Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - allegation of horse-play by spray painter - reckless indifference to safety of others - serious and wilful misconduct - valid reason for dismissal - imminent plant closure - employee ineligible for redundancy due to dismissal - dismissal not harsh, unjust or unreasonable - application dismissed

[1] On 27 June 2017 Leith Graham (Mr Graham) 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 serious and wilful misconduct on 7 June by Walker Australia Pty Ltd trading as Tenneco (Tenneco). Until dismissed, Mr Graham had been employed by Tenneco for over 18 years. At the time of dismissal he was a Paintline Operator in the Adelaide factory. He claims that his dismissal was harsh, unjust or unreasonable, and seeks an order for reinstatement or, as a less preferred alternative, compensation.

[2] On 7 July Tenneco filed a response to the application. It opposed the claim. It contended that its decision to dismiss was proportionate and appropriate taking into account Mr Graham's conduct, past conduct, and all of the circumstances.

[3] On 24 July the Commission made attempts to conciliate, but the matter remained unresolved.

[4] A hearing was conducted in Adelaide on 25 and 26 September. At the conclusion of the hearing I reserved my decision.

[5] The employer in this matter, Tenneco, manufactures motor vehicle exhaust systems. As a consequence of the close down of the automotive assembly industry in Australia, Tenneco intends to cease operations at its Adelaide plant in February 2018. An unusual feature of this case is that the hearing was conducted in the shadow of the employer having already commenced a process of shutdown. The evidence was that Tenneco will stop serving customers on 6 October 2017 and thereafter factory workers will be made redundant. The job performed by Mr Graham will no longer exist from 6 October.[1] In light of Mr Graham seeking reinstatement, I have delivered this decision shortly after the hearing and prior to 6 October so that the full range of options are available to me should I find that his dismissal was harsh, unjust or unreasonable.

[6] Prior to the hearing, both Mr Graham and Tenneco sought permission under section 596 of the FW Act to be legally represented. Having regard to the volume of projected oral evidence and documentary material to be relied upon, on 19 September I determined that legal representation by both parties would assist the efficient conduct of proceedings. I granted permission on that basis.

[7] Mr Graham's application was lodged against three named respondents: Monroe Springs (Australia) Pty Ltd, Monroe Australia Pty Ltd and Walker Australia Pty Ltd. The employer raised a jurisdictional issue claiming that Mr Graham was not and had never been an employee of Monroe Springs (Australia) Pty Ltd or Monroe Australia Pty Ltd. At a directions hearing on 3 August, by consent, I granted permission to Mr Graham to amend his application by striking out the names and ABNs of Monroe Springs (Australia) Pty Ltd and Monroe Australia Pty Ltd. Walker Australia Pty Ltd trading as Tenneco remained the respondent in this matter.

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

[9] It was common ground that Mr Graham was an employee protected from unfair dismissal within the meaning of section 382 of the FW Act. It was also common ground that Mr Graham 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 Graham'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.

[10] Mr Graham's job as a Paintline Operator required him to spray paint exhaust systems. He was one of the more experienced operators, having performed that work for about eight years. Tenneco dismissed Mr Graham for serious and wilful misconduct. It alleged that on 11 May he had engaged in 'horse-play' contrary to company policy and safety obligations. After investigation, it concluded that he had intentionally sprayed an unsuspecting employee (Mr Parker) with paint, hitting that employee on the back of his neck and on his back.

[11] Mr Graham case is that the incident was an accident. He says he was testing a paint gun because a faulty gun had moments before been replaced by the gun he used. He says there was no valid reason for dismissal because his conduct was not intentional and the employer was wrong in concluding that he engaged in horse-play.

[12] He says he was denied procedural fairness during the investigation because the employer relied on allegations of previous incidents of paint being sprayed on employees which were never put to him and which were not investigated at the time.

[13] He says that the dismissal was unreasonable and unjust because, even if his conduct was careless (which he denies), it was not serious enough to warrant summary dismissal.

