1
Fair Work Act 2009
s.394—Unfair dismissal
Scott Challinger
v
JBS Australia Pty Ltd
(U2014/5789)
COMMISSIONER HAMPTON ADELAIDE, 30 SEPTEMBER 2014
Application for relief from unfair dismissal - long standing employee in meat works -
dismissed on basis of alleged breach of safety instructions and abusive and inappropriate
language and conduct - whether valid reason - whether safety instruction given to applicant -
whether language and conduct inappropriate given circumstances - breach of safety
instruction not demonstrated - language and tone of response not appropriate even in the
context of the low bar set by the workplace - misconduct found in part - dismissal harsh in all
of the circumstances - dismissal unfair - request to re-open to hear new evidence about post
hearing conduct - on balance new evidence potentially probative to remedy and application
to be re-opened to that extent.
1. Background and Case Outline
[1] At the time of his dismissal, Mr Scott Challinger had worked in the meat industry for
almost 25 years, with more than ten of those years in the employment of JBS Australia Pty
Ltd1 (JBS) at the Bordertown abattoir. There was, during that period, some disciplinary action
taken against Mr Challinger. At the time of his dismissal on 3 March 2014, Mr Challinger was
a slaughterman and the senior delegate for the Australasian Meat Industry Employees Union
(AMIEU) at the plant.
[2] Mr Challinger was dismissed on a number of grounds including that he had allegedly
failed to comply with a safety instruction to wear protective armguards when using a knife in
the relevant part of the Bordertown plant and had used inappropriate language towards senior
staff, made personal attacks, and his conduct involved abusive and offensive behaviour. The
events leading to these allegations took place on 12 February 2014 and involved Mr Mick
Ryan (his supervisor) and more indirectly, Mr Wade Phillips, who at that time was the
Production Manager.
[3] Mr Challinger’s dismissal followed an investigation of the allegations by JBS and the
events surrounding a previous incident in 2012. JBS also rely upon what it says is a history of
warnings and non compliance in the workplace.
[2014] FWC 4874
DECISION
E AUSTRALIA FairWork Commission
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[4] Mr Challinger has made application under s.394 of the Fair Work Act 2009 (the Act)
seeking a remedy for what he claims is an unfair dismissal. He seeks reinstatement; albeit on
the basis that a final warning would be issued to him.2
[5] In this case, the ultimate question for the Commission is whether Mr Challinger’s
dismissal was unfair. That assessment is to be made having regard to the relevant statutory
considerations.
[6] Those considerations require the resolution of the following issues, amongst other
matters, that are in dispute:
Whether Mr Challinger was instructed to wear an armguard when using a knife in
connection with the work in question prior to being required to do so on
12 February 2014;
The precise language and context of the exchange on 12 February 2014;
Whether the language and conduct of Mr Challinger was misconduct given all of
the circumstances including the immediate context and the nature of language and
communications adopted in this workplace; and
The significance and import of certain events in 2012 in light of a Memorandum of
Understanding (MoU) reached between the AMIEU and the employer at the time.
[7] Given that the actual language and context are important in this case, I have for the
most part cited the actual language used by parties. In some instances, I have used a partially
redacted version of the language given the public nature of this decision.
2. Observations on the evidence
[8] Mr Challinger provided a comprehensive witness statement and gave evidence in the
matter. In addition, he also relied upon evidence from the following:
Mr Phillip White - Employee of JBS who also works on the slaughter floor;
Mr Graham Smith - Federal Secretary of the AMIEU and former Branch
Secretary of the SA and WA Branch of the Union; and
Mr Kaine Sic - Organiser of the AMIEU responsible for the Bordertown
plant.
[9] JBS relied upon the evidence of the following employees:
Mr Brad Seagrott - Human Resources Manager Operations (Southern);
Mr Clinton Jaftha - Human Resource Manager at the Bordertown plant;
Ms Gail McDonagh - Administrative employee in the clothes room at the
Bordertown plant;
Mr Wade Phillips - Rendering Manager/Environmental Officer at the Bordertown
plant, and Production Manager in February 2014;
Mr Michael Ryan - Supervisor of the slaughter floor where Mr Challinger worked;
and
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Mr Trevor Schiller - Plant Manager.
[10] I have found that each of the witnesses were generally reliable and gave evidence to
the best of their recollection. In the case of Mr Challinger and Mr Jaftha, I consider that they
had a poor recall of some matters and a tendency to put a gloss on their involvement in some
of the key events in which they were involved. This leads me to be cautious about, but not
dismissive of, their evidence.
[11] I found the evidence of Mr Ryan to be genuine and convincing and note that he was
prepared to make reasonable concessions and did not seek the bolster the evidence where he
was not certain. I prefer his evidence to that of Mr Challinger and Mr Phillips where there is a
conflict on the key events.
3. The circumstances of Mr Challinger’s employment and the facts
surrounding his dismissal
[12] It is appropriate to make some general findings about the context in which the events
leading to the dismissal took place. These also form the basis against which the major issues
in dispute can be determined.
3.1 The general context
Mr Challinger’s role as a delegate
[13] At the time of his dismissal, and for an earlier period, Mr Challinger was the senior
delegate for the AMIEU at the Bordertown plant of JBS. As a delegate, he dealt with
management on behalf of the union in a range of matters including in relation to grievances
and disputes at the workplace.
[14] The relevance of this role in this matter is twofold. Firstly, it would be expected that
he would regularly raise matters including when there was a dispute about changes or
requirements in the workplace. This included playing a role when the armguards were first
introduced in the plant.
