Australian Industrial Relations Commission|2007-10-24

Richard Hudson v Woolworths Limited [2007] AIRC 912; (24 October 2007)

[1] This is an application made under s.643(1)(a) of the Workplace Relations Act 1996 (the Act) by Mr Richard Hudson who contends that the termination of his employment by Woolworths Limited (Woolworths) was harsh, unjust or unreasonable.

[2] The matter was not settled in conciliation and proceeded to arbitration following a decision by Cargill C on 12 June 2007 to extend the time for the lodgement of the application.

[3] On 13 December 2006 Mr Hudson was summarily dismissed from his employment as a Night Filler at the Big W store in Tamworth for reason of misconduct.

[4] Mr Hudson, who is 57 years of age, had worked with Woolworths continuously since 4 December 2003. [1] At the time of his termination he was working 35 hours per week Mondays to Fridays with overtime on special occasions. He was responsible for maintaining levels of stock within the home entertainment department and his role did not include any supervisory or management responsibilities.

[5] The incidents that led to the termination of Mr Hudson's employment occurred in the home entertainment department on two consecutive days, namely Thursday 7 December 2006 (the first incident) and Friday 8 December 2006 (the second incident).

[6] During the hearing, Mr Hudson gave evidence on his own behalf and the following persons gave evidence on behalf of Woolworths:

Mr Ben C [2] who was involved in the first incident when he was 16 years of age. Ben had worked at Big W during school holidays and after school since November 2004. At the time of the first incident his role was to serve customers in the home entertainment department;

Mr Thomas Howell who had worked at Big W since December 2004. For the first 24 months he was still at school. He was involved in the second incident when he was 18 years of age.

Mr Stephen Biggers, Area Manager of the Big W area that covers northern New South Wales, which has 13 stores including the Tamworth store, who made the decision to terminate Mr Hudson's employment. The Tamworth store manager (Mr Stuart McBlane) reports directly to Mr Biggers.

[7] The incident occurred at approximately 8.45 pm on 7 December 2006. Mr Hudson was putting DVD's into plastic safers and found they had gone from the counter when he turned to get some more. There was contradictory evidence of what then happened.

[8] According to Mr Hudson's evidence, he said words to the effect of: 'Ben, where are they?' to which Ben replied: 'I have put them away.' Mr Hudson, who thought that Ben would have seen that he was using them said: 'Ben, I was using them', thinking Ben's answer to be a bit silly. Mr Hudson then 'playfully flicked him on the upper part of his arm' without any force associated with the flick. Ben then said words to the effect: 'You don't have to touch me'. He thought Ben was joking and left it at that. He denied yelling at or raising his voice [3] or using any threatening language to Ben.

[9] According to Mr Hudson, a couple of minutes later he saw that some CD's had been left on the counter and he asked Ben if he had been pricing them, to which Ben replied that he had not. Another employee said that she had been pricing the CDs.

[10] According to Ben's evidence, he and Mr Hudson were working at the counter but he was not aware of what Mr Hudson was doing. In the process of clearing work space so he could count his draw (which contained the day's takings) he saw two plastic safers next to the draw and put them under the counter. Without saying anything Mr Hudson turned to Ben and started to 'baby-slap' him on the arm. [4] When asked how he felt Ben stated: 'It probably was a surprise. I'd never been physically like, you know, hurt, touched or anything in a workplace so it was a shock to me that he was hitting me on the arm for no apparent reason that I knew at the time.'[5] Whilst he did not feel threatened by the physical contact,[6] Ben stopped what he was doing and demanded: 'Why did you touch me?' and Mr Hudson replied: 'I'm using those'. Ben then said 'deeply and rightfully':[7] 'Well you didn't have to touch me'.

[11] According to Ben, Mr Hudson responded, in a threatening manner, by saying words to the effect: 'I'll knock you down'. Ben was shocked and turned away without saying anything and tried to carry on with what he had been doing even though his immediate supervisor at the time [8] who had heard what Mr Hudson had said[9] was egging things on with comments like: 'Y_ou can take him Ben'_ - which Ben took to mean to respond verbally to Mr Hudson.[10] Ben chose not to respond[11] and after about 15 seconds Mr Hudson said smartly (in a teasing way[12]): 'What? Did I upset you?'

[12] In his evidence Ben described the subsequent events as follows:

"I turned to look at Mr Hudson but I did not say anything to him. I just returned again to what I was doing. Mr Hudson then leant his body over mine in an aggressive manner and said words to the effect: 'I'll knock you over the head'."

[13] Under cross-examination Ben described how he did not respond at that time as, without exaggeration, he was fearful for his life. [13] In his prepared statement he describes his reaction as follows:

"I did not respond to Mr Hudson when he said that. I was totally overwhelmed and simply stood looking at the computer. The way in which Mr Hudson had spoken to me, whilst leaning in towards me, really frightened me. I felt beside myself. I was shaking and my heart was racing. I felt very threatened by Mr Hudson. Mr Hudson is quite a large man and physically I felt very intimidated. I was so shaken at the time that it took me five attempts to count two drawers".

[14] Also, according to Ben's evidence, after the store closed and before 9.40pm as he was going about his tasks Mr Hudson yelled out to him with words to the effect: 'Who owns this stock down here?' to which Ben replied resentfully: 'Not me.' According to Ben, Mr Hudson 'didn't like my comment as he asked me the same question three times and each time I gave the same answer.' Mr Hudson appeared to become "angry with me and said: 'Well that's a BIG help Ben'." Nothing more transpired between them after the other employee intervened and explained to Mr Hudson that she had been dealing with the stock he was asking about.

