive.

[57] The audio (A5) shows that this physical struggle was accompanied by foul verbal language.

[58] In the 30 seconds after the physical fight (audio 2.43 to 3.13) the verbal altercation continued as follows:

Simounds: you just fuckn nearly hit me in the head with it

Thornton: you just fuckn threw it at me you fuckn piece of shit

[59] The final part of that exchange is a reference to the fact that Mr Thornton had by then taken hold of his phone and started calling the company office to report what had occurred.

[60] Mr Thornton spoke by telephone to Mr Forrest and subsequently Mr Watson. He told Mr Forrest that he had just had a hammer thrown at him.[42] Mr Watson's evidence was that he was told the same by Mr Thornton - a hammer had been thrown at him.[43] Mr Thornton attended the company office and agreed to accompany Mr Watson to the site so Mr Watson could inspect the location.

[61] Mr Simounds left the site. He did not go the company office. He went home. He noticed he had a cut lip and, when looking in the mirror, a bruise of some sort on the side of his face. He went to the police and reported the incident. He went to a doctor and was checked. He left a message for Mr Watson and they spoke by phone at about 10am. Mr Simounds told Mr Watson that Mr Thornton had attacked him with a hammer. Mr Watson had two further telephone interactions with Mr Simounds later that afternoon. In the first Mr Watson asked for medical information about Mr Simounds condition. In the second Mr Simounds texted that his doctors had said there was no concussion. He forwarded medical reports which indicated he had an injury to his face but scans were clear.

[62] Mr Watson then decided that both men would be stood down on full pay pending a formal investigation. He advised of that the following morning and made arrangements for each to come in for a formal interview over the following days.

[63] Mr Thornton was interviewed on the afternoon of 12 May by Mr Watson in the presence of Mr Forrest; Mr Simounds on 15 May. A written note was typed by Mr Forrest of both interviews from handwritten notes (Thornton interview notes were typed contemporaneously; Simounds interview notes were not).

[64] At the interviews, as recorded in Mr Forrest's notes (which I consider reliable) each gave to Mr Watson their conflicting versions of events, largely in line with the versions they gave in their evidence to the Commission.

[65] The purpose of the interviews was fact finding; an opportunity for Mr Watson to hear what each said had occurred. Each was given an opportunity to attend with a support person. Mr Simounds attended with a CFMEU organiser (Mr Penny) as a support. Although Mr Watson and Mr Forrest asked a few questions of Mr Simounds, it was largely a conversation based on his dialogue. At the conclusion Mr Watson told Mr Simounds that there were conflicting versions of events and he would further consider the company response, and until then the suspension continued.

[66] As noted earlier in this decision, Mr Simounds chose to not tell Mr Watson during this interview that he had audio recorded the incident. His evidence[44] was that he discussed with Mr Penny prior to the interview the option of telling but they jointly decided not to mention it as the recording had not yet been recovered.

[67] In the lead up to the interviews Mr Watson had attended the site and also sought guidance from two government agencies (WorkSafe SA and the Fair Work Ombusdsman). In the late afternoon of 16 May (the day following the interview with Mr Simounds) and into the fifth day of the suspension Mr Watson considered that he had to make a decision.

[68] The decision was his, but that afternoon he informally discussed it in the office with other management including Mr Forrest. He then took his own counsel, reviewed his notes and decided that he would dismiss both employees. His evidence was as follows:

"My decision was primarily based on the need to consider the safety of the other employees working in the business. I also felt I could no longer trust either employee to work autonomously in a safe manner pursuant to our Safety Policy and Conduct Policy and in compliance with other statutory requirements."[45]

[69] He told Mr Forrest of his decision the next morning.

[70] On 17 May Mr Watson tried to set up face to face (separate) meetings with both men to advise of his decision. He was able to contact Mr Thornton who attended in person later that day. Mr Thornton was told he was dismissed; indeed, that they were both dismissed. Mr Thornton was upset but left without incident.

[71] Mr Watson was not however able to reach Mr Simounds by phone that day. After taking advice from his employer organisation (Master Plumbers Association) he decided to draft a formal letter on 17 May to Mr Simounds in the following terms:

I am writing to you about the termination of your employment with Aus Water and Gas. I am sending you this letter as I have been unsuccessful in my attempts to contact you. Your termination notice is immediate as of 17/05/2017. You are being terminated due to gross misconduct. Specifically, aggression and violence on site at 1/48 Ballantyne Street Thebarton on 11/05/2017 at approximately 8.15am. These acts are in direct violation of company policy and the Work Health and Safety Act 2012 (SA).

