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[2013] FWC 2959
DECISION
Fair Work Act 2009
s.394—Unfair dismissal
Laeth Ishak
v
Jetstar Airlines T/A Jetstar
(U2013/5656)
COMMISSIONER RYAN MELBOURNE, 10 MAY 2013
Termination of employment - altercation between 2 employees - physical assault - valid
reason - differential treatment - mitigating factor - dismissal harsh.
[1] The following decision (now edited) was issued following the conclusion of
proceedings on 9 May 2013.
[2] Earlier today in proceedings, I made several findings relating to the initial matters that
have to be considered before merits. I'm not going to repeat those matters now, but none were
contentious in any event. This decision relates to the aspect that I now must consider, which
is whether or not the dismissal was harsh, unjust or unreasonable, having regard to the criteria
in section 387 of the Act. In considering the criteria in s.387 I am required to consider each
criteria which is relevant and only those criteria which are relevant.1
[3] The first criteria in section 387 is paragraph (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).
[4] The evidence in this matter describes events that happened on the tarmac of the
Tullamarine Airport controlled by Jetstar at gate 27. The applicant, Mr Ishak, in his evidence
said that he never grabbed Mr Samson. The evidence of Mr Samson and Mr Moore was that
Mr Ishak did grab Mr Samson. Soon after the incident took place on the tarmac between
Mr Samson and Mr Ishak photographs were taken by Mr Everitt of Mr Samson's upper right
arm. Having regard to the evidence of Mr Ishak, Mr Samson and Mr Moore, I'm satisfied that
Mr Ishak did grab Mr Samson. I'm also satisfied, having had regard to the medical reports
submitted in support of Mr Samson's claim by his treating doctor, that the grip on the arm
caused bruising, and I'm also satisfied that the grip by Mr Ishak on Mr Samson's arm was
strong enough that when Mr Samson raised his arms to break the grip scratch-like marks were
left on Mr Samson's arm.
[5] It's clear to me that Mr Ishak was not honest with management during investigation
and that his evidence to the Commission on this point was not truthful. Mr Ishak said that he
never chested Mr Samson. The evidence of Mr Samson and Mr Fisher was that Mr Ishak was
AUSTRALIA FAIR WORK COMMISSION
[2013] FWC 2959
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chest to chest with Mr Samson. It's clear to me that Mr Ishak was not honest with
management during their investigation and that his evidence to the Fair Work Commission on
this matter was also not truthful.
[6] The two incidents of physical assault by Mr Ishak on Mr Samson I find proven on the
balance of probabilities. The chest to chest contact is the lesser of the two contacts.
[7] The physical contact was, in my view, aggressive. The arm grabbing and the chesting
provides a valid reason for the dismissal.
[8] The reason for dismissal was not limited to the act of the arm grabbing or the chesting,
but to an additional element that Mr Ishak had not been honest about these matters to the
persons investigating the matters. The combination of the arm grabbing, chesting and the
dishonesty about them does, in my view, constitute a valid reason for the dismissal. It is
sound, it's defensible and it's well-founded, and the reason is not capricious, fanciful, spiteful
or prejudiced. 2
[9] The dismissal was also based upon Jetstar being satisfied that the allegation that - "On
3 December you had an altercation and you approached Mr Samson in a threatening matter"
was proven. Jetstar was satisfied that this allegation had been substantiated through the
evidence of Mr Samson and Mr Fisher. Mr Samson describes the conduct of Mr Ishak as
being aggressive and that Mr Ishak commenced the altercation by approaching Mr Samson.
In his email of 4 December 2012 to Mr Carter, Mr Samson describes this as follows:
“Leo came past on his tug blasting his horn and pointing. At no time I was hindering
his operation and had talked only a minute or so. As I walked to my tug, Leo walked
past and I said to him that I was talking to Daniel about training, in a very civil matter.
Leo then said to me, "Don't you fucking talk to me like that". I said to him, "I'm
talking about training". Leo then came at me in my face, abusive and threatening me.