[15] Secondly, as a delegate, it would be a reasonable expectation that he would lead by
example, particularly in the area of the use of safety related equipment.
[16] I add that there is no suggestion on the evidence that Mr Challinger was treated
adversely by JBS because of his role as a delegate. There is however some conjecture as to
whether Mr Challinger was dismissed because of an alleged course of conduct to create a
culture amongst the employees of noncompliance and discontent, as contended by Mr Schiller
in his oral evidence. I will return to that aspect as part of the consideration of this matter.
Previous disciplinary issues
[17] In April 2007, Mr Challinger was counselled and warned about the requirement to
notify his supervisor about absences from the workplace. This took place in the context of a
workers compensation claim and involved an indication from Mr Challinger that he would not
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attend work until he was paid correctly. The warning indicted that if he did not do so in the
future, his employment would be “terminated immediately”.3
[18] In April 2008, Mr Challinger was issued with a written warning/counselling
document4 about the need to following sterilisation procedures when using air knives. This
arose following an AQIS inspector informing the employer that appropriate procedures were
not being followed. Mr Challinger disputed whether this had happened.
[19] In July 2008, Mr Challinger was issued with a document titled “Final warning” and
this related to allegations of absenteeism and that he had failed to notify the employer of his
absence from work. The warning also involved Mr Challinger’s suspension for a period of
10 days and an indication that failure to comply would lead to termination.5 Mr Challinger
disputed the basis of the warning and refused to sign the document.
[20] In January 2009, Mr Challinger was issued with a 1st Warning and Employee
Counselling document6 related to his failure to wear cut proof gloves as required.
Mr Challinger received a cut to his hand in the lead up to this warning. Mr Challinger could
not recall receiving the warning but accepted that there was a requirement at the time and he
must have forgotten to put it on. It was also evident that Mr Challinger did not consider that
wearing a cut-proof glove was safer when using an air knife and did not agree that they should
be required in that circumstance.7
[21] A daily Supervisors/Foreman’s Report8 was also made on 7 January 2014 concerning
Mr Challinger. This involved a breach of sterilisation protocols and in particular, storing a
white coat, which should not have been stored with other clothes, in the applicant’s locker. It
is evident that the storage of the coat in the locker was undertaken at the suggestion of another
employee in order to reduce the inconvenience of having to obtain the coat each time he was
required to attend the office in his capacity as a delegate. However, the coat should not have
been stored in that manner. The report was a more akin to a note about a policy breach than a
warning.
The events of 2012
[22] During 2012, issues arose concerning the alleged conduct of Mr Challinger associated
with his leaving of the workplace and the manner of his dealing with some staff. This
occurred in the context of Mr Challinger feeling unwell, and after being relieved of his
position on the chain (cut out), attending to the first aid services at the plant. After being
“diagnosed” with elevated blood pressure, Mr Challinger initially returned to the chain and
recommenced work.
[23] Later and upon again feeling unwell, Mr Challinger then sought a further cut out and
when provided, left the line and advised Mr Nick Ryan (his supervisor at the time) that he
may not be back. Mr Challinger again attended the first aid nurse and although his blood
pressure remained high, it had improved. He then informed the nurse that he would finish for
the day but did not inform management or his supervisor of that decision. After undergoing a
locker check, Mr Challinger left the workplace and subsequently had a few days off work due
to illness.
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[24] When returning to work, Mr Challinger sought out a human resources (HR) officer
who then raised with him concerns that he had left the workplace without informing the
supervisor. Mr Challinger advised the HR officer that Mr Nick Ryan knew he was going
home and that he had told the nurse he was finishing for the day. Upon being told that the
nurse and supervisor knew nothing about his absence, Mr Challinger said words to the effect
of “Look you know, it’s not my problem if you’ve got (or employ) incompetent c***s”. This
was said with a raised voice.
[25] On the next day, Mr Challinger attended work and went to the clothing store to pick
up his work clothes. He was informed by Ms McDonagh that he was stood down, or aside,
and he was to wait for the HR officer. There are varying recollections and reports of what was
said. It is likely that Mr Challinger then replied with words that included “F*** these c***s.
I’m sick of this shit. See you later”. It is also possible that he said “you can all go and get
f***ed”. Mr Challinger then went home and did not wait for the HR officer.
[26] There is a dispute as to whether Ms McDonagh told Mr Challinger that he was stood
aside or stood down. These have different meanings at the plant that related to whether an
employee should go home. I am satisfied that whatever term was used, Ms McDonagh did
indicate that Mr Challinger was to wait for HR.
[27] On the following Monday, Mr Challinger again attended the clothing area and was
informed that he needed to see the HR officer. Mr Challinger did meet the officer and was
provided with the allegation that he had in effect abandoned his employment on two days.
The HR officer also raised concerns about what was described as “abusing the clothes lady”.
In the course of that meeting, Mr Challinger indicated that the nurse was a liar and was
incompetent. On balance, I am also satisfied that Mr Challinger also accused Mr Nick Ryan of
lying, on the basis that he should have been aware that he was going home on the day in
question. It is also evident that he did so in abusive terms and that he was also abusive and
threatening to the HR officer.9 This involved extensive use of the expletives f*** and c***
being directed to the HR officer and management more generally.
[28] These events were investigated by both management and Mr Smith for the AMIEU.
[29] The AMIEU lodged a dispute that was heard by the Commission. This took place in
the context of the decision of the employer to discipline Mr Challinger including by
suspending him for four days.