[14] He says that the dismissal was harsh because the financial consequences of being dismissed months prior to the plant closedown are extreme given that he misses out on a substantial redundancy payment being made available to employees.

[15] Tenneco dismissed Mr Graham for serious and wilful misconduct. After investigation, it was satisfied that he engaged in horse-play contrary to company policy and safety obligations in that he intentionally sprayed Mr Parker with paint, striking him from the rear on his neck and back.

[16] Tenneco reject the suggestion that Mr Graham was denied procedural fairness. It says that the incident was investigated in accordance with the company's Counselling and Disciplinary Procedure. A recommendation for dismissal was made by the investigating officer (Mr Medhurst) after speaking to all parties, including Mr Graham. Mr Graham was suspended on full pay pending his right under company policy to appeal. An appeal submission was made by Mr Graham. The Human Resources Director Ms Jackson concluded no new evidence emerged and upheld the decision to dismiss.

[17] Tenneco oppose an order for reinstatement. It says reinstatement will be impossible after 6 October in that the job performed by Mr Graham will no longer exist. It says reinstatement prior to 6 October would be pointless given the imminent factory closedown. It says the employee's misconduct has eroded trust and confidence needed to re-establish an employment relationship. It says the prospect of a redundancy payment had nothing to do with the decision to dismiss and is irrelevant to the merits and to remedy.

[18] This matter largely turns on findings of fact concerning the events in and around the spray paint booth on 11 May.

[19] Mr Graham was the only witness to give evidence in support of his case. His evidence was relatively brief and focussed on the 11 May incident.

[20] Nine witnesses gave evidence in support of the employer's case. They were Mr Medhurst (Human Resources Manager and investigator who recommended dismissal); Mr Parker (Maintenance Department Fabricator who was struck with paint on 11 May); Mr Heath (Operations Manager); Mr Lee (Supervisor); Mr Thomas (Health and Safety Coordinator); Mr Freer (Team Leader); Mr Butterfield (General Maintenance Worker); Mr Buchanan (Metrologist) and Mr Kohl (Quality Inspector).

[21] I consider the direct evidence of each of the company witnesses to be reliable within the bounds of their recall. Where inconsistent with the evidence of Mr Graham, I prefer it. I found Mr Graham to be vague and somewhat evasive on key aspects of his evidence about the 11 May incident.

[22] Ms Jackson, the Human Resources Director and ultimate decision-maker to dismiss Mr Graham, was not called to give evidence. Counsel for Mr Graham submitted that I should draw an adverse inference (of the Jones v Dunkel[2] kind) against the employer's evidence. I decline to do so. Insofar as her role is relevant, there is direct evidence before me, including the evidence of the other witnesses (including Mr Medhurst who made a recommendation to Ms Jackson) for me to determine this matter without drawing such inferences. Ultimately I have to determine whether the conduct for which Mr Graham was dismissed occurred, and whether it was conduct that constituted a valid reason warranting summary dismissal. Whilst evidence of the state of mind of the decision-maker is relevant, I am not determining the matter on that basis.

[23] Counsel for Mr Graham also asked me to place reduced weight on Mr Parker's evidence because he was agitated after being struck by paint, suggesting this emotion clouded his recollection of events. I do not accept this submission. Mr Parker gave evidence in a firm but calm manner. He had clear and believable recall. There is nothing before me to suggest that his recall was distorted by his angry reaction to having been struck.

[24] 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."[3]

[25] 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.

[26] I determine this matter on the basis of all the evidence and submissions before me.

[27] The geography of the spray paint booth is relevant to this matter.[4] The booth is an elevated platform of about 5 metres by 3 metres. It is an open design, only partially enclosed. There is a solid western wall. There is a solid eastern wall but the eastern side is only partially enclosed by this wall. The remainder of the eastern edge is open into the factory. Entry is via the northern edge via three metal steps. The north of the booth is open apart from metal railings. The elevated floor is steel mesh with water running below to capture and absorb paint particles. In the booth is a washing bowl towards the south western corner and a stool-type desk against the eastern wall.