[15] Ben stated that before leaving work at 10.00pm he spoke to a colleague about what had happened (no appropriate manager being on duty at the end of his shift [14]) who advised him to report it. When he met his mother in the car park he broke down in tears because he was very upset about the incident and felt frightened. He persuaded his mother to take him home where he made handwritten notes of what occurred. Prior to attending school the next day Ben's mother took him to speak with Mr McBlane, where Ben explained what happened and showed Mr McBlane the handwritten notes. At Mr McBlane's request, after school Ben wrote a detailed description of the incident and gave it to Mr McBlane.

[16] In giving evidence, Mr Hudson and Ben each demonstrated the physical contact that occurred with the flick/baby-slap. As demonstrated by Mr Hudson it was a light one-off cuff with open fingers to Ben's upper arm without significant force. As demonstrated by Ben, Mr Hudson used the back of his fingers of an open hand to make contact with his forearm on four or five occasions (with the timing similar to knocking on a door) and the force used was not significant (more than a tap but less than a smack).

[17] Mr Hudson's evidence of his prior working relationship with Ben was that he had never had any problem with Ben and he considered that they got on quite well. He considered Ben to be a fairly easy-going boy and a good worker. [15]

[18] Ben's evidence was that there weren't any problems between himself and Mr Hudson prior to the incident, [16] although they were not on particularly friendly terms.[17] In re-examination Ben stated that he had experienced Mr Hudson to be moody and angry[18] and on those days he had kept his distance as he felt scared.[19] On other occasions he'd been able to approach Mr Hudson and work alongside him.[20]

[19] According to Ben's evidence it seemed to him that:

"… Mr Hudson felt he had some form of authority over me. He sometimes told me what to do, as if he was my manager. He did not have any management responsibility for me." [21]

[20] Further, at the beginning of his shift on the day in question Ben had observed Mr Hudson to be in an angry or anxious [22] mood because he wasn't talking to people and seemed withdrawn[23] and he had been advised by a colleague that Mr Hudson had been in a funny mood as 'he was quite angry/shitty.'[24]

[21] It was not disputed that it is usual for music of current hits/top 20 to be played in the home entertainment department at a level louder than background/lift music. [25]

[22] The incident occurred as approximately 7.40pm on 8 December 2006 (outside trading hours) and involved the music that Mr Howell was playing on stock that was on display. According to Mr Howell: "… I had put a CD on the stereo that I thought he would like. We had previously had disagreements about what sort of music to play on the stereo so I had deliberately chosen a CD with popular music on it that I thought he would not object to." [26]

[23] Without consulting anyone Mr Hudson went over and turned the music off. Mr Howell observed this and about three or four minutes later he turned the music back on and lowered the volume slightly in case it was disturbing one of the night fill staff. Mr Hudson went over again and turned it back off and Mr Howell then turned it back on, each without discussing it with the other. Mr Hudson (for the third time) turned it back off.

[24] What Mr Hudson said when he turned to Mr Howell was disputed. According to Mr Hudson, he said: 'Now leave it off'. According to Mr Howell, Mr Hudson said: 'Now leave it off this time you little shit'.

[25] Mr Howell was annoyed that Mr Hudson had turned the music off and had used offensive language to him [27] and said: 'I do not have to listen to you. You are not a manger. A manager did not ask you to turn it off. You are no higher than me in the food chain.'

[26] According to Mr Hudson, he then responded: 'Just leave it off'.' According to Mr Howell, Mr Hudson then stated: 'Just do it you little shit.'

[27] The verbal exchange became heated with Mr Howell responding angrily: 'You are a dickhead', Mr Hudson in turn responding: 'What did you say?' and Mr Howell responding: 'You heard me', and Mr Hudson repeating: 'What did you say?' as Mr Howell made his way five or six metres back to the checkout area to get more returns [28] and Mr Hudson moved about two metres towards Mr Howell to roughly the TV/DVD stand, with the result that they came directly face to face.[29]

[28] According to Mr Hudson's evidence, he did not become upset when Mr Howell said he was not a manager. [30] However as the argument became more heated he became 'slightly angry' when called a dickhead[31] and partly because of his migraine. After the further words were exchanged, without really thinking:[32]

"Instinctively, I then pushed him with the palms of both my hands to the chest region. Thomas went backwards slightly. Thomas then said 'I could have your job for pushing me.' "

"… when I was next to the A-Z DVD's he walks up to me and continued to say to me 'what did you say to me?' It was clear to me that he want(ed) me to give (him) a reason to hit me and that he heard what I said to him earlier. He then hit me in the chest with his palms causing me to have to take a couple of steps back to balance myself out. It put extra pressure on my back that was already in pain from an accident I had earlier in the week at work. After this happen I said that he just physically assaulted me and then I asked 'why did you do that. I could get you in a lot of trouble for that.' I told him that my back was already sore and that he just mad(e) it worse. He said that he could have me fired for what I said to him earlier. He did not care at all about what he did. I then walk(ed) away and he went back to work and I continued my recovery. It was reported to the manager on duty …" [33]

[30] Mr Hudson denied that he had said: "Well I could have you for what you have said to me." [34]

[31] Mr Hudson's evidence was that there were several things that contributed towards his reaction to Mr Howell. As well as his migraine, he was going through a difficult time with his separation from his former wife and his leg was hurting (caused by a knee injury from the previous week). [35]

[32] Mr Howell's evidence was that Mr Hudson was not an easy character to work with. They had a number of minor arguments when they had worked together prior to the second incident. He had never raised Mr Hudson's conduct with management. Although he had felt uncomfortable around Mr Hudson he had never felt threatened or scared. He thought that Mr Hudson thought himself a manager and that he could tell Mr Howell what to do when he was not entitled to. [36]

[33] Mr Hudson's evidence was that he had not had a number of minor arguments with Mr Howell when they had worked together. Prior to the second incident Mr Hudson had formed the view that they got on well and were able to work together.