[30] A conference was conducted by a Member of the Commission. It is likely that during
the course of the conference, the Member expressed the view that the language directed
towards the other employees of JBS by Mr Challinger was completely inappropriate.10
[31] The dispute was resolved in part when the parties entered into a MoU. Its operative
parts read as follows:
“Memorandum of Understanding
In addition to the terms of the Bordertown Production Employees Enterprise
Agreement 2012, JBS Australia Pty Limited (“The Employer”) and The Australasian
Meat Industry Employees Union, South Australian Branch (“The Union”) agree as
follows:
[2014] FWC 4874
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1. Walking off the job
Employees must not leave their work station without the prior acknowledgment of
their direct supervisor for any reasons during their shift while their task is to be
performed except under a safety emergency.
Failing to remain on the job whilst production is in operation as above shall be
regarded as “walking off the job” and may result in formal warnings, suspension or
dismissal.
2. Uniform clearance requirements.
An employee who is required to see the HR Department prior to commencing work
shall have their uniform withheld at the Clothing Store.
If a Uniform is withheld it will only be reissued once a clearance slip is obtained from
the HR department.
All employees returning from non-approved absence shall be require a clearance from
the HR department, along with those that require Management follow up from time to
time.
3. Communication
Professionalism is to be maintained at all times during consultation and discussions
between employees and JBS Australia Pty Limited staff. Threatening language,
personal attacks and threatening behaviour will not be tolerated and may result in
formal warnings, suspension or dismissal.”
[32] Negotiations for the MoU led to the use of the term “threatening language” rather than
“abusive language” in point 3 as originally drafted. This apparently had the support of the
then Plant Manager who acknowledged that abusive language was common, and by
implication tolerated, in this workplace.
[33] Mr Challinger was subsequently paid for three of the four days of the suspension and
the original warning stood, or at least was not set aside.11 I note that the warning does not
appear to have ever been issued or confirmed in writing subsequent to the MoU.
Relevant OHS related developments in 2013 and 2014
[34] JBS issues employees with a handbook that is generally signed by employees to
acknowledge the various requirements. This included in the 2013 Handbook what was
described as being a zero tolerance policy on the wearing of PPE where it was required and
Mr Challinger was aware of that requirement.12
[35] JBS has taken steps in recent years to improve the level of safety at the Bordertown
plant. This has included the introduction of safety glasses and hard hats. This has more
recently involved the wearing of armguards.
[2014] FWC 4874
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[36] The chain where Mr Challinger worked involved nine positions, which involved a
combination of slaughterman using air knives and three remaining positions where ordinary
knives were used. Employees would rotate amongst the positions and Mr Challinger would
take his turn on the use of air knives from time to time.
[37] Armguards were trialled by Mr Challinger in late October or early November.
Although Mr Challinger denied that there were any discussions about the conduct and
outcome of the trial (other than for the potential of cross-contamination), I find that there were
discussions about the length of the guards and associated issues with Mr Schiller during the
trial. Although Mr Challinger had strong views about where the armguards should be
required, there is no evidence to support the notion of a formal agreement with management
that their use would be limited on the basis that they were not appropriate PPE beyond the
high risk areas.
[38] The armguards were initially introduced on a broader basis (beyond the trial) in late
2013 or early 2014.
[39] I note that Mr Challinger did not have significant individual dealings with Mr Ryan in
the immediate lead up to 12 February 2014; however I do not consider that this was the result
of any significant personal issues between them.
The investigation and the dismissal
[40] The incident fundamentally leading to the dismissal occurred on 12 February 2014 and
I will deal with those events shortly.
[41] An initial investigation of the incident was undertaken by Mr Jaftha on that day. This
involved speaking to the management staff involved and conducting an interview with
Mr Challinger. It is evident that the details of the allegations were not initially provided to
Mr Challinger and the interview ceased, when the suggestion of derogatory language was
raised by Mr Jaftha, in order to permit the applicant to obtain representation.
[42] Mr Challinger signed a partial statement about the events and was stood down with
pay at the conclusion of that meeting.
[43] A disciplinary meeting was conducted by Mr Jaftha on 17 February 2014, which also
involved Mr Challinger and Mr Sic as his representative. Allegations concerning the alleged
threatening and derogatory remarks made by Mr Challinger were put to him in general terms.
Mr Challinger and Mr Sic took issue with the requirement to wear the armguards when
performing the relevant role and Mr Challinger indicated to the effect that he had sworn but
denied any wrongdoing.
[44] Mr Challinger remained on paid suspension pending the completion of the
investigation.
[45] On 19 February 2014, JBS sent a comprehensive letter to Mr Challinger outlining
various allegations and seeking a response. The allegations were as follows:
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“Dear Scott
Re: Further response to allegations of breaching the Standard Terms and Conditions of
Employment and Company Workplace Health and Safety Policy.
Initial discussions regarding the above matter were held between you and me on
Wednesday February 17, 2014. This meeting took place due to your inappropriate
language towards senior staff members threatening language, personal attacks and
threatening behaviour along with your total disregard for company safety
requirements. During this meeting a statement was requested from you giving you an
opportunity to provide a response to the allegations.
You acknowledged that you were “opening up necks on the chain” you were then
informed by your Supervisor ‘to place an arm guard on’ replying “aw f**k we have
got to wear these now do we”. During the statement at approximately 12:06pm you
stated that you will not continue until you have a support person present namely Kaine
Sic. You were stood aside on full payment until another meeting could be arranged
with your support person.
A second meeting was reconvened on the 17 February 2014 with your support person.
Here a statement was taken from you giving you opportunity to respond to the
allegations above. At this meeting you stated that it was just a general conversation
relating to arm guards and that you did “not use any abusive or threatening behaviour
towards staff or anyone working there in the area mentioned”.