[72] The letter was sent by registered post. Concerned that Mr Simounds still had a company vehicle Mr Watson decided to travel unannounced to Mr Simounds home (with Mr Forrest) to collect the car and arrange a time for Mr Simounds to come into the office to be told of the decision.

[73] They arrived at Mr Simounds house around midday. He was home but was awoken. It took approximately two hours for the car to be repossessed. It is not relevant to make specific findings about who was difficult or obstructive at that time other than my earlier finding that Mr Simounds evidence on this was unconvincing. What is relevant is that Mr Simounds asked Mr Watson about the outcome of the investigation and Mr Watson indicated that a decision had been made and would be formally advised at a meeting in the company office.

[74] A few days later when Mr Simounds had not heard further he requested a meeting which was arranged for 25 May. As it transpired, Mr Watson had addressed the termination letter to the wrong suburb resulting in it not being received by Mr Simounds until well after 25 May. Hence, it was at the meeting on 25 May that Mr Simounds was first advised by his employer that he had been terminated, notwithstanding that the decision had been made a week earlier. In advance of the meeting, Mr Watson had (wrongly) assumed that Mr Simounds had received the letter.

[75] Mr Simounds again attended the 25 May meeting with Mr Penny as his support person. It was a short meeting. Mr Watson advised that Mr Simounds was dismissed for gross misconduct and referenced the incident. Mr Simounds questioned the basis for the decision given there were no witnesses. Only a brief discussion ensued. He asked if further medical reports could be submitted but Mr Watson made it clear that a decision had been made. Mr Simounds queried his final pay and the meeting ended.

[76] In considering whether Mr Simounds's dismissal was harsh, unjust or unreasonable, the Commission must take into account the criteria set out in section 387 of the FW Act:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant."

[77] The ambit of the conduct which may fall within the phrase 'harsh, unjust or unreasonable' was explained in Byrne v Australian Airlines Ltd [46] as follows:

"It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."

[78] I am under a duty to consider each of the criteria in section 387 of the FW Act,[47] and now do so.

[79] An employer must have a valid reason for the dismissal of an employee. It is the Commission's task to determine if a valid reason existed. The reason(s) should be "sound, defensible and well founded"[48] and should not be "capricious, fanciful, spiteful or prejudiced."[49] Where a dismissal is for misconduct, the test is whether the conduct occurred on the balance of probabilities.[50] Except where the Small Business Fair Dismissal Code applies, the test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. The Commission must make a finding as to whether the conduct occurred based on the evidence before it.[51]

[80] Further, not all misconduct or breaches of policy constitute a valid reason for dismissal. All relevant circumstances must be considered including the nature of the breach (or breaches), the extent to which an employee knew or could reasonably have known of the policy (or policies), and any extenuating or mitigating circumstances.

[81] Streamline considered Mr Simounds's conduct to be gross misconduct.

[82] I agree. Mr Simounds did not start the verbal altercation but when it started he gave as good as he got, although at that early stage not in as foul terms. Mr Thornton had reason to be critical of Mr Simounds for his lack of awareness about the job but in being critical in abusive and foul terms he (Mr Thornton) was out of order even taking into account the culture amongst construction workers.

[83] Mr Simounds was not hesitant about participating in the altercation. While he did not go looking to make trouble he was prepared for it, anticipated it and was a willing participant to it. Before walking down the driveway he knew he would record a likely verbal altercation involving himself and he wanted to get a record of it to implicate Mr Thornton. He had no intention of walking away from the argument even if it was to become heated. He was then willing, in the heat of the moment, to ramp it up by telling Mr Thornton to "fuckn pull your head in mate" in response to Mr Thornton telling him to do so.

[84] I accept that Mr Simounds had reasonable grounds to take exception to the hammer been waved in the vicinity of his face. Nonetheless, in the heat of the moment he chose not to walk away or defuse the situation. He made the first physical contact by grabbing Mr Thornton's hand which was holding the hammer[52]. I accept this was partly in self-defence[53] but it was also an escalation. Having done that, it was inevitable a struggle would ensue. It was during that brief struggle that Mr Simounds, in all probability incurred the injury to his face. His strength (having earlier told Mr Saunders he was a trained Muay Thai kickboxer[54]) allowed him to prise the hammer out of Mr Thornton's hand. As he (Mr Simounds) was pushed in the chest he threw the hammer in Mr Thornton's direction, forcing Mr Thornton to use his hands to protect himself and grazing his thumb as the hammer flew past. The hammer was thrown at Mr Thornton. It flew past but missed him as Mr Thornton took evasive action and possibly because Mr Simonds had just been pushed in the chest sending him off balance. The act of throwing the hammer was dangerous and presented a clear risk of injury.