I said, "What is your problem?" He kept at me and grabbed me under my right arm,
which I felt pain.”
[10] This portrays Mr Ishak in a very negative light and Mr Samson in quite a positive
light. The allegation has two elements: the first is that there is an altercation; and the second,
it's in the phrase, "You approached him in a threatening manner". The first part of the
allegation is clearly established through the evidence of Mr Ishak, Mr Samson, Mr Fisher and
Mr Moore. The second part of the allegation relates to the conduct of Mr Ishak driving his
tug, honking his horn, pointing his finger and later turning around after passing Mr Samson
and then coming at Mr Samson in an abusive and threatening manner. This part of the
allegation is only supported by Mr Samson's version of events. It is not supported by
Mr Fisher's version of events.
[11] Under cross-examination, Mr Samson agreed that when Mr Ishak was on the tug, he
was pointing towards the rear of the aeroplane and not at Mr Samson. Mr Fisher's evidence
was that Mr Ishak gave one small honk on the horn of his tug, not a long blast as described by
Mr Samson. Mr Fisher's evidence was that Mr Samson approached Mr Ishak, who was doing
paperwork on his tug, and not the other way around as Mr Samson described it. I prefer the
evidence of Mr Fisher over the evidence of Mr Samson on these matters. On that basis, I am
not satisfied that the second part of the first allegation could have been substantiated by
Jetstar.
[2013] FWC 2959
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[12] The first part of the allegation that there was an altercation is merely a part of the third
allegation made against Mr Ishak, and that was that he grabbed his arm. The two are not able
to be separated out as being two separate incidents. They comprise one single incident; an
altercation and the grabbing of an arm. On that basis, whilst the altercation itself may have
been established, the altercation, merely as an argument between persons, may not constitute
a valid reason for dismissal. But where, within the altercation, there's physical conduct by Mr
Ishak in grabbing the arm, as I've already identified, it is the grabbing of the arm and the
chesting which does provide the valid reason for dismissal.
[13] Sections 387(b), (c) and (d) relate to processes or procedures applied by the
respondent to the applicant or towards the applicant in terms of those matters which one
would describe as being procedurally fair in putting issues to the applicant, giving him an
opportunity to respond and giving him an opportunity to be represented in such a response.
The detailed evidence that has been provided in this matter makes clear that Jetstar has a quite
comprehensive process in place where allegations are made, they were put in writing,
opportunities were given to Mr Ishak to respond, Mr Ishak was also given an opportunity to
be represented. In that sense, I'm satisfied that procedural fairness has been accorded to
Mr Ishak during the process leading to the termination.
[14] Section 387(e) relates to unsatisfactory performance. That's simply not a relevant
issue in this matter.
[15] Paragraphs 387(f) and (g) relate to the nature of the employer's enterprise. They are
always relevant. In this particular matter, Jetstar is a large employer. It does have industrial
relations - human resource management expertise. That is reflected in the fact that it does
have significantly detailed processes in place for dealing with unfair dismissal claims, and I'm
satisfied that nothing in paragraphs 387 (b), (c), (d), (f) or (g) would weigh in favour of a
finding that the dismissal is harsh, unjust or unreasonable.
[16] I now turn to section 387(h). I considered the evidence of Mr Samson. Mr Samson
clearly was not honest with the investigators of Jetstar. Mr Samson didn't acknowledge to the
investigators that he used aggressive language towards Mr Ishak whilst in conversation with
Mr Fisher. Mr Samson didn't acknowledge to the investigators that he gave a two-handed
push to Mr Ishak which made Mr Ishak stumble back a couple of paces. Mr Samson didn't
acknowledge to the investigators that this two-handed push was after he had got out of
Mr Ishak's grip. Mr Ishak didn't acknowledge to the investigators that he was "chest pointing",
(using the description of Mr Fisher), at Mr Ishak or "chest poking" (as described by Mr
Ishak), and that occurred during the altercation. Mr Samson didn't acknowledge to the
investigators that he used aggressive language to Mr Ishak during the altercation. His
statement has extremely mild language in it, whereas the evidence that has come out during
these proceedings has Mr Samson using aggressive expletives. Mr Samson also didn't
acknowledge to the investigators that he saw Mr Ishak pointing to the back of the aircraft
while he was approaching on his tug. In his statement to the investigators, Mr Samson
identified it as pointing, and additionally, gesturing to Mr Fisher to get the dollies, whereas
under cross-examination and examination from the Commission, Mr Samson acknowledged
very clearly and without hesitation that he understood and knew that Mr Ishak was pointing to
the rear of the aircraft.