Subsequent to the above meetings you remained stood aside whilst further
investigations have been conducted with numerous statements and material gathered in
an effort to determine the facts and circumstances giving rise to the Company’s
concerns. Concerns that have remain unanswered are presented below: The Company
received evidence and statements from a number of staff and fellow employees within
these statements it was made very clear that you displayed abusive threatening
behaviour and a total disregard for Company Safety requirements and procedures.
Despite being fully aware and instructed by your supervisor that arm guards must be
worn when opening necks you failed to wear your arm guard and then when instructed
to put it on tried to intimidate your supervisor and used threatening language, personal
attacks and threatening behaviour against him.
It has been stated by yourself that you said “aw f**k we have got to wear these now do
we” you also stated “I’m f**king sick and tired of this merry go round that we keep
getting on with these arm guards. We keep getting on this merry go round that’s when
I said continued to say you worried about this f**king shit. You are more worried
about these stupid arms guards ... “
It has also been recorded throughout the investigation process that you stated “I’m sick
of these f**king rules swapping and changing, there is too many f**k heads over in
that office” and “you’re too worried about that safety shit”.
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It has also been noted that you often randomly will use inappropriate language yelling
out and swearing often stating things like run the “f**kers off”. Prior to this incident
you had also been suspended in lieu of termination for walking off the job and using
threatening language, personal attacks and threatening behaviour against Company
Office Staff.
As a result of this prior incident you took the matter to the commission were a
resolution was reached with a MOU signed by the AMIEU and Company (attached).
In this MOU it was made clear that inappropriate communication and in particular
threatening language, personal attacks and threatening behaviour would not be
tolerated by the Company.
In this previous incident you had verbally threatened a number of Staff including the
HR Manager and your foreman that was involved in the above incident. Throughout
that investigation evidence was provided that you made such statements as the
foreman was lying and said that he is a ‘backstabbing c**t’ that he was ‘incompetent’
and had poor communication skills. You made similar accusations towards the
Company Nurse and “was shouting and swearing and was acting very aggressively.
He was continually telling me that the Plant was run by ‘incompetent c***s’. He made
numerous threats regarding the Company’s treatment of him and threatened further
action.”
We also note that you have previously received a written warning and discipline from
the Company for failing to notify of your absence.
In summary of the investigation outlined we wish to confirm that further investigation
of this matter has been conducted and as a result we offer you an opportunity to
provide a response to the allegations/questions outlined above.
We would now like to give you a further opportunity to respond to us in writing. This
will give you the opportunity to provide any further relevant information that may help
us determine the outcome of this investigation.
It should be noted that if it is found you have failed to adhere to the standard terms and
conditions of your employment and Company policies and procedures this may lead to
termination as an outcome.
The Company requests that you prepare your response and be in a position to deliver it
to us by COB, Monday 24th, 2014. Should you require additional time to prepare your
written response, or have any questions in relation to this matter, please do not hesitate
to contact me. In the meantime you will continue to be stood aside on pay.
...”13
[46] On 24 February 2014, Mr Challinger, with the assistance of the AMIEU, provided the
following response:
“Dear Mr Jaftha
I am writing in response to your letter of 19 February 2014.
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I advise that I cannot agree with the conclusions you have reached in your letter.
During a discussion on 17 February 2014, I provided an account of what occurred on
12 February.
On 12 February there were some verbal exchanges between myself and supervisors
about the need to wear an arm guards while opening necks on the chain. I was told by
my supervisor to put on an arm guard, and I did so. At the same time, I complained
about the inconsistent and changing instructions we receive about safety requirements.
I was of the understanding that arm guards were not required when opening up necks.
The claim in your correspondence that I was fully aware of the need to wear the arm
guard when opening up necks is not correct. This is contrary to what I understood was
the agreed position on the use of arm guards. I have never seen a safety policy or
instruction that says we need to wear arm guards while opening necks.
I admit that I swore while making such comments, but swearing is common, everyday
language in a meatworks, amongst both workers and supervisors.
Also, I did not make any personal attacks, I was not abusive or threatening in my
words or in my behaviour. I reject any suggestion that I tried to intimidate or threaten
my supervisors or anyone else.
Your letter of 19 February also refers to a memorandum of understanding signed
between the AMIEU and JBS. Your description of the events which led to the signing
of that memorandum is not accurate, and ignores the fact that the AMIEU and JBS
agreed that there had been fault on both sides in those events. One of the reasons why
the memorandum is worded the way that it is, was because the AMIEU and the
company acknowledged that swearing was common throughout the meatworks, by
both supervisory staff and workers.
Your letter seems to suggest that the professional standards of communication at the
meatworks means that workers are not allowed to swear. This is very surprising to me,
because swearing is commonplace at the works, and I am not aware that JBS has ever
attempted to stop it.
I trust that you will take these matters into account when arriving at a decision.
...”
[47] Having considered the response, Mr Schiller acting on the advice of the HR advisers
determined that Mr Challinger would be dismissed and advised him of that decision in a letter
dated 3 March 2014 that read as follow:
“Dear Scott
Re: Termination of Employment in breaching the Standard Terms and
Conditions of Employment and Failing to adhere to the Workplace Health Safety
Policy.
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On the 12th February, 2014 you were advised that you were being stood aside pending
an investigation in relation to your inappropriate language towards senior staff
members, personal attacks and abusive and offensive behaviour along with your total
disregard for Company safety requirements.
