39 The appellant contended his comments did not constitute misconduct. Mr Khan pleaded that he was entitled to express his opinion; that he was not going to be hidebound by "political correctness"; that his comments were not directed to any individual in particular; that he was merely attempting to generate some discussion on conflict in the workplace; and, he had not intended to cause offence.
40 It would appear that Mr Khan's comments initially did not cause offence because the persons present took the comments as being made in a light-hearted or joking manner. But it became obvious that Mr Khan was not joking. He regarded female employees as troublemakers and "dobbers". His comments were not made as a "throwaway line" as contended by Mr Hansen but rather were made against the background of the incident between himself and Ms Watson in April/May and the incident involving Mr Cousins and Ms Sansom on 29 June 2004 where the two employees were verbally abused by Mr Khan and Mr Cousins and who subsequently referred the matter to their supervisors. Moreover, it was Mr Khan who initiated the confrontation at the toolbox meeting with his hurtful and offensive remarks about female "dobbers" and that women should be at home looking after the kids. Given Mr Khan's history of aggressive and intimidatory behaviour towards other employees and given the context in which his remarks were made on 30 June, we consider his purpose in making them was to provoke, offend and intimidate.
41 Whether comments about the role of women in the workplace might be regarded as offensive or insulting or harassing may depend on the context in which they are said or the demeanour of the person making the comments. Here, however, the effect of Mr Khan's comments was unmistakeable; there can be no question on the evidence that all of the female employees present at the toolbox meeting were offended and, in our opinion, Mr Khan, knew well what the effect of his comments would be when he made them. What is more, the appellant agreed in giving his evidence he was "well aware" of the respondent's policy regarding discrimination and harassment, which describes harassment as:
[A]ny form of behaviour which is unwelcome and which humiliates, intimidates or offends the person at whom it is directed.
42 Given Mr Khan's comments were obviously directed towards Ms Watson and Ms Sansom and were made with an aggressive and serious manner, there could be no mistake the comments were intended to be intimidatory and offensive; they were also contrary to the respondent's policy, a policy with which Mr Khan was familiar.
43 We do not consider that the Commissioner erred in finding that Mr Khan's comments on 30 June 2004 caused insult and offence to women. Moreover, Mr Kahn's conduct on 30 June may properly be regarded as misconduct in the course of his employment.
44 It may have been that the outburst by Mr Khan at the toolbox meeting on 30 June 2004 could have been excused as an isolated incident that warranted not dismissal but rather serious counselling and the seeking of an undertaking from him that such conduct would not be repeated. However, in upholding the employer's dismissal of Mr Khan, the Commissioner was entitled to take into account the appellant's employment history and his conduct post-30 June 2004.
45 Mr Khan had a history of aggression and intimidation towards other employees and a disregard for the authority of supervisors. The Commissioner was entitled to take this into account in determining the application before him. To the extent that Cambridge C did so, he was not in error.
46 Earlier incidents of misconduct by an employee in the course of his or her employment with an employer may be relevant to the question of whether the employee has demonstrated such a disregard for the contract of employment, or one of its essential conditions, that the employment relationship is no longer tenable or that the parties to it are no longer compatible given their respective rights and obligations under the contract. That is, by his or her conduct the employee has demonstrated an intention that he or she no longer intends or wishes to be bound by the contract.
47 Whether an employer is entitled to rely upon earlier misconduct may involve such questions as the nature of the misconduct and whether, for example, it was trivial or serious; whether it demonstrated a persistent course of conduct that evinced an intention not to be any longer bound by the employment contract; whether it was too far removed in time to be relevant; or, whether the employee's otherwise good employment record outweighed the earlier misconduct making it irrelevant or only marginally relevant.
48 The appellant contended in the present case that the Commissioner erred in failing to take into account the trouble free period between 2001 when Mr Khan received his final warning letter and 2004 when he was dismissed. It was also contended for the appellant that the respondent should not have relied on the final warning because it was in relation to a refusal by the appellant to follow a lawful direction and not related to the reason for dismissal; it, therefore, could not be regarded as a course of conduct evincing an intention not to be bound by the contract of employment.
49 The final warning given to Mr Khan in 2001 may be properly seen as the culmination of a number of episodes of misconduct dating back to 1998, including incidents of aggressive and intimidatory behaviour towards supervisors and other employees. One of the conditions imposed on the appellant in allowing him to remain in employment in 2001 was that he would:
[N]ot victimise harass or intimidate any of Cuno Pacific's employees, including supervisors or managers, and to treat all other employees in a courteous, polite and pleasant manner.