[34] On 9 December 2006 Mr Biggers received a telephone call from Mr McBlane advising him that he had received two separate complaints relating to incidents involving allegations of violence by Mr Hudson. Mr Biggers requested that Ben and Mr Howell be asked to write down what had happened and that Mr McBlane contact Mr Hudson and get him to provide a statement.

[35] Mr Biggers received the statements of Mr Howell and Ben on 12 December 2006.

[36] Mr Biggers also received a statement from Mr McBlane [37] regarding his discussion with Mr Hudson, which included Mr McBlane advising Mr Hudson that the two incidents were to be investigated whilst he was stood-down (on full pay) and requesting Mr Hudson to provide a statement of what occurred.

[37] Mr Hudson declined to provide a statement. [38]

[38] On 13 December 2006 Mr Biggers met with Mr Hudson and Mr McBlane. Mr Biggers had no previous knowledge of Mr Hudson. At Mr Hudson's request the union delegate was present.

[39] Prior to the meeting Mr McBlane informed Mr Biggers that on 27 September 2006 Mr Hudson had received a written warning in connection with a second occurrence of his failing to report an injury on the same day that the injury occurred. [39]

[40] At the meeting Mr Biggers informed Mr Hudson that the complaint by Ben involved alleged intimidation and touching and that the complaint by Mr Howell involved an alleged assault. Mr Biggers provided Mr Hudson with the statements of Mr Howell and Ben. Mr Hudson read through them and said he did not agree with everything. Where he did not agree, Mr Biggers wrote his remarks directly onto the statements. [40]

[41] In respect of the first incident, Mr Biggers wrote on Ben's statement that Mr Hudson had said that:

the other employee's advice to Ben of Mr Hudson's mood earlier in the day was irrelevant;
he did 'hit him once/flick what ever you want to call it' on the arm; and
he did not say to him 'I'll knock you down' or 'I'll knock you over the head'.

[42] Even though Mr Biggers wrote the words in subparagraph 41(b) above on Ben's statement during the meeting, in his evidence Mr Hudson admitted only to using the word 'flick' when talking to Mr Biggers and not to using the word 'hit'. [41]

[43] In relation to the second incident, Mr Biggers wrote on Mr Howell's statement that Mr Hudson denied calling Mr Howell a 'little shit'. Also, Mr Biggers highlighted a sentence in Mr Howell's statement which described the physical contact of Mr Hudson with his palms as a 'hit' and stated that at the meeting Mr Hudson described his contact as a 'push'.

[44] Mr Biggers made written notes of the meeting on the Woolworths pro forma. According to Mr Biggers, in agreeing to his pushing Mr Howell, Mr Hudson told him that he was an epileptic and was on medication. Mr Biggers included this in the written notes of the meeting.

[45] Although it is not included in the written notes, both Mr Hudson and Mr Biggers gave evidence that Mr Hudson told Mr Biggers that he had been under considerable stress of late with the formal separation from his partner. (Mr Biggers established that the break-up had occurred about 12 months earlier.)

[46] According to Mr Hudson, he told Mr Biggers that his knee was causing him considerable pain and discomfort. Mr Biggers evidence was that he had no recollection of any mention being made by Mr Hudson during the meeting of his knee injury. No notation of any such mention was made in the notes of the meeting.

[47] Mr Hudson's evidence was that: 'I told him that I was under considerable emotional stress due to these types of problems in my life which may have had an effect on my demeanour at work.'

[48] Mr Hudson declined to sign the record of the meeting. [42]

[49] In giving evidence Mr Biggers, when referring to his discussions with Mr Hudson prior to the commencement of the formal interview, stated: '- at one point he said he shoved one of the guys and he didn't think - he couldn't see that shoving was a problem and basically he'd been provoked by the others anyway.' [43]

[50] It was not disputed that Mr Hudson did not apologise for his actions of pushing Mr Howell, [44] and there was no evidence to suggest that Mr Hudson acknowledged that it was inappropriate to have pushed Mr Howell or have touched Ben, other than Mr Hudson, under cross-examination, denying that he had said: 'I haven't done anything wrong.'[45]

[51] It seems that Mr Biggers gave Mr Hudson a short statement from another employee who, whilst in the menswear department, had observed the incident between Mr Hudson and Mr Howell. [46] That person was not called to give evidence in support of Mr Hudson or Woolworths. Mr Hudson was not asked to comment on the statement during the meeting and there is no mention of it having any significance in the notes of the meeting.

