Lambley, Steven v DP World Sydney Limited T/A DP World Sydney - [2012] FWA 1250

[2012] FWA 1250 Note: An appeal pursuant to s.604 (C2012/3296) was
lodged against this decision - refer to Full Bench decision dated 22
November 2013 for result of appeal.

DECISION
Fair Work Act 2009
s. 394 - Application for unfair dismissal remedy

Mr Steven Lambley
v
DP World Sydney Limited T/A DP World Sydney
(U2011/10711)

DEPUTY PRESIDENT SAMS SYDNEY, 21 MARCH 2012

Unfair dismissal - fighting in the workplace - serious misconduct in breach of respondent’s
policies - CCTV footage and admissions of applicant - no proper account taken of other
employee’s history of bullying and intimidation - extraordinary and unprecedented facts and
circumstances - applicant ‘set up’ by other employee - failure to give proper weight to other
employee’s known history of bullying - failure to give proper weight to applicant’s age, length
of service and work record - dismissal ‘manifestly unjust’ - reinstatement appropriate -
continuity ordered - significant discount of lost remuneration in recognition of applicant’s
conduct and as an example to the workplace.

[1] Around 10:30pm on the 5 June 2011, Mr Steven Lambley and Mr Peter Smith were

involved in a physical altercation in the car park of their employer, DP World Sydney Limited

t/a DP World Sydney (the ‘respondent’) at its Port Botany Terminal. Both employees were

dismissed for serious misconduct on 1 August, 2011 as the respondent had found that they

were in contravention of its zero tolerance policy in respect to verbal and physical altercations

in the workplace.

[2] Both employees filed applications, pursuant to s 394 of the Fair Work Act 2009 (the

‘Act’), seeking remedies in respect to their alleged unfair dismissals. The applications

(U2011/10711 and U2011/10772) were unable to be resolved at conciliation and the two

applications were referred to me for hearing. At a directions hearing on 23 November 2011, I

determined that the evidence in one matter would be the evidence in the other and that the

evidence in Mr Lambley’s matter would be taken first in a hearing of both applications to

commence on 5 December, 2011.

[3] At the hearing, Ms L Doust of Counsel, with permission, appeared with Mr W

Giddens for Mr Lambley and the Maritime Union of Australia (the ‘Union’); Mr C Bolger of

AUSTRALIA FAIR WORK AUSTRALIA

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Counsel, with permission, appeared for Mr Smith and Mr I Taylor of Counsel, with

permission, appeared with Ms H Eager, Solicitor, for the respondent.

[4] At this juncture I relevantly note two significant matters. Firstly, CCTV footage of the

physical altercation, from three different camera vantage points, was tendered in the

proceedings and relied upon by the respondent. The footage was viewed by the Tribunal

during the evidence and I have taken the opportunity to review it subsequently. Secondly, at

the commencement of proceedings on the third day of the hearing, Mr Taylor announced that

a confidential settlement of Mr Smith’s claim had been reached with the respondent and

accordingly application U2011/10772 would be discontinued. Mr Bolger thereupon withdrew

from the proceedings. The hearing of Mr Lambley’s application continued. Mr Lambley will

hereinafter be referred to as the applicant.

THE EVIDENCE

[5] The following persons provided written and / or oral evidence during the arbitration of

the applicant’s claim:

For the applicant

Mr Steven Lambley - Applicant

Mr Michael Lambley - Stevedore

Mr Cameron King - Stevedore

Mr Christopher McIntyre - Stevedore

Ms Andrea Hunter - Stevedore

Mr Trevor Barnes - Rail Foreman

For the respondent

Ms Violet Taylor - Human Resources Manager, Port Botany Terminal

Mr Mark Bellears - General Manager, Port Botany Terminal

The applicant’s evidentiary case

[6] The applicant had worked for the respondent (and its predecessor entity, Container

Terminals Australia Ltd) since October 1981. At the time of his dismissal he was a multi-

skilled Grade 5 employee predominantly performing clerical duties. The applicant said that in

30 years working at Port Botany, he had never had an altercation with any employee and had

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never had any serious disagreements with anyone, except Grade 6 Foreman, Peter Smith

(known as ‘Romper’).

[7] The applicant claimed that Mr Smith went out of his way to make things difficult for

him, including rearranging his allocated tasks or giving him difficult or boring jobs for no

reason other than to assert his authority. The applicant said that Mr Smith had taunted a

number of other employees to fight him at work and away from work. He believed that Mr

Smith, who he described as a ‘standover’ man, did not like him because he was prepared to

speak up for other employees. In May 2011, Mr Smith had shoulder charged him in the

canteen for no reason. However, he did not report this incident.

[8] The applicant described another incident involving a female employee, Andrea

Hunter, who had misplaced her keys and security pass while travelling on the site bus. The

driver later handed them in to Mr Smith. When she had asked for her keys, Mr Smith said he

couldn’t help. While Ms Hunter was upset, the applicant told her not to show it, as this was

what Mr Smith wanted. He told her that it was likely the keys would ‘reappear’ at the end of

the shift, which they did. When the applicant had confronted Mr Smith, he was told to ‘fuck

off’ and ‘mind your own business’. The applicant believed his intervention in support of Ms

Hunter upset Mr Smith and was a factor in his continued harassment of him. From that time

on, Mr Smith would regularly provoke him and say things like, ‘fuck off dog’.

[9] The applicant described his version of events on the night of 5 June, 2011. When he

arrived for work with his son (who was also working on the night shift), he had his name

recorded in the canteen by the Charge Foreman, Ray Cummings. During his oral evidence,

the applicant drew a diagram of the location of various persons in the canteen at the time.

When he went to sit in his usual seat in the canteen, Mr Smith was sitting there. He was

surprised by this, as Grade 6 Foremen seldom sat where operational wharfies sit in the

canteen. The applicant sat in another seat about four metres from Mr Smith. Soon after the

following exchange occurred:

Smith: ‘Get outside, you dog cunt, I am going to cave your head in’.
Lambley: ‘What did you say, are you speaking to me?’
Smith: ‘You heard me, don’t you dog it, I will see you outside in 10 minutes’.

The applicant was distressed about what might happen next. He went out into the foyer of the

building and was soon joined by his son. He said that he went outside through the front door,

[2012] FWA 1250

as he knew that Mr Smith always left the building through the back door and he would

therefore avoid contact with him. The applicant asked his son to speak to Mr Smith and

persuade him to ‘drop off’. When his son returned, he told him that Mr Smith had said ‘that

he was going to cave his head in’.

[10] While standing outside, the applicant spoke to several passing persons - one was Mark

Walden (‘Wombat’), a friend of Mr Smith. The applicant asked him where the bully was and

Mr Walden had replied ‘don’t worry, don’t you move, he is right behind me’. The applicant

then heard Mr Smith’s voice to his right and some 15 yards away. The following exchange

occurred:

Smith: ‘Hey dog, I’m up here, come on up here. You stuck up for that blonde
moll [sic]’.

Lambley: ‘You’re a big tough bikie - you should not be picking on girls’.

[11] The applicant said that Mr Smith was thrusting his chin and chest out at him. He

thought there was no way of escaping an altercation. He was concerned that given Mr

Smith’s size and that on two other occasions, he had put ‘heads into the concrete,’ he should

‘get in’ first. He then hit Mr Smith twice. Mr Smith appeared to purposely fall to the ground.

The applicant said he then lost control and when he attempted to drag him up, he was actively

resisting and pulling on him, so he kicked him around the head. Another employee who was

present, Daniel Lewis, said ‘break it up, that’s enough’. The applicant said that when he

started to walk away, he was worried that Mr Smith wasn’t really hurt and he feared turning

his back to him.

[12] The applicant said he then heard the following exchange between Mr Lewis and Mr

Smith:

Lewis: ‘Come on, Romper, I’ll help you up’.
Smith: ‘Fuck off, Roid (steroid) Head’.
Lewis: ‘What did you call me?’.
Smith: ‘You heard, Roid Head, I told you to fuck off’.
Lewis: ‘That’s it, you have done your dash with me’.

[13] The applicant said that when he was walking back to the main entrance, he heard Mr

Smith talking to Mr Cameron King. He saw Mr Smith jump up and move towards Mr King,

but could not hear exactly what was being said. He then saw Mr Garry Clark who had said he

was coming out to stop the fight. The applicant queried that if he had heard what was said by

Mr Smith in the canteen why didn’t he (Mr Clark) stop it there and then? When Mr Clark

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denied hearing what was said by Mr Smith, the applicant further queried why, if he had not

heard anything, was he coming outside to stop a fight?

[14] The applicant went over to Mr Cummings’ office to get instructions to go to work.

Mr Cummings had said:

‘You idiot, he set you up and you took the bait’.

He replied:

‘Ray if you knew that much why didn’t you say something?’

The applicant was subsequently directed to leave the site. He was questioned by the Police

who had arrived at the Terminal after the incident.

[15] The applicant, with his legal representative, attended three meetings with management

- 14 June 2011, 20 July 2011 and 1 August 2011. The applicant answered all questions

honestly. He requested that management obtain CCTV footage of the canteen taunts by Mr

Smith before the incident. He also requested management speak to two other employees -

Gary Wilkins and Chris McIntyre. He was later told Mr Wilkins was not on shift that night

and Mr McIntyre would not speak any further to management.

[16] The applicant maintained that in 30 years of employment he had not been the subject

of any formal warning or disciplinary letters. He had not liked seeing other people humiliated

or stood over by Mr Smith. He explained that on 5 June 2011, he did not report Mr Smith’s

taunts to go outside as he didn’t want to be labelled as a coward. He also believed nothing

would be done about it as management was aware of other fights Mr Smith had provoked, but

nothing had been done. The applicant said that when he went outside, he did not appreciate

he was being ‘set up’. He had hoped for just a verbal altercation. Moreover, when he was

taunted again he believed he needed to ‘get in’ first. He had been openly honest during the

disciplinary interviews and regretted his foolish behaviour. He believed his dismissal was

excessive punishment and he wanted a chance to return to work.

[17] In oral evidence, the applicant said that since his dismissal, he had obtained some

irregular work delivering sausages and onions to Flower Power outlets. He had applied for

other positions as a packer and forklift driver.

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[18] The applicant gave other examples of Mr Smith’s bullying behaviour of people he did

not like in the workplace. He would threaten employees with downgraded jobs if they went

to management and complained about his attacks on them. The applicant also said Mr Smith

would unfairly allocate overtime to his mates, rather than sharing it around with all

employees.

[19] In respect to the keys incident with Ms Hunter, the applicant said the site’s bus driver

had told him the keys were put on the office table at Mr Smith’s instruction. He knew the

keys would turn up at the end of shift because this was how Mr Smith worked in order to

harass and bully people.

[20] The applicant said he had told his son to go and intercept Mr Smith on the 5 June

2011, because he did not want to fight him and had never wanted to fight him. However, his

son had returned and told him that Smith had said he was going ‘to cave his head in’.

[21] In cross-examination, the applicant accepted that the respondent did not tolerate any

form of verbal or physical violence in the workplace and that engaging in a fight was serious

misconduct which could result in dismissal. He could not recall if his son had told him not to

fight Mr Smith. He said he had not gone outside to fight Mr Smith and had only expected to

‘talk it out’. He conceded that he could have walked away after Mr Smith told him to see him

outside in 10 minutes or he could have reported the verbal altercation and the threats. He had

later told management that he had not wanted to be branded a coward.

[22] The CCTV footage was shown to the applicant during cross-examination and he

identified a number of individuals in the footage. He agreed that when Mr Walden had said

Mr Smith was right behind him, he had made a choice to stay put, but only to talk to him. He

also agreed that Mr King had asked him why he was waiting around after Mr Smith had told

him to wait outside for 10 minutes. He agreed he could have also walked away at this point.

He also agreed that when he saw Mr Smith emerge from the building he started striding

towards him while Mr Smith was repeating ‘come on, come up here dog, hit me, hit me!’.

The applicant then made a half hearted attempt to hit Mr Smith with little effect.

[23] The applicant agreed that someone appeared to be controlling the CCTV camera by

zooming in and out and moving direction. He accepted that many employees could have had

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access to the camera controls. He also agreed that a number of employees had known a fight

might be on that night, including others the applicant had told himself.

[24] The CCTV footage showed that around 10.27.25, the applicant connects with Mr

Smith’s head with a right handed punch. He puts him in a headlock and jabs at him with his

left fist. He then threw him to the ground (10.27.30). The applicant agreed he kicked him as

hard as he could. He conceded that it was a ‘low act’ to kick someone around the head when

they are on the ground. He had wanted him to get up and ‘keep going’. Three people were

shown standing around - his son, Mr Lewis and Mr King.

[25] In cross-examination (by Mr Bolger for Mr Smith), the applicant said he had not been

sure if he had kicked Mr Smith in the head. However, he now accepted, that at the time, he

wanted to inflict the most damage possible to Mr Smith. While he had told Mr Lewis to go

away and mind his own business, he denied pushing Mr Lewis away.

[26] The applicant reiterated that Mr Smith would regularly reallocate his tasks to more

difficult or boring jobs. Other supervisors had told him that it was Mr Smith who would

change the tasks. He agreed that he had never complained about Mr Smith changing his

tasks. He insisted Mr Smith had taunted and fought with other named employees. He

accepted that he was not always present when these incidents had occurred.

[27] The applicant denied using the words ‘fuck off dog’ towards Mr Smith in the canteen.

He said he had not said a word to Mr Smith in the canteen that night. He denied it was

actually him who had asked Mr Smith outside for a fight. Rather, he had asked his son twice

to stop Mr Smith from coming outside. He further denied saying to Mr Smith in the canteen,

‘I don’t sit with shit’ and ‘what are you looking at maggot’.

[28] The applicant said that while he was waiting in the foyer he went to the toilet three

times, as he was ‘very, very nervous’. He said that he thought Mr Smith would exit through

the back door (and their paths would not cross) because his locker room was right next to the

back door. He denied sending his son back inside to find Mr Smith and see when he was

coming outside to fight. Outside the front entrance, the applicant denied asking Mr Walden

‘where’s your fat fucking mate?’ He had said ‘where’s the bully?’ Mr Walden had replied

‘right behind me’. He had hoped Mr Smith had gone home. He had not offered Mr Smith the

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fight. He denied walking towards the turnstiles to confront Mr Smith. He insisted Mr Smith

was thrusting his chin at him and saying ‘hit me, hit me’. He denied calling him ‘a dog’.

