1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Adam O'Connell
v
Wesfarmers Kleenheat Gas Pty Ltd T/A Kleenheat Gas
(U2014/13720)
COMMISSIONER CLOGHAN PERTH, 14 OCTOBER 2015
Application for relief from unfair dismissal.
[1] Mr Adam O’Connell (Mr O’Connell or Applicant) has made an application to the
Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his
former employer, Wesfarmers Kleenheat Gas Pty Ltd (Kleenheat or Employer).
[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[3] At the hearing, the Applicant represented himself and gave evidence on his own
behalf. Mr Logon Smith, security employee, also gave evidence on behalf of the Applicant.
[4] The Employer was represented, with permission of the Commission ([2015] FWC
2103), by Mr Smetana of counsel. Evidence on behalf of the Employer was given by:
Ms E Cheeseman – Senior HR Consultant;
Mr J Ritchie – Business Representative WA North;
Mr K Naicker – Business Manager / Sales Representative;
Mr C Dashwood – Natural Gas Sales Executive;
Mr C Roberts - Draftsman;
Mr D Bentley – Sales Operations Manager;
Mr P Hall – Sales Manager WA North and NT; and
Mr A McCombe – Sales Manager, British Sausage Company.
[5] This is my decision and reasons for decision with respect to Mr O’Connell’s
substantive application that he was unfairly dismissed.
RELEVANT BACKGROUND
[6] Following an investigation by the Employer, Mr O’Connell was dismissed by the
Employer for the following reasons:
“1. Repeatedly engaged in threatening, offensive, and bullying behaviour towards a
fellow employee and threatened to punch that employee during the evening of
[2015] FWC 7011 [Note: An appeal pursuant to s.604 (C2015/7189) was
lodged against this decision and the order arising from this decision - refer
to Full Bench decision dated 18 December 2015 [[2015] FWCFB 8205] for
result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB8205.htm
https://www.fwc.gov.au/documents/awardsandorders/html/PR572951.htm
[2015] FWC 7011
2
Monday 15 September 2014 in breach of the WesCEF Code of Conduct and
Discrimination, Harassment and Bullying policy;
2. Carried on a private vacation property rental business through your work email
and mobile in breach of the Electronic Usage Policy and your employment
contract signed by you on 26 February 2008;
3. Disobeyed a lawful request by operating your work vehicle on 26 September 2014
in breach of your employment obligations;
4. Drove recklessly on the 26 September 2014 resulting in a complaint from a
member of the public and the potential to cause serious and imminent risk to
yourself, other parties and also the reputation of the Company’ and
5. Punched a fellow employee at the previous sales conference event at the Vines
Resort in or around May 2005 in breach of your employment obligations.”1
[7] The process leading to Mr O’Connell’s termination of employment is set out below.
[8] On 19 September 2014, Mr Ritchie filed a grievance against Mr O’Connell regarding
the Applicant’s offensive and threatening behaviour at the Employer’s National Sales
Conference on 15 September 2014.
[9] As part of the inquiry into the grievance, Ms Cheeseman met with Mr Naicker.
Subsequently, Ms Cheeseman and Mr Hall met with Mr Dashwood.
[10] After these meetings, Mr Hall and Ms Cheeseman met with Mr O’Connell on
23 September 2014 to discuss the allegations in Mr Ritchie’s grievance. After a short break,
the meeting concluded with Mr O’Connell being given correspondence which stated he was to
be “stood down” on pay, pending further investigation of Mr Ritchie’s complaint.
[11] On 26 September 2014, Mr Hall and Ms Cheeseman again met with Mr O’Connell to
discuss the outcome of the Employer’s investigation. At the meeting, Mr O’Connell was
given a “show cause” letter as to why his employment should not be terminated.
[12] Mr O’Connell responded on 30 September 2014.
[13] On 26 September 2014, the Employer received notification from a member of the
public, that one of its vehicles was being driven recklessly on the Kwinana Freeway. The
license plate of the vehicle, allegedly being driven recklessly, matched that of Mr O’Connell’s
work vehicle.
[14] As Mr O’Connell had been “stood down”, his emails had been directed to Mr Hall.
Mr Hall became concerned at the number of emails relating to rental accommodation at Jurien
Bay.
[15] During the investigation into Mr Ritchie’s grievance, the Employer also became aware
of a further incident at a previous sales conference.