[52] Because Mr Hudson had admitted to pushing Mr Howell, Mr Biggers did not consider it necessary to interview Mr Howell. Because Mr Hudson had admitted to flicking [47] Ben, as the admission involved some physical contact he did not need to question Ben.[48] He did not investigate the alleged intimidation of Ben by Mr Hudson other than getting his denial of threatening to knock Ben down or over the head.[49] He considered that each admission amounted to a breach of the Woolworths code of conduct.

[53] Mr Biggers evidence was that in deciding what action to take in relation to Mr Hudson he took into account everything that Mr Hudson had said in relation to the incidents and his personal circumstances, including that:

Mr Howell had used language that he should not have used when talking to Mr Hudson;

Mr Hudson had agreed that he had pushed Mr Howell but that he did not appear to consider that there was anything wrong in doing that;

Mr Hudson admitted that he had touched Ben but that he did not appear to consider that there was anything wrong in doing that;

Mr Hudson's previous disciplinary record, comprising one written warning;

[54] After the interview, Mr Biggers terminated Mr Hudson's employment with immediate effect.

[55] Mr Biggers spoke to Mr McBlane and asked him to counsel Mr Howell in relation to his conduct during the second incident.

[56] Mr Biggers evidence was that Woolworths has a policy of zero tolerance in relation to all physical violence in the workplace, with 'action being taken against any employee who is found to have committed an act of violence in the workplace.'

[57] Mr Biggers interpretation of the Woolworths code of conduct was that unacceptable behaviour can result in dismissal. [50] He considered any kind of inappropriate touching,[51] including any kind of pushing to be unacceptable.[52] In the cases he has dealt with or been aware of, pushing has justified dismissal.[53]

[58] Mr Biggers did not regard the push by Mr Hudson of Mr Howell to be physical fighting for the purposes of the code of conduct [54]as he regarded physical fighting by two people as when each initiated contact with the other.[55] For the purposes of the Woolworths code of conduct he regarded the push as being physical intimidation and bullying behaviour by Mr Hudson.[56]

[59] Mr Biggers stated that if only the 'baby-slap/flick' portion of the first incident was taken in isolation it would have warranted Mr Hudson being performance managed over physical contact and saying to him: 'That's unacceptable, it can't happen again.' [57]

[60] The main element or biggest factor [58] that caused him to terminate Mr Hudson's services was his admission to pushing Mr Howell[59] which was totally unacceptable.[60] He had considered the Woolworth's culture of not tolerating physical violence in the workplace and regarded the push as violence.[61]

[61] Also, Mr Biggers gave evidence of his consideration of his obligations to protect the health, safety and welfare at work of all employees. He stated: '...Everyone may think its just a simple pushing of someone, the simple thing is if that person had fallen even and we've all seen it before where a serious injury could occur and that's just not acceptable to myself morally or legally.' [62]

[62] Woolworths tendered a signed statement by Mr Hudson dated 7 January 2004 stating that he agreed that:

"I have read and clearly understood my obligations as an employee of Woolworths Limited as outlined in the policies of this Code of Conduct. By signing my name I agree that in the day to day performance of my job I will;

always act with the highest level of integrity;

abide by the policies and practices outlined in this Code;

seek to understand any policy changes that affect me;

accept that if I break company policy my employment with the company could be terminated." [63]

[63] Mr Hudson's evidence was that he signed the statement without reading the code of conduct. Also, he was given the induction handbook in January 2004 and he signed it and handed it straight back. There were never any formal conference/discussions with the training manager in relation to the content of the workbook or codes of conduct that were to apply.

[64] Mr Biggers' evidence was that Woolworths employees have a fairly clear understanding of what is acceptable behaviour because it is promoted very heavily throughout the business 'in our code of conduct and on a regular basis'. [64]

[65] The submissions on behalf of Mr Hudson included the following:

(a) Mr Hudson's conduct in pushing Mr Howell was unfortunate and unacceptable and there were several avenues available to Woolworths other than the termination of his employment. Disciplinary action, such as a warning, would have been sufficient and appropriate.

(b) Mr Hudson had been provoked by what Mr Howell had said to him.

(c) Mr Hudson's push of Mr Howell should not be characterized as workplace intimidation as it did not intimidate Mr Howell who was not fearing for his safety [65] when he responded 'why did you do that' before walking away. Mr Howell could not have been intimidated because he had the presence of mind to come back with 'I could get you into a lot of trouble', which was either a threat or could be described as 'Gotcha'.

(d) There was no classic verbal set-to that escalates to a push and shove and then leads to punching. It was submitted that the push was not seen by Mr Howell as an escalation of the matter, even though he had thought that Mr Hudson's repeated questions of 'what did you say?' was wanting a response from Mr Howell that would give Mr Hudson an excuse to hit him.

(e) Mr Hudson had been provoked by Ben who in an act of puerile annoyance relocated materials that Mr Hudson was working with.

(f) In respect of the 'baby-slap' of Ben, it was submitted that the act could not have been intimidating as it was only after the 'baby-slap' that Ben felt that: 'This was when Richard became threatening.' It was submitted that in the context of every day employment in Australia the 'baby-slap' was a harmless gesture. His lawyer submitted: 'I can't by any stretch suggest that that was unacceptable behaviour in the workplace.' [66]

(g) In relation to the alleged threats made by Mr Hudson to Ben, Woolworths had in effect abandoned the allegation by failing to investigate it at all. In any event, Mr Hudson's account should be preferred. Ben's evidence should be considered unreliable because his fear for his life was an incredible exaggeration made only under re-examination to enhance his account.