[28] Vehicle exhaust systems requiring painting enter the booth from the south east corner hanging from an overhead conveyor. An operator stands facing south about arms-length from the manufactured object and paints it with a spray gun which he or she fully controls. At the southern end of the booth beyond the painted object is a water wall (a wall with cascading water). Paint from the spray gun that does not attach to the object being painted is intended to hit or be absorbed into the water wall, and removed from the atmosphere.

[29] On the factory floor at ground level outside the eastern boundary of the booth are wheeled metal containers (tote bins) into which a (different) employee places an object (a bung) that is removed from the manufactured exhaust prior to it being painted.

[30] Paintline operators working in the booth rotate approximately each 30 minutes. At around 12 noon on 11 May Mr Graham entered the booth. Mr Butterfield a maintenance employee was in the booth. Mr Butterfield had just replaced the booth's faulty spray gun with a working gun. He had connected the working gun to paint and compressed air lines. He had satisfied himself that the air and paint were connected. He left the gun on the eastern stool-type desk for the operator. He did not adjust or calibrate the gun to a desired level of spray or thickness of paint as this is done by each operator.

[31] On entering the booth Mr Graham and Mr Butterfield had a very brief conversation in which Mr Graham light-heartedly suggested to Mr Butterfield that he adjust the settings but Mr Butterfield, equally light-heartedly, declined as he was not skilled in that task.

[32] The events of the next thirty seconds to one minute are central to this matter.

[33] Mr Graham says that he decided to test whether paint was flowing and the level of paint thickness before testing the spray formation. He switched the air supply (which atomises paint into spray) to a low setting (but not off) to have paint shoot out in a jet-like stream. He says that he would normally do this test against the firm eastern wall because doing it against the water wall or through the mesh floor would not give a clear indication of paint thickness as the paint would be quickly absorbed. However, he says that on this day Mr Butterfied was still standing alongside the eastern wall and it was not an option to test paint there as it would have probably bounced off the wall onto Mr Butterfield. He says he saw Mr Parker a couple of metres away on the factory floor to his left. He says he decided to test the gun into open factory air through the gap in the eastern wall towards the upper south east of the booth. He was expecting the paint to hit the upper reaches of the eastern end of the water wall. Having calibrated the compressed air to low settings Mr Graham pulled the trigger. Moments later he saw and heard Mr Parker yelling and gesticulating to him from the northern stairs.

[34] Mr Butterfield did not see Mr Graham fire the gun. He says he had moved away from the eastern wall when Mr Graham entered the booth and calibrated the gun. He was at the washing bowl largely facing away from Mr Graham at the time of the incident.

[35] Mr Parker was struck with a direct hit from the paint gun. He was struck to the exposed back of his neck and paint also struck the back of his fluorescent jacket. He did not see Mr Graham shoot the gun as he had his back to the direction the paint came from. He says he was standing about four metres away on the factory floor to the north east of the paint booth. He says he was moving some of the metal containers into that location for collection.

[36] Upon being struck, Mr Parker says he turned around and saw an operator rapidly move back behind the eastern wall. He did not see the face of the operator, only the rapid movement of part of his body. He then instantly moved about three or four metres to the steps and saw that the operator was Mr Graham. He saw Mr Graham furiously adjusting the settings of the gun.[5] He yelled at Mr Graham and was gesticulating towards the paint on his neck and back. He said words to the effect "if you need to be adjusting the fucking gun, do it against the water wall". He walked away angry, reported the incident and cleaned up.