1 Exhibit R6 (19)
[2015] FWC 7011
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[16] On 3 October 2014, Mr Hall contacted Mr O’Connell and advised him that, during the
course of its investigation, the Employer had become aware of additional incidents relating to
his employment and it would be necessary to attend a further meeting.
[17] On 8 October 2014, Mr Hall and Ms Cheeseman met with Mr O’Connell and put the
further allegations to him. Mr O’Connell did not respond verbally, and requested that the
further incidents be put in writing.
[18] On 9 October 2014, Mr O’Connell was advised, in writing, of the further allegations
and again given the opportunity to “show cause” why his employment should not be
terminated.
[19] On 10 October 2014, the Employer couriered to Mr O’Connell’s home address, at his
request, copies of his contract of employment and the Employer’s Electronic Usage Policy.
[20] On 16 October 2014, the Employer, by correspondence, requested Mr O’Connell
attend a meeting on 20 October 2014.
[21] On 17 October 2014, Mr O’Connell presented the Employer with a medical certificate
stating that he was unfit for work between 13 October and 13 November 2014. In addition,
Mr O’Connell provided a response to the Employer’s “show cause” correspondence of
9 October 2014.
[22] Mr O’Connell did not attend the meeting on 20 October 2014.
[23] After repeated attempts to make contact with Mr O’Connell, Mr Hall, on 22 October
2014, summarily terminated the Applicant’s employment for serious misconduct. The
reasons are set out above in paragraph [6].
RELEVANT LEGISLATIVE FRAMEWORK
[24] There is no dispute between the parties that Mr O’Connell has properly made the
application in accordance with s.382 of the FW Act. Accordingly, the relevant statutory
framework is ss.385 and 387 of the FW Act.
[25] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:
“385 What is an unfair dismissal
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) ...
(d) ...”
[26] The criteria for whether a dismissal was harsh, unjust or unreasonable can be found at
s.387 of the FW Act and is as follows:
[2015] FWC 7011
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“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.”
CONSIDERATION
[27] Section 387 of the FW Act sets out the matters which the Commission must take into
account in determining whether a dismissal was “harsh, unjust or unreasonable”. In seriatim,
they are as follows.
s.387 (a) - was there a valid reason for the Applicant’s dismissal?
[28] A valid reason for dismissal is one that is “sound, defensible or well founded and not
capricious, fanciful or spiteful”. The authority for this approach is found in the often cited
case of Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at page 373, which reads
as follows:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of
sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or
prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same
time the reasons must be valid in the context of the employee’s capacity or conduct or
based upon the operational requirements of the employer’s business. Further, in
considering whether a reason is valid, it must be remembered that the requirement
applies in the practical sphere of the relationship between an employer and an
[2015] FWC 7011
5
employee where each has rights and privileges and duties and obligations conferred
and imposed on them. The provisions must ‘be applied in a practical, commonsense
way to ensure that the employer and employee are treated fairly’.”
[29] A valid reason for dismissal attempts to balance, in a practical way, the needs of
employees and employers.
[30] When the reason for the dismissal relates to the employee’s conduct, it is necessary for
the Commission to determine, on the balance of probabilities, whether the alleged conduct
occurred, and if so, whether it was a sufficient reason for termination2. Further,
“The question of whether the alleged conduct took place and what it involved is to be
determined by the Commission on the basis of the evidence in the proceedings before
it. The test is not whether the employer believed on reasonable grounds after sufficient
enquiry that the employee was guilty of the conduct which resulted in the
termination”.3
[31] Summary dismissal for misconduct in employment, may be warranted in certain
circumstances. The Fair Work Regulations relevantly defines, at 1.07, the meaning of serious
misconduct as:
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious
misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the
following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the
continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the
following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is
consistent with the employee’s contract of employment.
2 Brink v TWU PR922612 at paragraph [7]
3 King v Freshmore (Vic) Pty Ltd S4213 at paragraph [24]
[2015] FWC 7011
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(4) Subregulation (3) does not apply if the employee is able to show that, in the
circumstances, the conduct engaged in by the employee was not conduct that made
employment in the period of notice unreasonable.
(5) ...”
[32] Notwithstanding, the misconduct may have resulted in summary dismissal, the test
remains the same, that is, was the decision to terminate the employee’s employment “sound,
defensible and well founded”.
