1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
David Browne
v
Coles Group Supply Chain Pty Ltd
(U2013/15842)
VICE PRESIDENT HATCHER SYDNEY, 10 JUNE 2014
Application for relief from unfair dismissal.
Introduction
[1] Mr David Browne, the applicant in this matter, was summarily dismissed from his
employment with Coles Group Supply Chain Pty Ltd (Coles) at its Goulburn Distribution
Centre (GDC) on 5 November 2013. He had been employed by Coles at the GDC since April
1995 - a period of over 18 years. The reason for the dismissal was that Coles considered that
Mr Browne had engaged in serious misconduct by becoming involved in a physical
altercation with another employee at the GDC, Mr Ryan Hearne, on 23 October 2013. Mr
Hearne was also dismissed on 5 November 2013.
[2] Mr Browne has lodged an application for an unfair dismissal remedy pursuant to s.394
of the Fair Work Act 2009 (the Act). He contends that his dismissal was unfair, and he seeks
the remedy of reinstatement.
Preliminary matters for determination
[3] Section 396 of the Act requires that four specified matters must be decided before the
merits of Mr Browne’s application may be considered. There was no contest between the
parties about any of those matters. I find that:
(a) Mr Browne’s application was made within the period required by s.394(2);
(b) Mr Browne was a person protected from unfair dismissal;
(c) Coles was not a “small business employer” as defined in s.23 of the Act, so that
the Small Business Fair Dismissal Code was inapplicable; and
(d) Mr Browne’s dismissal was not a case of genuine redundancy.
[2014] FWC 3670
DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 3670
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The evidence
[4] Mr Browne gave evidence in support of his application, and tendered a number of
documents. Coles called the following witnesses in its case:
Stewart Kennedy, the Manager of the GDC, who made the decision to dismiss Mr
Browne.
Kirsty Williams, at the relevant time State HR Advisor, who conducted Coles’
investigation into the physical altercation.
Sean Atkinson, Human Resources Manager.
James Heenan, Team Member.
Robbie Pooley, Team Member.
Gary Wilson, Team Member.
[5] In the course of her investigation of the matter, Ms Williams interviewed Mr Browne,
Mr Heenan, Mr Pooley and Mr Wilson, as well as a number of persons who did not give
evidence, including Mr Hearne. Their records of interview were annexed to Ms Williams’
statement of evidence. In the case of persons who were interviewed and who gave evidence,
they were able to be tested on the contents of their records of interview, and it was therefore
appropriate to give weight to those records of interview. In the case of persons who were
interviewed and did not give evidence, I have taken into account their records of interview,
and given them weight to the extent that the matters contained therein were not in contest, or
not contradicted by the witness evidence, or confirmed by the witness evidence.
[6] The evidence concerning the physical altercation was given by Mr Browne, and by
three employees at the GDC who witnessed the event, Mr Heenan, Mr Wilson and Mr Pooley.
I accept that each of the four witnesses gave truthful evidence based upon his best recollection
of the event. In relation to the main features of what occurred, their evidence was substantially
consistent. However there were differences between the witnesses as to matters of detail. This
is understandable, given normal differences in memory, the fact that they viewed the incident
from different perspectives, and the short space of time in which the events occurred. In
describing what occurred, I will only refer specifically to the evidence of the witnesses where
it is necessary to resolve a difference between them as to a matter of significance.
[7] Mr Hearne did not give evidence. No inference can be drawn against either party for
not calling Mr Hearne to give evidence, since I do not think he could fairly be characterised as
being within either side’s camp. The result of that is that he was not able to give his version of
events on oath or affirmation or to be subject to cross-examination. As will become apparent,
it has been necessary for me to make some adverse findings about Mr Hearne’s behaviour.
Those findings are, of course, based on the evidence adduced by the parties at the hearing.
Whether any different findings might have been made had Mr Hearne given evidence is
speculative and irrelevant.1 However Mr Hearne’s record of interview was, as earlier stated,
placed into evidence by Coles, and it could therefore be tested against the other evidence. I
have taken it into account for that purpose.
Employment history
1 See Naidu v Group 4 Securitas Pty Ltd and Anor [2005] NSWSC 618 at [12]
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[8] Mr Browne was 18 years old when he was initially employed by Coles in 1995 on a
casual basis as a picker. After nine months, he was offered a permanent position. He has
subsequently worked as a dispatch operator, and then as a forklift driver/picker, and was at the
time of his dismissal a forklift driver.
[9] The only adverse matter on Mr Browne’s employment record was that, on 9 July 2008,
he was required to attend a “coaching discussion” concerning his attendance record. There is
no indication that there was any repetition of the attendance issue dealt with at the coaching
discussion.
[10] I therefore accept Mr Browne’s submission that, leaving aside the physical altercation
which occurred on 23 October 2013, he had a long and good record of employment.
Prior conflict involving Mr Hearne
[11] The evidence at the hearing disclosed that Mr Hearne had, well before the altercation
on 23 October 2013, developed a hostility towards Mr Browne arising out of a bitterly
contested election for the position of head delegate for the National Union of Workers (NUW)
at the GDC. Prior to that election, Mr Brett Cotterill was the head delegate and Mr Mark
Connor was a co-delegate. Disputes arose between Mr Cotterill and Mr Connor about various
workplace issues which eventually led to Mr Connor challenging Mr Cotterill for the position
of NUW head delegate at an election in 2012.
[12] Mr Hearne was related to Mr Cotterill, and strongly supported him. Mr Connor was a
close friend of Mr Browne. A number of employees at the GDC took particular sides. Mr
Cotterill won the election, but there subsisted a strong mutual hostility between Mr Connor
and Mr Hearne. Mr Browne’s evidence was that, although he was a good friend of Mr
Connor, he did not take sides in the affair. He said that Mr Hearne “would often treat him as
someone on the opposing side”, but that he “would not have any part of his game and would
not be involved”.