[29] The applicant insisted that while Mr Smith was on the ground he had said to Mr Lewis

‘fuck off roid head’ when he went to help him up. He had also said to Mr King ‘fuck off you

black cunt’. He had not included what Mr Smith had said to Mr King in his statement.

However, he had definitely raised it with management in the meeting on 14 June 2011.

[30] When shown the transcript of his disciplinary interview of 14 June 2011, he had

accepted that there was no mention of Mr Smith saying he was ‘going to cave his head in’.

However, he believed that he had told the management these words were used.

[31] The applicant agreed that he knew Mr King’s father, whom he described as a very

decent man. He had helped his son to get the job at the Terminal and had not known his son

beforehand.

[32] In re-examination, the applicant gave details of an incident in which another

employee, Mr O’Keefe, had once said ‘I’ve got to go or he’s got to go, one of the two’ in

regard to Mr Smith’s intimidation and bullying of him. The applicant had replied ‘it’s not

worth it, just walk away’. Mr O’Keefe replied ‘I can’t hack it, it’s doing my head in’. Mr

O’Keefe had subsequently left the employ of the respondent. The applicant also described an

incident in which his tasks had been changed and Mr Smith just stood there waiting for him to

react.

Michael Lambley

[33] Mr Lambley has worked as a stevedore at the respondent’s Port Botany terminal since

2008. He corroborated much of the relevant evidence of his father, as to the events of 5 June,

2011. While signing on that night, in the canteen, Mr Lambley could generally hear what was

being said between his father and Mr Smith. Mr Smith had said, ‘I’m going to cave your head

in you dog cunt’. His father had replied, ‘who me, are you talking to me?’ Mr Smith then said

‘I am talking to you, don’t run and hide you dog. I will be out the front in 10 minutes. I am

going to cave your head in’. His father had walked away and had then said to him ‘that cunt

has just offered me outside’.

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[34] Mr Lambley confirmed that after being told his father was outside the building, he

went to see him. His father asked him to go back inside and see if he could sort it out. Mr

Lambley said he went back and spoke to Mr Smith who had said he was going ‘to cave his

father’s fucking head in’. Mr Lambley had said, ‘not on my fucking watch, you’re not

touching him, just drop it and go home’. When Mr Lambley told his father what Mr Smith

had said, he went back inside again. Mr Smith reiterated he was going to cave the applicant’s

head in. Mr Lambley had said it wasn’t going to happen, ‘he is 53 years old, just leave it’.

Around this time, Mr Mark Dreyer arrived and as Mr Lambley was explaining what was

going on, Mr Smith proceeded to leave the building. Mr Lambley followed him from a

distance behind and when he reached outside he heard Mr Smith and his father arguing. Mr

Smith had said, ‘you cunt, you backed up that blonde haired mole!’ Mr Lambley could see

Mr Smith had both hands up with clenched fists, saw his father hit him twice, grapple him to

the ground and then kick him. Mr Lewis then intervened.

[35] Mr Lambley corroborated what his father had said about the interchange between Mr

Smith and Mr Lewis. When Mr King offered to help Mr Smith up, he had said ‘do you want

a piece of this you black cunt’. Mr King had replied ‘I just saw Lambley dust you up. You

have no chance with me’. When Mr Smith got up, he sat on the side of the road talking on his

mobile. By this time, Mr Clark had come out and had said he was coming to break it up. Mr

Lambley replied, ‘you had your chance inside to stop this’. He then checked his father was

alright and went back to work. Mr Lambley was later told that his father had left the site with

the Police. Mr Lambley was interviewed by management the following day and provided a

statement (prepared by Ms Taylor) which he generally agreed with, although he disputed his

father was ‘agitated’ when he was outside the building.

[36] Mr Lambley claimed that his father was not violent and he had never known him to be

involved in a fist fight. He believed his father had been worn down by the antics of Mr Smith

over a long time. In oral evidence, Mr Lambley confirmed that he did not see his father

advance towards Mr Smith, at any time in the canteen.

[37] In cross-examination by Mr Bolger, Mr Lambley said he had only known Mr King

since working with him at Port Botany. He denied making up his evidence to support his

father’s case against Mr Smith. He denied it was his father, who had first threatened Mr

Smith. He reaffirmed his statement evidence as to the conversation in the canteen. He did not

hear his father say to Mr Walden ‘where is your fat fucking mate?’ Rather, Mr Walden had

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said ‘don’t move, he’s right behind me. He’ll be out in a sec’. Mr Lambley corrected his

earlier statement and said he only spoke to Mr Smith once. He insisted he did have a

conversation with Mr Dreyer about what was happening when Mr Smith was present.

[38] Mr Lambley conceded that he had not done anything to try and stop his father from

hitting Mr Smith, even though Mr Smith had not thrown any punches, had ended up on the

ground and his father had kicked him in the head. However, he believed that Mr Smith had

not been injured. When shown the CCTV footage, Mr Lambley agreed Mr Smith did not

have his hands up with clenched fists. He also agreed that his father appeared to be pushing

Mr Lewis away from the scene.

[39] In answer to questions from Mr Taylor, Mr Lambley said that he only intervened at the

very end of the fight. He had wanted to ensure no one else became involved. He also wanted

to make sure his father wasn’t hit, as Mr Smith had done to others in the past.

Cameron King

[40] Mr King is 25 years old and commenced employment with the respondent in

September, 2008. He is also a qualified personal trainer. Mr King said he had not had any

disputes with Mr Smith, as he was irregularly rostered and had only worked with him on a

few occasions. However, he knew his nickname was ‘Romper’.

[41] On the 5 June 2011, as he was leaving the site in his car, he observed the applicant

outside the front doors. He wound the window down and observing that he seemed ‘wound

up and upset’, he asked him what was wrong. The applicant said that it looked like he was

going to have to fight someone. Mr King told him to settle down.

[42] Mr King said he then saw ‘Romper’ come ‘flying out’ of the turnstiles and down the

stairs. He was calling the applicant ‘a dog’ and other abusive names and as he came towards

him, he pointed at his chin telling the applicant to hit him. Mr King observed the applicant

punch Mr Smith twice. Mr Smith went to ground and covered his head with his hands. Mr

King then jumped between them and said:

‘Get up and go home, Romper. He didn’t even get you. Stop putting on an act. Get
out of here; you don’t want to lose your job.’

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Mr King said that ‘Romper’ had then winked at him and it was then that he realised that he

wasn’t hurt. The applicant then kicked Mr Smith in the torso. He then pulled the applicant

back and told him it was ‘over and no more’.

[43] When Mr King put his hand behind ‘Romper’s’ back to help him up, he whacked his

hand away. He then got up quickly, unassisted and then feigned to throw a punch at Mr King,

which did not connect. ‘Romper’ then said ‘you little black cunt, you’re always hanging out

of his arse’. Mr King told him he was pathetic and as he had just been ‘towelled up by an old

bloke’ he should not start with him. A few people were now milling around (including Mr

Lewis) and ‘Romper’ was lying on the ground holding his jaw and pretending he was hurt.

When Mark Dreyer asked Mr King what had happened, he replied ‘nothing much - it was a

weak effort’.

[44] Later Mr King had three meetings with management and signed a statement after the

third meeting. He told management what ‘Romper’ had said to him and that he had winked at

him while he was on the ground. He described the incident as ‘very strange’ as it was most

unlike the applicant to be a fighter, ‘Romper’ had baited him to fight and then pretended he

was injured. Mr King added that the applicant was well liked at work and stood up for other

people.

[45] In cross-examination, Mr King said that when Mr Smith came through the turnstiles,

he observed him walk directly towards the applicant. The applicant had turned and walked

towards the turnstiles. He was mumbling something about being called ‘a dog’ and ‘getting

his head caved in’. Mr King had heard what Mr Smith was saying once he had gotten out of

his car. He described how Mr Smith was using his finger to point to his chin. He insisted he

could see and hear everything that was going on. Mr King said that when Mr Smith went to

ground, he just dropped to the ground and covered up. The applicant had then kicked him in

the torso region. After the applicant walked away, Mr Smith had winked at him.

[46] From his experience, Mr King did not even believe this incident was a fight - ‘it

wasn’t really a big deal’. Mr King insisted that Mr Smith had not wanted any help and had

thrown a punch at him. While he couldn’t recall exactly, the whole incident had lasted no

more than 5 minutes.

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[47] When shown the CCTV footage, Mr King said he could not be sure if he was in or

outside his car when he first saw the applicant. He was not exactly sure what the applicant

had been saying to Mr Smith. When asked about the kick, Mr King said he did not even

believe the footage showed a kick to Mr Smith’s head.

[48] In re-examination, Mr King said that in the few days after the incident he was

continually phoned by ‘Romper’ who attempted to apologise for calling him a ‘black cunt’

and throwing a punch at him. He was pestered so much, that he had to complain to HR and

ask them to tell Mr Smith to stop calling him.

[49] When the CCTV footage was shown again, Mr King observed Mr Smith pointing at

his chin when leaving the turnstiles. In further cross-examination, Mr King said that Mr

Smith had not been putting his swipe card in his shirt, but pointing his finger at his chin. He

believed the distance between his car and the turnstiles was probably two and a half car

lengths. Mr King noted that the CCTV footage skipped about 20 seconds at the time Mr

Smith had thrown a feigned punch at him.

[50] Mr King said he now had no time for Mr Smith and would not speak to him again after

his racist comments on that day. It was a ‘low act’.

Christopher McIntyre

[51] Mr McIntyre is employed as a stevedore at Port Botany and has worked for the

respondent for 16 years. Mr McIntyre described an incident he had had with Mr Smith, about

12 years ago. One night, when he was on the way to work and stopped at traffic lights at

King Georges Road, Mr Smith threw a lighted firecracker at his car. Later at work, he

confronted Mr Smith and called him an ‘idiot and a cunt’. Mr Smith offered him outside for

a fight. When they went outside, Mr Smith threw a ‘haymaker’ (a wide, looping punch

intended to throw as much bodyweight as possible behind a punch), but missed. He decided

not to retaliate as he was concerned as to what might develop; so he grabbed him and they

wrestled to the ground. Another employee stepped in and broke it up. Later in the same shift,

Mr Smith drove up to him and offered him outside to ‘sort this out’. He replied ‘Go away,

you idiot, and move your car otherwise you might get hit with a box’. Mr Smith drove away

and the matter ended there.

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[52] Mr McIntyre described another incident, about a month prior to 5th June 2011, when

he and Mr Smith were sitting in the canteen shortly after 5.30am. The applicant entered the

canteen, but did not approach their table. Mr McIntyre said the following exchange occurred:

Smith: ‘He’s a fucking dog’.
McIntyre: ‘Who are you talking about?’
Smith: ‘That fucking dog’.

Peter Smith was nodding his head in the direction of the applicant and there was no one else
around.

McIntyre: ‘Steve’s alright, he is a good bloke’.
Smith: ‘ ‘No. He is not. He is a dog. He has gone in to bat for that Sheila. I
am going to get him I am going to fuck him up’.

[53] Mr McIntyre was in the canteen on the night of 5 June 2011. He said he observed Mr

Smith repeatedly thrusting his head forward, as if antagonising someone, but he didn’t know

who it was directed to. Later he received a mobile phone call to say there had been a ‘blue’ in

the car park between the applicant and Mr Smith. When the applicant came back he appeared

upset and told him that Smith had been taunting him, calling him ‘a dog’ and telling him to

get outside and not to ‘dog it’. Mr McIntyre told him that he had earlier seen Mr Smith acting

a ‘gig’ (in the canteen) but didn’t know his behaviour was directed at him. Mr McIntyre

offered the applicant assistance as he could see that he was upset and appeared lost as to what

to do next. He declined the offer.

[54] Mr McIntyre said he understood that by providing a statement during the

investigation, there may be repercussions for him. He knew of other employees who were

fearful of speaking up because of a concern for any repercussions. However, he honestly

believed that the applicant had been ‘set up’ having been goaded into a fight, which was

recorded for the purposes of being used against him.

[55] Mr McIntyre provided a glowing description of the applicant’s work ethic, generosity

and concern for other people, who may have been mistreated or harassed. He believed the

vast majority of other employees liked the applicant; he was a good worker who got on well

with others. He should not lose his job because he was silly enough to fall into a trap. He

believed that no one had expressed opposition to his reinstatement.

[56] In oral evidence, Mr McIntyre said he had observed Mr Smith goading other

employees, on many occasions, and he described a recent example involving Mr Mark

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Deguara. On arriving for work one day Mr Deguara’s name was ticked off by Mr Smith. As

he had had the previous day off, Mr Smith said to him ‘Hey, where were you yesterday? Did

your missus ram a dildo so far up your arse you couldn’t walk?’ Mr Deguara simply shook

his head and walked away. When Mr McIntyre asked Mr Deguara why he didn’t say

something, he said that ‘as soon as I speak up I’ll have him on my back’. Mr McIntyre

believed Mr Smith had a particular dislike for Mr Degeara who was in a gang which Mr

Smith ‘just prayed on relentlessly’. He would ‘play’ with the time sheets and put people into

incorrect positions. Mr McIntyre added that it ‘became monotonous...It was second nature to

him to, you know, harass, bully and intimidate people’.

Andrea Kaye Hunter

[57] Ms Hunter commenced employment with the respondent in July 2007. Her duties

involved driving mobile machinery, transporting shipping containers between the ship and the

yard, or to and from the road to the road transport vehicles. Ms Hunter was injured at work

and was on workers’ compensation from 10 September 2010 until 27 June 2011.

[58] Ms Hunter provided an uncontested statement and was not required for cross

examination. Her statement described the reasons behind her workplace injury. She said she

had a good relationship with all employees and the management team at Port Botany - except

for Mr Smith. Ms Hunter said that about a year after she commenced employment, Mr Smith

would manipulate her shifts, so she would not be upgraded. As a result, she was not allocated

a fair share of upgrade payments. When she approached Mr Smith about it, he denied being

involved in any way.

[59] In late 2009 or early 2010, Ms Hunter noticed a trend of when she signed on for her

shift, Mr Smith would ignore her and call others out of order. She said while this was a trivial

nuisance, she felt embarrassed and humiliated by his behaviour.