Prior to being suspended you were advised that the Company would be undertaking an
investigation into the matters that had been raised and that you would have an
opportunity to respond to those matters, the concerns were made clear to you in a letter
of response issued on 19th February 2014. This letter awarded you an opportunity to
respond to the allegations made against you.
It was also made clear that Breaches of Terms and Conditions of Employment,
including utilising abusive behaviour, language and personal attacks are treated as
serious matters and may result in disciplinary action up to and including the
termination of your employment.
You have previously been reprimanded and been suspended in lieu of termination for
walking off the job and using, personal attacks and aggressive behaviour against
Company Office Staff. Prior to this incident you have also received a written warning
and discipline from the Company for failing to notify of your absence.
After considering your responses, allegations made and the investigation findings JBS
Australia Pty Ltd considers that you have breached the Standard Terms and Conditions
of your Employment and the Workplace Health and Safety Policy. Specifically your
use of inappropriate language towards senior staff members, personal attacks and
abusive and offensive behaviour and failure to wear the correct PPE provided.
Taking into consideration your employment history the Company has concluded given
the seriousness of your actions in particular your disregard to Safety requirements,
abusing staff and your known history of displaying inappropriate behaviour, your
conduct justifies termination. Accordingly, your employment is terminated effective
immediately, with 1 months’ pay in lieu of notice.
JBS considers the welfare of its employees to be of the highest priority and those
trying to uphold those requirements cannot be verbally abused by fellow staff.
Payment of all your entitlements will be made as soon as the appropriate calculations
have been performed by the Payroll Department and you have returned all Company
property to the Bordertown site. The payment will be made into your nominated bank
account.
...”
3.2 The major factual issues in dispute
Whether Mr Challinger was instructed to wear an armguard when using a knife on the
work in question prior to being required to do so on 12 February 2014 and if so, did he
breach any such instruction?
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[48] It is evident that the armguards were introduced on a partial basis following a limited
trial, involving Mr Challinger, and a decision to use them initially only in high risk areas.
Although the applicant indicated that the limit to high risk work areas was the result of an
understanding with management, there was no other support for that proposition and the
sequence of events is more consistent with the evidence of Mr Ryan and Mr Schiller. That is,
the staged implementation was done, for the most part, as a result of a limited stock of
armguards at the time that they were first implemented.
[49] The high risk areas included where the employees were using an air knife but did not
initially include the function of opening up necks (and what is known as Y-cutting) being
performed by Mr Challinger on 12 February 2014.
[50] I find that the employees, including Mr Challinger, were advised in January 2014 that
the armguards would initially be confined to high risk areas and that it was management’s
intention to ultimately extend that to all positions where a knife was being used. I also find
that the instruction was given, in early February when additional supplies had been found, that
the armguards were to be worn on the opposite arm whenever a knife was being used on the
slaughter floor. In terms of the work section involving Mr Challinger, this was done by
Mr Ryan during the course of a tool box meeting.
[51] The tool box meeting was not documented and Mr Ryan could not confirm exactly
when it was conducted and whether Mr Challinger was in attendance. There is also no
evidence of a written instruction extending the required use of the armguards. Unlike the
earlier supply of new PPE, there were also no individual meetings with employees where they
were supplied with the armguards, given an explanation and signed for its receipt.
Mr Challinger was absent from work for much of the previous week and it is possible, if not
probable, that the tool box meeting occurred at that time. Given the significance of the
finding,14 I cannot be satisfied that he attended the tool box meeting in question.
[52] Mr Challinger was supplied with an armguard at some stage, however there is no
evidence as to the circumstances in which that took place. I note that another employee doing
the same function was also not wearing an armguard on 12 February 2014. In any event, I am
not satisfied that Mr Challinger was instructed that he had to wear an armguard when
undertaking the particular work being performed by him on 12 February 2014, before being
told to do so on that day. Mr Challinger did then put on the armguard; albeit under protest.
[53] Mr Challinger would however have already been aware that the requirement to wear
the armguard on all work involving a knife on the slaughter floor was one that management
had intended to apply when circumstances allowed.
The precise language and context of the exchange on 12 February 2014;
[54] The finding above sets most of the context for the exchange on 12 February 2014.
[55] Mr Challinger was working on the chain on the slaughter floor, opening up necks. He
was not using an air knife and was not wearing an armguard. Working alongside him was
another slaughterman, Mr Hayes, doing similar work and he was also not wearing an
armguard.
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[56] Mr Ryan approached the line where Mr Challinger and Mr Hayes were working about
11.15am. Mr Hayes was at that time talking to Mr Phillips.
[57] At some point, Mr Ryan noticed that Mr Hayes was not wearing an armguard and
instructed him to put it on. Mr Hayes accepted the instruction and requested Mr Ryan to grab
the armguard off the nearby wall for him, which he did. Mr Ryan also noticed that
Mr Challinger was not wearing an armguard, asked him where his armguard was and stated
that “can you put it on mate?”. He also made reference to the need to wear it all times, like the
helmet and safety glasses. Mr Challinger replied that “it was on the wall” and Mr Ryan or
Mr Phillips grabbed the armguard and handed it to the applicant.
[58] Mr Challinger was not happy with the instruction to wear the armguard and although
he put it on, he stated to Mr Ryan words to the effect of, ‘Oh f***, we’ve got to wear these
here now, do we” and Mr Ryan indicted to the effect that “they’re the orders”. Mr Challinger
then said “I’m sick of these fu**ing rules swapping and changing, there are too many
f**heads over in that office” Mr Challinger then also spoke to Mr Phillips and stated that he
was “f***ing sick and tired of getting on this f****ing roundabout that they keep putting the
workers on” and then referred to the company “breaking the rules about the 8 hour break
between shifts” and that “your too busy worrying about this f***ing shit”, in reference to the
armguards”. This was said in a loud and aggressive manner and was primarily directed to
Mr Phillips and/or Mr Ryan.