50 The final warning was expressed to be for an indefinite duration. That might be regarded as unusual in the industrial context, but in this case it has to be seen in the light of the appellant's poor record between 1998 and 2001. It was a clear signal to Mr Khan that he was on final notice regarding his conduct and it was not open to him at any time to revert to his earlier unacceptable mode of behaviour.
51 We consider it was open to the respondent to have relied upon the final warning letter issued to the appellant in 2001 as the basis for asking the appellant to show cause why his employment should not be terminated.
52 The Commissioner, of course, in refusing the application at first instance, did not confine himself to a consideration of the appellant's offending remarks on 30 June 2004. This is demonstrated by the Commissioner's reliance on what occurred post-30 June.
53 The appellant found himself in a position where he was being asked to provide his employer with reasons why he should not be dismissed in light of his conduct on 30 June 2004. He was aware that the female employees against whom he had directed his remarks were upset and hurt by his conduct. It would have been glaringly obvious to Mr Khan that it was open to him to achieve some reconciliation with those he had slighted in the same way in the same way he had in the past or as Mr Cousins had done with Ms Sansom, or to offer an apology and provide an undertaking he would not repeat his behaviour. Whether this would have been sufficient to save his employment is not known but the point to be made is that Mr Khan displayed no regret at all for his remarks. His view was that he had done nothing that required an apology; that he was entitled to express an opinion and did so.
54 How Mr Khan or his union could have expected the respondent to maintain the appellant's employment in the face of a refusal by him to make amends for what were indisputably offensive remarks against women in breach of the respondent's discrimination and harassment policy, defies reasonable explanation.
55 If Mr Khan seriously believed all of the blame for the confrontation at the toolbox meeting was not his and the female employees' conduct was inappropriate as he had complained that it was, it was open to Mr Khan to step back from his position of having nothing to apologise for and at the same time seek undertakings that the female employees also behave appropriately in the future. But Mr Khan offered no compromise.
56 Part of the reason for the perversity of Mr Khan's stance may have been the support he was receiving from his union organiser, Mr Hansen. Commissioner Cambridge commented that the NUW's involvement was unfortunate in that it did not assist in the resolution of the conflict and the issues were exacerbated. Indeed, we consider that was so. The Union's role was ill-advised and most unhelpful. The responsible course would have been to advise Mr Khan to retreat from the position he had adopted, to apologise and undertake not to repeat his conduct, thereby perhaps saving his employment. It was an error of judgment on Mr Hansen's part to support Mr Kahn's position.
57 Regardless, however, of the NUW's role it was always open to Mr Khan, a man of firm opinion and character, to make out his own case. It would appear that whilst Mr Hansen acted on behalf of Mr Khan in discussions with the respondent on 5 and 6 July, the appellant also spoke when he chose to but not in a conciliatory way. In the course of the discussion on 6 July Mr Khan referred to Mr Powell as a "low life"; not a comment that would have won support for the appellant's increasingly precarious position but rather one designed to further insult. Mr Khan was contemptuous of the opportunity that had been offered to him to perhaps save his job.
58 The appellant claimed that the Commissioner erred in failing to consider the appropriateness of the punishment given to him in light of the appellant's supervisor being given a verbal warning in circumstances where the supervisor supported the appellant's comments regarding women at the toolbox meeting. The supervisor, Mr Wong was under the mistaken impression Mr Kahn was joking and joined in the joke. It became evident to Mr Wong that in fact Mr Kahn was not joking and he agreed later with Mr Meller he should have taken more decisive action to prevent the situation in the toolbox meeting from escalating. Mr Wong was given a strong warning by Mr Hawes and acknowledged his mistake. Mr Wong had no history of conduct requiring disciplinary measures to be taken against him. The respondent's treatment of Mr Wong is readily distinguishable from the action it took in respect of Mr Kahn.
59 The appellant claimed the Commissioner erred in finding the respondent had engaged in a careful and highly commendable evaluation in deciding to terminate him. At [49] of his decision Cambridge C found:
Rather than react in a hasty or ill conceived way, the employer adopted a careful and highly commendable evaluation of the circumstances. The employer assessed the applicant's misconduct having regard for various factors including the applicant's poor employment record balanced against his long service and general competence.