[37] I accept the evidence of Mr Parker in preference to the evidence of Mr Graham, and I prefer the evidence of Mr Butterfield to the evidence of Mr Graham. I find that when Mr Graham shot the gun, it was more probable than not that Mr Butterfield had moved across to the washing bowl, not alongside the eastern wall. I therefore find that Mr Graham could have tested the gun against the eastern wall (whilst this was the past practice of Mr Graham, it is not the accepted company practice; the company requires paint to be tested or sprayed into water, either the water wall or into water through the mesh floor, not into a hard surface).

[38] I also find that when Mr Parker was struck he was at the position he identified in Exhibit R7 and Exhibit ABP-2, that is, about four metres away from where Mr Graham shot the gun and, importantly, at approximately a 45 degree angle to the rear of Mr Graham's left shoulder had Mr Graham been facing the water wall.

[39] Tenneco's Human Resources Manager Mr Medhurst commenced an investigation into the incident that afternoon after Mr Parker, in an agitated state, reported the incident to managers in the production office and to Mr Medhurst by text message. Mr Parker left Mr Medhurst and the managers in no doubt that he considered the conduct intentional:

"Hi mate. I've just been deliberately sprayed with paint to the back of the head and shirt by Leith Graham...I'm not happy at all..."[6]

"...I felt as though I had just been assaulted and threatened by his actions..."[7]

[40] Mr Medhurst received a completed statement from Mr Parker four days later, on 15 May. He interviewed Mr Graham on 16 May, with Mr Heath present. Mr Medhurst did not accept Mr Graham's explanation that Mr Parker was struck by accident. He suggested to Mr Graham that paint would not travel four metres nor to the position Mr Parker was standing without there being intent. Mr Medhurst says that Mr Graham then said words to the effect "good luck proving it was not an accident".[8] Mr Graham, in cross examination, denied saying this.[9] I do not accept that denial. Mr Medhurst's evidence was corroborated by Mr Heath.[10]

[41] Mr Medhurst told Mr Graham that he considered the conduct intentional and characterised it as horse-play. He said he would recommend his dismissal. He advised him of his right under company policy to appeal against the recommendation, and that he would be suspended on full pay pending a final decision. Mr Graham indicated that he would appeal.

[42] One further matter emerged during the investigation. On 12 May Mr Medhurst was informed by another manager, Mr Mansuri, that two employees had informed him that in March 2017 that they had paint unexpectedly appear on the back of their jackets and hi-vis vests. Mr Mansuri took statements from those employees (Mr Buchanan and Mr Kohl) in which Mr Kohl surmised that the paint came from the paint line, and Mr Buchanan said that Mr Graham was working at the time on the paint line.

[43] These issues were not investigated at the time. However, Mr Medhurst considered this relevant new information. He put the allegations to Mr Graham when they met on 16 May. Mr Graham said that no previous complaint had been made about the March allegations.

[44] The person who decided the sanction imposed on Mr Graham was Ms Jackson, Tenneco's Human Resources Director. Ms Jackson had before her the recommendation of Mr Medhurst and Mr Graham's material in support of his appeal. Mr Graham's appeal was in the form of a letter from his solicitors dated 23 May. His solicitors asserted that the incident of 11 May was an accident. They also pointed out that none of the allegations about the March incidents had been the subject of a complaint or put to Mr Graham.[11]

[45] Mr Medhurst discussed the appeal material with Ms Jackson. He did not consider that any new matters had been raised by Mr Graham to alter his recommendation. Ms Jackson agreed with Mr Medhurst. By letter dated 7 June 2017 Ms Jackson wrote to Mr Graham advising him that he was dismissed for serious and wilful misconduct, adding further "your actions amount to horse-play and are unacceptable and in breach of the terms of your employment contract".[12]

[46] Mr Graham was summarily dismissed that day. He was not permitted back on site.

[47] In considering whether Mr Graham'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."

[48] The ambit of the conduct which may fall within the phrase 'harsh, unjust or unreasonable' was explained in Byrne v Australian Airlines Ltd [13] 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."

[49] I am under a duty to consider each of the criteria in section 387 of the FW Act,[14] and now do so.