Did Mr O’Connell engage in threatening, offensive and bullying behaviour towards
Mr Ritchie, including threatening to punch him on the evening of 15 September 2014,
contrary to the Employer’s Code of Conduct and Harassment and Bullying policy?
[33] On 19 September 2014, Mr Ritchie provided a document to Mr Hall and
Ms Cheeseman concerning an incident between himself and Mr O’Connell on 15 September
2014 in the Muscat Bar of the Vines Hotel.
[34] The relevant parts of the documents are that Mr O’Connell said to Mr Ritchie, over a
period of 15 to 20 minutes, on a number of occasions, “I fucking hate you”, “fuck off”, “drop
dead”, “fuck off and die”, “go kill myself” and “every time I see you I just want to punch you
in the face”. After this initial exchange between Mr O’Connell and Mr Ritchie, Mr Ritchie
left the bar.4
[35] After 20 minutes, Mr Ritchie returned to the bar and states that he sought the basis of
Mr O’Connell’s verbal “barrage” and states, “I asked Adam whether it was the fact that I
currently drive the Hilux that was previously his work vehicle which was causing the issue
between them, and his answer was, “yes it is”.5
[36] Mr O’Connell then told him to “fuck off out of my face” to which Mr Ritchie
responded “tonight you’ve confirmed what a pathetic person you are and I am not the only
person who thinks so” and “you’re a train wreck of a human being”.6
[37] Mr Ritchie states that other people were present in the bar at the time of the exchange
between himself and Mr O’Connell.
[38] On the same day (19 September 2014), Ms Cheeseman interviewed Mr Naicker.
Mr Naicker confirmed that Mr O’Connell had told Mr Ritchie to “fuck off” and to “drop
dead”.7 Ms Cheeseman’s notes of the discussion, reveal that Mr Ritchie was not aggressive,
and it was Mr O’Connell who was behaving aggressively.
[39] Mr Dashwood was interviewed by Mr Hall and Ms Cheeseman on 22 September 2014.
The notes of the meeting state that Mr Dashwood recalled Mr O’Connell saying to
Mr Ritchie, “I fucking hate you” out of the blue.
4 Exhibit R6 (8)
5 Exhibit R6 (8)
6 Exhibit R7 Appendix 1
7 Exhibit R7 Appendix 2
[2015] FWC 7011
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[40] Further, the notes of the meeting with Mr Dashwood indicate that Mr Dashwood could
not recall Mr O’Connell telling Mr Ritchie to “fuck off and die”, but recalls Mr O’Connell
saying to Mr Ritchie that he was a “waste of space”.
[41] Mr Dashwood’s observations are that Mr O’Connell’s comments were unprovoked
and he had acted aggressively.8
[42] Mr Hall and Ms Cheeseman interviewed Mr O’Connell on 23 September 2014.
Ms Cheeseman’s notes of the meeting are that Mr O’Connell denies telling Mr Ritchie to,
“fuck off and die”, “go kill yourself [Mr Ritchie]”, that he was a “loser” or that he was a
“waste of space”. However, he concedes most “probably”, he told Mr Ritchie to “fuck off”
repeatedly.
[43] Mr O’Connell denies that he said to Mr Ritchie that he wanted to “punch him in the
face”, but agrees that he explained to Mr Ritchie, in a hypothetical case, where he would
punch him.
[44] Finally, Mr O’Connell vaguely remembers Mr Naicker and Mr Dashwood physically
separating Mr O’Connell and Mr Ritchie.
[45] The notes of the meeting with Mr O’Connell indicate that he had an inability to recall
a number of matters raised by Mr Ritchie or others present. Mr O’Connell has a “vague”
recollection of other matters. However, he agrees that the exchange ended with
Mr O’Connell telling Mr Ritchie to “fuck off out of my face” and Mr Ritchie responding that
Mr O’Connell was a “train wreck of a person”.9
[46] Mr O’Connell’s version of events, as recorded in the notes of the discussion with
Mr Hall and Ms Cheeseman, is that Mr Ritchie provoked the incident and he responded.
[47] In his “Statement of Facts”, Mr O’Connell denies that he used the words “I fucking
hate you”, “drop dead”, “fuck off and die” or “go kill yourself [Mr Ritchie]”. Mr O’Connell
also denies threatening Mr Ritchie with physical violence.