[13] Mr Hearne, after the physical altercation occurred, alleged to Coles during its
investigation of the process that he had been the subject of harassment by both Mr Connor
and Mr Browne. However, although the evidence certainly demonstrated mutual enmity
between Mr Hearne and Mr Connor, Mr Browne’s evidence that he was not involved in this
was for the most part confirmed by other witnesses and a number of persons interviewed as
part of the investigation process which followed the altercation. Mr Wilson, when he was
asked in his interview about the previous relations between Mr Browne and Mr Hearne, said
he “was not even aware there was a problem”. Mr Pooley said that he “was not aware there
was an issue between David and Ryan, was only aware of the ongoing issues between Ryan
and Mark Conner [sic]”. Mr Rick Dare, a Team Member who was interviewed after the
physical altercation, said that he had never seen any talking or interaction between Mr Hearne
and Mr Browne prior to the altercation, and further said “I did not even know that they did not
like each other”. When Mr Bruce Mayberry, a Team Manager, was interviewed about alleged
hostility between Mr Hearne and Mr Browne, he said: “I am confused as all my other
understanding was that the issues were between Ryan and Mark Conner [sic] and nothing to
do with David”.
[14] There was an incident in which Mr Hearne made a complaint about Mr Browne. The
substance of the complaint appears to have been that Mr Browne had on one occasion
[2014] FWC 3670
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followed Mr Hearne when driving home from work, and had driven aggressively. Mr Hearne
seems to have made an associated complaint about an encounter with Mr Connor at a
shopping centre. Mr Atkinson’s evidence was that the complaint was investigated by Coles
and found to be unsubstantiated, noting that Mr Browne travelled home in the same direction
as Mr Hearne.
[15] There was a degree of evidence that demonstrated or at least suggested a general
history of problematic behaviour by Mr Hearne while at work. Mr Browne described this in
the following way:
“It’s hard to describe. He would jump over each other, like, his friends acting like a
monkey, like making monkey noises and just – you know, like, immature – punch
people in the arm trying to – like, just going too far; just pushing things a little bit too
far and he’d end up getting reprimanded by his friend; like his own friends would have
to tell him to calm down and, you know, stop acting like an idiot and that’s – knowing
what he was like, I just didn’t associate myself with him.”
[16] Mr Browne also said that Mr Hearne had previously threatened Mr Connor by putting
a fist in his face. This had been reported to management and investigated, but there was no
outcome. He also said that he had heard that Mr Hearne threatened the canteen chef Rob
through the glass window of the canteen, but conceded he had not witnessed this himself.
[17] Other evidentiary material provided support for Mr Browne’s evidence that Mr Hearne
had a history of engaging in problematic behaviour. Mr Pooley said about Mr Hearne: “I’ve
just seen him muck around at work ... just getting in arguments ... I guess hassling a few
people out”. Mr Heenan said that he knew that Mr Hearne “had other aggressions with other
people” and “had records of it, trying to intimidate other people”, but that “everyone just
laughs at him”. Mr Mayberry denied in his interview with Ms Williams on 30 October 2013
that Mr Hearne had ever complained about Mr Browne’s behaviour at work prior to the
physical altercation (contrary to Mr Hearne’s assertions in his interview), and then went on
say the following (as stated in the record of interview):
“BM - ... Ryan cannot claim innocence in his behaviour. I have seen him give it to other
TM [Team Members] and then when it gets turned back on him he gets upset.
KW - Can you think other information which would be relevant to my current
investigation examples?
He has done it to me he has questioned my integrity.
I have had at least 6 team members come to me and ask me to talk to Ryan about his
behaviour and comments that he has made. TM do not go into much details, they say
things like Ryan is being a prick can you do something about it. He teases TM and
when they do it back he gets upset about it. I either go or talk to Ryan or talk to them
about avoiding him for the day. They do not want to take it further; they just want
something said to Ryan. That would be over the last 12 months.”
[18] Mike Deakin, the Facilities Manager at the GDC, was also interviewed. He recalled
that in May 2012 he had been spoken to about conflict between Mr Hearne and Mr Connor,
[2014] FWC 3670
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but could not recall Mr Browne being involved in this. He then described other issues raised
about Mr Hearne’s behaviour as follows:
“Other issues that I recall being involved with Ryan included:
This is about 3 years ago - one was TM Geoffrey Grey saying he had been threatened
by Ryan in the aisle, Ryan had threatened physically punch them. My general process
in these circumstance would have been too conducted interviews, I would raise the
paper work, from there I went and got statements or interviewed the people, when
determined could not go anywhere remind them V & B EO.
On another occasion’s not sure if before or after the above - I was approached by
Graham Reeves same circumstances as above, Ryan threatening Graham.
KW - Was there any paperwork relating to any of the above issues?
MD - Not sure, if did would follow up with each.”
[19] Mr Deakin was also asked about Mr Browne’s behaviour as follows:
“KW - Recall any issues David has raised to you?
MD - No issues raised by David and no issues raised to me about his behaviour
towards other TM’s whilst with Coles. In Facility manager have had Security Sam
Studdart raise concern.
Initially issue was investigated and related to Mark Conner and Sam having ejected
someone from workers club (Sam also security and workers club)
Following this issue some time in last 12 months Sam approached me as his manager
and about David to memory either staring or making noises at him. More recently in
the last 6 weeks Sam hearing chook noises and David being the only one in the area.”
[20] The “chook noises” allegation involving Mr Studdart would appear not to be relevant,
except that it is strikingly similar to an allegation made by Mr Hearne about Mr Browne’s
behaviour on 23 October 2013 prior to the altercation. I will deal with this issue later in this
decision.
The physical altercation
[21] The physical altercation occurred between 11.00 am and noon on 23 October 2013
within the warehouse structure at the GDC. This warehouse contains a large number of long
rows of shelves or racks in which grocery stocks are stored and subsequently picked. The
rows of shelves or racks are separated by aisles in which employees driving forklifts or
operating pallet trucks can travel and perform storage or picking duties. Each aisle has been
assigned a number.
[22] The altercation occurred near the receiving side of the warehouse, where trucks are
docked and stock unloaded. Immediately beforehand, Mr Browne was using his forklift to
transport pallets of stock which had been unloaded from trucks and placed on the floor at a
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location on the receiving side of the warehouse (known as the “work” area) to pick locations
in the warehouse aisles. Mr Hearne initiated the incident when he began engaging in
provocative behaviour towards Mr Browne. Mr Browne said that this occurred whilst he was
working in aisle 15 and Mr Hearne was in the adjacent aisle 14. The other witnesses differed
as to the aisle numbers in which Mr Browne and Mr Hearne were located at the relevant time,
but all the witnesses agreed that Mr Hearne was in the aisle adjacent to that where Mr Browne
was. At the time Mr Heenan was in the same aisle as Mr Browne, Mr Pooley was in the next
aisle down from Mr Hearne, and Mr Wilson was in the “work” area. It was common ground
that it was possible to see through the racking from one aisle to another.