[50] 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"[15] and should not be "capricious, fanciful, spiteful or prejudiced."[16] Where a dismissal is for misconduct, the test is whether the conduct occurred on the balance of probabilities.[17] 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.[18]

[51] 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.

[52] Tenneco considered Mr Graham's conduct to be in breach of company policy and directives against horse-play, against acceptable operating practice when performing spray painting duties and contrary to safety obligations.

[53] It is not in dispute that paint from the paint gun Mr Graham was using struck Mr Parker. Mr Graham accepted that paint was shot from the gun when he pulled the trigger and that he was in control of the gun. However, he claims that it was accidental.

[54] Having preferred the evidence of Mr Parker and Mr Butterfield to that of Mr Graham, I find that Mr Graham was walking alongside the forward left hand (eastern) corner of the booth when he pressed the trigger, with Mr Butterfield at the wash basin and Mr Parker about four metres away at a 45 degree angle to the rear of Mr Graham's left shoulder, and with his back to him.

[55] Mr Graham claimed in examination in chief that the gun malfunctioned.[19] This was also expressed by Mr Graham in his appeal letter to Ms Jackson as follows: "in testing the item as a result of a malfunction and/or inadvertent change of the valve settings, or the valve being incorrectly set, what normally amounted to a light spray became a solid hose like spray of paint."[20]

[56] I do not accept this explanation. Mr Graham's own evidence was that he recalibrated the settings. It was not an inadvertent recalibration. His evidence was that he deliberately lowered the settings and air compressor to create a jet like stream. He intended a jet like stream or thick mist, not a spray.[21] There was nothing inadvertent in the type of paint flow that came out of the gun. Mr Graham was an experienced operator. He knew what his recalibration was likely to produce. He led no evidence about the nature of the malfunction he asserted other than to speculate about the gun needle.[22] Nor did he take any action on 11 May after he struck Mr Parker to have the gun (or its needle) further inspected, repaired or replaced. Had he actually believed at the time that the equipment was defective or had malfunctioned this would have been the responsible course of action. Rather, he furiously readjusted the settings immediately after striking Mr Parker. This suggests that it was his error or intent, not equipment malfunction that caused the strike.

[57] Having regard to the position Mr Graham and Mr Parker were located at the time of the incident it is quite possible, indeed likely, that Mr Graham intended to strike Mr Parker, despite his denial. Mr Parker was not situated between Mr Graham and the upper level of the water wall or above it where Mr Graham says he was aiming.[23] He was to the left hand rear, at a 45 degree angle leading into the heart of the factory.

[58] However, to assess whether a valid reason for dismissal existed in this matter I do not need to determine intent because I find without any reasonable doubt that on 11 May Mr Graham was recklessly indifferent in the way he used the gun and pulled the trigger to test the flow of paint. In answer to my questions, Mr Graham's evidence was that he was pointing the gun into "nothing" and into "open space."[24] That open space was an enclosed factory space in which employees were present and working. Given that Mr Graham also gave evidence that he was looking at the nozzle of the gun when he pressed the trigger[25], I find that he was at the very least reckless to the likelihood that fellow employees would be struck with paint by knowingly firing into open space.

[59] Mr Graham's actions immediately after knowing he struck Mr Parker are not consistent with a mere accident. I have noted that he did not take steps to have the equipment further inspected or replaced. He simply changed the settings back from the very low level he had moments earlier placed them on. Nor at any stage did he ask Mr Parker if he was okay or apologise to Mr Parker.[26] The instinctive reaction of an employee who strikes another employee accidentally would be to say sorry. Neither at the time of the incident (when Mr Parker was agitated and not listening) nor later (when Mr Parker had calmed down) did Mr Graham apologise verbally or in writing.