[60] On 23 February 2010, Ms Hunter misplaced her personal diary at work. It contained

sensitive information about the way Mr Smith had acted to inconvenience, embarrass or

disadvantage her. The diary had been handed into another Grade 6 employee, Mr Greg

Cleary, who having established its ownership, had put it in a sealed envelope and placed it in

the back of the top drawer of a desk in the Grade 6 Foremen’s Room. Mr Smith was the

Grade 6 Foreman on the following day and the diary could not be found.

[2012] FWA 1250

[61] On 24 March 2010, Ms Hunter misread her roster and rang in to say she could get to

work quickly, as she only lived 5 minutes away. She rang the terminal and spoke to Mr

Smith to say that she could get there in 5 minutes if he could verify her allocation. He didn’t

reply and hung up on her. She called again and the following conversation took place over

the phone:

Smith: ‘Don’t you fucking dare come in here! You have been replaced. You
won’t get a fucking start’.
Hunter: ‘Why didn’t you phone me? Where’s your duty of care? I might have
been in a car accident’.
Smith: ‘What are you talking about? We don’t have a duty of care to call
anyone. I don’t call anyone if they FTR (fail to report)’.

The call then concluded.

[62] On 9 December 2010, when Ms Hunter was taken to her work location in the site bus,

she had left her keys on the bus. When her shift finished early, she called the driver, Simon,

who told her he had handed them into the Grade 6 Foreman, Mr Smith. When she contacted

him, he denied any knowledge of her keys. She contacted Simon again, who confirmed he

had given the keys to him. Ms Hunter was getting upset and teary and she then spoke to the

applicant. He had said:

‘Don’t let him see you cry because that’s what he wants. Harden up girl. I am telling
you things will be alright, you will see. Your keys will reappear just before knock-off
time. This is textbook Romper’.

He said he would speak to Mr Smith about her keys and he did so. Around 10.10pm, another

supervisor, Peter McClure approached her with an old safety helmet, containing her keys.

She believed it was no mistake that her keys had ended up in the helmet. He agreed and said

‘just forget it’. The next day, Ms Hunter reported the incident to Human Resources. She was

tired and upset and went straight to a doctor who gave her three days off as medically unfit for

duty.

[63] Ms Hunter returned to work shortly after Mr Smith’s dismissal. She believed a

number of people were fearful of becoming involved in these proceedings. Ms Hunter

described the applicant as a very kind and generous person who is well liked by other

employees. He would stand up for himself and for others. She believed he was pushed to the

limit by a bully. She was sure that the workforce would like to see the applicant back at

work. Given that he had given support to other workmates, who have been bullied or

[2012] FWA 1250

harassed, when others would simply turn a blind eye, the applicant posed no impediment to a

safe workplace.

Trevor Donald John Barnes

[64] Mr Barnes has worked for the respondent (or its predecessor entities) since 1989. He

said he generally got on well with everyone at the workplace. However, there had been

tension and concern at the workplace, because a particular Charge Foreman could rearrange

work such as to affect the earnings and income of operational employees. There has also been

a ‘whispering campaign’ designed to dissuade employees from being involved in these

proceedings.

[65] Mr Barnes understood that Mr Smith had been stood down or suspended from his

Foreman role on three or four occasions, due to misconduct involving disputes, harassment or

fights with other employees. Mr Barnes had overheard a conversation between Mr Smith and

the applicant about a week before 5 June 2011. Mr Smith had said ‘I hope you’re happy.

That bitch is coming back thanks to you.’ The applicant had replied ‘That’s good’.

[66] Mr Barnes had observed the applicant on the night of 5 June 2011 shortly after the

canteen exchange with Mr Smith. He appeared distressed and when he asked what was

wrong the applicant replied: ‘Peter Smith has asked me outside and I am sick of being stood

over. I’ve had enough, I’ve had it.’ Mr Barnes then replied: ‘Don’t worry about it, he is only

trying to stir you up, he is trying to set you up, come on back inside.’ When Mr Barnes

headed back to the Terminal, he came across Mr Michael Lambley and told him that his father

was upset and he should go and see him.

[67] That night, when Mr Barnes later went to get his number ticked off, he found that his

duties had been altered from Rail Foreman to driving the forklift. He asked Ray Cummings

who had changed his work arrangements. Mr Cummings said it was Mr Smith. Mr Barnes

went looking for him and they had a heated discussion. During the discussion, Michael

Lambley arrived and interrupted their conversation. He said: ‘Peter, what’s going on with my

old man, why are you having a go at my old man?’ Mr Smith replied with his face screwed

up: ‘Fuck your old man’. He realised that Michael Lambley was trying to protect his father

and stop Mr Smith from fighting him. Mr Barnes could see that he was not getting anywhere

concerning his changed work allocation, so he left the scene.

[2012] FWA 1250

[68] Mr Barnes said the applicant was always prepared to give advice and help other

employees. The older members of the workforce would be happy to have him back. Other

employees had told him that the applicant was unlucky, given Mr Smith’s ‘standovering’ of

people and it was only a matter of time before someone snapped. Mr Barnes subsequently

told Ms Taylor that management had done nothing about Mr Smith over many years, despite

complaints from the workforce, particularly from women. He told her that it appeared to suit

the Company to have a ‘stand over’ man in his position.

[69] In oral evidence, Mr Barnes deposed that a few years ago, Mr Smith had called him

outside for a fight, but it had just ended up in a verbal clash.

The respondent’s evidentiary case

Violet Taylor

[70] Ms Taylor has been the Human Resources Manager at the Port Botany Terminal since

December 2010. Ms Taylor described the nature of the respondent’s operations and the

structure of the workforce as follows. There are casual and permanent pools of labour.

Casual employees are either supplementary and have no minimum guarantee of work or

wages or Guaranteed Wage Earners (GWE) who supplement permanent employees, but have

a guaranteed minimum wage. Permanent employees are either Variable Salaried Employees

(VSEs) who work irregular rosters, but have a guaranteed minimum wage, or Fixed Salaried

Employees (FSEs) who are on roster panels and a fixed annual salary. Casual employees and

VSEs are at Grade 2 and FSEs are at Grade 3 - 6. All employees can be upgraded to Grade 6

on particular shifts and this is determined by the Charge Foreman who is also a Grade 6 FSE.

Ms Taylor acknowledged that this arrangement created the potential for the Charge Foremen

to favour employees they like and give unattractive work to employees they don’t like.

[71] Ms Taylor was informed of the 5 June incident the following day. She commenced an

investigation. The same day Ms Taylor advised Mr Smith and the applicant that they were

suspended on pay. The applicant told her that ‘Romper called me a dog in the canteen and

then he called me out to the car park’. As part of the investigation Ms Taylor decided to:

(a) Interview all employees (196) who were finishing evening, or starting night

shift, on 5 June 2011. This was done between 6 June and 12 July and most interviews

involved a union delegate being present;

[2012] FWA 1250

(b) Obtain and review any CCTV footage of the physical altercation in the car

park;

treatment from the First Aid officer; and

(d) Contact the Police, who she understood had attended the Terminal after the

incident.

[72] Ms Taylor prepared a statement for each employee following their interview.

Although she had not told employees of the details of what others had said in their interview,

she believed information was being circulated amongst employees. She noted that Mr Lewis

volunteered that no racist remark had been made to Mr King before it was even suggested to

him. Ms Taylor identified the specific statements she took from the following employees:

Michael Lambley (GWE)

Trevor Barnes (FSE5)

Cameron King (GWE)

Daniel Lewis (GWE)

Christopher McIntyre (FSE5)

Mark Walden (FSE 6)

Peter Smith (FSE6)

[73] Ms Taylor noted that Mr King had been quite distressed by the incident. He had

informed her that Mr Smith had called him 6 or 8 times and was harassing him. She phoned

Mr Smith who said ‘I’m just ringing to apologize. I might have sworn to him’.

[74] Ms Taylor had two meetings with Mr McIntyre. He told her he was very scared that

Mr Smith may harm him or his family if he made a statement during the investigation. He

said: ‘Romper’ knows where I live. He knows where my family are. I am concerned about my

wife and son’s safety’. Ms Taylor acknowledged that what Mr McIntyre had told her at the

time was to a similar effect as his statement in these proceedings.

[75] Ms Taylor met with the applicant, his legal representative Mr Matthew Hourn and Ms

Clemmie Humphrey - HR Director, on 14 June 2011. Ms Humphrey made notes of the

meeting. The version of events recorded in these notes is not in substance very different to

the applicant’s version of events in his statement in these proceedings.

[2012] FWA 1250

(a) The applicant had regretted the incident and was not proud of it and should
have walked away.

(b) The applicant had heard Mr Smith call Mr King a ‘black cunt’.
(c) Mr Cummings told him ‘You’ve been set up. He called you up, set you up
under the cameras, someone is operating the cameras’

(d) The applicant described other examples of Mr Smith being involved in fights.

Ms Taylor added that in the meeting with Mr Smith and his solicitor, he had relied on his

statement to the Police and would not answer any questions.

[76] In respect to the CCTV footage Ms Taylor made the following observations:

(a) There was no CCTV camera in the canteen.
(b) There are 3 CCTV cameras in the car park area.
(c) The physical alteration was recorded on such camera.
(d) The footage was ‘jumpy’ and appeared to skip moments.
(e) The cameras moved in and out and followed the ‘action’.
(f) Rather than continuous footage it is often a series of ‘snapshots’.
(g) The cameras are used primarily by supervisors who can manually manipulate
the camera.
(h) Many people have access to the CCTV controls which are located in 6 offices,
up to 50 but probably all employees.
(i) None of the supervisors had themselves manipulated the cameras or knew
how.
(j) Someone, who she could not remember had told her ‘It was set up by ‘Romper’
and / or ‘Mark Dreyer controlled the camera’. Mr Dreyer denied doing so and he
couldn’t have, because he was seen in the footage.

In oral evidence, Ms Taylor explained that the ‘jumping’ of the CCTV footage occurred

because, in order to save space, the camera only films movement or activity and as a result

there are gaps in between. Ms Taylor said that if a manager had been controlling the area,

they had an obligation to intervene and / or report the matter.

[77] Ms Taylor said there was no first aid incident report from the 5th June 2011. Ms

Taylor was aware that the Police had attended the Terminal on the night, but she was unaware

if any charges had been laid.

[78] Following the investigation, Ms Taylor met with Mr Bellears and Ms Humphrey on 7

July 2011. Their conclusions were:

[2012] FWA 1250

(b) during the heated verbal exchange in the canteen Mr Smith and Mr Lambley
had agreed to meet in the car park with the intention of fighting. We were unable to
determine whether Mr Smith or Mr Lambley had made the suggestion to meet in the
car park;

(d) Mr Smith was told not to go out to the car park on at least two occasions after
the heated verbal exchange in the canteen but went to the car park anyway. In this
regard I had in mind:

(i) in my interview with Mr Clark, he advised me that he said to Mr Smith,
words to the effect of ‘you could both lose your jobs if you fight in the car
park’ after the verbal altercation in the canteen;

(ii) in my interview with Mr Walden, he advised me that he heard Mr Clark
say to Mr Smith, the statement referred to in subparagraph (i) above; and

(iii) in my interview with Michael Lambley, he advised me that after the
verbal altercation in the canteen, he found Mr Smith talking to Mr Barnes, and
he said words to Mr Smith to the effect of ‘don’t go out there, Dad’s out there
and he’s upset’;

(e) Mr Smith had encouraged Mr Lambley to hit him;

(f) Mr Smith was involved in a physical altercation with Mr Lambley in the car
park between approximately 10:27pm to 10:30pm on 5 June 2011 as recorded on the
CCTV footage.

(g) Mr Smith was offered assistance immediately after the physical altercation,
which he refused. In this regard, we took into account information that had been
provided by Mr King, Mr Lewis and Michael Lambley and that there was no
information we had that would lead us not to believe them.’

[79] It was decided that disciplinary action would be taken. Both employees were invited

to a meeting to raise any matter they wished the respondent to take into account before a final

decision was made. A meeting was held on 20 July 2011, involving the applicant and his

solicitor - Mr Hourn, Ms Humphrey, Mr Bellears and Ms Taylor. The applicant asked that

management speak to Mr McIntyre and Mr Gary Wilkins. The applicant’s solicitor referred

to his long service and exemplary record. Ms Taylor said that Mr McIntyre would not add to

his statement and Mr Wilkins had not been at work on the night of the incident.

[2012] FWA 1250

[80] On 29 July 2011, Mr Taylor and Mr Bellears agreed to terminate the applicant’s

employment. He was advised of the decision at a meeting on 1 August 2011 and provided a

letter expressed as follows:

Dear Steven

RE: Termination of employment with DP World Sydney Limited

I refer to our letter to you dated 14 July 2011, our meeting on Wednesday, 20 July
2011 attended by you, Colin Revelman (your lawyer), Clemmie Humphrey (HR
Director, Australia / New Zealand), Violet Taylor (Human Resources Manager, Port
Botany Terminal) and me and the letter dated 28 July 2011 (which was not received
until 29 July 2011) from your lawyer.

By way of background, in our letter dated 14 July 2011 we:

 set out details of the Company’s investigation into the incident which occurred on 5
June 2011, including the physical altercation between you and Peter Smith in the car
park at the Port Botany Terminal (Investigation);

 informed you of the findings of the investigation;
 informed you of the Company’s preliminary view that disciplinary action (which

could include termination of your employment) was warranted; and
 arranged to meet with you so that you could raise any issues that you wanted the

Company to consider before it made a final decision about disciplinary action.

At the meeting on 20 July 2011, we indicated that the Company had formed the
preliminary view that your employment should be terminated. We confirmed that we
wished to have a discussion with you and let you put anything to us that the Company
should be aware of or take into account before a final decision was made.