[23] While it is clear from the evidence that Mr Hearne engaged in provocative behaviour
towards Mr Browne, the precise nature of that behaviour is less clear. Mr Browne described
Mr Hearne as “acting in a childish and immature manner” by “calling out to me, making
disparaging remarks about me and my family”. When questioned about what precisely was
said and done, he identified that Mr Hearne had been putting his hands to his eyes and making
noises as if he were crying. Mr Browne interpreted this as Mr Hearne teasing him about the
death of his sister-in-law, who had committed suicide about three weeks earlier. He said that
this had been upsetting to him, and it was well known in the GDC what had happened because
he had taken time off work to attend the funeral and be with the family. Beyond this, he could
not hear what Mr Hearne was yelling because of the noise of his own forklift, the radio and
the PA system.
[24] Mr Pooley said that Mr Hearne was “yelling” at Mr Browne and “having a go at
Dave”. When asked to specify what was said, Mr Pooley said that Mr Hearne had yelled
“Your boyfriend’s not here to help you” or something similar, but that was “pretty much” all
he had heard. Mr Heenan heard Mr Hearne yelling at Mr Browne, but could not hear the
actual words used. Mr Wilson did not observe what the lead up to the incident was.
[25] I find that Mr Hearne was yelling at Mr Browne. I further accept Mr Browne’s
evidence that Mr Hearne made crying gestures and noises towards him, but the evidence is
not such as to permit any clear conclusion to be reached as to whether Mr Browne’s
interpretation of this behaviour was correct. I also accept Mr Pooley’s evidence that one of the
things yelled by Mr Hearne was: “Your boyfriend’s not here to help you”, or words to that
effect. I infer that this homophobic remark was a reference to Mr Connor, who had left his
employment at Coles about a month or so earlier. No witness suggested that Mr Browne said
anything in response.
[26] This behaviour went on for some time. Mr Browne said that as he drove up and down
the aisle he passed where Mr Hearne was two or three times over a period of 10 to 15
minutes, and on each occasion Mr Hearne was making “disrespectful gestures and noises”.
Mr Pooley recalled that Mr Browne passed Mr Hearne on two occasions when this behaviour
occurred. Mr Heenan said that it was on two or three occasions. It is clear that the behaviour
was persistent and intended to provoke a response. Mr Browne said that Mr Hearne’s
behaviour (as he interpreted it) made him “uncomfortable”, “like I was ashamed to be
emotional over what happened to my family” and “upset”. He also agreed that he was
annoyed. I consider that this wholly understandable reaction to Mr Hearne’s behaviour
affected Mr Browne’s judgement in the events which immediately followed.
[27] Mr Browne initially tried to ignore Mr Hearne’s behaviour, but eventually he did
respond. Upon reaching the end of the aisle he was in (at the receiving end of the warehouse),
[2014] FWC 3670
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instead of continuing with his work, Mr Browne turned his forklift to the head of the adjacent
aisle in which Mr Hearne was located, stopped, and got off the forklift. Mr Browne’s
evidence was that he said to Mr Hearne “What’s your problem? Why are you being an idiot?”
Mr Heenan confirmed that at least the first part of this was said, and I accept Mr Browne’s
evidence in this respect. Mr Browne also stepped a few paces towards Mr Hearne.
[28] Having apparently observed Mr Browne stopping and getting off his forklift to speak
to him, Mr Hearne, who was about one third to half way down his aisle, simultaneously
stepped off the pallet truck he was operating and immediately moved quickly towards Mr
Browne. The witnesses described Mr Hearne’s movement in this respect in different ways. Mr
Browne said that Mr Hearne “walked aggressively towards me (approximately 15 m, or
more)” and appeared to be “rushing towards me”, whilst still making the crying gesture. Mr
Heenan said that Mr Hearne “started chasing” Mr Browne, and that he was “charging him
pretty well at a fast pace”. Mr Pooley said that Mr Hearne was walking towards Mr Browne,
and was yelling as he did so with his hand in the air making what Mr Pooley described as a
“puppet” motion. I find that Mr Hearne walked at a fast pace towards Mr Browne over a
distance of approximately 15 metres, and continued to gesture and yell as he did so.
[29] Mr Hearne came up very close to where Mr Browne was. Mr Browne said that “he
came up to my face”. In an interview conducted by Coles a week after the incident, Mr
Heenan said that “Ryan came up very close to David into personal space”, and he adhered to
this in cross-examination. Mr Pooley’s evidence did not describe how close they came to each
other, although he had them both moving forward towards each other at the time the
altercation commenced. I accept the evidence of Mr Browne and Mr Heenan that Mr Hearne
came up very close to Mr Browne’s face as he moved quickly towards him.
[30] There is no dispute that the next thing that happened is that Mr Browne moved up his
hands and pushed Mr Hearne in the chest. This was characterised by Mr Heenan as Mr
Browne pushing Mr Hearne “out of his space”. Mr Browne’s evidence was that Mr Hearne’s
conduct in moving quickly up to him and close to his face made him fearful that Mr Hearne
was going to strike him. Mr Heenan’s opinion was that, in pushing Mr Hearne as he did, Mr
Browne was acting in self-defence. I accept Mr Browne’s evidence, and find that, in addition
to feeling upset about Mr Hearne’s earlier behaviour, Mr Browne had a genuine apprehension
at this point in time that Mr Hearne might be about to hit him. Mr Hearne’s behaviour to that
point, including the yelling, the gesturing, and then the rapid approach over some distance up
close to Mr Browne’s face, can fairly be characterised as confrontational and aggressive in
nature and lacking in rationality. It was reasonable in those circumstances for Mr Browne to
be in the state of mind that he said he was in.
[31] The push initiated the physical altercation. What followed was a short period of
pushing and grabbing of clothes. Mr Heenan said that Mr Browne and Mr Hearne were “both
pushing each other and wrestling each other”. Mr Wilson, whose attention was now drawn to
the two men for the first time, said that they were “pushing and shoving each other”. Mr
Pooley gave somewhat greater detail as to the sequence of events as follows:
“Ryan pushed back and the two pushed each other a few time. Then they started
grabbing at each other’s clothes in the chest and shoulder areas. They were moving
around the aisle.”
