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Fair Work Act 2009
s.394—Unfair dismissal
John Whittaker
v
EDI Rail-Bombardier Transportation (Maintenance) Pty Ltd T/A EDI
(U2013/11545)
DEPUTY PRESIDENT MCCARTHY PERTH, 14 OCTOBER 2013
Application for relief from unfair dismissal.
Background
[1] Mr John Whittaker (the Applicant) was dismissed from his employment by EDI Rail -
Bombardier Transportation (Maintenance) Pty Ltd (the Respondent) on 10 July 2013. He had
been employed since June 2009 as a yardmaster. The Respondent maintains trains for the
Perth Transport Authority and the duties of the Applicant involved scheduling and moving
trains around the yard. The work required him to work with one or two other employees that
helped him with shunting trains.
[2] The Applicant lodged an application for unfair dismissal remedy (the application). In
the application the Applicant asserted that on the 9 July 2013 as he was clocking off for the
day he was seriously assaulted by another employee, Mr Lee Frodsham. He claims that the
assault by Mr Frodsham was unprovoked and in defending himself the Applicant
Mr Frodsham as he believed he was under threat of being serious injured.
[3] The Respondent asserts that the Applicant engaged in an incident of violence that
involved a combination of verbal and physical altercation/assault at a work site with another
worker. The incident was investigated by the Respondent following the incident. Several
employees including the Applicant were interviewed by management about the incident. The
Respondent decided that the Applicant had not acted appropriately in the circumstances. The
nature of the incident was considered serious misconduct.
[4] The approach to be taken by the Fair Work Commission (FWC) in matters involving
fighting or assault is conveniently set out in the FWC Benchbooks for Unfair Dismissal
matters. i There it outlines that:
“Generally, in the absence of extenuating circumstances, a dismissal for fighting will
not be viewed as harsh, unjust or unreasonable.ii
Extenuating circumstances include:
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DECISION
E AUSTRALIA FairWork Commission
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the circumstances in which the fight occurred, such as whether the dismissed
employee was provoked or acting in self-defence
length of service, including the work record of the dismissed employee, and
whether or not the employee was in a supervisory position.” iii
The authorities are clear that the Commission must take into account all of the
circumstances surrounding the incident and not merely establish who the aggressor
was. iv (Culpeper v Intercontinental Ship Management Pty Ltd (2004) 134 IR 243, 256
[49] [Culpeper]).
[5] Another consideration is the right for an employer to establish and maintain discipline
amongst its employees and ensure that all employees are not at any risk including through any
acts of violence.
[6] Here, it is not asserted that the Applicant was not involved in a physical altercation.
What is asserted is that the involvement was as a consequence of the Applicant being
assaulted and defending himself.
[7] The Full Bench in Culpeper found that approaches to self defence, who the aggressor
was is not the determinative factor. Once the fact is established that the Applicant hit the other
employee it is up to the Applicant to establish that the act or acts were in self-defence. In
order to establish whether the act or acts were in self-defence in this matter it is necessary to
address (i) the holding of the belief v, (ii) whether there were reasonable grounds to hold the
belief, (iii) whether a means of escape was available, (iv) the type of force used and whether it
was excessive vi and not out of proportion to the danger seeking to be avoidedvii, and (v) the
circumstances giving rise to the incident.
The evidence and considerations
[8] The Applicant stated that “There was a history regarding the other worker
(Mr Frodsham).” The history appeared to involve criticisms of Mr Frodsham by the Applicant
regarding his performance, conduct and regular errors. The Applicant raised these concerns
with Mr Michael Doust, the Yardmaster/Presentation Supervisor.
[9] On 9 July 2013 the Applicant says Mr Frodsham came in late, at about 8:20 am. At
12 noon Mr Frodsham came off his break. The Applicant had a train on the cleaning platform
which he had to move and also another train that he had to move. He asked Mr Frodsham to
follow him with the other train and couple up, which Mr Frodsham either failed to do or did
the move incorrectly. The Applicant commented to Mr Frodsham that “he was at least
consistent with his “f###ups!”. A slanging match then developed. The Applicant asked
Mr Frodsham to come into the office and sort it out. He could not find anyone (in authority)
so he continued working.