During the meeting:

 you were shown the CCTV footage of the altercation on 5 June 2011, from the
perspectives of three different cameras;

 you indicated that there should be additional CCTV footage available that records
the verbal altercation between you and Mr Smith (albeit without sound) in the
cafeteria area prior to the physical altercation in the car park. We have made
enquiries in relation to any such footage - none is available;

 you indicated that the Company should speak to two DP World employees - Chris
McIntyre and Gary Wilkins - about the events of 5 June 2011. We have made
enquiries of these two employees:

 Mr McIntyre declined to provide us with any information about the matter; and
 Mr Wilkins advised that he was not on duty at the relevant time. We have confirmed

this is the case; and
 Mr Revelman submitted that the Company, in determining any disciplinary action to

be taken against you, should take into account your length of service with the
Company and your prior conduct record (this was reiterated in the letter from your
lawyer dated 28 July 2011).

[2012] FWA 1250

We note that in the letter 28 July 2011 from your lawyer, it was confirmed that you
had no further information to provide in relation to the investigation.

The Company has considered the matters raised by you and Mr Revelman in the
meeting on 20 July 2011, in the letter dated 28 July 2011 and other information you
provided to the Company during the course of the investigation.

The Company has not been provided with any information, by you or from other
sources, to cause it to change any of its findings about the investigation communicated
to you in our letter dated 14 July 2011.

Further, the Company has determined, in all the circumstances, that your employment
should be terminated.

As a result, your employment with the Company will be terminated with effect from 1
August 2011.

The Company will make a payment to you of five weeks’ salary (less applicable tax)
in lieu of notice of termination of your employment in the next pay cycle. The
Company will also make a payment to you in respect of your accrued but unused
annual leave and long service leave entitlements (less applicable tax).

I would like to take this opportunity to wish you all the best for the future.

The applicant was paid:

(a) payment in lieu of notice ($10.334.83 - gross);
(b) payment of accrued annual leave ($8,959.33 - gross); and
(c) payment of accrued long service leave ($5,167.98 - gross).

[81] Ms Taylor believed that because the respondent had a zero tolerance approach to

verbal and physical altercations in the workplace, and employees knew that involvement in

such altercations could lead to their dismissal, it would make a mockery of the policy if the

applicant was reinstated. It would send a message to employees that such behaviour was

‘OK’.

[82] Ms Taylor observed that most disciplinary investigations are hampered by a lack of

co-operation from the employees; speaking to management means you are considered a ‘dog’

- a commonly used term in the culture of the workplace. Ms Taylor said the site is divided

between supporters of the applicant and supporters of Mr Smith. The view she frequently

heard, including from the Union Site Committee, was ‘if one goes the other should go’.

[83] In cross-examination, Ms Taylor said she was aware that the applicant had been

reported for some issues, but she could not say if he had been formally warned or disciplined.

[2012] FWA 1250

She knew of one other conflict between the applicant and another employee, but no action had

been taken.

[84] Ms Taylor accepted that during the investigation the applicant had raised other

incidents involving Mr Smith, who he said was a workplace bully. She was also made aware

of Mr McIntyre and Mr King’s views of Mr Smith.

[85] Ms Taylor agreed that in the meeting with Mr Bellears and Ms Humphrey on 7 July

2011, they did not discuss the issue of Mr Smith’s previous conduct as a bully; rather the

meeting focused on the incident itself. She also agreed that no inquiries were made about Mr

Smith’s conduct subsequent to the 7 July 2011 meeting and she had no discussion with Mr

Bellears about the matter. Ms Taylor agreed the applicant had been completely ‘up front’,

showed remorse and said he should have walked away. She agreed he had conveyed to her

that he had been pushed beyond all limits of tolerance. In hindsight, she agreed that perhaps

Mr Smith’s history should have been looked at. Ms Taylor explained what bullying was, and

the characteristics of a bully. She accepted that a history of repeated complaints demonstrated

a pattern of conduct. She confirmed that at no time between 5 June 2011 and 29 July 2011,

did the respondent undertake any investigation of the applicant’s claims as to Mr Smith’s

history of bullying. She conceded that subsequent inquiries tend to corroborate his claims.

[86] Ms Taylor agreed she had received numerous reports of Mr Smith’s conduct, but

nothing could be substantiated. One person had come forward, but no action had been taken.

When she had spoken to Mr Smith he was very convincing and said he was just

misunderstood. She agreed he repeatedly used this excuse. She now accepts that Mr Smith

had acted with impunity for years. Nevertheless, she would not now change her view on the

applicant’s dismissal. She noted that there were conflicting views as to whether Mr Smith

had goaded the applicant in the canteen.

[87] Ms Taylor accepted that the applicant had been friendly towards her and she had no

reason not to believe that he was a gentleman. She now regarded the incident as ‘out of

character’. Ms Taylor says she still does not know who started the fight. However, it was

now her firm belief that it was more than likely the applicant’s account of the verbal

altercation in the canteen was true. Ms Taylor acknowledged that Mr Smith’s history was a

relevant factor and should have been considered in relation to the dismissal.

[2012] FWA 1250

[88] In re-examination, Ms Taylor said that she and Mr Bellears had considered the

contents of the letter from the applicant’s solicitor. Nevertheless, she said the CCTV footage

was ‘damning’ and warranted the applicant’s termination. Notwithstanding what she now

knows, Ms Taylor said that she would not change the decision to dismiss the applicant. This

was because the respondent does not tolerate violence in the workplace.

Mr Mark Bellears

[89] Mr Bellears’ evidence was corroborative of, and largely repetitive of Ms Taylor’s

evidence. Mr Bellears has been General Manager of the Port Botany Terminal since 15 May

2011.

[90] Mr Bellears confirmed that Mr Smith had ‘significant power’ as Charge Foreman in

that he could allocate work on a particular shift to employees rostered on that shift. This

meant he could allocate unpopular tasks to people he didn’t like.

[91] Mr Bellears was advised of the altercation between Mr Smith and the applicant the

next morning. He viewed some of the CCTV footage. He then spoke to Ms Taylor who told

him she would undertake an investigation, suspend the two employees and decide what action

should be taken after the investigation. During the next month, Mr Bellears said he had a

number of conversations with Ms Taylor about the progress of the investigation and read Mr

Smith’s statement to the Police and the amended record of interview with the applicant.

[92] At the meeting on 7 July with Ms Taylor and Ms Humphrey, Mr Bellears said that:

 they had watched the CCTV footage;
 discussed the summary document Ms Taylor had prepared of her interviews;
 discussed the information provided by the applicant and Mr Smith;
 discussed the fact that there was no record of Mr Smith seeking treatment from the

site First Aid Officer; and
 noted that no further information from the Police was available.

[93] Based on this discussion Mr Bellears said he formed the view that:

(a) at approximately 10:05pm on 5 June 2011, there was a heated verbal exchange
between Mr Smith and Mr Lambley in the canteen. Given the conflicting reports
about the content of the exchange we did not attempt to determine the exact content of
the verbal exchange;
(b) during the heated verbal exchange in the canteen Mr Smith and Mr Lambley
had agreed to meet in the car park with the intention of fighting. We were unable to
determine whether Mr Smith or Mr Lambley had made the suggestion to meet in the
car park;

[2012] FWA 1250

(c) both Mr Smith and Mr Lambley could have taken steps to prevent the physical
altercation in the car park (for example, notifying a supervisor, not going to the car
park) but neither Mr Smith nor Mr Lambley took any such steps;
(d) Mr Smith was told not to go out to the car park on at least two occasions after
the heated verbal exchange in the canteen but went to the car park anyway;
(e) Mr Smith had encouraged Mr Lambley to hit him;
(f) Mr Smith was involved in a physical altercation with Mr Lambley in the car
park between approximately 10:27pm to 10:30pm on 5 June 2011 as recorded on the
CCTV footage;
(g) Mr Smith was offered assistance immediately after the physical altercation,
which he refused.’

Mr Bellears formed a preliminary view that their conduct warranted disciplinary action, but

wanted to speak to them both before a final decision was made.

[94] Mr Bellears described what occurred in the meeting with the applicant on 20 July 2011

as follows:

(a) Mr Lambley and his solicitor were shown the CCTV footage. Mr Lambley did
not deny that he was involved in a physical altercation in the car park;
(b) Mr Lambley requested that Ms Taylor review any CCTV footage of the
canteen area taken prior to the physical altercation in the car park;
(c) Mr Lambley requested that Ms Taylor also speak to Chris McIntyre (a
stevedore at Port Botany Terminal) and Gary Wilkins (a stevedore at Port Botany
Terminal) about the issues; and
(d) Mr Lambley’s solicitor urged DP World to take into account Mr Lambley’s
length of service and exemplary conduct in forming a final view about any
disciplinary action to be taken concerning Mr Lambley.

[95] In deciding to dismiss the applicant, Mr Bellears believed it was appropriate because:

(a) the CCTV footage clearly showed that Mr Lambley punched and kicked Mr
Smith and Mr Lambley had not denied it in the meeting on 20 July 2011;
(b) Mr Lambley did not take any steps to avoid an altercation in the carpark with
Mr Smith;
(c) the conduct described above was a contravention of DP World’s zero tolerance
approach to verbal and physical violence, as set out in the P&O Ports Human
Resources Handbook.

[96] Mr Bellears claimed that he also took into account the following:

(a) he had been employed by DP World (and its predecessors) for approximately
thirty years. I considered that meant my decision was more difficult since Mr
Lambley was not an employee with short service;
(b) the potential impact it would have on him personally. I was aware that it
would have a serious impact on Mr Lambley;
(c) I was not aware of Mr Lambley being involved in any previous incident of this
type and that he had a generally good record of conduct; and

[2012] FWA 1250

(d) based on the information gathered during the investigation, I thought it more
likely that Mr Smith had goaded or provoked Mr Lambley into engaging in the
physical altercation in the carpark.

[97] However, he believed these later considerations did not outweigh the significance of

the applicant’s misconduct. Mr Bellears said he would be seriously concerned about the

repercussions if the applicant was resinstated or redeployed in another role. He believed it

was not acceptable for employees to be involved in verbal and physical altercations at the

workplace.

[98] In cross-examination, Mr Bellears said he trusted the judgment of Ms Taylor and in

deciding to dismiss the applicant, the only matters he had considered were set out in his

statement. Mr Bellears agreed that the applicant had said that Mr Smith was a ‘standover

man’, a bully and had been getting away with it for many years. He had been bullied by him

to the point where he just snapped. Mr Bellears had also been aware that one person had

expressed a fear about participating in the investigation. Given Mr Smith’s history, he agreed

that it was more than likely that Mr Smith had ‘kicked this off’ and that it was relevant to

understanding why the applicant had acted the way he did. He also understood, given his 30

year history with the employer, that it was ‘out of character’ for the applicant.

[99] Mr Bellears conceded that he had ‘closed the door’ to considering Mr Smith’s history

and his particular history towards the applicant. He acknowledged that there was no

investigation and findings about the applicant’s allegations against Mr Smith. Nevertheless,

Mr Bellears believed he had sufficient facts before him to determine the applicant’s future

employment, and that, in this case, the respondent was not assisted by knowledge of either:

Mr Smith’s conduct over many years, other employees’ experiences with him or whether the

respondent’s policies had failed to deal with Mr Smith’s ongoing bullying.

[100] Nevertheless, he accepted that employees may have lost confidence in the

respondent’s procedures being able to be relied upon. He agreed this was a relevant matter to

have been taken into account in terminating the applicant’s employment. Further, Mr Bellears

accepted that it was unlikely the applicant would be involved in any similar activity,

particularly as Mr Smith is no longer there.

[101] Mr Bellears acknowledged that the applicant had been completely up front with the

respondent about his role in the incident and had regretted what he had done. He was upset

[2012] FWA 1250

and embarrassed. Mr Bellears accepted that the applicant had endeavoured to do ‘the right

thing’ in relation to Mr Smith’s goading. Mr Bellears agreed that the whole incident lasted

about 20 seconds and although the applicant had made wrong decisions over the course of

about 20 minutes, this should be seen in the context of a 30 year long period of service. Mr

Bellears conceded it was likely that had the applicant not turned up outside, he would have

been tormented further by Mr Smith.

[102] Mr Bellears agreed that the respondent’s policy allowed a degree of management

discretion in such matters and that dismissal was not automatic. He accepted that one way of

dealing with the matter was suspension or some other form of disciplinary action. He agreed

that bullies should not be rewarded and if bullies are allowed to get away with it, the

credibility of the respondent’s policy is undermined.

[103] Mr Bellears had been aware that another employee had given an account of what had

happened as a ‘set up’ by Mr Smith because the applicant had ‘stuck up’ for Andrea Hunter.

He now knows that Ms Hunter had been bullied by Mr Smith and her workers’ compensation

claim had been accepted and settled.

[104] In re-examination, Mr Bellears reiterated that in deciding to dismiss the applicant, he

had considered his lengthy service, the likelihood he was bullied and goaded by Mr Smith and

the other matters he referred to in his statement. He believed the investigation had been

hampered by an unwillingness of the employees to cooperate. He had tried to rely on the

facts, primarily the CCTV footage. Nevertheless, even though matters had come to light after

the investigation, he would not have altered his decision. The applicant had not denied the

physical altercation and the overriding facts were that the CCTV footage showed the throwing

of a punch and a kick.

SUBMISSIONS

For the applicant

[105] In a written outline of submissions, Mr A Neal - National Legal Officer for the Union,

put that the applicant is a person to whom Division 2 of Part 3-2 of Chapter 3 of the Act

applies, and is therefore entitled to protection from unfair dismissal. The applicant is an

employee who has completed at least 6 months employment with his employer (s 382(a) and s

[2012] FWA 1250

383(a)) and is also covered by a modern award (s 382(b)(i)), being the Stevedoring Industry

Award 2010.

[106] Mr Neal submitted that the only criteria in s 385 of the Act in issue in these

proceedings, is whether the dismissal of the applicant was ‘harsh, unjust or unreasonable’.