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[32] The altercation then took a more serious turn. At a certain point, Mr Browne fell
backwards into the racking, with Mr Hearne on top of him. Putting together the evidence of
Mr Pooley, Mr Heenan and Mr Wilson, it appears that Mr Hearne was pushing Mr Browne
backwards - with Mr Pooley describing Mr Hearne as having “the upper hand” at this point -
when Mr Browne tripped, causing him to fall backwards.
[33] Mr Wilson’s evidence was that at this point Mr Hearne punched Mr Browne at least
twice and possibly thrice, with the punches connecting with Mr Browne’s face. He further
said that Mr Browne at this point had his arms up in a defensive stance, and that Mr Browne
at no stage threw any punches. This is substantially consistent with the evidence of Mr
Browne himself, who said that Mr Hearne punched him twice - the first time on the left side
of the face, and the second time on the left side of the head, near the ear. However, Mr
Browne had a different order of events: his evidence was that the punches occurred before he
fell backwards. Mr Heenan said that he didn’t see any punches thrown, but also said that he
lost sight of the two men after Mr Browne fell back into the racking. Mr Pooley said that he
did not see any punches, but he also said when he was interviewed by Coles about the
incident on 29 October 2013 that “there was a time that I could not see them for part as I was
blocked by a sign”. In light of Mr Wilson’s clear evidence about the matter, I find that after
Mr Browne fell backwards, Mr Hearne punched him in the head twice despite Mr Browne
having his arms up in a defensive stance. Mr Heenan and Mr Pooley did not see the punches
because their view of the altercation was obstructed. I further find that at no time during the
altercation did Mr Browne throw a punch at Mr Hearne. No witness gave evidence to the
contrary.
[34] Mr Browne and Mr Hearne then got up. There was then at least one further push (by
Mr Browne), if not mutual pushing, and some arguing. Mr Browne says that he called Mr
Hearne a “bloody idiot”. Mr Browne then returned to his forklift and drove off. Mr Wilson
estimated in his interview about the altercation that it lasted “no more than a minute”.
[35] For completeness, I note that two photographs were taken of Mr Hearne. They show
bruising on the chest. Because Mr Hearne was not called as a witness by either party, there is
no direct evidence that the visible bruises were the result of the altercation, although it is
apparent that Mr Hearne represented to Coles that they were caused by Mr Browne. Even if
they were the result of the altercation, it is difficult to identify any intended act on the part of
Mr Browne which caused them. It is highly unlikely that they could have been caused by a
push to the chest. The most likely explanation is that they occurred when Mr Browne fell
backwards and Mr Hearne fell on top of him. Photos were also taken of Mr Browne, which
show him with a black eye and a bruise behind his left ear. This is consistent with Mr Browne
being punched in the way he described in his evidence.
Mr Hearne’s version
[36] As earlier stated, Mr Hearne was not called to give evidence in the proceedings. The
findings I have made about the physical altercation are based on the evidence of those who
actually gave evidence at the hearing. Mr Hearne’s record of interview about the altercation
was placed by Coles into evidence. Coles did not however seek to rely upon it as an accurate
account of what occurred; rather Coles used it to demonstrate that it had conducted a thorough
investigation into the incident. Nonetheless I consider it of some relevance to assess the
accuracy of his version of the incident.
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[37] Mr Hearne firstly alleged that “before first smoko” (which appears to have been before
10.00 am), he heard “chook noises”, and turned around to see that Mr Browne, who was the
only person who was there, “smiling and smirking” as he drove away on his forklift. In her
investigation of the incident, Ms Williams made a finding that this had occurred as alleged by
Mr Hearne. At the hearing however, Coles did not call any evidence to support that finding
and, indeed, did not rely upon it in any way at all. Mr Browne positively denied doing this in
his evidence, and he was not cross-examined upon this. On the evidence, therefore, I cannot
find that the “chook noises” episode occurred, at least on the day in question, notwithstanding
its remarkable similarity to the earlier allegation made to Mr Deakin by Mr Studdart.
[38] Mr Hearne then said that after the 10.00 am break, he was walking behind Mr Browne
as he left the canteen, when Mr Browne saw him and began scratching himself on his arms,
legs and elsewhere and said “I am so itchy”. Mr Hearne said that this was behaviour targeted
at his skin allergies (eczema and psoriasis). Mr Browne denied engaging in this conduct in his
record of interview. The area of the GDC in which the conduct was alleged to have occurred
was covered by a CCTV camera. During its investigation, Coles looked at the footage, in
which Mr Hearne and Mr Browne could be seen, but was unable to confirm Mr Hearne’s
account. The CCTV footage was placed into evidence by Coles, but again only for the
purpose of validating its investigation process. Coles did not have the CCTV footage played
in court, and did not raise this incident with Mr Browne when he gave evidence. Coles also
interviewed one of its employees, Mr David Webster, who was present at the time of the
alleged conduct. He did not see what was alleged by Mr Hearne, and denied that Mr Browne
had been taunting Mr Hearne. I conclude that Mr Hearne’s account in this respect was not
truthful.
[39] As to the altercation itself, Mr Hearne says that between about 11.30 and 11.45 am, he
noticed that Mr Browne was persistently staring at him, and then that he drove slowly past
him and said “you’re a pussy”. Mr Hearne says he replied “fuck off and leave me alone, why
are you doing this?” He then described the following as having occurred (as recorded in the
record of interview):
“He was moving from aisle 15 towards 16 did an arch he came to the end of aisle 14, he
jumped off and ran at me (he had stopped at the end of aisle about 10 meters away). I
was 3 or 4 bays in aisle 14 (near the end), was picking. My truck was further down and
I was picking (about a bay and a half). I was facing the end of the aisle, he was coming
at me he stood there, I had no where to go. I was fearing at the time.
He proceeded to put his hand on my chest and his forearm in lower neck, he drove me
into the racking and I hit my head on the racking.”
[40] Mr Hearne then said that after some further pushing, Mr Browne tripped on a pallet,
and fell backwards. According to Mr Hearne, he and Mr Browne disengaged after Mr Browne
got up.