[85] When making findings on the different versions of who threw the hammer, I consider it significant to note that in the verbal argument immediately following the physical altercation Mr Thornton abusively shouted at Mr Simounds that he (Mr Simounds) had just thrown a hammer at him. This was clearly what Mr Thornton believed had just happened seconds prior, and his evidence on this was consistent both in the immediate calls he made to the company office, in the face to face information he provided the company that day and the next, and in his evidence to the Commission.

[86] I do not draw a negative inference against Mr Simounds for not reporting the matter immediately or going straight to the company office. Albeit a protagonist, he was shaken (as was Mr Thornton) and his first interest was his own wellbeing. Although it might have appeared to Mr Watson that he was evasive in not being able to be easily contacted that day, they did speak twice (and once by text) and Mr Simounds was having himself medically checked out.

[87] I do not need to determine whether the language used by Mr Simounds on 11 May was, in isolation, gross misconduct. I consider that his conduct during the incident as a whole, including both the fighting and the verbal argument before and after to be gross misconduct.

[88] Aside from whether it was a breach of the employer's Conduct Policy (which prohibited fighting) or statutory health and safety laws, in the circumstances it was conduct fundamentally at odds with the duties of an employee. It warranted summary dismissal.

[89] That it occurred on the private residential property of a client within earshot of neighbours simply exacerbates the misconduct. I do not discount the seriousness of the fight by reference to the culture amongst construction workers. If this matter was about language alone, that would be a relevant consideration. However this matter involved the foulest of language accompanied by a willingness to engage (and record) a heated argument and engage in an intense physical fight in which the applicant threw a hammer he felt threatened by in a dangerous manner in the direction of another worker.

[90] While Mr Thornton's actions are relevant, I do not determine this matter by deciding who was the most culpable. I determine this matter by assessing whether Mr Simounds committed an act of gross misconduct justifying summary dismissal. Mr Simounds was not a victim in the sense that he was just getting on with his job and was assaulted unprovoked. He engaged in behaviour which was serious and he played an active part in allowing that behaviour to occur and in escalating it.

[91] There was a valid basis for summary dismissal.

[92] Having regard to all of the above considerations, I conclude that Streamline had a valid reason for dismissal within the meaning of section 387(a) of the FW Act.

[93] In reaching this conclusion I have also had regard to the fact that section 387(a) makes specific reference to the effect of conduct on "the safety and welfare of other employees". For reasons outlined, I have concluded that the conduct of both protagonists compromised the welfare of each other and their right to work in a safe environment free of risk to health and wellbeing, and that it created a prospective risk to the health and safety of other employees with whom they may have subsequently worked alongside and had an altercation with.

Notification of the valid reason - section 387(b)

[94] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made.[55] In Crozier v Palazzo Corporation Pty Ltd[56] a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:

"As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted."[57]

[95] Mr Simounds was notified of the reason for his dismissal at the dismissal interview with Mr Watson on 25 May and in the dismissal letter (which he belatedly received on 19 June). Even though he disagreed with the decision, he was under no misapprehension as to why he was dismissed.

[96] I am satisfied that Mr Simounds was notified of a valid reason for dismissal.

Opportunity to respond - section 387(c)

[97] An employee protected from unfair dismissal must be provided with an opportunity to respond to a reason for dismissal if it relates to their conduct or capacity. This criterion is to be applied in a common-sense way to ensure the employee is treated fairly and should not be burdened with formality.[58]

[98] Mr Simounds was notified of the allegations being made against him when he spoke to Mr Watson and suspended on 11 and 12 May. He knew Mr Thornton was saying that he (Mr Simounds) threw a hammer at him in a fight at the location. He was told at the investigation interview on 15 May that Mr Thornton had a different version of events.