[10] The Applicant states that Mr Frodsham then conducted himself on the radio in a silly
way making out that he could not understand the Applicant’s instructions. Mr Doust contacted
the Applicant and instructed him to ignore it. Mr Doust and Mr Dave Garner, (the Fleet
Manager), later met with the Applicant and spoke to him about the slanging match and in the
Applicant’s version “counselled him to walk away from it”.
[11] The Applicant states that:
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“I then left and went to my car, but realised I had not clocked off. I went back into the
shed two off and noticed Lee was seated next to the clock off machine, he mumbled
something towards me, I am not sure what he said. I clocked off I picked up a foolscap
envelope which was near the clock off machine for me. Lee came right up to me and
faced me closely and stated words to the effect that he was going to make my life a
misery and hurt me really bad. I responded yeah whatever, do it.
I didn’t see the punch coming but he hit me in the jaw. I looked at him and he was in a
rage and coming at me again. I punched out at him to defend myself and the next thing
I knew I was on the floor. Another worker called Nathan dragged Lee away from me &
he was still trying to get at me. Another worker Woody helped me up and retrieved my
glasses.”
[12] The Applicant sustained a deep cut on his lip, two chipped teeth and bruising on his
back and thigh. There is no evidence of injuries to Mr Frodsham.
[13] The following day on 10 July 2013 the Applicant says he met at 1 pm with Mr Carl
Delaney, (the General Manager) and Mr Garner and Mr Doust. He claims that he was not
given the chance to give his side of the story and his employment was terminated.
[14] The Respondent says that Mr Delaney conducted an investigation into the incident and
various allegations were put to the Applicant at the meeting on 10 July 2013. The allegations
included the Applicant entering into a verbal altercation with Mr Frodsham and then engaging
in a physical fight with him. Evidence was given by Mr Delaney, Mr Doust, and Mr Garner
that in that meeting that the Applicant admitted that he was involved in a physical altercation
with Mr Frodsham but that he asserted that he was acting in self-defence.
[15] Mr Delaney asserts that from his investigation he formed a view that both employees
played a part in the physical altercation and that either the Applicant or Mr Frodsham could
have walked away before the first punch was thrown. The investigation involved talking
immediately after the altercation with some of the other employees who were in the vicinity.
Mr Delaney could not establish who had hit who first but that either could have diffused the
situation by walking away and that there were clear and easy exits to escape.
[16] Mr Doust gave evidence about the 10 July 2013 meeting and stated that the incident
was discussed and the Applicant given an opportunity to respond. The Applicant’s responses
were mainly criticisms of Mr Frodsham and assertions that he had acted in self defence.
Mr Doust’s evidence is consistent with that of Mr Delaney in all of the main elements of what
transpired. Mr Garner also gave an account of the meeting which was also consistent with the
account given by Mr Delaney.
[17] Both Mr Doust and Mr Garner also gave accounts of incidents earlier in the day
involving the Applicant and Mr Frodsham including what they regarded as an instruction to
avoid contact with Mr Frodsham. Whether there was an actual instruction or whether it was
advice and whether the advice or instruction was precise and clear was a matter of some
difference between the Applicant and the Respondent witnesses. The message was clear
enough that he should “cool it” and to “stay clear of Mr Frodsham”. In other words he was
informed that he should avoid allowing any confrontational type situation to develop.
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[18] The evidence is not contested that the Applicant was involved in a physical
confrontation. The evidence is also not contested that there was angst between the Applicant
and Mr Frodsham on the day of the incident and mostly likely previously.
[19] What is not clear is whether Mr Frodsham was also given advice to avoid any
potential for further conflict. It is also not clear who started the verbal altercation in the
immediate lead up to the physical confrontation. Nor is it clear who “threw” the first punch. It
is also unclear whether the Applicant used excessive force including whether he continued
making unnecessary blows. It is quite possible that he did not use excessive force and he did
not throw blows except for those to protect himself from blows being thrown at him. It is
equally as possible that he used excessive and unnecessary repeated blows.