[2013] FWC 2959
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[17] Mr Samson gave very detailed and clear evidence in the witness box of the action he
used to free himself from Mr Ishak's grip and to strike Mr Ishak.
[18] Mr Samson described a fluid movement in which he raised both arms in a circular
motion; his left arm making an anti-clockwise sweeping motion and his right arm making a
clockwise sweeping motion. In making this circular motion, Mr Samson broke the grip that
Mr Ishak had on Mr Samson's right arm.
[19] At this point of time, Mr Samson was then free of Mr Ishak's grip.
[20] Mr Samson continued with the circular motion of both arms so that his two hands met
together in front of him and relatively close to him.
[21] Mr Samson then continues the movement by using the momentum already created to
push both his hands against Mr Ishak's test, forcing Mr Ishak to stumble backwards. At no
stage did Mr Samson use his left arm to break Mr Ishak's grip on Mr Samson's right arm.
Even as Mr Samson described it, the only consequence of moving his left arm in the circular
motion away from where Mr Ishak was gripping Mr Samson's right arm was to have both
hands in a position to strike at Mr Ishak.
[22] The self defence aspect of Mr Samson's actions is the commencement of a circular
motion with his right arm, and continues until Mr Ishak is forced to release his grip.
[23] The continuation of the movement of the right and the whole of the movement of the
left arm do not appear to me to be merely self defence, but appear to me to be for the purpose
of striking Mr Ishak.
[24] I note that the photos show abrasions or scratching on Mr Samson's right arm, which is
consistent with Mr Ishak being forced to let go of Mr Samson's arm through the movement of
Mr Samson's arm. It would appear that the abrasions or scratches were not inflicted on
Mr Samson by Mr Ishak through any deliberate decision of Mr Ishak. Having said that, the
abrasions or scratching could only have occurred because of a firm grip by Mr Ishak on
Mr Samson.
[25] Mr Samson also described the commencement of Mr Ishak's aggressive behaviour
when Mr Ishak drove towards the front of gate 27. This is not supported by Mr Fisher's
evidence, and in fact Mr Fisher's evidence and his statement to the investigators makes clear
that Mr Samson used language towards or about Mr Ishak which had a level of aggression in
it. If there was anything in Mr Ishak's honking his horn, once and briefly, and pointing to the
rear of the aircraft, it was directed at Mr Fisher and not at Mr Samson. Mr Samson described
the continuation of Mr Ishak's aggressive behaviour by saying Mr Ishak approached
Mr Samson after Mr Samson had said to Mr Ishak that he was talking to Daniel about
training.
[26] I'm not satisfied on the balance of probabilities that Mr Samson's version is accurate.
It is not consistent with Mr Fisher's evidence that he saw Mr Samson walk towards Mr Ishak,
who was doing paperwork at his tug. At the very least, it is clear that Mr Ishak had not
approached Mr Samson to start a conversation. Rather, Mr Samson approached Mr Ishak and
Mr Samson initiated the conversation. Mr Ishak's evidence was that Mr Samson approached
[2013] FWC 2959
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him in an aggressive manner, whereas Mr Samson says that after making a neutral comment
to Mr Ishak, that Mr Ishak became aggressive towards Mr Samson.