(h) The process followed in investigating the incident was flawed, including:

(i) On being advised by Mr McMcBlane that there were two allegations of violence against Mr Hudson, Mr Biggers, who understood that Woolworths had a policy of zero tolerance in relation to all physical violence in the workplace, developed a mindset which, like a 'red mist' and how a radar gun locks on to a target, caused him to focus on the allegations as forms of violence. Mr Biggers then characterised Mr Hudson's push of Mr Howell as violence, when on any objective assessment it was not violence, and became overzealous in enforcing Woolworths code of conduct.

(ii) Having formed the view that Mr Hudson had engaged in violence or assault in the workplace which cannot be tolerated he considered that the only way to deal with such unsatisfactory conduct was to terminate Mr Hudson's employment; [67]

(iii) Mr Biggers erred in not adequately differentiating between the physical and mental elements of what he concluded was physical intimidation because he did not interview Mr Howell and the other witness to the first incident. He did not interview Mr Howell about whether he felt bullied and he did not interview Ben.

(i) Mr Biggers could have satisfied his health and safety obligations to other employees without having to terminate Mr Hudson's employment.

(j) At the time of each incident, Mr Hudson was under physical and emotional stress as a result of a workplace injury to his knee and marital problems. Subsequent to his termination of employment Mr Hudson has voluntarily undergone counselling.

(k) The consequences of Mr Hudson's actions had snowballed through Woolworths action to the extent that Tamworth was 'in grave fear of a man that's a confessed assaulter of young children.' [68]

(l) References to various decisions of industrial tribunals where relatively minor assaults or skirmishes have been found not to constitute a valid reason for termination.

[66] In response to my inquiry as to whether I should take account of the age differentials between Mr Hudson and Mr Howell and Ben, it was submitted on behalf of the applicant that Mr Hudson was not using his age as a means of using a power imbalance to intimidate two young workers. It was submitted that Mr Howell and Ben each regarded Mr Hudson as an equal who did not consider himself to be their equal.

[67] Woolworths submissions included the following:

(a) Mr Hudson admitted to hitting/flicking Ben and pushing Mr Howell.

(b) The evidence did not indicate an element of provocation or, in the alternative, did not indicate an element of provocation justifying physical responses from Mr Hudson.

(c) In relation to the incident with Mr Howell, Mr Hudson reacted to a relatively minor verbal comment with a physical assault for which Mr Howell could have made a complaint of criminal assault.

(d) Woolworths' code of conduct commits the organisation to manage its operations so as '… to ensure the safety, health and welfare of its employees …'. The Code 'opposes … harassing behaviours such as gestures, language, … in the workplace that unreasonably offends, humiliates or intimidates such as … physical molestation including physical molestation…, unwelcome touching … bullying behaviour such as verbal abuse or physical intimidation.' [69]

(e) Mr Hudson had agreed to abide by the practices and policies in the code and accepted that if he acted in breach of the policy his employment could be terminated.

(f) Woolworths induction workbook, under the heading 'Behaviour Standards' includes that: 'The use of objectionable language … or gestures directed towards … other Associates … is regarded as misconduct and may result in dismissal. Big W does not tolerate fighting … abusing … fellow associates …'. Further, it states that Big W can terminate the employment of employees by instant dismissal 'for misconduct or other grounds justifying instant dismissal such as, but not limited to, fighting … abusing … fellow associates …'. [70]

(g) Mr Hudson's misconduct constituted a valid reason for the termination of his employment because it jeopardised the safety and welfare of other workers and constituted a breach of the relevant provisions of the code of conduct and/or induction workbook.

(h) In the alternative, Mr Hudson's conduct (whether it is characterised as assault, fighting, intimidation or any form of workplace violence) constituted a breach of the code of conduct and/or the behaviour standards in the induction workbook and justified his summary dismissal.

(i) In the further alternative, Mr Hudson's wilful misconduct, involving two incidents of workplace violence in two days and in breach of the code of conduct and/or induction workbook constituted conduct justifying summary dismissal.

(j) Mr Hudson's length of service, medical conditions and family circumstances did not render the termination harsh, unjust or unreasonable. That the incidents involved young and vulnerable employees and that Mr Hudson gave unapologetic responses when he admitted his behaviour and his lack of remorse or recognition that he had done anything wrong went against such a finding.

(k) Prior to his termination Mr Hudson was given copies of the statements of Mr Howell and Ben and given an opportunity to comment on them.

(l) The termination of employment was not harsh because it was not disproportionate to the gravity of the entirety or combination of each of the incidents. It was not unjust because Mr Hudson admitted to engaging in serious misconduct. It was not unreasonable because his conduct posed threats to the safety and welfare of employees rostered to work with Mr Hudson, particularly very young employees. [71]

(m) There was no evidence to support the view that Mr Biggers acted other than in an even-handed manner in investigating the allegations or that what was described as a 'red mist' had clouded his judgement and caused him to lock onto a violence mindset. Further, the proposition that he had locked onto Mr Hudson as a target was not put to Mr Biggers during cross-examination.

(n) It is not for the Commission to determine whether Mr Hudson's conduct constituted assault, intimidation, physical or non-physical fighting, or other label. Such an exercise would only muddy the task of the Commission determining whether the termination was harsh, unjust or unreasonable.