[59] It is not clear whether Mr Ryan also obtained the armguard for Mr Challinger off the
wall, but Mr Challinger did subsequently put on the armguard. Mr Phillips overheard some of
the initial exchange but was not directly involved. He did however take steps, along with
Mr Ryan, to report the exchange to more senior management.
[60] The reference to the 8 hour shift breaks is a reference to the fact that JBS had been
seeking to have certain volunteer night shift employees undertake overtime without having a
full eight hour break. This intention was being resisted by Mr Challinger, and I gather, the
AMIEU.
4. Was Mr Challinger’s dismissal unfair within the meaning of the
Act?
[61] Section 385 of the Act provides as follows:
“385 What is an unfair dismissal
(1) A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal
Code; and
(d) the dismissal was not a case of genuine redundancy.”
[62] Mr Challinger was dismissed, the employer does not contend that it is a small business
within the meaning of the Act, and the concept of a genuine redundancy is not relevant here.
[2014] FWC 4874
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[63] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or
unreasonable.
[64] The Act relevantly provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s
capacity or conduct (including its effect on the safety and welfare of
other employees); and
(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 the FWC considers relevant.”
[65] It is clear that s.387 of the Act contemplates that an overall assessment as to the nature
of the dismissal must be made by the Commission. In so doing, the Act sets out a number of
considerations that must, where relevant, be weighed up in totality.
[66] It is convenient therefore to use the various provisions of s.387, with reference to the
relevant circumstances, to outline my consideration of the matter.
Section 387(a) – whether there was a valid reason for the dismissal related to
Mr Challinger’s capacity or conduct (including its effect on the safety and welfare of
other employees)
[67] Valid in this context is generally considered to be whether there was a sound,
defensible or well founded reason for the dismissal. Further, in considering whether a reason
is valid, the requirement should be applied in the practical sphere of the relationship between
an employer and an employee where each has rights, privileges, duties and obligations
conferred and imposed on them. That is, the provisions must be applied in a practical,
commonsense way to ensure that the employer and employee are each treated fairly.15
[2014] FWC 4874
15
[68] There is no doubt that capacity and conduct reasons associated with the safety and
welfare of employees are capable of forming valid reasons for present purposes.
[69] In the present case, it is appropriate to consider whether the language and conduct of
Mr Challinger was misconduct given all of the circumstances including the immediate context
and the nature of language and communications adopted in this workplace
[70] For reasons outlined earlier, the fact that Mr Challinger was not initially wearing the
armguard on 12 February 2014 does not represent misconduct. It would also be evident from
those findings that Mr Challinger may reasonably have considered the requirement to be a
change, not as a result of an existing formal agreement, but rather, because of his earlier
personal understanding and the fact that the only direct instruction he had had to that time
would not have extended to the work in question. I add that if I had found that Mr Challinger
had deliberately breached an instruction as relied upon by JBS in its decision to dismiss him,
this would have represented serious misconduct in all of the circumstances and been a valid
reason for dismissal.
[71] Notwithstanding my findings on the armguard, Mr Challinger was aware that
management intended to extend the requirements when circumstances allowed and he had
subsequently been supplied with an armguard that could be used when doing the work in
question. Mr Challinger’s role as a delegate must also be considered in terms of whether it
was appropriate to question the requirement to wear the armguard.
[72] In that context it was reasonable for Mr Challinger to question what he saw as a
change, but certainly not in the manner that he did. In terms of the language used, there is a
difference between general swearing in a workplace and aggressive conduct and language that
is directed at another employee or management.16
[73] Some of the context for the present consideration is also set by the events of 2012 and
the MoU reached between the AMIEU and the employer at the time.
[74] The general circumstances of these events have been outlined earlier in this decision.
The resolution of that matter contemplated the disciplinary action taken against Mr Challinger
standing and confirmation of the expectations around walking off the job, uniform clearance
and the nature of communications.
[75] Mr Challinger was subsequently paid for three of the four days that he was suspended
and although the original warning was to stand, this was not apparently formalised.
[76] The particular language adopted in the MoU also confirms to some degree the
expectation that the use of profanities, and what might be described as abusive language in
itself, may have been part of the culture at JBS. However, threatening language and behaviour
and personal attacks were not to be tolerated.
[77] Although entered into by a former plant management team, and the new management
apparently have higher standards, which is to be commended, this relatively low bar does set
some of the context in which the events of 2014 must be considered.
[2014] FWC 4874
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[78] It is clear to me that the nature of the Mr Challinger’s response to the instruction on
12 February 2014, and more particularly, the language and tone of the exchange was in all of
the circumstances beyond the normal and reasonable boundaries within the workplace,
including at the JBS facility. It was not threatening as such, however it was unwarranted,
abusive and personal.
[79] In terms of the conduct forming a sound reason for dismissal, there have been issues
and warnings concerning Mr Challinger’s previous conduct in relation to language and
absences from the workplace. These are also relevant to the question of the proportionality of
the dismissal, which I will return to shortly. There is little evidence to support the notion of
other conduct, beyond the matters dealt with earlier in the decision, leading to a course of
conduct as suggested by Mr Schiller in his evidence. However, the implications of the
comments made by Mr Challinger during the 12 February 2014 exchange, in the context of
certain previous conduct, are not appropriate in terms of promoting safety within the
workplace more generally.