[60] I am also satisfied that Mr Graham knew of the safe way to test the spray gun, by pointing it into the water wall or the open floor below. Although there was no standard operating procedure, this was the reason for the water wall and the water flowing under the floor. While I accept that Mr Graham had regularly tested the gun against the solid eastern wall and this was common practice, it was not what he did on the 11 May. He had safe options but chose to press the trigger without the gun pointing at those safe options. I accept the evidence of company witnesses that although the exhaust systems are moving along the conveyor between the operator and the water wall, it is still possible to test the gun against the water wall. As an experienced operator Mr Graham knew the safe way to operate the gun without creating risk to the safety of himself or others; in fact, he had trained inexperienced staff in that very process.[27]

[61] I find that Mr Graham's conduct was serious misconduct. It is more likely than not that it was also wilful misconduct.[28] The serious misconduct was contrary to company policy concerning the safe use of spray guns by Paintline Operators which Mr Graham was aware of and had been trained. It was conduct that constituted a valid reason for summary dismissal given the risks to health, safety and welfare, the duties of employers and employees in that regard and the hazardous nature of paint striking a person.

[62] To decide whether a valid reason exists, I do not need to determine whether Mr Graham's conduct was 'horse-play' as described by the employer in its dismissal letter. 'Horse-play' is not a word of art. It is sufficient to find that Mr Graham, and all other employees, had been made well aware that any unsafe practices or any form of gamesmanship around the factory that created risk, even if done in jest, would not be acceptable conduct.[29] While 'horse-play' may require intention or at least some degree of carelessness, I do not accept Mr Graham's claim that his conduct was a mere accident. It was either intentional or reckless. I find, to at least the standard of reasonable satisfaction set out in Briginshaw[30], that Mr Graham was reckless and indifferent to the safety and well-being of employees around him, whether or not it was horse-play.

[63] Relevant to the question of whether there was a valid reason is whether Mr Graham's dismissal was a disproportionate response by the employer to a single act of misconduct by a longstanding employee.

[64] Having considered the evidence, I do not reach that conclusion. No doubt, Mr Graham was a longstanding employee. Eighteen years of service, eight as a Paintline Operator are testament to that. However, the fact that an employee is longstanding does not insulate that person from dismissal if, in all the circumstances and having regard to the factors in section 387 of the FW Act, the conduct complained of is sufficiently serious to justify dismissal and fair disciplinary procedures are followed.[31] In the circumstances of this case, Mr Graham's length of service is a double-edged sword. While it weighs in his favour in that he was an employee who by and large fitted in and abided by workplace rules for many years, it works against him in that he could claim no ignorance or inexperience in the appropriate standards of behaviour and knowledge of the dangers inherent in the reckless use of a spray gun in a factory setting.

[65] Mr Graham's conduct was not provoked. Mr Parker was going about his business. Even as a single act, whether intentional or reckless, it involved a lapse of judgement. Safe options for testing the gun were available and known to Mr Graham. Even as a single act, it had damaging effects, striking a fellow employee on his clothing and on his skin with paint that is comprised of chemical properties that can have hazardous effects on a person's health and wellbeing.[32]

[66] In these circumstances, I find that dismissal for conduct contrary to policy, even if seen as a single act, was not a disproportionate response.

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

[68] 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 Mr Graham's conduct compromised the welfare of Mr Parker and his right to work in a safe environment free of risk to his health and wellbeing.

[69] In making this finding, I place no reliance on the March 2017 alleged incidents where two employees inferred that Mr Graham may have sprayed their back. The incidents were not investigated at the time. They were not considered serious enough at the time to escalate to senior management. Mr Graham was not provided an opportunity to comment on them at the time. There was no evidence before me to draw any reliable connection between those incidents and Mr Graham. I disregard them from my consideration.

Notification of the valid reason - section 387(b)

[70] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made.[33] In Crozier v Palazzo Corporation Pty Ltd[34] 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."[35]

[71] Mr Graham was notified of the allegations being made against him on the day. He was informed that Mr Medhurst was investigating. During the investigation he was interviewed and asked to respond. Mr Medhurst formed the view that dismissal would be recommended based on his investigation. Mr Graham was informed of his internal appeal rights. When he was advised on 7 June that his appeal had not been successful and the decision to dismiss would stand, he was told the reason for dismissal.