Mr Neal correctly directed the Tribunal’s attention to the matters set out in s 387 of the Act,

and made the following submissions:

(a) the applicant makes no submission in relation to the validity of the reason

given by the respondent for the applicant’s dismissal (s 387(a));

(b) the applicant was notified of the reasons for his termination by letter dated 1

August 2011 (s 387(b));

20 July 2011 and 1 August 2011. At the meetings of 14 July 2011 and 20 July

2011, the applicant was accompanied by his then legal representative. (s 387(c) &

(d));

(d) the applicant contends that s 387(e) - (g) are not relevant to this application;

In relation to s 387(h), Mr Neal made the following additional submissions:

(a) Mr Smith, in his capacity as an employee of the respondent at its Port Botany

terminal, had a history of inappropriate and intimidating behaviour directed toward

employees over a number of years, including the applicant;

(b) the respondent knew of Mr Smith’s prior inappropriate and intimidating

behaviour;

employment would not have occurred but for the respondent’s failure to take

appropriate action, including disciplinary action, in relation to Mr Smith’s

inappropriate and intimidating behaviour;

(d) the respondent has been duplicitous in the inappropriate behaviour of Mr

Smith as an employee at its Port Botany terminal;

[2012] FWA 1250

(e) in the circumstances, the respondent’s dismissal of the applicant for the reason

that he had had a physical altercation with an employee known to the respondent as

an employee who has previously intimidated and acted inappropriately to other

employees at its Port Botany terminal, who the respondent has failed to discipline or

otherwise deal with, was ‘harsh, unjust or unreasonable;

(f) that on its own admission, the respondent was aware that the applicant was

intentionally recorded having an altercation with Mr Smith, when it stated:

‘The physical altercation was recorded on the three CCTVs which record the
car park and turnstile area. The footage from one of the CCTVs zooms in and
out and follows the physical altercation. This could only have occurred
through manual control of the CCTV. A wide range of people have access to
the CCTV controls and could have manipulated the CCTV. Controls for the
CCTVs are located in the clerical control room, supervisor’s office, grade 6
office, superintendent’s office, security office, Danny Bannatyne’s office and
Mark Bellear’s office. and;

(g) it is clear from correspondence from the respondent to the applicant that it had

relied on the CCTV footage of the incident as one of, if not the main ground, upon

which it had determined that the applicant had engaged in conduct justifying

dismissal from his employment;

(h) in the circumstances, the respondent’s dismissal of the applicant for the reason

that he had a physical altercation with an employee, in full knowledge that the

incident was purposefully recorded by another employee as part of an entrapment by

Mr Smith, was ‘harsh, unjust or unreasonable’ ;

(i) the applicant has lengthy service with the respondent and prior to the incident

had not been disciplined in over thirty years of service; and

(j) that there is nothing in the applicant’s work history to suggest that he cannot

continue to be a part of the respondent’s workforce.

[107] In relation to remedy, Mr Neal sought the following orders, pursuant to s 391 of the

Act:

(a) reinstatement to his former position (s 391(1));

[2012] FWA 1250

(b) an order to maintain the continuity of the applicant’s employment (s 391(2));

(d) in the alternative, an order for compensation in lieu of reinstatement (s
s392(1)).

[108] In oral submissions, Ms Doust relied upon the authority of AWU-FIME Amalgamated

Union v Queensland Alumina Ltd (1995) 62 IR 385 in support of her client’s case as to the

approach which the Tribunal should take in determining this matter, in particular, whether the

dismissal was ‘harsh, unjust or unreasonable’. In that case, His Honour Moore J set out a

helpful summary of the relevant factors that the Tribunal considers when deciding whether

‘extenuating circumstances’ existed that would otherwise render the decision to dismiss an

employee, arising from a fight in the workplace, as being ‘harsh, unjust or unreasonable’.

Ms Doust addressed each of those factors in her closing submissions, including the

circumstances in which the fight occurred, that would inevitably lead the Tribunal to adopt the

proposition that the applicant was provoked by Mr Smith and that the entire incident was ‘set

up’ by Mr Smith as a reprisal for the fact that the applicant had assisted Ms Hunter - another

victim of Mr Smith. In addition, Ms Doust noted the applicant’s lengthy service of 30 years

and his near unblemished work record.

[109] Ms Doust also relied on the CCTV footage and the evidence of Mr King, noting that

he was a most impressive witness, who at the time of the incident was only a couple of car-

lengths away from where the altercation took place. In relation to the CCTV footage, Ms

Doust submitted that there are four possibilities open for the Tribunal to make a finding as to

how it was that the surveillance came to be focussing so closely on the fight:

(a) that it could have been a member of management. However, Ms Doust put

that this possibility was foreclosed by Ms Taylor’s evidence who had accepted that a

manager viewing that sort of footage would have intervened, would have got on the

telephone or would have raced down there. Accordingly, Ms Doust said that the

Tribunal may safely conclude that it was not a member of management who was

controlling the camera at the time.

(b) that it could have been a member of the workforce idly watching the fight; that

word had got out and someone had thought, ‘I’ll have a look at this’. However, Ms

[2012] FWA 1250

Doust submitted that the Tribunal could not form this view as the camera controls

continued to be operated in order to focus on what was going on for many minutes

after the fight, even when the ambulance and the Police had arrived. Ms Doust

submitted that the fact of the continuing surveillance points very strongly toward Mr

Smith having been involved.

Ms Doust rejected this proposition, on the basis of the evidence of continuing

surveillance of the incident, both before and after its occurrence.

(d) that Mr Smith had arranged for someone to film the entire incident. Ms Doust

submitted that the Tribunal should find in favour of this version based on the evidence

of Mr Smith calling on the fight, (which is now not disputed by the respondent), his

previous statements about getting revenge on the applicant, his unusual conduct

throughout the fight, such as not defending himself - going down so easily, and the

evidence of Mr King, that Mr Smith had his left arm cocked and that his hand was

against his chest pointing at his chin. He was yelling words to the effect, “Go on, hit

me, hit me’. He had winked at Mr King before resuming his usual mode of conduct

evidenced by the abuse that he gave Mr King when he tried to help him to his feet and

attempting to punch Mr King. Moments later, Mr Smith’s shown on the CCTV

footage, sitting up on the gutter using his mobile telephone.

[110] In relation to Mr Smith’s reputation of being a workplace bully, Ms Doust drew the

Tribunal’s attention to the evidence of Ms Taylor and Mr Bellears, both of whom accepted

that Mr Smith was a bully, who had acted that way with impunity in the workplace, over a

considerable amount of time. Ms Doust submitted that the weight of the evidence in this

matter, namely that of - Ms Hunter, Mr McIntyre, Mr Barnes, Mr King - most of which was

uncontradicted - would support the conclusion that Mr Smith engaged in conduct which the

Tribunal could only conclude was designed to torment, provoke and cause employee distress.

[111] Regarding whether the applicant had a choice to walk away from the incident, Ms

Doust submitted that Mr Smith’s prior known conduct of bullying, including toward the

applicant, coupled with the respondent’s ineffective policies and systems to combat fighting

and workplace bullying, had led the applicant to feel isolated, panicked and threatened on the

[2012] FWA 1250

night of 5 June 2011. He felt he had no choice but to take matters into his own hands and

engage Mr Smith in a fight.

[112] Ms Doust emphasised that the applicant had taken full responsibility for his actions

shortly after the incident. This is demonstrated by his early admission of his misconduct and

in assisting the respondent with its investigation in a straightforward and frank manner. Ms

Doust noted that this approach continued when the applicant was giving his evidence in these

proceedings in which he was very direct and straightforward in the way he answered

questions and did not attempt to shy away from propositions that cast him in an unfavourable

light.

[113] In relation to procedural unfairness, Ms Doust put that the respondent accepted, at the

time of deciding to dismiss the applicant, that what the applicant was saying all along, about

Mr Smith’s character, was indeed true. Further, the dismissal was substantively unfair in that

a number of factors - age, length of service and employment record, weigh against the most

severe sanction available to it under the policy; a policy which, in any event, gives the

respondent a discretion. Mr Bellears had ultimately accepted that he could have imposed no

penalty or a penalty less than dismissal. Ms Doust noted that the policy must operate with

regard to the circumstances of each case. It is incumbent on the respondent, and the Tribunal

would accept that, extenuating circumstances existed in this case which would lead the

Tribunal to conclude the dismissal was ‘harsh, unjust or unreasonable.

[114] As to remedy, Ms Doust sought reinstatement of the applicant, noting that there

existed no impediment to this course. Mr Smith would not be returning to the workplace and

reinstating the applicant would be fair in all the circumstances. It would also send a clear

message to the workforce that workplace bullies do get found out, and in particular

circumstances, ‘stopped in their tracks’ when terminated from their employment.

For the respondent

[115] In the respondent’s written outline of submissions, Mr Taylor put that the uncontested

evidence demonstrates that on 5 June 2011, both the applicant and Mr Smith engaged in

serious misconduct in contravention of the respondent’s zero tolerance approach to verbal and

physical altercations in the workplace, and that this constitutes a valid reason for dismissal.

[2012] FWA 1250

[116] Mr Taylor drew the Tribunal’s attention to the matters set out in s 387 of the Act, and

made the following submissions:

(a) FWA would conclude there was a valid reason for the dismissal, related to the

applicant’s conduct (including its effect on the safety and welfare of other

employees), namely the applicant’s admitted serious misconduct of punching and

kicking Mr Smith at about 10:27pm on 5 June 2011, resulting in him being unfit for

work and suffering a number of injuries (s 387 (a));

(b) the applicant was notified of the reasons for dismissal by letter dated 1 August

2011 (s 387(b));

any further matters to the respondent before it determined what disciplinary action to

take. There was no refusal to allow the applicant to have a support person present

during any of the investigative and / or disciplinary meetings (s 387 (c) & (d));

(d) The respondent contends that s 387 (e)-(g) are not relevant to this application;

In relation to s 387(h), Mr Taylor made the following submissions that:

(i) the well established approach to fighting cases is that a dismissal for fighting is

prima facie not unfair unless there exist extenuating circumstances (see AWU-FIME

Union v Queensland Alumina Ltd (1995) 62 IR 385 at 393; Tenix Defence Systems

Pty Ltd v Fearnley Print S6283, which was cited in Culpeper v Intercontinental Ship

Management Pty Ltd PR944547 (in turn quoted in McMahon v Swan Transit

Services (South) Pty Ltd [2011] FWA 3220.

(ii) there appears to be three matters that the applicant relies upon to establish the

existence of ‘extenuating circumstances’ which would render the dismissal unfair:

(a) that the applicant was provoked and / or had no choice but to fight;

(b) the dismissal was procedurally unfair in that the respondent failed to

properly investigate the nature of Mr Smith’s prior conduct before deciding to

dismiss the applicant and / or did not take Mr Smith’s prior conduct properly

into account;

[2012] FWA 1250

Mr Taylor developed these submissions as follows:

The applicant was provoked and / or had no choice but to fight

[117] Mr Taylor submitted that the common law defence of provocation only arises if there

is conduct that causes the defendant to lose control: Stingel v R (1990) 171 CLR 312. He

contended that the incident did not occur in the ‘heat of the moment’, that the applicant was

not provoked into an immediate angry reaction and that he did not lose control of himself as

he had waited outside for about 20 minutes to confront and fight Mr Smith. Mr Taylor

accepted that there indeed existed provocation that is relevant and is to be taken into account

in considering whether the dismissal was harsh, but submitted that the material outlined in his

submissions provides a proper basis to find that whatever provocation existed, there was a

valid reason to dismiss.

The applicant had no choice but to fight

[118] As to the fight itself, Mr Taylor noted that the applicant, in cross-examination, made a

number of concessions as to the fight and it is from that evidence, which he contends was not

in dispute. FWA can conclude that:

(a) the applicant approached Mr Smith quickly and was the only one to have his

arms raised and fists clenched to fight;

(b) in the fight the applicant:

(i) threw the first punch;

(ii) was the only one to throw any punch;

(iii) after some less serious efforts, which did not induce Mr Smith to hit

back or even raise his hands up, punched Mr Smith hard to the face with a right

cut;

(iv) got Mr Smith into a headlock and while holding him in the headlock hit

him with 2-3 uppercuts;

(v) threw Mr Smith to the ground;

[2012] FWA 1250

(vi) while Mr Smith was on the ground the applicant went around Mr

Smith’s prone body in order to get into the best position to deliberately kick Mr

Smith in the head and, as he admitted, then kicked Mr Smith as hard as he

could; and then

(vii) tried to get Mr Smith to get up so he could keep fighting.

[119] Mr Taylor submitted that the above uncontested findings of fact lead inevitably to the

following conclusions:

(a) the applicant chose to engage in a fight, rather than to talk or to back off;

(b) the applicant was the aggressor during the fight itself;

(d) the applicant was not merely defending himself from attack (indeed was not

himself under any physical attack) but aggressively attacking Mr Smith, including well

after Mr Smith could pose any danger to him.

[120] In addition, Mr Taylor noted that the applicant had accepted that prior to the incident

he was aware that:

(a) the respondent has a clear policy of not tolerating any form of physical

violence in the workplace;

(b) that fighting was considered serious misconduct;

Mr Taylor submitted that consistent with the decision of His Honour, Moore J in AWU-FIME

Union v Queensland Alumina Ltd (1995) 62 IR 385 at paras 392 - 393, the respondent ‘was

entitled to both adopt and give effect to a policy that prohibited fighting with the sanction of

dismissal if it was breached’.

The kick

[121] Mr Taylor submitted that whatever can be said about provocation or the nature of Mr

Smith, nothing excuses the applicant’s kick to Mr Smith’s head. Mr Taylor put that it was

clearly a deliberate act which is potentially extremely dangerous and, in which, the applicant

had agreed in evidence was a ‘low act’. In the respondent’s submission, the kick to the head

[2012] FWA 1250

is of itself a valid reason for dismissal and one that is so serious that no amount of mitigating

circumstances can excuse it.

[122] Mr Taylor rejected the applicant’s claim that the investigation and disciplinary process

was procedurally flawed. It was the respondent’s evidence, particularly that of Ms Taylor’s,

when she said that an exhaustive investigation had included 196 interviews - had been

conducted by the respondent. However, she deposed that the entrenched workplace culture of

not ‘dobbing’ had produced almost no useful information. Mr Taylor asserted that in such

circumstances, the respondent cannot be criticised for not having done more to uncover the

prior conduct of Mr Smith before the decision was made to dismiss. Mr Taylor put that, in

any event, it is clear from Ms Taylor’s evidence that she approached the investigation on the

basis that Mr Smith did have a reputation for being a bully and, importantly, Ms Doust had

not put to Ms Taylor, during her evidence, that there was any further step she could have

taken to better investigate the matter.

[123] Mr Taylor noted that after the dismissals, other workers were then willing to provide

information to better assist the respondent in its investigation. However, he pointed to the

evidence of Ms Taylor and Mr Bellears who had both said that the additional information,

even if it had been available, would not have altered the decision to dismiss, given the nature

of the misconduct.