(o) If the Commission were to find that Mr Hudson's termination of employment was harsh, unjust or unreasonable it should exercise its discretion and not order a remedy.

(p) References to various decisions of industrial tribunals in support of its submissions.

[68] Subsection 643(1)(a) of the Act provides:

"(1) Subject to subsections (5), (6) (8) and (10), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment:

(a) on the ground that the termination was harsh, unjust or unreasonable; …"

[69] In Byrne v Australian Airlines Limited the High Court explained similar grounds [72] 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. …

Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable." [73]

[70] In determining whether a termination was 'harsh, unjust or unreasonable' the Commission must have regard to the matters identified in s.652 (3) of the Act, namely:

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

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

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

(d) if the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination; and

(e) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and

(f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and

(g) any other matters that the Commission considers relevant."

[71] In having regard to the matters identified in s.652(3) each of the matters referred to in paragraphs (a) to (g) must, in so far as they have application or are relevant to the circumstances of the case, be treated as a matter of significance in the decision making process. [74]

[72] In considering applications made pursuant to s.643(1)(a), the Commission must have regard to the provisions of subsection 635(2) of the Act which provides that the procedures and remedies concerning the conciliation and arbitration of claims, as well as any decision on remedies:

"... are intended to ensure that, in the consideration of an application in respect of a termination of employment, a 'fair go all round' is accorded to both the employer and employee concerned." [75]

[73] In a matter in which the termination is based on the conduct of the employee, the Commission must determine whether the conduct took place and what it involved. [76] The Commission must make a finding on the evidence before it as the test is not whether the employer believed, on reasonable grounds after sufficient inquiry, that the employee was guilty of the conduct which resulted in the termination.[77]

S.652(3)(a): whether there was a valid reason for the termination related to the employee's capacity or conduct (including its effect on the safety and welfare of other employees)

[74] For a reason to be 'valid' within the context of s.652(3)(a), it must be 'sound, defensible or well founded' and 'genuinely connected with the employee's capacity or conduct', [78] including its effect on the safety and welfare of other employees.

[75] The words 'including its effect on the safety and welfare of other employees' were inserted by the Workplace Relations Amendment (Work Choices) Act 2005. The Explanatory Memorandum to the Bill that resulted in that Act, namely the House of Representatives Workplace Relations Amendment (Work Choices) Bill 2005, when referring to that amendment, stated:

2173. This item would amend paragraph 170CG(3)(a) by inserting a reference to the effect of the employee's capacity or conduct on the safety and welfare of other employees.

2174. Accordingly, in assessing whether an employee's dismissal was harsh, unjust or unreasonable, the AIRC would need to have regard to, amongst other things:

whether the employee's capacity may have put at risk the safety or welfare of other employees; and

any conduct of the employee that may have put at risk the safety or welfare of other employees."

[76] In determining what conduct occurred, I will have regard to all of the evidence before the Commission as I am obliged to consider whether there was a valid reason for Mr Hudson's termination of employment and not be limited to the reason given by the employer for the termination. [79]

[77] In considering whether or not a valid reason existed for Mr Hudson's termination of employment the Commission does not take account of whether the termination was a summary dismissal or was with notice (or compensation in lieu thereof). [80] (In circumstances of summary dismissal the issue of whether the penalty imposed was proportionate to the conduct is a matter appropriately considered in the context of s.652(3)(g).[81])

[78] In relation to the first incident, I am satisfied that when Mr Hudson ascertained that Ben had removed the plastic safers, as a mild form of admonishment he touched Ben without significant force in the manner described by Ben (refer to paragraph 16 above). In that respect, having observed each give their evidence, I have preferred Ben's evidence to that of Mr Hudson. There was no reason for Ben to fabricate what occurred whereas Mr Hudson was in some physical pain and under some personal stress. In any event, Ben acted appropriately in advising Mr Hudson that he did not welcome being physically touched and the incident (which I would not characterise as violence to any extent) should have ended there. I appreciate that it may be awkward for a 16 year old to convey his objection to being touched to a 57 year old, but I find that Ben conveyed his wish assertively and not aggressively.

[79] However, I am satisfied that the incident did not end there. Ben presented to the Commission as a fairly serious young man with a level of maturity appropriate for his years. According to Mr Hudson he was a fairly easy going boy. I prefer his evidence, which was tested under cross-examination, of how, after he did not react to Mr Hudson's tease of: 'What, did I upset you?', Mr Hudson in an aggressive manner leant over him and threatened him with physical violence, even though there was no evidence that Mr Hudson was serious about acting on the words used. It is more likely that Mr Hudson was functioning under a 'short fuse' following Ben's assertive rejection of his previous physical contact and reacted to Ben's ignoring his tease, than Ben fabricating the events.

[80] By his behaviour Mr Hudson, who had been in a mood and was in some physical pain and under some personal stress, acted in a most unsatisfactory manner and without regard to the differing levels of maturity of Ben and him, for which Mr Hudson should reasonably have made an allowance. I find that nothing than Ben did justified such an aggressive, threatening and intimidating response from Mr Hudson which was unacceptable and contrary to the Woolworths code of conduct.

[81] In determining whether such aggressive behaviour was unsatisfactory, I have not taken into account whether Ben actually felt intimidated. Rather I have viewed the behaviour objectively and from the perspective of whether or not a reasonable person, being a child of Ben's age, would have reasonably found Mr Hudson's behaviour threatening or intimidating. Whilst Ben might fear for his life in Mr Hudson's presence, viewed objectively, there are no reasonable grounds for such a fear.