[41] It is readily apparent that Mr Hearne’s account bears very little resemblance to the
independent accounts given by Mr Heenan, Mr Pooley and Mr Wilson. Mr Heenan and Mr
Pooley gave very clear evidence that the behaviour which provoked the altercation was all on
Mr Hearne’s side. Mr Browne did not run at Mr Hearne. It is not true that Mr Hearne had
nowhere to go. Nor is it true that Mr Browne put his forearm into Mr Hearne’s neck when he
pushed him and drove him into the racking. I find that Mr Hearne gave a substantially
[2014] FWC 3670
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untruthful account of the incident at his interview with Coles. It is likely that he did this to
conceal the degree of his culpability for the incident.
The investigation
[42] Mr Browne immediately reported the incident to Mr Wayne Blay, a manager, who
then informed another manager, Mr Mick Johnson. Mr Hearne did not voluntarily report the
incident; he was called into the office over the PA system after it had been reported by Mr
Browne. Mr Kennedy, the Manager of the GDC, accepted that the only reason Coles became
aware of the incident was because Mr Browne reported it.
[43] Both Mr Browne and Mr Hearne were then suspended, and Coles commenced an
investigation into the incident. Initially the management at the GDC obtained handwritten
statements about what had occurred from Mr Browne, Mr Hearne, and the witnesses to the
incident. On 25 October 2013, Ms Kirsty Williams, who was at the time Coles’ State HR
Advisor, was requested to undertake an investigation into the incident.
[44] Ms Williams conducted interviews with Mr Browne and Mr Hearne, as well as a wide
range of other persons including those who witnessed the altercation itself (Mr Heenan, Mr
Pooley and Mr Wilson) as well as others who had relevant knowledge concerning the past
behaviour of and the relationship between Mr Browne and Mr Hearne. Ms Williams took
notes of each interview on her laptop, and gave each interviewee an opportunity to review the
notes so that any corrections could be made. Coles placed all these records of interview into
evidence.
[45] The interviews took place from 29 to 31 October 2013. Ms Williams also viewed the
CCTV footage to which reference has already been made. She then prepared a report entitled
“Investigation Outcome Summary” which set out her findings on the matter. Those findings
concerned not only the physical altercation itself, but also a number of allegations against Mr
Hearne. The findings were as follows:
“FINDINGS
Allegations against David Browne
Allegation 1 SUBSTANTIATED David made inappropriate chicken sounds in
David’s vicinity
On the balance of probabilities and
previous similar behaviour towards
another person.
Breach of Code - Our Conduct
Allegation 2 Unable to be
SUBSTANTIATED
David made inappropriate scratching actions
targeting David’s skin allergies
No supporting evidence
No Breach
Allegations against both David Browne and Ryan Hearne
Allegation 3 SUBSTANTIATED Physical altercation between David and Ryan
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occurred with both parties pushing and shoving
each with enough force to move around the
aisle into the bay.
Evidence supported by witnesses
Serious Breach of Code - Conduct, workplace
behaviour and Health, Safety and Wellbeing
SUBSTANTIATED Further to above these specific actions and
behaviours were substantiated:
Ryan yelled at David on more than one
occasion. Ryan yelled at David as he
drove down the aisle next to Ryan on
his forklift (unable to substantiate any
specific wording used)
David changed direction in his forklift
to park at end of aisle 13 and approach
Ryan
David and Ryan were walking towards
each other and both had the opportunity
to walk away prior to any physical
contact being made.
David made first physical contact
pushing Ryan in the chest
UNSUBSTANTIATED Specific actions and behaviours that have been
unsubstantiated:
David was staring at Ryan
David pushed Ryan into the racking
Ryan was making crying hand gestures
towards David
Further allegations against David Browne
Allegation 4 & 5 Unable to be
SUBSTANTIATED
David has been bullying and harassing Ryan
over a 20 month period
There were only limited examples of
bullying and harassing behaviours
provided
No specific details of dates, times and
places when alleged behaviour occurred
were provided
Ryan never raised any concerns
regarding David Browne to Managers at
the Goulburn DC
Ryan advised that Snr delegate Brett
Cotterill was made aware of the issues
and he had raised them to the company
but no specific details of issues being
raised were able to be provided to the
[2014] FWC 3670
12
investigator.
The behaviours described by Ryan are
more characteristic of a personality
difference then bullying and
harassment.”
[46] The “Code” referred to as having been breached in relation to Allegation 3 above was
a document issued to employees by Coles entitled simply “Our code” (the Code). The
relevant parts of the Code were as follows:
Page 2:
“Workplace behaviour, diversity and equal opportunity
Coles is committed to diversity and equal opportunity. We will recognise and
appreciate the value of our differences, internally amongst team members and also
externally amongst customers, suppliers, contractors and anyone we interact with in
our work with Coles. We will not accept harassment, sexual harassment,
discrimination, bullying or any other inappropriate workplace behaviour.
I will:
Treat everyone that I interact with in the course of my employment with dignity,
courtesy and respect.
...”
Page 3:
“Safety health and wellbeing
Coles will provide a working and shopping environment where team members and
customers are safe. We do not accept behaviour that risks the safety of team members,
customers, suppliers, contractors or anyone we interact within our work. This includes
physical and psychological violence or harm, or threats of violence or harm.”
Page 4:
“There are some breaches of this code that Coles considers serious misconduct and
will not tolerate. Serious breaches are likely to result in termination of employment.
Some examples are:
...
Serious safety breaches, including physical or psychological violence or threats of
violence.
...”
[47] The report concluded with Ms Williams recommending that both Mr Hearne and Mr
Browne be subject to “serious disciplinary action up to termination of employment”. Ms
Williams had a telephone conference with members of Coles’ management on 1 November
2013, at which she discussed her findings and recommendations. She did not recommend any
particular course of disciplinary action. She was not involved in the disciplinary process
beyond this point.
The dismissal
[2014] FWC 3670
13
[48] After having received Ms Williams’ report, Mr Kennedy read it together with the
original statements taken from witnesses, but he did not read the records of interview. He also
viewed the CCTV footage. He consulted with two other senior managers about Ms Williams’
findings. He then arranged for a meeting to occur with Mr Browne on 5 November 2013. Mr
Browne was invited to, and did, bring a support person to this meeting.
[49] The 5 November 2013 meeting was conducted in accordance with a standard meeting
protocol developed by Coles and embodied in a document entitled “Discussion Record”. Mr
Kennedy attended the meeting for Coles together with Mr Sean Atkinson, the Zone HR
Manager. Initially, Mr Browne was informed of the adverse findings that had been made
against him in Ms Williams’ report, and told that as a result he was at risk of dismissal. After
a break, the formal meeting then commenced. Mr Browne was given the opportunity to
provide a written response to the findings, which he did. This response was handwritten into
the relevant section of the Discussion Record. It read as follows:
“Its false that I made chicken noises at Ryan. Its Coles duty to provide a safe workplace.