[48] With respect to the statements of Mr Dashwood and Mr Saratis, Mr O’Connell
records, “with all due respect they were both intoxicated” and “other employees had more
alcohol than I did”.10
[49] In cross examination, Mr O’Connell conceded that he said to Mr Ritchie, “fuck off” on
a number of occasions.11
[50] Despite earlier responses to the Employer, and in his Statement of Facts, in cross
examination, Mr O’Connell agreed that he told Mr Ritchie to “drop dead”. In doing so,
Mr O’Connell gave evidence of the meaning of “drop dead” in the “urban dictionary”, and
“it’s just a term”.12
8 Exhibit R7 (3)
9 Exhibit R7 Appendix 4
10 Exhibit A2 (12)
11 Transcript PN148
12 Transcript PN149
[2015] FWC 7011
8
[51] Mr O’Connell also agreed in cross examination that he told Mr Ritchie to “fuck off out
of my face” on two occasions.13 Further, that Mr Ritchie was a “loser”.14
[52] In his written witness statement, Mr O’Connell gives evidence that he recalls saying to
Mr Ritchie, “fuck off, you’re a loser” and “don’t fucking talk to me” on a number of
occasions.15
[53] On his own evidence, in a moment of clarity, Mr O’Connell states that he does not like
Mr Ritchie and that he does not need a reason not to like him.16 This much is clear also from
the evidence of others, who were present at the incident on 15 September 2014.
[54] To illustrate Mr O’Connell’s dislike for Mr Ritchie, and at the same time
demonstrating the differences between both gentlemen, I set out the following exchange in
cross examination between both. Mr O’Connell establishes that Mr Ritchie worked with
Mr Semmens, and then asked the following question:
“On a number of occasion Mr Semmens has mentioned to me and other colleagues that
sharing an office with you is like working with a child. Why do you think he makes
these claims?---I'm not sure, to be honest. I haven't heard anything in regards to that at
all and I'm sure if Mr Semmens felt that way, he would have said it to me as well.”17
[55] While the above chronology and evidence sets out aspects of the incident on
15 September 2014, at least two questions arise from it. The first question is whether
Mr O’Connell was provoked into his invective outburst towards Mr Ritchie. Mr Dashwood’s
assessment, in evidence, is that even if Mr Ritchie had left Mr O’Connell alone, it would still
have escalated to the level it did, because Mr O’Connell had a “bee in his bonnet” about
something.18 Mr Dashwood’s undisturbed evidence was that, Mr Ritchie was not being
provocative19 and that Mr O’Connell was being abusive and threatening towards Mr Ritchie.
Finally, the aggression by Mr O’Connell “came out of nowhere”. 20
[56] The second question relates to those occasions where there is a disparity in the
evidence; which should be preferred. After careful consideration of the documentary
evidence and the witnesses oral evidence, where there is a material difference in the evidence
overall, I prefer the account given by Mr Ritchie and Mr Dashwood, to Mr O’Connell.
[57] While Mr O’Connell has attempted to lay the blame for the incident at the door of the
Employer or Mr Hall, for a culture of heavy drinking, this incident, in my view, comes down
to Mr O’Connell’s dislike for Mr Ritchie. Even if the Employer had taken a more responsible
approach to the serving of alcohol on the evening, in my view, the striking feature of the
13 Transcript PN154
14 Transcript PN151
15 Exhibit A5 (69)
16 Exhibit A5 (66)
17 Transcript PN963
18 Transcript PN1328
19 Transcript PN1227
20 Transcript PN1228 and PN1229
[2015] FWC 7011
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evening was not its histrionics, but the vehement, forceful, threatening behaviour of
Mr O'Connell towards Mr Ritchie, for no other reason than he does not like him.
[58] I am satisfied that the verbal assault on Mr Ritchie, for a person who suffers a mental
illness, required him to leave the bar, return to his room to calm down, and absorb what had
happened to him.21
[59] Mr O’Connell’s failure to conduct himself appropriately is to be contrasted with the
Employer’s Code of Conduct which expects employees to, “value, promote and maintain
professionalism”, “show fairness, courtesy, respect, consideration and sensitivity in all
dealings within their workplace” and to “avoid…bullying, harassment or other inappropriate
workplace behaviour”.22
[60] The Employer’s Code of Conduct includes circumstances outside the workplace and
working hours, such as the conference at the Vines Hotel.
[61] By a wide margin, Mr O’Connell’s behaviour is outside the Employer’s Code of
Conduct and I find accordingly.
