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Fair Work Act 2009
s.394—Unfair dismissal
Colin MacQuarrie
v
Alcoa of Australia Limited T/A Alcoa World Alumina Australia
(U2013/858)
DEPUTY PRESIDENT MCCARTHY PERTH, 10 SEPTEMBER 2013
Application for relief from unfair dismissal.
[1] Mr Colin McQuarrie (the Applicant) lodged an application for unfair dismissal remedy
(the application) regarding the termination of his employment by Alcoa of Australia Ltd
Trading As Alcoa World Alumina Australia (the Respondent). The Applicant's dismissal took
effect on 26 February 2013. He had been employed by the Respondent for over 30 years.
[2] The parties provided a statement of agreed facts which outlined the employment
history of the Applicant and details of an incident that led to the Applicant's dismissal. The
agreed facts regarding the incident were as follows:
“At approximately 10.30am on 12 February 2013, being the first day of a block of
rostered shifts for the Applicant spoke (over the two way radio frequency utilised by
the Respondent and its employees for communications at the Huntly minesite) to Mr
Stuart Glass, Senior Equipment Operator concerning an incident at his mother’s home
(the Incident) on 10 February 2013 and sought advice on contacting Mr Baron Kelly
(an indigenous elder in the Pinjarra Region) to speak to some indigenous youths said to
have been involved in the incident.
During the course of that discussion:
(a) the Applicant repeated the description of the incident as explained to him by
his mother. The description included repeating the words attributed to the
indigenous youths including ‘f..k’ and spelling of ‘c..t’.
(b) the Applicant referred to a historical event where a poster, some fifty years
earlier, was placed in the Pinjarra Post Office which stated ‘Shoot a C..n Day’
and stated words to the effect that ‘on that day, you wouldn’t see any in town’.
In the course of the conversation Mr Clint Reynolds, Senior Equipment Operator,
offered assistance to locate Mr Baron Kelly.
None of the employees on duty who could hear the conversation called on the
[2013] FWC 6813 Note: An appeal pursuant to s.604 (C2013/6188) was
lodged against this decision - refer to Full Bench decision dated 8 January
2014 for result of appeal.
DECISION
E AUSTRALIA FairWork Commission
[2013] FWC 6813
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Applicant to stop the conversation.
The Applicant was counselled by Mr Lee Tregenza, Group Leader, about the incident at
about 12.30pm on 12 February 2013 as a result of him being contacted about the
Applicant making an inappropriate comment over the two way radio system.
On 13 February 2013, Mr Scott Wotherspoon, Production Supervisor, was made aware
of the Incident and directed that an investigation be conducted.
On 15 February 2013, the Applicant was asked to provide a written statement. The
Applicant provided a written statement.”
[3] The Applicant asserts that the context of the remarks he made and the intent of the
remarks, were not malicious nor with the aim to be offensive. Rather he says the purpose of
the conversation was to endeavour to contact a person that could assist in concerns he had
about his mother's welfare. The Applicant's mother had been subjected to some abuse,
including racial abuse, on the weekend prior to the Applicant's remarks being made.
[4] The Applicant's case is essentially that whilst the conduct did occur in the context
there were some mitigating factors giving rise to the conduct, which together with the
Applicant's length of service make the termination of his employment harsh. The Applicant's
representative summarises "this matter is concerned with the question of what was an
appropriate penalty to be applied."
[5] I agree with the Applicant that there are mitigating circumstances in regards to his
conduct. The Applicant's mother would be a senior and she lives in the township of Pinjarra.
It is understandable that the Applicant would have been upset about the abuse his mother was
confronted with. It is also understandable that the Applicant would have been anxious to try
and ensure that his mother was not confronted again in that manner.
[6] I accept that a purpose of the Applicant's conduct was to contact a person who had
some influence with aboriginal youths in the area and who may assist in ensuring the
Applicant's mother was not confronted again.
[7] However, I do not accept that that was the sole purpose of the Applicant's conduct and
comments on the two-way radio. It seems to me that part of the reason for the Applicant's
comments were to vent his anger and displeasure at the incident involving his mother. It is
difficult to see any other reason for some of the comments unless it was an even more serious
act involving more intentional vilification.
[8] Clearly if the true and sole intent of the Applicant was to contact a person to assist in
preventing further abuse to his mother there were alternative actions that could have and
should have been taken which did not involve bringing the issue to work and breaching
standards set by the employer in such a public way.
[9] I find therefore that there was a valid reason for the termination of the Applicant's
employment. In isolation and not taking into account at this juncture other matters which I
will address below, termination of employment was not in my view a disproportionate
penalty. The comments made were not some mere slip of the tongue but rather deliberate,
overt and highly offensive. Moreover the Applicant had been educated in Pinjarra and was
[2013] FWC 6813
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aware of racial tensions and history and would clearly have known the offense the comments
would cause. The comments were made over a public two-way radio and not in some private
conversation between two people where a careless lapse in expression occurred.
[10] The Applicant was notified of the reason for his dismissal and he was given more than
one opportunity to respond and not unreasonably refused permission to have a support person
present in discussions relating to the dismissal.
[11] The Respondent is a sizeable employer and the procedures followed are what one
would expect from an employer of such size. The employer had dedicated human resource
management specialists who were involved in the procedures leading up to and including the
dismissal.
[12] Other matters that are relevant in considering whether the termination was harsh unjust
or unreasonable include the length of the Applicant’s service and the impact it will have on
him. The importance of the Respondent’s policies and their application in a fair and consistent
way are also relevant considerations.
[13] The Applicant has been employed by the Respondent if not all, almost all of his
working life. I give significant weight to the length of the Applicant’s service but it does not
override all other elements to be considered. Similarly, the termination of his employment
will have significant impact on the Applicant but that is not an overriding factor that makes
the termination harsh unjust or unreasonable. The Applicant was contrite for his actions and
honest and open in the investigation and discussions with the Respondent.
[14] The Respondent has gone to some lengths to train its workforce in cultural awareness.
It also has a reputation for its efforts in the community in indigenous affairs. The Respondent
has a right to expect compliance with its polices including compliance with the spirit and
intent of its policies particularly here where awareness of sensitivities are important. The
breach here goes against the very essence of what the Respondent expects of its employees.
[15] I consider my role to be to ensure that the Respondent has given the Applicant
notification of the complaint they have against him, given him proper opportunity to respond
and explain or dispute circumstances surrounding the conduct and given proper consideration
to all elements that it should reasonably be expected to consider in arriving at a decision. It is
not my role to replace the Respondent’s decision with my own, rather it is my role to assess
on an objective basis whether the Respondent’s decision was harsh unjust or unreasonable.
[16] An objective assessment of the gravity of the conduct the nature of the procedures
adopted by the Respondent before making a decision and all the considerations taken into
account by the Respondent including length of service and effect on the Applicant does not
cause me to regard the dismissal as being harsh, unjust or unreasonable.
[17] I do not consider the dismissal of the Applicant was harsh unjust or unreasonable. I
find that the Applicant was not unfairly dismissed.
[2013] FWC 6813
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DEPUTY PRESIDENT
Appearances:
Mr K Trainer representative for the Applicant
Mr M Vallence representative for the Respondent
Hearing details:
2013
Perth
September, 2 and 3.
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