[82] The second incident involved the argument between Mr Hudson and Mr Howell which had its genesis in Mr Hudson turning the music off without consulting Mr Howell who was playing the music in accordance with a common practice. The incident escalated when Mr Howell called Mr Hudson a dickhead in response to Mr Hudson calling Mr Howell a little shit. Whilst Mr Hudson denied calling Mr Howell a little shit, having observed the witnesses and heard their evidence I prefer the evidence of Mr Howell to that of Mr Hudson. The turn-off/turn-on off process without either speaking to the other and the nature of the name calling demonstrated immature behaviour by each which does neither of them credit.

[83] However Mr Hudson then pushed Mr Howell with both palms to his chest area, with sufficient force which I accept caused him the take a couple of steps backwards (which, from its description, I find is more aptly described as a shove). Mr Hudson's taking the exchange between them to a physical level was totally unacceptable considering:

Mr Hudson was the physical aggressor. This is not the case of a fight erupting between two workers and their being some doubt as to who threw the first punch and who was acting in self defence;

At the time there was no prospect of a physical threat from Mr Howell;

In contemporary society such a physical response to name-calling is not to be condoned.

All workers have a right to expect to feel physically safe in the workplace. Other means of resolving differences can reasonably be expected and if workers cannot sort out their differences they should seek assistance from management without resorting to such aggressive physical behaviour;

In any event, the shove was not a reaction to being called a dickhead. If it had, the response would not have been justified. As the old saying goes: 'Sticks and stones may break my bones but names can never hurt me.'

The shove occurred subsequently, and followed Mr Hudson's twice asking Mr Howell: 'What did you say', with Mr Howell responding: 'You heard me'. The language being directed at Mr Hudson at the moment of the shove could not be described as grossly offensive.

The age disparity between the two employees, with Mr Hudson being the one with the greater maturity and life experience. Someone of Mr Hudson's life experience should have reasonably defused the situation rather seeking to escalate things by challenging Mr Howell (on two occasions) to repeat the word that had made Mr Hudson angry;

I have not accepted that the evidence supports the inference that what Mr Howell said to Mr Hudson after the push ('What did you do that for? I could get you in a lot of trouble for that') was a threat or that it can be inferred from those words that Mr Howell had been deliberately provoking Mr Hudson.

The Big W environment with its range of employees of all ages and backgrounds. There was no evidence of a workplace culture which tolerated physical aggression similar to Mr Hudson's conduct.

[84] In determining whether Mr Hudson's aggressive behaviour was unsatisfactory, I have not taken into account whether the shove actually caused Mr Howell to feel scared or threatened by the prospect of Mr Hudson carrying on with a punch or the like (which he did not). Rather I have viewed Mr Hudson's behaviour objectively and from the perspective of how a reasonable person, including persons within the age range employed at the Big W store, Tamworth, would have reasonably found Mr Hudson's behaviour.

[85] Mr Howell's response to Mr Hudson's shove backwards does not excuse Mr Hudson's physical aggression. Mr Hudson must accept responsibility for his actions in resorting to such physically aggressive behaviour.

[86] I am satisfied that in shoving Mr Howell, Mr Hudson's behaviour was unacceptable and contrary to the Woolworths code of conduct.

[87] Having applied s.643(1)(a) to the evidence, I am satisfied that the following reasons taken cumulatively constitute serious misconduct such that a valid reason existed for terminating Mr Hudson's employment:

(a) Mr Hudson's conduct in shoving Mr Howell backwards after Mr Hudson had escalated what had been a verbal argument by repeating words to the effect of 'What did you say?'. The shove backwards put at risk the safety of Mr Howell.

(b) Mr Hudson's aggressive, threatening and intimidating conduct towards Ben (subsequent to the 'baby-slap').

(c) The more serious incident (the shoving) occurred a day after Mr Hudson had made the physical threat to someone who was 16 years of age. This was indicative of a pattern in Mr Hudson's conduct in the workplace, if not a deterioration thereof, which may have put at risk the safety or welfare of vulnerable employees in the Big W working environment.

(d) Such conduct of Mr Hudson being a serious violation of the Woolworths code of conduct which was a condition of his contract of employment. [Breaching an employer's policy will not of itself automatically give rise to a valid reason for termination of employment as that depends on the character of the policy and the nature of the breach. [82] In this case I find the code of conduct to have been both lawful and reasonable.]

S.652(3)(b): whether the employee was notified of that reason

[88] The reference in s.652(3)(b) to 'that reason' is a reference to the 'valid reason' for the employee's termination. [83] The reason must be given prior to the decision to terminate.[84]

[89] There is no dispute over the matters that were put to Mr Hudson at the meeting on 13 December 2006, which included the accounts of Ben and Mr Howell of the incidents.

[90] At that meeting Mr Hudson was not notified that the reason for his termination included what I have found to be his aggressive, threatening and intimidating conduct to Ben (subsequent to the 'baby-slap'). However he was questioned about those allegations and denied the conduct.