[62] The Employer’s Harassment and Bullying Policy defines “bullying” as, “repeated and
unreasonable behaviour, towards a person or persons that creates a risk to health and safety,
whether verbal, physical or otherwise in the course of their employment. It includes
behaviour that harms, threatens, victimises, intimidates, offends, degrades or humiliates
another person or persons.” Examples of such bullying behaviour include, but is not limited
to, “abusive language”, “intimidation” and “constant humiliation”.23
[63] While Mr O’Connell’s behaviour was over one evening, I am satisfied on the
evidence, that it was repeated, humiliating, offensive and degrading towards Mr Ritchie. For
that reason, I find that Mr O’Connell’s conduct was contrary to the Employer’s Harassment
and Bullying Policy.
Did the Applicant conduct a private vacation property rental business through work
email and mobile telephone in breach of the Employer’s Electronic Usage Policy?
[64] Mr O’Connell admitted, in evidence, that he used the Employer’s email system
concerning Dhufish Lodge, Jurien Bay24 for a number of years.25
[65] In response to the allegation, Mr O’Connell:
does not deem rental of the property, Dhufish Lodge, as a “business”;26
in his view, his usage of the email system was “minor”27, consequently, he deems his
usage of the email system as not breaching the policy;
21 Transcript PN870
22 Exhibit R6 (5)
23 Exhibit R6 (7)
24 Transcript PN261
25 Transcript PN262
26 Transcript PN268
[2015] FWC 7011
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“recalled and read the policy in detail in July 2014 and started to shift the emails
through a Yahoo account…because I didn’t want to be seen to be potentially doing
the wrong thing”;28
“the rental of the holiday home is not a conflict of interest with the Respondent. The
rental actually complements the Respondent because it is connected to LPG and the
more it is rented out, more gas is used and the Respondent makes more profit.”29
[66] The Employer’s Electronic Usage Policy sets out the standards of behaviour expected
for all employees who use the Employer’s electronic communication system. The Policy
provides for “reasonable personal purposes”. “Reasonable” is defined as the “occasional local
phone call, receiving and sending the occasional personal email and accessing the internet for
legitimate personal information”.30
[67] A separate and discrete heading in the Policy is entitled “UNACCEPTABLE USE”.
Examples of “unacceptable” use includes, “pursuing your own business interests”31.
[68] Again, under a separate heading, is a section called “BREACHES”. This section
provides that breaches of the Policy may result in disciplinary action. The disciplinary action
includes a range of penalties, up to and including, “termination of employment”.
[69] I am satisfied that the Electronic Usage Policy applied to Mr O’Connell and he had
read, understood and was required to comply with the Policy.
[70] From the large amount of “hard copies”, I am satisfied that Mr O’Connell used the
Employer’s electronic communication system to assist him in running the rental property,
Dhufish Lodge. Mr O’Connell described himself as the owner in the emails and clearly all
the communications in the emails, are associated with what one would expect in running a
rental property business.
[71] Mr O’Connell “deems” that it is not a “business”. Mr O’Connell does not offer an
explanation for why he deems Dhufish Lodge not as a business. Dhufish Lodge is a property
for rent. The property requires payment for persons to stay at the house. Residents pay a
bond and the owners have to ensure that the property meets the resident’s expectations in
terms of furniture and appliances. Mr O’Connell discusses, in some of his emails, various
vacancies of the property. Finally, Mr O’Connell agrees he has expenses, including
repayment of a loan.
[72] In my view, Mr O’Connell’s deeming of Dhufish Lodge not a business is, firstly,
contrary to the evidence and any normal understanding of what a business is. Secondly, not
only is the deeming argument wrong, but the argument is made, obviously to counteract, the
Policy’s specific provision, that using the Employer’s electronic communication system, to
pursue a personal business interest, is unacceptable.
27 Transcript PN268
28 Transcript PN268
29 Exhibit A2 (16)
30 Exhibit R6 (6)
31 Exhibit R6 (6)
[2015] FWC 7011
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[73] Having purportedly disposed of the argument that Dhufish Lodge is not a business, it
is necessary for Mr O’Connell to address the issue of whether his use of the communication
system, was reasonable personal use. Similarly, Mr O’Connell “deems” his email usage,
reasonable. In doing so, Mr O’Connell asserts that he has not breached the Policy.