Coles did not provide my safety on 23/10/13. Ryan was harassing me for 20 mins over
loss of family member, I asked what is your problem. My only contact with him was to
stop him getting closer. The accusation that I made noises was false, I was working in
the next aisle making no noise to Ryan.”
[50] There was then a break to allow consideration of the response. The meeting then
resumed, and there was further discussion. There was then a further break, and when the
meeting resumed, Mr Atkinson’s notes of the meeting disclosed that Mr Kennedy said:
“After reviewing decision and points you need to convince me why I can trust you in
the future to handle the situation differently should it arise; am considering terminating
your employment. You had 20 minutes to raise this to a manager; could've done. Why
should I not consider terminating your employment? How can I trust that you would
not behave in a similar way should this occur in the future? From what I have in front
of me is that you were copping abuse for 20 minutes. Rather than approach a manager
you parked your machine at the end of the aisle, stepped off, ‘What's your problem?’.
When he got in your face, you pushed him away.”
[51] Mr Browne then responded to this. His response was recorded in summary form by Mr
Atkinson in the Discussion Record as follows:
“Never been in this situation before. Don’t have issues with any other team member.
Didn’t confront him to have any sort of violence. Wanted to know what was going on.
Receive incentive every week. Mark Foon doesn’t have an issue with my performance.
I would be the first to raise an issue should it arise in the future. Feeling on floor is that
if you raise this, nothing happens.”
[52] There was then a further break during which Mr Kennedy consulted with some other
managers and then made the decision to dismiss Mr Browne. When the meeting resumed, Mr
Atkinson’s notes recorded that the following exchange occurred:
“Kennedy: Can't tolerate any type of violence within my site. My view from what
you told me was that you had every chance to avoid what happened; probably [didn’t]
[2014] FWC 3670
14
think it would get to where it has but bottom line it did. How do I have any confidence
that this wouldn't occur in the future. You had chance to stop this. You touched a TM
[team member] first. Those are facts that are agreed. You're certainly aware of what
the processes are, you spoke of.
Browne: Won't happen again; can't guarantee Ryan won't but I won't,
Kennedy: I can't tolerate physical altercation on my site. Result is a serious
breach which equates to gross misconduct; terminate your employment effective
today.
Browne: Terrible; won't happen again.
Kennedy: It's gross misconduct effective today. I can't tolerate physical violence.
Dreadful message to rest of business. I can't tolerate physical violence on site and
employment terminated.”
[53] The meeting then ended. Mr Hearne was also dismissed later that day.
[54] Mr Browne was subsequently sent a letter dated 11 November 2013 which confirmed
that he had been terminated with immediate effect on 5 November 2013.
Aftermath
[55] Mr Browne has been unemployed since he was dismissed. His evidence was that he
had looked for work but had been unsuccessful, noting that Coles was the biggest employer in
town and his job with Coles had been the only job he had had since leaving high school. His
earnings with Coles supported his lifestyle and mortgage. He had been fortunate to be ahead
in his mortgage payments, but had had to access his savings to support himself.
Was Mr Browne’s dismissal unfair?
[56] Section 387 of the Act requires the Commission, in considering whether a dismissal
was harsh, unjust or unreasonable, to take into account a number of matters specified in
paragraphs (a) to (h) of the section. I will deal with each of these matters in turn below.
Paragraph 387(a)
[57] I have earlier set out relevant portions of the Code, which sets out Coles’ policy as to
workplace behaviour. The document includes clear references to the propositions that
“inappropriate workplace behaviour” was not acceptable, that employees were to be treated
with “dignity, courtesy and respect”, and that “physical violence” was regarded as a serious
safety breach which was likely to result in termination of employment. There was no issue
that the contents of the Code had been communicated to Mr Browne and that he was aware of
its contents.
[58] Mr Browne submitted that the initial pushing away of Mr Hearne constituted an act of
self-defence, in that he had a reasonable apprehension that Mr Hearne might strike him, thus
giving rise to the need to defend himself, and that his response to this was a reasonable one in
all the circumstances. By “self-defence”, Mr Browne meant the defence of self-defence under
[2014] FWC 3670
15
the criminal law.2 I am not sure that analysing the altercation in terms of the criminal law is a
particularly useful course because we are not here dealing with a defence to a criminal charge
that must be proven beyond a reasonable doubt. The real issue is whether Mr Browne was put
in a position where it became impossible for him to comply with the requirements of the
Code.
[59] Coles submitted that while he was being subjected to taunting and harassing behaviour
by Mr Hearne, Mr Browne had the opportunity to complain to management about it rather
than confronting Mr Hearne. This is strictly speaking correct, but I do not consider it
unreasonable for Mr Browne to have initially tried to sort the issue out himself by inquiring of
Mr Hearne why he was behaving the way he was rather than going straight to management.
Mr Browne said, and I accept, that he had no idea that a physical altercation was going to
result from him doing this. I consider that adult employees are entitled to try to resolve
peacefully interpersonal issues in the workplace between themselves before going to
management. The alternative would be to reduce the workplace to the level of the schoolyard.
[60] Mr Hearne’s reaction was unexpected: he approached Mr Browne very quickly and
came up close to his face in a way which made Mr Browne apprehend that Mr Hearne was
going to strike him. That caused Mr Browne to push him in the chest. The question is: did Mr
Browne have an alternative? Although it may sound like a counsel of perfection, I consider
that it would have been reasonably possible for Mr Browne to retreat and immediately seek
the assistance of other employees or management. That he did not do so, but chose to deal
with the situation by physical means constituted a breach of the Code.
[61] As I have earlier found, Mr Hearne initially responded to Mr Browne’s push in the
chest by pushing him back. Mr Browne had not been punched at this point. Again, I consider
that it would have been reasonably possible for Mr Browne to disengage and retreat at this
point, his fear of being struck by Mr Hearne not yet having eventuated. However, he did not
do so; instead mutual pushing followed until the altercation reached a point where Mr Browne
could not disengage until after having fallen backwards and been punched twice in the face.
This continuation of a physical response to Mr Hearne by pushing him again also constituted
a breach of the Code.