[20] What is clear and I find accordingly is that the Applicant could have avoided the
confrontation. He had choices including turning around and walking away when the verbal
interchange started, he could have not involved himself in the verbal interchange, and he
could have exited the scene through a number of avenues. It was incumbent on the Applicant
to establish to my satisfaction that those types of options were not available to him or were
not practicable. He did not establish any of those factors. Indeed, throughout the day it would
seem that even if the Applicant was being provoked he was probably more a provoker than
Mr Frodsham. The evidence of the Applicant left me with the view that he would more likely
confront a potentially volatile situation than avoid one. Whilst there may be occasions in other
environments where that is a reasonable approach, the workplace is not such an environment.
Conclusions
[21] I find that there was a valid reason for the dismissal of the Applicant. That reason was
his involvement and the nature of that involvement in a physical altercation with a fellow
employee. I do not accept that the altercation was unavoidable and nor has the Applicant
established to my satisfaction that he had reasonable grounds to believe that he was in
immediate danger. Nor do I accept that he had no alternative but to trade blows with the other
employee. Furthermore he was counselled earlier in the day to avoid such a situation and he
ignored that counsel.
[22] I also find other verbal exchanges earlier during the day in question that the Applicant
was as much a provoker of those exchanges as Mr Frodsham and he thus contributed to the
instigation of the acrimonious verbal exchange immediately prior to the fighting.
[23] I also do not consider that the Applicant was treated differently to the way other
employees would have been treated nor was the discipline of termination of employment
disproportionate to the conduct he was engaged in. The conduct could also affect the safety
and welfare of other employees.
[24] I find that the Applicant was notified of the reason and given an opportunity to
respond. Whilst he disputes this was the case the evidence to the contrary is consistent and
clear that he was given that opportunity. Certainly, the process could have been better, but in
the circumstances where there was such a confrontation the immediacy of the investigation
and the dealing with the matter I consider should be commended rather than criticised because
of potential minor and procedural flaw.
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[25] The Applicant did not request a support person to be present at the discussion that
resulted in his dismissal.
[26] The dismissal was not a result of and nor was there any influence in the dismissal from
any performance related issues.
[27] The employer is a relatively large one and there was access to human resource
expertise. Neither of those matters affected the procedure involved nor the decision to
dismiss.
[28] The Applicant is just over 50 years of age and he had been employed by the
Respondent for a reasonable period of time. He evidenced a clear commitment to the job he
was performing and to the Respondent. Indeed his passion for the job contributed to his
criticism of Mr Frodsham. What eventuated from that criticism is unfortunate but as I stated
above it was avoidable. The personal effect on the Applicant is substantial.
[29] Taking all of the above into account I find that the dismissal was not harsh unjust or
unreasonable. The application for unfair dismissal it dismissed.
DEPUTY PRESIDENT
Appearances:
Mr P Mullally (Workclaims Australia) for the Applicant
Mr E Mentiplay (Norton Rose Fulbright Australia) for the Respondent
Hearing details:
2013
Perth
October, 2.
Printed by authority of the Commonwealth Government Printer
Price code C, PR543074
i http://benchbooks.fwc.gov.au/unfair/
ii AWU-FIME Amalgamated Union v Queensland Alumina (1995) 62 IR 385; cited in Tenix Defence Systems Pty
Ltd v Fearnley (unreported, AIRCFB, Ross VP, Polites SDP, Smith C, 22 May 2000) Print S6238 [22].
iii ibid.
iv Culpeper v Intercontinental Ship Management Pty Ltd (2004) 134 IR 243, 256 [49].
v See Miller v Sotiropoulus [1997] NSWCA 204 and also Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR
645 at 661, 662 judgement of Wilson, Dawson and Toohey JJ.
vi Pearce v Hallett [1969] SASR 423 Bray CJ at 428.
vii Howard v Wing [2000] TASSC 147 Crawford J at 38.
http://benchbooks.fwc.gov.au/unfair/