[124] In addition, Mr Taylor had regard to Ms Taylor’s evidence in re-examination where

she had made clear that the record of interview with the applicant and his solicitor, which had

set out in clear terms the bullying nature and past offensive conduct of Mr Smith was

discussed and it was not put to Mr Bellears, by Ms Doust, in giving his evidence, that he had

not had regard to that information in making his decision to dismiss the applicant. Mr Taylor

emphasised the fact that when Mr Bellears came to make the decision to dismiss, he did so on

the basis that he had accepted that the applicant had been goaded and provoked by Mr Smith

into engaging in the physical altercation.

[125] In response to the applicant’s submissions as to the decision to dismiss being harsh,

Mr Taylor pointed to the witness statement of Mr Bellears, the decision-maker, noting that the

respondent had clearly taken into account all of the circumstances which included: the

applicant’s 30 plus years of service, his age, the provocation, and the effect that it will have

on the applicant. Furthermore, Mr Taylor rejected the applicant’s contention that the decision

[2012] FWA 1250

to terminate was, in any way, either disproportionate to the gravity of the applicant’s

misconduct or harsh, relying on the conclusion of Blair C in Gleeson v Aurora Energy Pty Ltd

[2010] FWA 2965 at paras 45-47 and McCarthy DP in Curtrali v Chubb Security Services Ltd

[2010] FWA 5156 at para 73.

[126] Mr Taylor submitted that the applicant’s application for an unfair dismissal remedy

should be dismissed. However, if the Tribunal is minded to reinstate the applicant, then no

order for back-pay should be made, given the seriousness of the misconduct. On the question

of compensation, Mr Taylor directed his submissions to the s 392(2) factors relevant to this

application, noting that the Tribunal must reduce the amount it would otherwise order on

account of the applicant’s misconduct.

[127] In oral submissions, Mr Taylor repeated much of what was said in his written

submissions which I have previously noted. However, he added that it had never squarely

been put to either Ms Taylor or Mr Bellears, at any point before they were subjected to cross-

examination, both the proposition that the dismissal was in some way procedurally unfair, in

that the respondent had failed to properly investigate the nature of Mr Smith’s prior conduct

or that it did not fully take into account Mr Smith’s prior conduct when deciding to dismiss

the applicant. Mr Taylor put that the applicant’s conclusions as to procedural unfairness must

fail as they were not supported by the evidence given of Mr Bellears, as having proceeded on

the basis that the applicant had been goaded and he had been provoked by Mr Smith; evidence

that Mr Taylor said was not tested during cross-examination. Later in his submission, Mr

Taylor conceded that the respondent would have known about Mr Smith’s conduct for some

time before the decision to terminate the applicant having regard to Ms Hunter’s workers’

compensation claim.

[128] Although Mr Taylor accepted the existence of provocation, he submitted that it should

not excuse the applicant’s conduct. He put that the CCTV footage trumps the provocation

and that the respondent’s case fundamentally is that it is never appropriate conduct in

response to insults or provocation to take matters into your own hands and fight; particularly

in light of the fact that the respondent had a comprehensive ‘no fighting’ policy. Mr Taylor

emphasised the applicant’s violent conduct and noted the kick to the head, amounting to

serious misconduct which is not excused by anything that came before it. It could have

caused a very serious injury.

[2012] FWA 1250

[129] Mr Taylor rejected the applicant’s proposition that he had no choice but to fight by

relying on the applicant’s own concessions, that he did not have to confront Mr Smith on the

night of 5 June 2011, that he could have spoken to a supervisor instead or that he could have

walked away. Mr Taylor referred to the decision of His Honour, McCarthy DP, in Cutrali v

Chubb Security Services Ltd [2010] FWA 5156 at [50], noting that to uphold the application

will send the wrong message to the respondent’s employees about how to deal with workplace

conflict.

[130] Mr Taylor rejected the applicant’s notion that the entire incident was ‘set up’ by Mr

Smith by addressing the CCTV footage, Mr McIntyre’s evidence as to a conversation he had

with Mr Smith and Mr King’s evidence concerning the ‘wink’. First, in relation to the CCTV

footage, Mr Taylor argued that the filming had not been done at the initiative of Mr Smith in

it was much more likely that it was done simply because the word was out that a fight was on

and people wanted to have a look. Mr Taylor noted that the applicant’s theory seemed

counterintuitive in that Ms Doust used the very footage after the fight to suggest that Mr

Smith was not badly injured - that it was a ‘set up’. Although Mr Taylor accepted that there

were a number of possibilities open on the facts, there was not sufficient evidence before the

Tribunal which could lead safely to the conclusion that the whole incident was a ‘set up’ by

Mr Smith. Secondly, Mr Taylor addressed the evidence of Mr McIntyre regarding something

that was said by Mr Smith a month or so before the incident. He put that it could easily be

construed as Mr Smith alluding to a more general approach to the bullying of the applicant.

Thirdly, in relation to the ‘wink’, Mr Taylor said that it was open to conclude that Mr Smith

was just reassuring Mr King that he was okay after being thrown to the ground by the

applicant.

[131] As to remedy, Mr Taylor said that if the Tribunal found that the dismissal was ‘harsh,

unjust or unreasonable’, it should not reinstate the applicant due to the seriousness of the

applicant’s misconduct. If the Tribunal was minded to award an amount of compensation, in

lieu of reinstatement, Mr Taylor noted s 392(3) of the Act, and submitted that the Tribunal

must reduce the amount that it would have otherwise awarded in light of his misconduct.

In reply

[132] Ms Doust directed the Tribunal to a WorkCover medical certificate dated 15 October

2010, annexed to Ms Hunter’s statement which stated, amongst other things, that she is not to

[2012] FWA 1250

work with Charge Foreman Peter Smith and to avoid contact or supervision with him. Ms

Doust re-emphasised the serious nature of Mr Smith’s bullying, the fact that the respondent

knew of this conduct for some time and took no steps to unearth information until the

investigation of the 5 June 2011 incident.

CONSIDERATION

[133] There is no disputing the jurisdictional foundation of this application. The applicant is

a person to whom the unfair dismissal provisions of the Act apply in that he:

(a) had the minimum employment period with an employer who was not a small

business (s 382 (a) 383 (a));

(b) was covered by a modern award (the Stevedoring Industry Award 2010) (s 382

(b)(i));

(d) was dismissed for misconduct and was not dismissed for reasons of genuine

redundancy (s 385(d)).

[134] Schedule 1.07 of the Fair Work Act Regulations 2009 (the ‘Regulations’) provides a

meaning of misconduct as follows:

1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious
misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the
following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with
the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s
business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the
following:

[2012] FWA 1250

(a) the employee, in the course of the employee’s employment, engaging
in:

(i) theft; or
(ii) fraud; or
(iii) assault;

(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction
that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the
circumstances, the conduct engaged in by the employee was not conduct that made
employment in the period of notice unreasonable.

(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s
faculties are, by reason of the employee being under the influence of intoxicating
liquor or a drug (except a drug administered by, or taken in accordance with the
directions of, a person lawfully authorised to administer the drug), so impaired that the
employee is unfit to be entrusted with the employee’s duties or with any duty that the
employee may be called upon to perform.

It is clear the respondent relies on ss 2(b) & (3)(a)(iii) above.

[135] The P&O Ports Human Resources Handbook makes clear that fighting at work is an

example of a breach of policy which may result in suspension and/or dismissal. The

respondent’s disciplinary policy is as follows:

‘P&O Ports expects all employees to achieve and maintain a high standard of conduct
and work performance at all times, with proper regard for co-operation with internal
customers and the maintenance of confidence and satisfaction with external customers.

If your performance is unsatisfactory, your immediate Manager will initially deal with
it. The Company will determine the level of investigation surrounding any breach,
after giving consideration to the nature and severity of the breach.

While a decision in respect of a breach is being made, you may be suspended on full
pay to allow investigation, discussion and representation. The type of action taken
will reflect the severity of the breach. Investigations and involvement of statutory
authorities and the police may occur for any criminal activities or statutory breaches
At all stages of the disciplinary procedure you will be allowed to request the presence
of another P&O Ports employee or appropriate support person.

Disciplinary action following a breach may include, but is not limited to, verbal and/or
written warning, suspension, removal from role, dismissal with notice or summary
dismissal.

These principles do not prevent the taking of other additional action available under
your enterprise agreement, award or conditions of employment. Nor do they prevent
further action from a third party.

[2012] FWA 1250

If you believe that you have been treated unfairly under this procedure, then you have
the right to seek review of the decision through the Grievance Procedure or in the case
of dismissal, through Unfair Dismissal provisions of the Workplace Relations Act.

A complete copy of the Disciplinary Procedures is available in the HR Policy &
Procedure Guidelines.’

Further. under the heading ‘Suspension, dismissal’, the Policy reads:

Examples of typical breaches

Theft and / or fraud;

Fighting on site;

Falsification of a medical certificate or
other official documentation;

Refusal of duty;

Using abusive or threatening language
or
physical force, with the intent to
harass,
victimise, coerce or injure;

Sabotage of P & O Ports’ property;

Unauthorised removal of any first aid or
safety equipment or supplies.

Examples of possible effects:

An act which seriously endangered
persons or has seriously damaged
property;

An act which adversely affects the
business;

Involves dishonesty for personal gain or
the deliberate detriment of others;

Harassment or victimisation of other
persons of a repeated or serious or
violent nature;

Possession, consumption or sale of
prohibited substances on site;

Reporting for work or working while
under the influence of performance
affecting drugs;

Behaviour or acts which contravene
common law;

Repeating a breach which had previously
been subject to a written warning.

[136] While it was asserted in evidence (and in submissions) that the respondent has a zero

tolerance policy in respect to fighting in the workplace, that is strictly not the case. The use of

the word ‘may’ in the disciplinary policy, sensibly reflects the commonly accepted industrial

proposition, as readily conceded by Mr Bellears, that the employer reserves the right to

exercise a discretion as to whether, in all the circumstances, a participant in a fight will

inevitably face summary dismissal. In AWU-FIME Union v Queensland Alumina Limited 62

IR 385 Moore J considered the policy of the employer in this context and said:

[2012] FWA 1250

‘It is clear that QAL has a policy that fighting at work is a dismissible offence. Both
Sonter and Merritt were aware of this policy. It is not a policy that is entirely rigid in
the sense that any person fighting at work will necessarily be dismissed. It allows for
exceptions that might arise in particular circumstances. However it is plain that QAL
has endeavoured to ensure that no fighting occurs by indicating that the likelihood is
that dismissal would follow if it did’.

[137] In addition, a review of the authorities makes clear that it is not in every case where an

employee has been in involved in a fight, that an application for reinstatement will be refused:

see Yew v ACI Glass Packaging Pty Limited [1996] 71 IR 201.

[138] This now leads me to the more general principles which should be applied by FWA

when considering an unfair dismissal claim arising from fighting in the workplace.

[139] A Full Bench of the AIRC in Tenix Defence Systems Pty Ltd v Fearnley, Print S6238,

22 May 2000 said at Para 22-25 (Reaffirmed by the Full Bench in ALH Group Pty Ltd t/a the

Royal Exchange Hotel v Andrew Mulhall (2002) PR919205 at [64] - [65]):

“Before dealing with each of these submissions we wish to make some brief
observations on the approach taken by industrial tribunals when fighting or an assault
has been established. In AWU-FIME Amalgamated Union v Queensland Alumina
Limited Moore J summarised the relevant decisions in the following passage:

‘What emerges from these decisions is that whether a dismissal or termination
arising from a fight in the workplace is harsh, unjust or unreasonable will
depend very much on the circumstances. However, generally the attitude of
industrial tribunals tends to be that in the absence of extenuating
circumstances, a dismissal for fighting will not be viewed as harsh, unjust or
unreasonable. The extenuating circumstances may, and often do, concern the
circumstances in which the fight occurred as well as other considerations such
as the length of service of the employee, including their work record, and
whether he or she was in a supervisory position. As to the circumstances of the
fight, relevant considerations include whether the dismissed employee was
provoked and whether he or she was acting in self defence’.

Not dissimilar views, albeit in a different statutory context, have been expressed by a
Full Bench of the Industrial Commission of South Australia in Torbet v Commissioner
for Public Employment as follows:

‘In considering what was the appropriate remedy for the misconduct a strong
push on the chest where both participants were screaming at each other, the
employer seems to have regarded dismissal as the only remedy. The evidence
of Mr. Keeley strongly suggests that the committee of enquiry, having reached
the conclusion that an assault had taken place, thought it had no alternative

[2012] FWA 1250

than to dismiss the employee. But what this employer needed to consider was
whether, upon weighing up the seriousness of the assault against the mitigating
or extenuating circumstances, dismissal should occur, or whether some other
and less serious punishment was appropriate. In reaching that decision the
employer would also need to take into account the competing necessity to
establish and retain discipline amongst its employees’.

The above passages were cited with approval by a Full Bench of the Commission in
Mobil Oil v Giuffrida. We also note the following observation by the Federal Court -
in another fighting case - Qantas Airways Limited v Cornwall:

‘We accept that in this case ... it is necessary to examine the circumstances
surrounding the conduct relied on, which constitute the "relevant factual
matrix", to decide whether the termination was supported, in the words of the
statute, by "a valid reason ... connected with the employee's ... conduct". As
was said in Cosco Holdings and in Allied Express Transport, a valid reason is
one which is "sound, defensible, or well-founded". But it is important to
remember that the governing words are those of the statute, and that attempts at
judicial explanation should not be substituted for the statutory provision. The
question remains whether, the employer having terminated the employee's
employment, there was a valid reason connected with the employee's conduct.
We have already stated that the respondent, in the present case, struck his
supervisor. That is not now in dispute. Nor is it in dispute that Qantas acted
on this conduct as a reason when it terminated the respondent's employment.
The question is whether there was a valid reason. In general, conduct of that
kind would plainly provide a valid reason. However, conduct is not committed
in a vacuum, but in the course of the interaction of persons and circumstances,
and the events which lead up to an action and those which accompany it may
qualify or characterize the nature of the conduct involved’.