[99] Mr Simounds was given a full opportunity to respond to the allegations throughout the course of the investigation. Mr Simounds availed himself of those opportunities. He supplied Mr Watson with medical reports, and later a WorkCover certificate. He elected, for the reasons outlined in this decision, to withhold from Mr Watson the fact that he had decided to take a recording of the incident prior to the incident occurring. This was a material fact because whilst the audio was (at that time) not available to him, the fact that the recording was made placed into a particular context Mr Simounds claim that he was an unprepared victim of an unprovoked attack.

[100] Counsel for Mr Simounds contended that Mr Watson just took Mr Simounds version but did not test it. I do not accept this. On 15 May Mr Watson (and Mr Forrest) did not conduct a cross examination of Mr Simounds on his version because they were receiving his version. In the following 24 hours Mr Watson weighed the versions he had received and drew his conclusions (including the conclusion that neither could be reliably adopted, in his view). While he could have called in Mr Simounds (or Mr Thornton, or both) for another interview, he was under no obligation to do so given that he believed he had grounds to dismiss both.

Unreasonable refusal by the employer to allow a support person - section 387(d)

[101] There is no evidence before me to suggest that Streamline unreasonably refused to allow Mr Simounds a support person at discussions relating to his conduct and dismissal. Mr Simounds secured the assistance of Mr Penny at the interviews on 15 May and 25 May.

Warnings regarding unsatisfactory performance - section 387(e)

[102] Mr Simounds was not dismissed for unsatisfactory work performance. His dismissal was conduct related, not capacity related.

[103] There were no formal prior counselling or warnings on Mr Simound's seven month work record. I find that Mr Simounds's dismissal was based on the 11 May incident, and not prior conduct or performance.

Impact of the size of the Respondent on procedures followed - section 387(f)

[104] Streamline is a small business (about 56 employees) but not so small that its dismissal is governed by the Small Business Fair Dismissal Code. It has a thin management structure and some managers (for example, Mr Saunders) are themselves tradespersons. It is well enough structured to have formal policies concerning employee conduct and behaviour. I do not consider the size of the employer to either accentuate or diminish its capacity to have conducted an investigation into the incident of 11 May, or to have communicated knowledge of company policies to its employees.

Absence of dedicated human resources management specialist/expertise on procedures followed - section 387(g)

[105] As an employer of relatively small size, Streamline does not have a dedicated and specialist human resources management capability. Its management are not specialists or expert in human resource or industrial issues. One of Mr Watson's immediate responses on 11 May was to seek advice from government agencies with more expertise in these matters. He also subsequently sought and obtained the assistance of an employer organisation.

[106] The absence of a dedicated human resource capacity or industrial specialists on staff does not obviate the need for an employer to act fairly in investigating claims of misconduct, and in reaching and communicating a fair decision to dismiss. It may however explain why certain procedures were or were not adopted.

[107] In the circumstances of this matter, Mr Watson conducted the investigation and made the decision to dismiss. He was a senior manager. He did not deflect the matter to lower level managers nor did he unreasonably rush or delay his decision. He kept handwritten notes of his engagement with the protagonists, and from at least on the afternoon of 11 May recognised just how serious the incident had been. He suspended both, allowing a calmer and lower risk environment for investigation and decision making. He gave full opportunity for the different versions of events to be presented to him, with a witness present as note-taker and with an employee support person. He did not shy away from making a decision with the best information he could muster. I conclude that the procedures he followed were reasonable having regard to the nature of the employer and the absence of independent witnesses to the incident.

[108] The decision to send a letter of termination with a wrongly marked address was acknowledged by Mr Watson as an error on the part of the company. It had the unfortunate effect that for a week Mr Watson was operating on a belief that Mr Simounds knew his fate when in fact he did not. It was not however an error that caused particular prejudice to Mr Simounds or coloured the decision to dismiss.

[109] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. While it was common ground that Mr Simounds was given an opportunity to respond, counsel for Mr Simounds submitted that the decision to dismiss lacked procedural fairness in that Mr Watson sacked both Mr Thornton and Mr Simounds in circumstances where he did not make a finding about what had occurred because he did not know who to believe.

[110] In other words, it was contended that the decision to dismiss was unfair because the employer did not make a call on what exactly happened because to do that it had to decide whose version to believe.

[111] I do not accept this contention.