[62] The Full Bench majority (Lawler VP and Cribb C) in B, C and D v Australian Postal
Corporation T/A Australia Post3 discussed the significance of breaches of employer policies
in the context of a consideration of whether there was a valid reason for dismissal in the
following way:
“[35] ... as indicated by Northrop J in Selvachandran, “valid reason” is assessed from
the perspective of the employer and by reference to the acts or omissions that
constitute the alleged misconduct, on which the employer relied, considered in
isolation from the broader context in which they occurred. It is the reason of the
employer, assessed from the perspective of the employer that must be a “valid reason”
where “valid” has its ordinary meaning of “sound, defensible or well founded”. As
Northrop J noted, the requirement for a “valid reason” should not impose a severe
barrier to the right of an employer to dismiss an employee”.
2 Crimes Act 1900 (NSW), s.418
3 [2013] FWCFB 6191
[2014] FWC 3670
16
[36] A failure to comply with a lawful and reasonable policy is a breach of the
fundamental term of the contract of employment that obliges employees to comply
with the lawful and reasonable directions of the employer. In this way, a substantial
and wilful breach of a policy will often, if not usually, constitute a “valid reason” for
dismissal.”
[63] I respectfully adopt the above reasoning. There could be no doubt that any act of
physical violence (which would include pushing someone) would be a substantial breach of
the Code. Mr Browne’s conduct was “wilful” in the sense of being intentional. As I have
found, his sense of judgment would have been affected by Mr Hearne’s earlier harassing
behaviour and his apprehension that Mr Hearne might strike him. However, that is a matter
which I consider (consistent with the reasoning in B, C and D) should be considered in the
context of s.387(h) as a relevant matter going to whether the dismissal was harsh, unjust or
unreasonable rather than under s.387(a). I therefore find that there was a valid reason for Mr
Browne’s dismissal.
Paragraph 387(b)
[64] Mr Browne was notified of the reason for dismissal at the meeting with Coles’
management which occurred on 5 November 2013.
Paragraph 387(c)
[65] Mr Browne was given an opportunity to respond to the reason for dismissal relating to
his conduct at the meeting with management which occurred on 5 November 2013.
Paragraph 387(d)
[66] Mr Browne was allowed to and did have a support person present at the meeting with
management which occurred on 5 November 2013.
Paragraph 387(e)
[67] The dismissal did not relate to unsatisfactory performance, so the issue of prior
warnings for unsatisfactory performance is not relevant.
Paragraph 387(f)
[68] Coles is a major Australian business enterprise, so that its size was not likely to impact
on the procedures followed in effecting the dismissal.
Paragraph 387(g)
[69] Coles has dedicated human resource management specialists and expertise, so this
consideration is not relevant.
Paragraph 387(h)
[70] The considerations which may be relevant under s.387(h) to the consideration of
whether the dismissal of a person for involvement in a physical altercation in the workplace
[2014] FWC 3670
17
was harsh, unjust or unreasonable were discussed by the Full Bench majority (Catanzariti VP
and Cambridge C) in DP World Sydney Limited v Lambley4 as follows:
“[44] It is well established and accepted that a dismissal may still be harsh
notwithstanding that there exists a valid reason for dismissal. In Byrne v Australian
Airlines Ltd [(1995) 185 CLR 410 at 465], McHugh and Gummow JJ said:
“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.”
[45] Much has been said in the decision at first instance, and in the decision of the first
Full Bench, about the principles surrounding fighting in the workplace. In one of the
leading authorities on the issue, AWU-FIME Union v Queensland Alumina Ltd [(1995)
62 IR 385 at 393], Moore J observed that:
“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.”
[46] Although dismissal of an employee due to fighting in the workplace may very
well be viewed as not harsh, unjust or unreasonable, the circumstances surrounding the
fight and the employee’s personal circumstances must be considered prior to such a
conclusion being drawn.”
[71] I consider that the following matters are relevant to the determination of Mr Browne’s
application under s.387(h) and favour the conclusion that his dismissal was harsh:
(1) Mr Browne had a good 18 year record of employment with Coles.
(2) The situation which occurred on 23 October 2013 was initiated by the
harassing and taunting behaviour of Mr Hearne. But for that behaviour, the
altercation would never have happened.
4 [2013] FWCFB 9230
[2014] FWC 3670
18
(3) Mr Hearne’s behaviour caused Mr Browne, understandably, to feel upset,
annoyed and uncomfortable. Further, when Mr Hearne rushed at him and came
up close to his face, Mr Browne apprehended that Mr Hearne might be about to
strike him. Therefore, as I have earlier found, Mr Browne’s sense of judgment
was critically affected at the time when he had to make the virtually
instantaneous decision as to how to respond to Mr Hearne’s behaviour.
(4) Mr Browne’s conduct during the altercation was confined to pushing and
grappling. He at no stage punched or otherwise struck Mr Hearne, despite
being punched himself at least twice in the face.
(5) It was Mr Browne who reported the incident to management. But for him doing
that, Coles’ management may never have become aware of the incident at all.
(6) Mr Kennedy indicated during the meeting on 5 November 2013, immediately
before he made the decision to dismiss Mr Browne, that he needed to be
convinced that Mr Browne would not behave in a similar way in the future. It
was reasonable for Mr Kennedy to identify this as a critical question,
particularly as an issue of employee safety was involved. However, the answer
to that question should have been that it was very unlikely there would ever be
any repetition of the behaviour on the part of Mr Browne if he was not
dismissed. His 18-year history of employment, the circumstances in which the
altercation came about, and the salutary effect of the disciplinary process itself,
should have led to the conclusion that Mr Browne’s conduct on 23 October
2013 was aberrant, out of character and “one-off” in nature.
(7) The consequences of the dismissal for Mr Browne have been severe. He
remains unemployed six months after the event. In circumstances where he
lives in a regional town, has lost the only job he has ever had since leaving
school, has been dismissed by the largest employer in the town, and has limited
skills, his future employment prospects must be assessed as limited.
Conclusion
[72] Notwithstanding that there was a valid reason for his dismissal, I find that Mr
Browne’s dismissal was harsh in both the senses discussed by McHugh and Gummow JJ in
Byrne v Australian Airlines Ltd: it was harsh in its consequences for his personal and
economic situation, and it was disproportionate to the gravity of his misconduct.