We think these authorities support the view that in determining whether there is a valid
a reason for a termination of employment arising from a fight in the workplace the
Commission should have regard to all of the circumstances in which the fight occurred
including, but not limited to:

- whether the terminated employee was provoked and whether he or she was
acting in self defence;
- the employer's need to establish and retain discipline amongst its employees;
and
- the service and work record of the employee concerned.”

[140] In the judgement of His Honour Moore J, in AWU- FIME v Queensland Alumina

Limited, His Honour also observed that fighting in a dangerous working environment could

have much more severe consequences for the participant and other employees, than fighting

in a more benign environment. His Honour said at page 392:

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‘QAL operates a large, complex and dangerous industrial plant and the failure of
employees to carry out their duties properly can, potentially, lead to death or injury to
the workforce and significant loss of production to QAL.

Witnesses called by QAL conceded that in the working environment tensions can arise
between members of the workforce. I accept, however, that it is important to QAL
both in its interests of the workforce to ensure that fighting does not occur at the
workplace. This is obviously so in areas where plant is located. The Union made the
point that that the fight occurred in the crib room which can, as it characterised it, be
described as a sanctuary from the workplace.

However the policy of QAL would lose much of its effectiveness if it was to be
subject to a qualification that while fighting could not occur in the vicinity of
operating plant, it would not view as serious fights occurring elsewhere.’

[141] It is obvious in this case, that the fight occurred on the respondent’s property; namely,

on the footpath, adjacent to the car park outside a building and the operating environment.

However, like Moore J, I do not see how the seriousness with which the respondent viewed

the incident, is lessened by where it occurred. Moreover, certainly in respect to the applicant,

he was ‘on duty’ at the time.

[142] It is also irrelevant, I think, that Mr Smith was not seriously injured in circumstances

where the applicant, frankly conceded, that he had intended to hurt him by punching him and

kicking him. He may well have been surprised at Mr Smith’s apparent lack of retaliation.

Nevertheless, it is obvious that this incident was not just an unpremeditated push or a shove in

‘the heat of the moment’. Both Mr Smith and the applicant had ample time to pull out of the

conflict and walk away. But these considerations do not answer the questions as to firstly

who was the real instigator of the fight and, secondly had the applicant been ‘set up’ all along

by the actions of Mr Smith? I shall return to these questions and the other factors identified

earlier in Tenix which shall be taken into account in my determination of this application.

[143] On any objective analysis, the undisputed evidence in this case, most particularly the

CCTV footage and the applicant’s own admissions, provide an irresistible foundation for the

respondent’s decision to dismiss the applicant. In other words, there can be little doubt that

there was a valid reason for the applicant’s dismissal (s 387(1) of the Act). The Union’s non-

submission of the subject properly acknowledged this reality. Without more, one might even

expect that the totality of Mr Taylor’s submissions would be accepted by FWA. However,

given the other extraordinary and inexplicable circumstances revealed during the proceedings,

that cannot possibly be the end of the matter.

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[144] As incredible and unbelievable as it may seem, and notwithstanding I have no

evidence from Mr Smith as to his version of events, I am prepared to accept, on the balance of

probabilities, that Mr Smith ‘set up’ the applicant in order to portray him as the aggressor,

with the express intention of securing his dismissal. I am fortified to this conclusion, by the

following evidence, which I accept.

(a) Mr Smith goaded the applicant into a physical altercation by threatening that

he was intending to ‘cave his head in’. I accept the applicant’s and his son’s evidence

that this threat had been repeated on a number of occasions.

(b) Mr Smith had a long history of abusive, threatening and bullying behaviour

towards the applicant, and other employees, who he perceived were not supportive of

him, or that he simply did not like.

someone much younger and of a larger build. He had sent his son to intervene with

Mr Smith. I accept that the applicant was so nervous as to what might happen, that he

was forced to the toilet three times, within 10 minutes. This physiological

manifestation is indicative of a ‘very, very nervous’ person. Such an admission was

embarrassing and unlikely to have been ‘made up’ by the applicant.

(d) It is curious that Mr Smith would goad the applicant to hit him, then throw no

punches and end up on the ground in the context of having said he was ‘going to cave

the applicant’s head in’. On the other hand, Mr Smith’s feigned passivity is entirely

consistent with his ‘set up’ of the applicant as the aggressor, in order to falsely portray

himself as the innocent victim.

(e) Mr Smith’s aggressive and uncalled for responses to Mr Lewis and Mr King,

who were merely coming to his assistance, is hardly demonstrative of a person who

had been injured in the altercation. The conduct taints the suggestion of a real assault

by the applicant. In addition, I reject Mr Bolger’s suggestion that Mr Smith merely

wanted to thank Mr King for helping him. Apart from being entirely inconsistent with

Mr King’s version of events, which I accept, thanking someone does not explain Mr

Smith’s phone pestering of Mr King in the following days. What it does perfectly

[2012] FWA 1250

demonstrate is that Mr Smith knew his plan might come undone if Mr King told

management what really occurred.

(f) Mr Smith’s ‘wink’ to Mr King makes clear to me that Mr Smith was acting out

the role of the innocent party in the fight. I found Mr King to be an unbiased observer,

who did not involve himself in workplace disagreements. He was a credible witness

whose evidence has a ‘ring of truth’ about it. He did not ‘gild the lily’ and did not

appear to have been coached as to his evidence or to have rehearsed it. While he

sometimes seemed confused when Mr Bolger put contrary propositions to his

evidence, in my view, this demonstrated a person who was unfamiliar with giving

evidence in the Tribunal and was confused by Counsel putting things to him which he

knew to be at odds with his own recollection of the truth. Far from demonstrating a

lack of credibility, these responses enhanced it.

(g) I accept Mr McIntyre’s evidence that about a month before the incident, Mr

Smith had told him that ‘I am going to get him (the applicant), I am going to fuck him

up’. This is clear and corroborative evidence that Mr Smith was intent on a course of

action to harm the applicant through getting him dismissed. It was probably shortly

thereafter that he conceived of the plan to ‘set him up’.

(h) I also accept Mr Barnes’ evidence that he had overheard a discussion between

the applicant and Mr Smith in which Mr Smith blamed Ms Hunter’s return to work on

him. The root cause of Ms Hunter’s psychological injury which was well known to

management, was the harassment and bullying by Mr Smith. Accepting Ms Hunter’s

evidence, as I do, demonstrates a pattern of reprehensible behaviour by Mr Smith

towards fellow employees of which his ‘set up’ of the applicant, is but one further

poor example.

The CCTV Footage

[145] The most significant evidence was the extraordinary CCTV footage. There is no

doubt it was manually manipulated by an unknown person who followed the altercation and

zoomed in at relevant times which would seem to indicate that someone had been enlisted to

ensure clear coverage of the incident. Ms Taylor’s evidence was that the footage was

‘jumpy’, zoomed in and out and followed the ‘action’. It seems to me to be instructive that

Mr Smith had said he would see the applicant outside in 10 minutes. While there is no

[2012] FWA 1250

evidence of who manipulated the camera, or for what purpose, it is open to conclude that the

10 minute notice was given so Mr Smith could organise someone to manipulate the camera. I

do not accept the alternative theories that someone just happened to know a fight was on and

just followed it with the camera out of interest or a supervisor had filmed it. In either

scenario, the unknown cameraperson was guilty of not seeking to prevent the altercation by

reporting it or attempting to intervene.

[146] On the respondent’s own evidence, management was aware that ‘something funny was

going on’ in respect to the manual control of the CCTV. It acknowledged as much in its letter

to the applicant on 14 July 2011 wherein it said:

‘The physical altercation was recorded on the three CCTVs which record the car park
and turnstile area. The footage from one of the CCTVs zooms in and out and follows
the physical altercation. This could only have occurred through manual control of the
CCTV. A wide range of people have access to the CCTV controls and could have
manipulated the CCTV. Controls for the CCTVs are located in the clerical control
room, supervisor’s office, grade 6 office, superintendent’s office, security office,
Danny Bannatyne’s office and Mark Bellears office’.

[147] I ask rhetorically, if a number of people had suggested that the applicant was ‘set up’,

was not the unknown manipulation of the camera, clear and cogent corroboration that was, in

fact, what had happened? Even with this knowledge, the respondent failed to take its own

evidence into account. This omission discloses a serious flaw in the respondent’s decision

making process to the applicant’s detriment. Moreover, this omission sits very uncomfortably

with the respondent’s other evidence that the CCTV footage was the main factual foundation

for determining the applicant’s involvement in the fight. In other words, it was grossly unfair

to primarily rely on the CCTV footage to dismiss the applicant, but ignore the bizarre and

unexplained circumstances in which the CCTV footage was created.

[148] In addition, I further note that Mr King gave evidence that the CCTV footage had

‘skipped’ about 20 seconds at the very time he said Mr Smith had feigned a punch at him.

This skipping is consistent with Ms Taylor’s observations of the footage. It seems an entirely

plausible conclusion that someone unknown - probably in Ms Smith’s camp - having viewed

the footage and observed a punch thrown by Mr Smith towards Mr King, would have found it

most unhelpful to Mr Smith’s version of events. Was the footage manipulated further to erase

it? I accept that this is supposition, but it is plausible.

[2012] FWA 1250

[149] In my opinion, it is reasonable to find that the respondent’s decision to dismiss the

applicant, knowing the history and previous conduct of Mr Smith (most notably towards Ms

Hunter) was coloured and ultimately tainted by a perception - which Ms Taylor candidly

acknowledged - that there would be trouble if one of them was reinstated, but not the other. I

apprehend that Mr Smith had not foreshadowed his own dismissal. To put it bluntly, the

respondent appears to have taken the easy way out by dismissing both of them. However, it

did so without properly weighing up (or at all) Mr Smith’s motive, provocation, past history

and in the applicant’s favour, his long and relatively unblemished service, honesty during the

investigation and his remorse and contrition. As the Full Court of the Federal Court said in

QANTAS Airways Limited v Cornwall [1998] 83 IR 102:

‘We have already stated that the respondent, in the present case, struck his supervisor.
That is not now in dispute. Nor is it in dispute that Qantas acted on this conduct as a
reason when it terminated the respondent's employment. The question is whether there
was a valid reason. In general, conduct of that kind would plainly provide a valid
reason. However, conduct is not committed in a vacuum, but in the course of the
interaction of persons and circumstances, and the events which lead up to an action
and those which accompany it may qualify or characterise the nature of the conduct
involved. Such circumstances are clearly to be distinguished from the consequences of
a termination of employment, if that ensues, which are excluded by Victoria v The
Commonwealth and Cosco Holdings. In our opinion, the trial judge was entitled to
take into account the matters summarised at the commencement of these reasons, and
to conclude from them that the conduct found against the respondent did not establish
a valid reason for his dismissal’.

[150] When viewed in this way whilst I am satisfied that the respondent had a valid reason

for the applicant’s dismissal (see Culpepper v International Ship Management PR960313), I

am nevertheless comfortably satisfied that his dismissal was otherwise ‘harsh, unreasonable

and unjust’ within the meaning of s 387 of the Act.

[151] I make this finding because I believe the applicant’s dismissal was an utterly flawed

and unbalanced response to the incident of 5 June 2011. Moreover, the respondent’s decision

has resulted in a ‘manifest injustice’, of the rare kind, expressed by the majority of the Full

Bench in Lawrence v Coal & Allied Mining Services Pty Ltd t/a Mt Thorley

Operations/Warkworth [2010] FWAFB 10089, where Lawler VP and Roberts C said at 27-

29:

‘We respectfully endorse those observations. The preservation of public confidence in
the administration of justice is a matter of deep public interest. That confidence tends
to be undermined by decisions that are manifestly unjust. We agree that the public

[2012] FWA 1250

interest is engaged in a case where it is evident that a manifest injustice has been done
such that where an appeal bench forms that view there is a public interest in a grant of
permission to appeal.

This is not to say that there will be a public interest in granting permission to appeal in
any case to which s.400 applies where error is identified. To adopt that approach
would effectively set the limitation in s.400 at nought and would frustrate the obvious
intent of the legislature to limit appeals from unfair dismissal decisions. Moreover, it
is not to say that there will be a public interest in granting permission to appeal merely
because the appeal bench would have reached a different conclusion from the member
at first instance. Again, such an approach would be at odds with the principles in
House v R. Rather, we have in mind a case where the outcome is so at odds with what
the Full Bench considers a proper outcome that the epithet “manifest injustice” can
properly applied. Such a conclusion will only be reached in rare cases.

In our view, this is such a case. For reasons which will become evident, we consider
that the proper exercise of discretion at first instance in this case was, on the evidence
before the Commissioner, so clearly in favour of a finding that the dismissal was harsh
that the decision to dismiss Mr Lawrence’s application for an unfair dismissal remedy
constitutes a manifest injustice that engages the public interest. We are satisfied that
there is a public interest in grant of permission to appeal and grant that permission.
The appeal then proceeds as a re-hearing’.

[152] In addition, I am fortified in my findings by the open and honest acknowledgements of

Ms Taylor, and the extraordinary admission by Mr Bellears, that while he had considered all

of the matters raised by the applicant in mitigation during the investigation, ultimately only

two facts were determinative - the applicant’s admissions and the CCTV footage. This was a

balancing exercise so seriously flawed and unfairly weighted against the applicant’s interests,

that it constitutes a gross breach of procedural fairness.

[153] The evidence of the respondent discloses that between 5 June 2011 and 29 July 2011,

the respondent took no steps to investigate, let alone make findings about Mr Smith’s history

as a bully in the workplace. Ms Taylor even admitted that in the meetings with Mr Bellears

and Ms Humphreys, the subject was not even raised. Mr Bellears accepted that they had

‘closed the door’ on Mr Smith’s history. Moreover, this evidence was against a backdrop of

the other evidence of Ms Taylor that she:

(a) agreed it was well known that Mr Smith had a bullying reputation.

(b) knew Ms Hunter had been off work on workers’ compensation as a direct

result of Mr Smith’s behaviour towards her.

[2012] FWA 1250

(d) suspected that Mr Lewis had been ‘pre briefed’ before his interview to refute

any racist comment having been made by Mr Smith towards Mr King.

(e) had been told by Mr McIntyre that he was very scared for himself and his

family if he gave a statement during the investigation. I note that what Mr McIntyre

told her was entirely consistent with his statement in these proceedings.