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

Opportunity to respond - section 387(c)

[73] 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.[36]

[74] Mr Graham was given a full opportunity to respond to the allegations throughout the course of the investigation, and during the appeal process. Mr Graham availed himself of those opportunities.

[75] While it was common ground that Mr Graham was given an opportunity to respond, counsel for Mr Graham submitted that the decision to dismiss lacked procedural fairness in that Tenneco relied on allegations of previous incidents of paint being sprayed on employees which were never put to him and which were not investigated at the time.

[76] I accept that Mr Medhurst brought into his investigation and his decision making material concerning the March 2017 incidents. I have disregarded those incidents from my conclusion because they do not establish culpability on the part of Mr Graham nor was he offered an opportunity to address them at the time. He was only spoken to about them in general terms by Mr Medhurst on 16 May when the 11 May incident was being investigated.

[77] These allegations surfaced during the investigation because they were allegations that concerned a similar subject matter and employee, and there was an email record of the issue made at the time.[37] As they were denied and unproven allegations, they could not form a basis for a decision to dismiss. There is some force in Mr Graham's submission that the unexpected unearthing of these reports of earlier incidents may in part explain why Mr Medhurst formed a strong view that Mr Graham's conduct was intentional.[38] However, there is no basis on which I can find that they constituted the reason for dismissal. Ms Jackson's letter of dismissal only refers to the incident of 11 May. Mr Medhurst's evidence was that his recommendation was based on the 11 May incident.[39] With respect to that incident, Mr Graham was given a full opportunity to respond.

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

[78] There is no evidence before me to suggest that Tenneco unreasonably refused to allow Mr Graham to have a support person present at discussions relating to his conduct and dismissal.[40] Mr Graham secured the assistance of solicitors to submit his internal appeal.

Warnings regarding unsatisfactory performance - section 387(e)

[79] Mr Graham was not dismissed for unsatisfactory work performance. His dismissal was conduct related, not capacity related. Nonetheless, in considering whether to recommend dismissal the evidence of Mr Medhurst, which I accept, is that he had regard to Mr Graham's work history. This included his record of a couple of formal past counselling's and warnings (mainly about absenteeism).

[80] The past counselling and warnings, including an alleged incident with another employee (who was, on the evidence before me, a disturbed person[41]) was known to Mr Medhurst but did not unduly motivate or influence his recommendation to Ms Jackson. I find that Mr Graham's dismissal was based on the 11 May incident, and not pre-existing events, counselling or warnings.

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

[81] Tenneco is a significant employer with capability to investigate conduct and apply Company policies with rigour. I am satisfied that the Company did so in its investigation into Mr Graham's conduct and in reaching and communicating its decision to dismiss.

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

[82] As a sizable (albeit downsizing) employer, Tenneco has a dedicated and specialist human resources management capability. That resource was used to conduct the investigation into Mr Graham's conduct, and to work with factory management in making its decision to dismiss.

Other relevant matters - section 387(h)

[83] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant.

[84] Mr Graham claims that his dismissal will have a harsh impact on him financially. He points to his age (43 years), his poor general health (he was diagnosed with Crohn's Disease in 2012), the fact that he has worked at the plant for a long period (18 years) and in a sector (automotive) undergoing industry change and declining opportunities.

[85] He has not actively been seeking alternative employment because, he says, of the stress arising from dismissal, preparing his unfair dismissal case and his health.[42]

[86] Mr Graham particularly points to the fact that had he continued in employment until the factory closure on 6 October, he would have been eligible for a significant redundancy payment. His counsel was open in submitting that he is seeking reinstatement as his primary remedy even though he may be re-employed for only a few days or weeks because he wishes to access that redundancy payment.[43] It is a payment he believes he is entitled to on fairness grounds, having regard to his service. He says he was offered a redundancy payout three years ago, but declined, as he had not at that time served enough years to access the full redundancy package.