Remedy
[73] Mr Browne seeks the remedy of an order for reinstatement to his former employment
with Coles under s.391 of the Act, together with ancillary orders to maintain the continuity of
his employment and to compensate him for the remuneration he has lost. In the alternative, he
seeks an order for compensation under s.392.
[74] Reinstatement is the primary remedy provided for in respect of unfair dismissals under
the Act, in the sense that there must be a finding that reinstatement is inappropriate before any
[2014] FWC 3670
19
power exists to make an order for compensation.5 Accordingly, in relation to remedy, the
primary issue which must be considered is whether it would be appropriate to make an order
for Mr Browne’s reinstatement.
[75] From Mr Browne’s perspective, it is clear that reinstatement would be the remedy
most appropriate to the situation in which he currently finds himself - that is, removed from
his long-term job, unemployed, and with poor prospects for obtaining further employment in
the near future.
[76] Coles submitted that reinstatement would not be an appropriate remedy because the
relationship between Coles and Mr Browne had irretrievably broken down, Coles could not
tolerate physical violence in its workplace and needed to establish and maintain discipline in
the workplace, Coles had an obligation to provide its employees with a safe and healthy
workplace, and it needed to ensure that its employees used the established mechanisms to
resolve workplace issues rather than resorting to physical violence. In support of this
submission, it relied on the following evidence from Mr Kennedy’s witness statement:
“I am aware that David is seeking reinstatement to the DC. This would be entirely
inappropriate. He assaulted another team member which constitutes a serious breach of
our values and our Code of Conduct. I have obligations to protect the safety of all of
our team members at the DC. Safety is a big issue for us at the DC with the machinery
we work with etc. Both Coles and I personally do not tolerate physical violence at the
DC.”
[77] Coles’ position that the employment relationship cannot be re-established needs to be
scrutinised carefully. There must be a sound and rational basis for such a proposition; it is not
sufficient that Coles’ management subjectively holds that view, however strongly it may be
held.6 I consider that two matters are of significance in this connection which tell against this
aspect of Coles’ case. Firstly, as I have earlier found, Mr Browne’s conduct on 23 October
2013 was aberrant, out of character and “one-off” in nature, and any recurrence of that type of
behaviour is most unlikely. Secondly, Mr Hearne was also dismissed and will not be returning
to the GDC, so there is no possibility of any conflict between him and Mr Browne recurring at
the GDC if Mr Browne is reinstated.
[78] Mr Kennedy gave evidence that some employees at the GDC had expressed a concern
about Mr Browne and Mr Hearne returning to the GDC. This was raised as an issue at Mr
Hearne’s dismissal interview, but not at Mr Browne’s. However, Mr Kennedy’s evidence
about this was confusing and somewhat contradictory, and it was somewhat unclear who had
raised this, when they had raised it, and what the nature of their concern actually was.7
Certainly, as earlier stated, there is no suggestion of both men returning, which may resolve
any concern that the two might fight again sometime in the future. In any event, I give greater
weight to the evidence of Mr Heenan, Mr Pooley and Mr Wilson, all of whom said in cross-
examination that they would have no difficulty with Mr Browne being reinstated.
5 Melanie Millington v Traders International Pty Ltd [2014] FWCFB 888 at [66]
6 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192; Australian Meat Holdings Pty Ltd v McLauchlan
(1998) 84 IR 1 at 17-18; Fletcher v Commonwealth of Australia (Australian Federal Police) [2007] AIRCFB 466 at [24]-
[25].
7 See transcript PNs 2119-2145
[2014] FWC 3670
20
[79] It should be clear that the reinstatement of Mr Browne does not involve any suggestion
of condonation of the use of physical means to resolve interpersonal workplace issues. Coles
has internal mechanisms to deal with such issues, and employees can be expected to utilise
those mechanisms if they cannot resolve issues in a civilised fashion between themselves.
[80] I note that in DP World Sydney Limited v Lambley8 the Full Bench majority expressed
a concern that a finding in favour of Mr Lambley, who had been dismissed for participating in
a fight at the workplace, might be taken as condonation of fighting in the workplace. The
majority said:
“[57] Finally, it is also relevant to briefly mention the issue involving broader policy
implications that might follow with any finding in favour of Mr Lambley. The
suggestion that a finding in favour of Mr Lambley which was accompanied by some
significant financial penalty, would not offer implicit condonation of fighting in the
workplace, is with respect, a proposition based upon the erroneous assumption that
such an outcome would be subject to detailed and rational examination in the
workplace. Unfortunately, those who intimidate and perpetrate physical violence in the
workplace are generally disinclined to undertaking detailed examination of issues and
instead act and react to very basic concepts and communications.”
[81] I do not regard that passage as indicating that any reinstatement of an employee
involved in a physical altercation would involve the implicit condonation of workplace
fighting. Otherwise, an applicant in such a case could never be successful. That this was not
the majority’s position was made clear in the passage in their decision quoted in paragraph
[70] above, in which it was stated that the outcome of each such case depended on its
particular circumstances. Rather, the above passage is to be read as directed to the specific
circumstances of Mr Lambley’s case. In that case, as the majority found, Mr Lambley
participated in a pre-arranged fight with another employee, despite having had 20 minutes to
consider the alternatives, and during the fight threw his opponent on the ground and kicked
him in the head as he lay there with the intention of doing as much harm as he could.9 The
circumstances of Mr Browne’s case are entirely different.
[82] Accordingly I consider that it is appropriate to order that Mr Browne be reinstated to
his former employment with Coles under ss.390(1) and 391(1) of the Act. I also consider it
appropriate to make an order under s.391(2)(a) to maintain the continuity of Mr Browne’s
employment. However, in order for it clearly to be recognised that any willing participation in
a physical altercation at the workplace is unacceptable and cannot escape sanction, I decline
to make any order for lost remuneration under s.391(3). The effect of that upon Mr Browne is
a very significant financial penalty for his involvement in the physical altercation on 23
October 2013.
[83] A separate order will issue giving effect to this decision.
VICE PRESIDENT
8 [2013] FWCFB 9230
9 Ibid at [52]-[53]
OF THE FAIR WORK MISSION THE
[2014] FWC 3670
21
Appearances:
C. Santone solicitor for David Browne
C. Berry solicitor with J. Kembry for Coles Group Supply Chain Pty Ltd
Hearing details:
2014.
Sydney:
6 and 7 May.
Printed by authority of the Commonwealth Government Printer
Price code C, PR551387