[80] In all of the circumstances I am satisfied that the conduct of Mr Challinger on
12 February 2014 represented a valid reason for dismissal.
Section 387(b) – whether Mr Challinger was notified of the reasons for dismissal
[81] This consideration requires the Commission to assess whether the applicant concerned
was relevantly advised of the reasons leading to the dismissal before that decision was
taken.17
[82] The evident purpose of this consideration is that notification of the valid reason to
terminate must be given to the employee before the decision to terminate the employee is
made and the notification needs to be in explicit and plain and clear terms.
[83] Although the formal allegations made against Mr Challinger canvassed broader issues,
it is evident that he was notified of the (valid) reasons as part of the overall process adopted
by JBS.
Section 387(c) – whether Mr Challinger was given an opportunity to respond to any
reason related to his capacity or conduct
[84] With one potential exception, the process adopted by JBS provided a reasonable and
appropriate opportunity for Mr Challinger to respond the reasons associated with the conduct.
These included the matters leading to some of the previous warnings and the serious view of
his conduct being taken by JBS.
[85] He was advised that his dismissal was being contemplated and was given time to
consider and provide a response in conjunction with his union officials.
[86] The one concern about the process arises from one of the matters taken into account
by Mr Schiller in reaching the decision to dismiss Mr Challinger. I have earlier found that
some elements of Mr Schiller’s view about an alleged course of conduct was not generally
supported by the evidence. To some extent, the underpinning conduct that was said to lead to
that conclusion was the subject of the correspondence to Mr Challinger.
[2014] FWC 4874
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[87] However, certain other matters alluded to by Mr Schiller in his evidence were not
raised in that correspondence and the actual allegations about the “course of conduct” was not
articulated in that form.
Section 387(d) – any unreasonable refusal by the respondent to allow Mr Challinger a
support person
[88] Mr Challinger was afforded an opportunity to have a support person following his
request for such early in the process.
Section 387(e) – if the dismissal is related to unsatisfactory performance by
Mr Challinger – whether he has been warned about that unsatisfactory performance
before the dismissal.
[89] This consideration relates to performance of the job. Performance in this context
includes the employee’s capacity to do the work, and the diligence and care taken with that
work.18
[90] This is not relevant here.
Section 387(f) – the degree to which the size of the respondent’s enterprise would be
likely to impact on the procedures followed in effecting the dismissal.
Section 387(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.
[91] JBS is a large employer with both local and national human resource management
specialists. This consideration does not arise in the case.
Section 387(h) - other matters considered to be relevant
[92] The impact of the dismissal upon Mr Challinger, given the nature and size of the meat
industry in Bordertown and in South Australia more generally, is also a consideration in this
matter.
[93] Mr Challinger has for much of his working life been in the meat industry and that
industry in South Australia is dominated by a relatively small number of large employers. He
was also at the Bordertown plant for almost 10 years. The loss of employment in these
circumstances has had a significant impact upon his capacity to secure further work of that
nature.
[94] These matters, the nature of his conduct as I have found it to be, the history of
previous disciplinary matters and certain potential mitigating and exacerbating circumstances
must also be considered in making any assessment as to whether the dismissal might be
considered to be harsh.19
[95] These mitigating factors include the fact that Mr Challinger was, in his role as a
delegate, in a position to question why the apparent change in requirements was made. As
outlined earlier, this does not excuse the manner, tone and language of the response and that
[2014] FWC 4874
18
role also brings with it certain responsibilities. Further, the low bar in relation to abusive
conduct in this workplace, set as a result of the 2012 MoU, is also a factor to be weighed into
the overall assessment of the dismissal.
[96] As an exacerbating factor, I note that Mr Challinger does not appear to fully
acknowledge the inappropriateness of his conduct. Further, the history of disciplinary action
involving Mr Challinger must also be taken into account.
[97] I note that the Full Bench in Parmalat Products Pty Ltd v Wililo20 said:
“[24] We do not consider that the decision discloses a clear line of reasoning leading to
the decision reached. The existence of a valid reason is a very important consideration
in any unfair dismissal case. The absence of a valid reason will almost invariably
render the termination unfair. The finding of a valid reason is a very important
consideration in establishing the fairness of a termination. Having found a valid reason
for termination amounting to serious misconduct and compliance with the statutory
requirements for procedural fairness it would only be if significant mitigating factors
are present that a conclusion of harshness is open. We do not believe that any of the
circumstances involved in this matter amount to such factors.”
[98] The circumstances here are different to a degree including that the valid reason did not
involve a finding of serious misconduct of the nature evident in Parmalat. There are also
significant mitigating factors, including the impact of the dismissal given Mr Challinger’s
circumstances, as well as some exacerbating elements.
Conclusion on nature of dismissal
[99] In this case, having regard to the overall circumstances, including the context and the
nature of the actual conduct concerned, I find on balance that the dismissal of Mr Challinger
by JBS was harsh.
[100] It was therefore unfair within the meaning of the Act.
5. Remedy
[101] Mr Challinger seeks reinstatement which was strongly opposed by JBS.
[102] Reinstatement would have a remedial benefit in the circumstances of the Mr
Challinger and it is the primary remedy under the Act. However, there are some issues arising
from the conduct of Mr Challinger, the absence of apparent contrition and concerns about the
capacity to resume effective employment relationships at the JBS plant.
[103] Subsequent to the hearing, JBS has made application to re-open for the purposes of
leading some additional evidence concerning remedy. That evidence concerns an alleged
exchange involving a Site IT Coordinator employed by JBS, and potentially other JBS
employees.