[87] I accept that by virtue of being dismissed four months prior to factory closure, the degree of financial disadvantage Mr Graham will sustain exceeds that of an employee dismissed in the regular course of ongoing business operations.

[88] Further, I accept that the impact of dismissal on Mr Graham is very significant both personally and for future financial planning.

[89] However, despite these impacts being real and exacerbated by the circumstances of the imminent plant closedown, they are not unique amongst other dismissed employees of his age and work history. Ultimately, Mr Graham was dismissed for serious and wilful misconduct. I have found that a valid reason existed for that decision. It would be perverse and contrary to both sound principle and practice for the Commission to re-characterise a dismissal made for a valid reason into an unfair dismissal and then either reinstate or compensate that employee simply because that employee suffers the consequence of being denied access to a future redundancy payment. Ultimately, in a case of serious misconduct, the dismissal must stand or fall on the basis of the conduct complained of and its surrounding circumstances, not on the basis of a future exigency. The financial hardship and potential financial hardship compared to what might have been do not outweigh the conduct in breach of policy or act to sufficiently transform his dismissal for a valid reason into one that can be characterised, at law, as harsh.

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

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

Mr R. Manuel and Mr P. Favilla, with permission, for the Applicant.

Mr N. Swan and Mr M. Althobaiti, with permission, for the Respondent.

[1] Exhibit R9 Statement of David Medurst at paragraphs 93 - 97

[3] 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

[4] Exhibits R1 and R2 are maps of the booth, Exhibits R3 and R4 are photographs from outside the booth looking south west

[8] Exhibit R9 Statement of David Medurst at paragraph 72

[10] Exhibit R15 Statement of Darryl Heath at paragraph 34

[11] DBM-20 Letter Tindall Gask Bentley to Tanya Jackson 23 May 2017

[12] DBM-21 Letter Tanya Jackson to Leith Graham 7 June 2017

[13] [1995] HCA 24; (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ

[14] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]

[15] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]

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

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

[20] DBM-20 Letter Tindall Gask Bentley to Tanya Jackson 23 May 2017

[21] PN 369-379; PN 387

[26] PN 435-439; PN 451-452

[27] For example, evidence of Mr Freer at Exhibit R13 at paragraph 29

[28] McDonald v Parnell Laboratories (Aust) Pty Ltd [2007] FCA 1903; (2007) 168 IR 375 per Buchanan J

[29] For example, evidence of Mr Thomas Exhibit R14 at paragraphs 32-36; evidence of Mr Freer Exhibit R13 at paragraphs 19-25; evidence of Mr Heath Exhibit R15 at paragraphs 13-20; evidence of Mr Buchanan Exhibit R11 at paragraphs 29-31; evidence of Mr Kohl Exhibit R12 at paragraphs 14-21; evidence of Mr Medhurst Exhibit R9 at paragraphs 41-48

[30] Briginshaw v Briginshaw (1938) 60 CLR 366

[31] Dawson v Qantas Airways Limited (2017) FWCFB 1712 at [48] "We note the Applicant has been a long serving employee of the Respondent for 28 years and that, at 50 years of age, it may be difficult to gain employment as a flight attendant. Further, we empathise with the personal, family and financial circumstances of the Applicant. However, we are not satisfied that those circumstances outweigh the prohibited conduct the Applicant engaged in when employed by the Respondent."

[32] Exhibit R9 Statement of David Medurst at paragraph 22 and DBM-9 Data Sheet

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

[34] (2000) 98 IR 137

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

[37] DBM-13 referencing an email 27 March 2017

[38] PN 933; PN 987

[39] Exhibit R9 Statement of David Medurst at paragraphs 76-77

[41] Evidence of Jeffrey Thomas PN 1484-1488

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