[112] Firstly, it misunderstands the role of the Commission. I am not reviewing the employer's decision in the sense of inquiring into whether the employer had reasonable grounds to make the decision it did. I am required to determine whether there was a valid reason for dismissal based on the evidence before me.[59] As said in Yew v ACI Glass Packaging Pty Ltd (which was also a case of a workplace assault not independently witnessed):

"[The Court] is concerned to ascertain whether there was a valid reason for the conclusion that the employee's employment should be terminated. The Court does this for itself, and on the basis of the evidence of the primary facts placed before it."[60]

[113] This is a particularly relevant distinction in a case involving summary dismissal for gross misconduct. It is my responsibility to examine the evidence and make findings of fact, irrespective of whether the employer did so. In any event, I am in a superior position to that confronted by Mr Watson in that (a) I have had both Mr Simounds and Mr Thornton giving their versions in a witness box under oath; and (b) I have access to the audio recording (which Mr Watson did not) and which, despite its shortcomings, has been relevant and useful evidence in making my findings.

[114] Secondly, it fails to accurately represent the basis for the employer's decision. Mr Watson did draw some conclusions (albeit limited and general) because some facts were common to both versions. His letter of dismissal makes reference to them.

[115] Mr Simounds's dismissal was not harsh, unjust or unreasonable. As there was no unfair dismissal, I am not required to consider the question of remedy.

[116] I dismiss the application. An Order to this end is being issued in conjunction with this decision.

Ms L. Harrison, with permission, for the Applicant.

Mr R. Manuel, with permission, for the Respondent.

[1] Simounds v Streamline Plumbing trading as Streamline Plumbing [2017] FWC 4366, 25 August 2017 Hampton C

[2] Directions, Commissioner Hampton, 3 July 2017

[3] Aus Water & Gas Statement of Position, Derrick Watson (undated) but lodged with the Commission 18 July 2017

[6] Section 7(1)(a) provides as follows: "Section 4 does not apply to or in relation to the use of a listening device by a person (including a person to whom a warrant is issued under this Act) if that listening device is used (a) to overhear, record, monitor or listen to any private conversation to which that person is a party; and (b) in the course of duty of that person, in the public interest or for the protection of the lawful interests of that person."

[9] Pearse v Viva Energy Refining Pty Ltd [2017] FWCFB 4701 at [14]. See also section 591 of the FW Act and King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, 17 March 2000) Print S4213 at [61] - [62]; Enterprise Flexibility Agreement Test Case (Print M0464) at page 13; Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 at 509

[13] For example, paragraph 71 of Mr Simounds witness statement (A2) claims that Mr Thornton said words to the effect "it's like that is it?" whereas these words are not found in the JS4 narrative

[23] Watson evidence PN1417-1425; Forrest evidence PN1365-1635-1636

[24] Simounds evidence PN287 and PN623-624

[27] Saunders evidence PN 1747; see also Forrest evidence PN1639-1641

[28] R6 Statement of Dale Saunders at paragraph 6

[32] R6 Statement of Dale Saunders at paragraph 8

[35] A2 Statement of Justin Simounds at paragraphs 23-32

[36] A2 Statement of Justin Simounds at paragraphs 33, 129-132 and PN288

[37] R1 Statement of Derrick Watson at paragraphs 19-21

[38] A2 Statement of Justin Simounds at paragraphs 129-132; see also evidence of Forrest PN1600-1601

[41] [1938] HCA 34; (1938) 60 CLR 336

[42] Forrest evidence PN 1655-1657 and PN 1665, PN 1684

[43] R1 Statement of Derrick Watson at paragraph 24 and PN1407

[45] R1 Statement of Derrick Watson at paragraph 53

[46] [1995] HCA 24; (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ

[47] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498

[50] Edwards v Guidice [1999] FCA 1836; (1999) 94 FCR 561 [6]-[7]

[51] King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 [24

[52] Thornton evidence PN1071-1073; Simounds evidence PN635

[55] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

[56] (2000) 98 IR 137

[58] RMIT v Asher (2010) 194 IR 1, 14-15

[59] Edwards v Guidice [1999] FCA 1836; (1999) 94 FCR 561 at [6] per Moore J: "Paragraph (a) speaks of "whether there was a valid reason ... related to the ... conduct of the employee". The paragraph requires consideration of the validity of the reason when the reason is, relevantly, based on conduct of the employee. It is, in my opinion, difficult to avoid the conclusion that the Commission is obliged in such circumstances to investigate in the inquiry process contemplated by s 170CG(3) whether the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed."

[60] (1996) 71 IR 201

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