[104] That exchange is alleged to have occurred in a social setting after the hearing
conducted in this matter.
[2014] FWC 4874
19
[105] Mr Challinger has opposed the application to re-open the case for this purpose.
[106] It is common ground that the Commission has the power to re-open the matter utilising
its powers under s.589 of the Act.
[107] JBS seeks that the matter be re-opened and the new evidence heard on the following
grounds:
The new evidence goes to the heart of the application as Mr Challinger is seeking
re-employment and the evidence concerns the trust and confidence between the
parties and the potential impact of a re-instatement order upon productivity and
harmony within the business;
The new evidence was not available at the time of the hearing and does not arise as
a result of any failure or fault of JBS to lead the evidence during the hearing;
The new evidence indicates that the applicant did not reveal his true opinion of the
JBS staff and management during the hearing and a denial of the right to bring the
evidence would represent a denial of procedural fairness; and
The new evidence, and any response evidence from Mr Challinger would be
confined.
[108] Mr Challinger opposes that course of action on the following grounds:
The power to re-open should be exercised sparingly having regard to the public
interest and the need to maintain finality in litigation;
There would be no denial in procedural fairness to JBS given that it had ample
opportunity to lead evidence about the appropriateness of re-employment during
the hearing;
There is no suggestion of a mistake in the fact or an error in law; and
The alleged event is disputed and it would be necessary to hear the evidence of the
applicant and potentially others (in addition to the JBS witness).
[109] Cribb C conveniently summarised the broad principles that should guide the discretion
to re-open a matter of this kind in Modra v Yirara College of the Finke River Mission Inc21
(Modra) as follows:
“[9] In the absence of any Federal Tribunal authorities on point, detailed decision
summaries for 12 Queensland, New South Wales and South Australian Industrial
Tribunals and Courts were provided. In addition, a summary of the relevant Federal
Court decisions was set out and were said to be binding on the Tribunal. The principles
regarding re-opening a case were described as:
The power to re-open a case must be exercised sparingly, having regard to the
public interest in maintaining the finality of litigation.
The discretion to re-open a case may be exercised where there would otherwise be
a denial of procedural fairness due to a party not having had a clear and adequate
opportunity to argue its case.
Re-opening may occur to correct a misapprehension as to the facts or the law.
[2014] FWC 4874
20
A matter is not to be re-opened where there has been no mistaken view of facts or
error in law if only for a party to attempt to repeat arguments already made.
A case is not to be re-opened to allow a party to bring additional evidence which
was, on its face, available at the time of the hearing.”
[110] In this case, the proposed evidence relates to an alleged event that occurred after the
hearing had been conducted and no criticism can be made of JBS in that regard. Although the
substance of the proposed evidence needs to be tested, if accepted, it would be relevant to the
exercise of discretion in terms of the remedies under the Act. This is particularly so here given
the nature of the conduct as I have found it to be, the existence of some similar history of
conduct in the workplace, and the fact that the JBS facility is based in a relatively small
regional location.
[111] That is, if the new evidence were to be accepted as the truth of the conduct, this would
need to be considered in terms of whether a productive, safe and appropriate working
relationship could be re-established in this workplace.
[112] Alternatively, the fact that the alleged discussion took place in a social setting, the
obvious requirement to provide an opportunity for Mr Challinger to lead contradictory
evidence with the consequent delay and further costs, and the general reticence to re-open
matters in this jurisdiction for reasons outlined in Modra, are countervailing considerations.
[113] On balance, I consider that it would be fair and appropriate in the particular
circumstances of this case to re-open the matter to permit the proposed new evidence to be
led.
[114] For this reason, I have not canvassed as part of this decision the significant evidence
and submissions regarding remedy that are already before the Commission.
[115] Arrangements will shortly be made to hear the additional evidence, including any
rebuttal evidence from Mr Challinger, and final submissions to be made in that context.
Appearances:
C Buckley of the Australasian Meat Industry Employees Union for Scott Challinger.
B Duggan of Fox Tuckers Lawyers, with permission, for JBS Australia Pty Ltd.
[2014] FWC 4874
21
Hearing details:
2014
Bordertown
July 16 and 17.
Further written submissions:
Respondent, 29 August 2014
Applicant, 5 September 2014
Printed by authority of the Commonwealth Government Printer
Price code C, PR553347
1 JBS acquired the business of the previous operator of the Bordertown plant and the applicant’s employment has been
treated as continuous for all purposes.
2 Closing submissions on behalf of the applicant - Transcript PN2484.
3 Exhibit R2.
4 Exhibit R3.
5 Exhibit R4.
6 Exhibit R5.
7 Mr Challinger - Transcript PN479 - PN490.
8 Exhibit R6.
9 The evidence of Mr Smith who was also involved in the disciplinary process on behalf of the applicant - Transcript PN1053
to PN1079.
10 The evidence of Mr Seagrott.
11 Mr Challinger - Transcript PN839.
12 Transcript PN888.
13 Exhibit R13 - TS4.
14 Briginshaw v. Briginshaw (1938) 60 CLR 336. See also Brinks Australia Pty Ltd PR922612 at [7].
15 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR
458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A
Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at par [36].
16 See Slater v Patrick Port Logistics Pty Ltd [2012] FWA 7204.
17 See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.
18 See Anetta v Ansett Australia Ltd (2000) 98 IR 233.
19 See Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR at 465 per McHugh and Gummow JJ.
20 [2011] FWCFB 2293.
21 [2010] FWA 2900.