[27] Mr Samson, in his statement to investigators on 5 December, was that he and Mr Ishak
did not get on. This puts the language used by Mr Samson towards or about Mr Ishak, when
Mr Ishak drove past and honked his horn, into some context. The use of the expletives is
consistent with Mr Samson not getting on with Mr Ishak. Given that Mr Samson
acknowledges that he didn't get on with Mr Ishak, Mr Samson still approached Mr Ishak
while Mr Ishak was doing his paperwork. What words were actually said between
Mr Samson and Mr Ishak is difficult to determine. It is clear that both used offensive
language to each other. It is clear that both were, and I quote, "really angry and upset", which
is Mr Moore's evidence.
[28] I'm satisfied that the altercation would not have occurred if Mr Samson had not
approached Mr Ishak and spoken to him, especially if such approach occurred immediately
after Mr Samson had used expletive language towards or about Mr Ishak.
[29] Mr Carter's evidence was that the allegations made by Mr Ishak against Mr Samson
were investigated but there was nothing to corroborate Mr Ishak's allegations and that the
investigation ended. It's very clear that both Mr Carter and Mr Porter only had available to
them the information gained through the investigation.
[30] I note that Jetstar had much more information available to it after the dismissal of
Mr Ishak through the various witness statements in this matter. Nothing has been put to the
Commission that Jetstar has acted on the information available to it to consider any action
against Mr Samson.
[31] Mr Tracey drew my attention to several authorities, and in particular, to the decision of
a full bench in Parmalat Food Pty Ltd v Kasian Wililo 3. Mr Tracey drew my attention to
paragraph 24 of that decision, where the full bench said:
“Having found a valid reason for termination amounting to serious misconduct and
compliance with the statutory requirements for procedural fairness, it would only be
if significant mitigating factors are present that a conclusion of harshness is open.”
In that particular matter, the full bench, on appeal, came to the conclusion that there were no
discernible significant mitigating factors in the decision at first instance.
[32] The issue for me, therefore, is whether there are significant mitigating factors present
in this matter? I consider that the differential treatment given to Mr Ishak and Mr Samson
constitutes a significant mitigating factor. The conduct of Mr Ishak was that he assaulted
Mr Samson and was not honest in his dealings with the investigators. The evidence makes
clear that Mr Samson assaulted Mr Ishak and that Mr Samson was not honest with his
dealings with the investigators. Mr Ishak was dismissed, Mr Samson was not.
[33] The conduct of both was worthy of significant condemnation and strong disciplinary
action, including the possibility of dismissal. But where one person involved in an altercation
is dismissed and the other isn't, and where both have engaged in aggressive behaviour and
physical assault against each other, the dismissal of one is harsh when the other has not been
subject to the same or, as in this case, any disciplinary action. This harshness is even more so
[2013] FWC 2959
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when both Mr Samson and Mr Ishak were not honest in their provision of accurate
information to the investigators.
[34] In concluding that the dismissal was harsh because of the differential treatment
accorded to Mr Ishak and Mr Samson, I am mindful that Jetstar acted as they did on the basis
of information known to them as at the date of dismissal and without the benefit of the
evidence before the Commission.
[35] I do not intend in this decision to deal with any remedy at this time. I wish to hear
from both parties on remedy at a further hearing after they have had the opportunity of
considering this decision. I make clear that I have no view as to whether a remedy should
even be granted, let alone what remedy would be appropriate if a remedy should be granted.
[36] I will list a further hearing of this matter in approximately four weeks.
COMMISSIONER
Appearances:
B. Baarini for the Applicant
J. Tracey for the Respondent
Hearing details:
2013.
Melbourne:
8, 9 May
Printed by authority of the Commonwealth Government Printer
Price code C, PR536556
OF FAIR WORK . ... AUSTRAI LY THE SEAL
[2013] FWC 2959
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1 Sayer v Melsteel P/L [2011] FWAFB 7498 at pns [14] and [20] and Chubb Security Australia P/L v Thomas Print S2679 at
pn41
2 Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371 at 373, 7 July 1995, Northrop J.
3 [2011] FWAFB 1166