(f) had been told by the applicant, the very next day after the incident, that Mr

Smith called him a ‘dog’ and asked him outside. I note that the applicant’s version of

events has been consistent since the day after the incident to the evidence he gave in

these proceedings. During oral evidence, he recalled conversations without referring

to his statement.

(g) acknowledged that Mr Smith’s history was a very relevant factor in the

decision to dismiss the applicant and it had not been considered.

[154] Moreover, the respondent’s evidence and its own conclusions of the investigation

reveal two startling, yet seemingly overlooked considerations which plainly, and

overwhelmingly, fell in the applicant’s favour. Firstly, that the evidence and statements of Mr

King and Mr Michael Lambley during the investigation, were believable, and secondly, Ms

Taylor and Mr Bellears both accepted that it was more likely that the applicant’s account of

events was correct.

[155] Given these concessions I am baffled to understand how a decision was made to

dismiss the applicant; let alone deliver the same punishment to him as Mr Smith received. In

addition, it seems plain enough to me that the respondent’s procedures as to protecting

employees from bullying, were not able to stymie, let alone stop, Mr Smith’s ongoing

unacceptable conduct. I agree with Ms Doust that it was perfectly understandable that

employees and the applicant in particular, had lost confidence in the respondent’s policies and

procedures being able to protect employees from bullying in the workplace.

Other statutory criteria

[156] As I said earlier, the respondent had a valid reason for the applicant’s dismissal (s

387(a)). I turn now to the other mandatory matters the Tribunal is required to take into

[2012] FWA 1250

account when considering whether the applicant’s dismissal was ‘harsh, unreasonable or

unjust’. These matters are set out in s 387 of the Act as follows:

(a) .........

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

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

(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the
person had been warned about that unsatisfactory performance before the dismissal;
and

(f) the degree to which the size of the employer’s enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the procedures
followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.

The oft quoted authority as to the meaning of ‘harsh, unreasonable or unjust’ in the industrial

context is that found in Byrne v Australian Airline (1995) 185 CLR 410:

‘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’.

[157] There is no issue that the applicant was notified of the reasons for his dismissal on 1

August 2011 (s 387(b) and was given an opportunity to respond (s 387(c) on 3 occasions in

meetings with management on 14 June, 20 July and 1 August 2011. As I said earlier,

notwithstanding the opportunities to respond, the respondent failed to investigate his claims

and took no proper account of his responses in mitigation.

[2012] FWA 1250

[158] At all material times the applicant was represented by a solicitor and accordingly s

387(d) is not relevant. The applicant was not dismissed for unsatisfactory performance so s

387(e) does not apply in this case. The size of the respondent’s enterprise is a neutral

consideration in this case (s 387(f)) and, there was no absence of dedicated human resources

specialists in the enterprise (s 387(g)). I might observe, in passing, that both Ms Taylor and

Mr Bellears were relatively new to the business and this may have been a factor in the rigid

and overly cautious approach they adopted to the facts and circumstances of the incident and

history of the workplace. I have earlier referred to the other matters I consider relevant to this

case (s 387(h)). I would add that the decisions referred to me and relied on by Mr Taylor are

plainly distinguished to the incredible facts and circumstances of this case.

Relief to be ordered

[159] The Act’s provisions dealing with the remedies available to an applicant should the

Tribunal find a dismissal was unfair, are set out in s 390 as follows:

390 When FWA may order remedy for unfair dismissal

(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the
payment of compensation to a person, if:

(a) FWA is satisfied that the person was protected from unfair dismissal (see
Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) FWA may make the order only if the person has made an application under
section 394.

(3) FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all
the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

Also present is the overarching obligation upon FWA to ensure ‘a fair go all round’ as

expressed in s 381(2) as follows:

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(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the
manner of deciding on and working out such remedies, are intended to ensure that a
‘fair go all round’ is accorded to both the employer and employee concerned.

[160] The applicant seeks reinstatement, while the respondent opposes it. Mr Taylor

submitted that the applicant’s reinstatement would send the wrong message to the workforce

and undermine the respondent’s policies in respect to not tolerating verbal or physical

altercations in the workplace. In so asserting, the respondent relied on the evidence of Ms

Taylor and Mr Bellears. I disagree on both counts.

[161] Section 391 of the Act deals with the remedy of reinstatement as follows:

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer
at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed
immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less
favourable than those on which the person was employed immediately before
the dismissal.

(1A) If:
(a) the position in which the person was employed immediately before the
dismissal is no longer a position with the person’s employer at the time of the
dismissal; and

(b) that position, or an equivalent position, is a position with an associated
entity of the employer; the order under subsection (1) may be an order to the
associated entity to:

(d) appoint the person to another position on terms and conditions no less
favourable than those on which the person was employed immediately before
the dismissal.

Order to maintain continuity

(2) If FWA makes an order under subsection (1) and considers it appropriate to do so,
FWA may also make any order that FWA considers appropriate to maintain the
following:

(a) the continuity of the person’s employment;

[2012] FWA 1250

(b) the period of the person’s continuous service with the employer, or (if
subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If FWA makes an order under subsection (1) and considers it appropriate to do so,
FWA may also make any order that FWA considers appropriate to cause the employer
to pay to the person an amount for the remuneration lost, or likely to have been lost,
by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), FWA
must take into account:

(a) the amount of any remuneration earned by the person from employment or
other work during the period between the dismissal and the making of the order
for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the
person during the period between the making of the order for reinstatement and
the actual reinstatement.

[162] There is no doubt that the terms of s 381(c) of the Act disclose a statutory intention to

give primacy to reinstatement of an unfairly dismissed employee and, it is only if the Tribunal

is satisfied that it would be inappropriate to reinstate the employee, that compensation may be

appropriate (s 390 (3)(b)) see Holcim v Serafini (2011) FWAFB 7794 at 24. The relevant

principles governing the appropriateness of reinstatement are well established. It may be

accepted that the word ‘impracticality’ found in earlier statutes is interchangeable with

‘inappropriateness’ under the Fair Work Act.

[163] In Perkins v Grace Worldwide (1997) 72 IR 186, a Full Bench of the Federal Court

referred to the practicality of reinstatement of p191 - 192 as follows:

‘Each case must be decided on its own merits. There may be cases where any ripple on
the surface of the employment relationship will destroy its viability. For example the
life of the employer, or some other person or persons, might depend on the reliability
of the terminated employee, and the employer has a reasonable doubt about that
reliability. There may be a case where there is a question about the discretion of an
employee who is required to handle highly confidential information. But those are
relatively uncommon situations. In most cases, the employment relationship is capable
of withstanding some friction and doubts. Trust and confidence are concepts of degree.
It is rare for any human being to have total trust in another. What is important in the
employment relationship is that there be sufficient trust to make the relationship viable
and productive. Whether that standard is reached in any particular case must depend
upon the circumstances of the particular case. And in assessing that question, it is
appropriate to consider the rationality of any attitude taken by a party.

[2012] FWA 1250

It may be difficult or embarrassing for an employer to be required to re-employ a
person the employer believed to have been guilty of wrongdoing. The requirement
may cause inconvenience to the employer. But if there is such a requirement, it will be
because the employee's employment was earlier terminated without a valid reason or
without extending procedural fairness to the employee. The problems will be of the
employer's own making. If the employer is of even average fair-mindedness, they are
likely to prove short-lived. Problems such as this do not necessarily indicate such a
loss of confidence as to make the restoration of the employment relationship
impracticable’.

[164] In Yew v ACI Glass Packaging Pty Limited [1996] 71 IR 201 Wilcox CJ, in a case

involving fighting in the workplace, said at p 206:

‘In considering reinstatement, I bear in mind that Mr Yew worked for ACI for six and a
half years before his dismissal. Although I am not satisfied that he attacked
Mr Swadling, he was certainly angry and hostile towards him on 4 February. But this
must be evaluated against the background of the harrassment he had received. His
previous work record had been good. There is nothing to indicate he is inherently
violent or irresponsible. If ACI management takes steps to stamp out any continuing
racial harassment, there is no reason to believe Mr Yew will again find himself in a
similar position’.

[165] The authorities also make plain that generalised statements of the views of

management as to the impracticality (inappropriateness) of reinstatement is not the only basis

for the Tribunal to refuse to order reinstatement: In Regional Express Holdings Limited t/a

REX Airlines v Richards [2010] FWAFB 8753, a Full Bench said at paragraph 26:

‘Whenever an employer dismisses an employee for misconduct, assuming the employer
is acting honestly, there is an implied loss of trust and confidence in the employee. If it
is subsequently found that the termination was harsh, unjust or unreasonable it is
appropriate to consider whether the relationship can be restored if the employee is
reinstated. That question cannot be answered solely by reference to the views of
management witnesses. All of the circumstances should be taken into account. In this
case there is a number of relevant matters. They include the fact that not all of the
conduct alleged against the respondent has been proven, the respondent’s apparently
unblemished record in the performance of his flying duties over a period of 14 years,
the fact that the misconduct is not directly related to the performance of the
respondent’s professional duties as a first officer and Rex’s failure to pursue any
substantial disciplinary action against another pilot who, it is alleged, has been guilty
of misconduct at least as serious as that of which the respondent was accused. The
significance of the last consideration is that the pilot in question is still carrying out the
full range of his duties, despite allegations of conduct of a kind which, in the
respondent’s case, is said to have led to an irrevocable loss of trust and confidence.
Assuming a positive approach on both sides we find there is a reasonable chance that
the employment relationship can be restored with the necessary level of mutual trust’.
(emphasis added)

[2012] FWA 1250

[166] In light of the above authorities and the statutory instruction of ensuring ‘a fair go all

round,’ I am satisfied that the reinstatement of the applicant is appropriate. I make this

finding for the following additional reasons:

(a) The facts and circumstances revealed in this case are unprecedented and

extraordinary - almost beyond belief.

(b) My conclusion is that the applicant’s dismissal was ‘manifestly unjust’.

(d) The uncontested opinions of the other credible witnesses, namely Mr King, Mr

McIntyre, Ms Hunter and Mr Barnes that the applicant would be welcomed back into

the workforce.

(e) There was no evidence from any employee who has worked with the applicant

that they would have any objection or difficulty in working alongside him, should he

be reinstated.

(f) The evidence of Ms Taylor and Mr Bellears that the applicant’s conduct on the

5th June 2011 was ‘out of character’ and unlikely to be repeated.

(g) I do not accept Ms Taylor and Mr Bellears evidence as to their reasons for

opposing the applicant’s reinstatement for the following reasons:

(i) If there was any matter which brought the respondent’s policies into

disrepute it was management’s failure to prevent the bullying by Mr Smith of

other employees over a lengthy period of time.

(ii) For the reasons I express below, I do not intend to make an order for

the full amount of lost pay under s 391 (3) of the Act.

It is to this last matter that I now turn.

[167] In Lawrence v Coal & Allied Mining Services Pty Ltd t/a Mt Thorley

Operations/Warkworth [2010] FWAFB 10089, the majority of the Full Bench said at

paragraph 44:

[2012] FWA 1250

‘We also consider it appropriate to make an order pursuant to s.391(3). We are not in a
position to make the assessment required by s.391(4) and, consequently, we will not
make an order pursuant to s.391(3) at this time. However, we make the following
observations. The respondent’s Golden Rules and Isolation Policy are rational and
reasonable - and all the more so given the respondent’s statutory obligations in relation
to occupational health and safety. Mr Lawrence engaged in misconduct that the
respondent was entitled to treat seriously albeit that, for the reasons we have given, an
unqualified dismissal was a sanction that was, in the all the circumstances, manifestly
harsh. We think it appropriate that there be a deduction from the amount
ordered pursuant to s.391(3) to reflect a material sanction for Mr Lawrence’s
misconduct. We have decided that there should be a deduction equivalent to
three months’ salary (an amount in the order of $30,000) from the amount
ultimately ordered. In this way the importance of the respondent’s policies will
be vindicated and no other employee ought be able take any comfort from this
decision that breaches of the Isolation Policy will do other than expose them to
serious consequences. It ought be unnecessary to say that this is a case that, in terms
of outcome, turns on its own particular facts’. (emphasis added)

[168] In the circumstances of this case, I consider that the reasoning of the Full Bench supra

above is apposite. The applicant’s conduct was a breach of the respondent’s policy. It was

wrong. He knows it was wrong and he is very sorry for his actions. Faced with the unlikely

event of a similar occurrence in the future, he would walk away. Nevertheless, in my view,

there should be a significant discount of the order for lost pay to recognise the applicant’s

misconduct and to send a clear message to the workforce that he had suffered a significant

financial penalty for his actions and such conduct was unacceptable. In calculating the

amount, I propose to order, I have taken the following additional matters into account:

(a) the applicant was dismissed on 1 August 2011, over 7 months before the date

of this decision;

b) these proceedings concluded on 8 December 2011;

c) the applicant received five weeks pay in lieu of notice (although not strictly

payable, given the respondent’s view of the applicant’s conduct);

d) the applicant has received some remuneration (although not of much

substance) in alternative employment since his dismissal.

[169] Given the above matters, my assessment of an appropriate and just order for lost pay

in this case should be 2 months. I direct that the parties confer as to the calculation of the

correct amount so ordered (including in respect to the amount already paid to the applicant for

untaken long service leave), with liberty to apply in the event of any disagreement.

[2012] FWA 1250

Conclusion

[171] Fair Work Australia finds that the dismissal of the applicant, Mr Steven Lambley by

the respondent DP World Sydney Ltd on 1 August 2011 was ‘harsh, unreasonable and

unjust’ within the meaning of s 387 of the Act. Pursuant to s 390 of the Act, I find that

reinstatement of the applicant would be appropriate. I intend to make orders for

reinstatement, continuity of service and partial lost remuneration. Orders to that effect will be

issued contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Ms L Doust Counsel and Mr W Giddins, on behalf of the Maritime Union of Australia, for the
applicant

Mr I Taylor of Counsel and Ms H Eager, Solicitor (Minter Ellison), for the respondent.

Hearing details:

2011
Sydney
5-8 December

Printed by authority of the Commonwealth Government Printer

Price code J, PR520122

1 AUSTRALIA Jama DP AUSTRALIA THE SEAL OF FAIR

Lambley, Steven v DP World Sydney Limited T/A DP World Sydney - [2012] FWA 1250

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