S.652(3)(c): whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee

[91] The 'opportunity to respond' in s.652(3)(c) refers to an opportunity that is provided before a decision is taken to terminate the employee's employment. [85] The 'any reason' refers to the valid reason for the employee's termination.[86]

[92] In cases where an employee's conduct is involved, this opportunity serves two purposes. Firstly, it gives the employee the opportunity to demonstrate that the allegations have no foundation. Secondly, it gives the employee the opportunity to persuade the employer that, while the allegations are of substance, there are factors that should persuade the employer not to terminate the employment. Those factors may be extenuating personal circumstances or they may involve undertakings about future conduct. [87]

[93] At the meeting on 13 December 2006, in the presence of the union delegate, Mr Hudson was asked to respond to the written allegations which included the valid reason referred to in paragraph 87 above.

[94] Whilst I doubt that Mr Biggers adequately investigated the allegations by failing to question Ben or Mr Howell about their written statements before interviewing Mr Hudson, I do not regard that doubt sufficient to find the process not to have been sufficiently procedurally fair to Mr Hudson who had ample opportunity to respond to the written allegations in the presence of the union delegate. [88]

[95] The evidence did suggest that Mr Biggers, on hearing Mr Hudson's admission of his physical contact with Mr Howell and Ben, considered that he had no option but to take action against Mr Hudson because of Woolworths zero tolerance policy. However I accept Mr Biggers evidence that, before making the decision to terminate Mr Hudson, he weighed up the seriousness of the allegations with the other circumstances known to him.

S.652(3)(d): if the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination

[96] The question of whether Mr Hudson was warned about his performance before the termination of his employment is only relevant if the termination related to his unsatisfactory performance. I have found that there was a valid reason for Mr Hudson's termination which related to his conduct rather than to unsatisfactory performance by him.

S.652(3)(e): the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination

[97] Woolworths is a large organisation and therefore cannot rely upon its size as a justification for any defects in the procedures followed in effecting the termination of Mr Hudson's employment.

S.652(3)(f): the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination

[98] Woolworths has the capacity to ensure that persons involved in implementing procedures for the termination of employees have sufficient training to enable them to discharge those responsibilities reasonably.

S.652(3)(g): any other matters that the Commission considers relevant

[99] I am required to have regard to any other matters I consider relevant.

[100] Mr Hudson had worked continuously for Woolworths for a period of approximately three years. There is no evidence of his performance being other than satisfactory, apart from approximately three months earlier he received a written warning because on a second occasion he had failed to report an injury on the same day as the injury occurred.

[101] Mr Hudson was not a long serving employee with an unblemished record.

[102] Mr Hudson was absent on sick leave on the three days prior to the first incident, namely on 4, 5 and 6 December 2006. He returned to work on 7 December 2007, the day of the first incident.

[103] There was no medical evidence to support Mr Hudson's assertion that at the time of each of the incidents he was experiencing considerable pain and discomfort from his knee.

[104] Given that the notes of the interview on 13 December 2007 include Mr Hudson's reference to being an epileptic who was on medication, I think it reasonable to infer that if Mr Hudson had referred at that meeting to such pain and discomfort as being a mitigating factor of any significance, it would have also been recorded. In any event whilst this might be a reason for Mr Hudson feeling 'out of sorts' or adversely affecting his performance, it is does not excuse his conduct towards other employees which I have identified as a valid reason for the termination of his employment.

[105] Whilst this was mentioned by Mr Hudson during his interview with Mr Biggers, during the proceedings before the Commission it was not raised on behalf of Mr Hudson as a mitigating factor or extenuating circumstance.

[106] At the time of the incident with Mr Howell, Mr Hudson had a bad headache/migraine. Whilst this might be a reason for Mr Hudson feeling 'out of sorts' or affect his performance, it does not excuse the conduct towards Mr Hudson which I have identified as a valid reason for the termination of his employment.

[107] Mr Hudson is the father of a 14 year old dependant daughter who lives with her mother. The break-up with his former partner of some 13 years (who is employed in the same store) occurred a bit before December 2005 - approximately 12 months before the incidents.

[108] Mr Hudson gave evidence that at the time of the incidents he was going through a difficult time with the separation. He had thought that he could re-establish the relationship but had found out that his former partner was involved with another person who had commenced living with her and that depressed him somewhat. [89]

[109] At the time of his interview with Mr Biggers his relationship with his former partner was such that he had requested that she be a witness at the interview.

[110] The Commission was provided with a certificate from Mr Hudson's general practitioner dated 29 March 2007 which stated that Mr Hudson had been having personal difficulties for several months and prior to his medical treatment commencing in early December 2006. It includes: "These difficulties are likely to have contributed to the behaviour that lead to his dismissal in mid-December." [90]

[111] Whilst his family circumstances would be a factor that would have contributed to Mr Hudson's emotional state at the time of the incidents, I am not persuaded that it is a factor that goes in favour of a finding that Mr Hudson's termination of employment was harsh, unjust or unreasonable.

Consequences of termination upon personal and economic situation

[112] Some measure of regard should be given to the impact of the termination. [91]

[113] Mr Hudson has experienced difficulty in obtaining alternative employment which he is yet to obtain. This would not have been assisted by his undergoing a knee operation in late February 2007 which made him unavailable for work until 11 April 2007.

Richard Hudson v Woolworths Limited [2007] AIRC 912;

At a glance

Court

Decision date

Source

Judgment (256 paragraphs)

Richard Hudson v Woolworths Limited [2007] AIRC 912; (24 October 2007)

Parties

Legislation Cited (2)

Cases Cited (1)