[74] Despite what Mr O’Connell may think is true, in the absence of any evidence, his
“deeming” arguments are nothing more than mere assertions. On the evidence, I have no
reason to disagree with the Employer, that Mr O’Connell was, in part, running a rental
business through its communication system. Secondly, even in the absence of that specific
breach of the Policy, Mr O’Connell’s usage of the email system appears, on the evidence, was
unreasonable personal use.
[75] I do not propose to consider Mr O’Connell’s argument that there was no conflict of
interest between renting out Dhufish Lodge and his employment, on the basis that the more
gas used, the more profit to the Employer. It is tempting to make comment on the
proposition, but I consider it better left unsaid.
[76] I am satisfied that Mr O’Connell’s breach of the Employer’s Electronic Usage Policy
was wilful from at least, December 2008. In view of the length of time, and the volume of
emails, it appears a substantial breach of the Policy.
[77] Mr O’Connell, notwithstanding that he read the Policy in detail in July 2014, and
“didn’t want to be seen to be potentially doing the wrong thing”32, continued to use the
Employer’s communication system to run the rental property business, up until the time of
being stood down from his employment. For this reason, I am satisfied that during the period
July to September 2014, his breach of the Electronic Usage Policy was deliberate.
[78] Mr O’Connell’s actions were inconsistent with his contract of employment. The
Employer is entitled to set out standards of behaviour expected of its employees in policies,
and enforce compliance of those policies. If necessary, the Employer is able to ensure
compliance with its policies by disciplinary action, which included termination of
employment.
[79] I am satisfied that Mr O’Connell’s dismissal, for this reason, either separately or in
totality, was sound, defensible and well founded.
Did Mr O’Connell disobey a lawful request by driving his work vehicle on 26 September
2014?
[80] On 23 September 2014, Mr Hall and Ms Cheeseman met with Mr O’Connell regarding
the grievance made by Mr Ritchie. Ms Cheeseman’s evidence is that she informed
Mr O’Connell that he was to be stood down and that he could not have access to his work
vehicle except to drive it home that day.33
[81] Mr O’Connell’s response to the allegation in his Statement of Facts is that he complied
with all the instructions contained in the Employer’s “stand down” correspondence dated
32 Transcript PN268
33 Exhibit R7 (8)
[2015] FWC 7011
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23 September 2014.34 There is no specific instruction in the correspondence of 23 September
2014, for Mr O’Connell not to drive the Employer’s work vehicle while being stood down.
[82] Firstly, it is quite obvious that there is a distinction between a verbal instruction to
Mr O’Connell not to drive the Employer’s vehicle, and compliance with the contents of the
“stand down” correspondence of 23 September 2014.
[83] Mr O’Connell does not refer to this reason for his dismissal, in his written witness
statement.35
[84] Ms Cheeseman’s evidence is that at the conclusion of the 23 September 2014 meeting,
she read out the directions in the “stand down” correspondence. Mr O’Connell raised the
issue of his work vehicle; Ms Cheeseman stated words to the effect, “you can drive it home,
but you will need to leave it there after that”.36 Mr O’Connell appeared, according to
Ms Cheeseman’s evidence, “unhappy” with the response.
[85] Kleenheat employees are not able to access a work vehicle while on annual leave or
long service leave. In Ms Cheeseman’s evidence, the situation of being stood down and not
being able to access a vehicle, is comparable.37
[86] Mr O’Connell, in cross examination, could not recall the Employer’s direction not to
drive the work vehicle allocated to him.38
[87] Mr Hall, who was also present at the meeting on 23 September 2014, corroborates
Ms Cheeseman’s evidence that Mr O’Connell was informed that he could not use the
Employer’s work vehicle.39 Further, Ms Cheeseman confirmed, in cross examination, that it
was Mr O’Connell who raised the issue of the motor vehicle, in the first instance.40
[88] It appears Mr O’Connell, evidentially, considers that as the correspondence of
23 September 2014 omits an instruction not to drive the Employer’s motor vehicle, it proves
he was not given a verbal instruction to the same effect. As I stated earlier the two matters are
separate and distinct.
[89] On the evidence, I am satisfied that Ms Cheeseman gave Mr O’Connell a lawful and
reasonable instruction on 23 September 2014 that he was not to drive the vehicle while being
stood down, except to go home that day. The instruction was consistent with a policy not to
allow employees access to vehicles while on leave. Further, it was consistent with
Mr O’Connell not having access to his mobile telephone and laptop and being directed not to
attend any of the Employer’s work sites.
34 Exhibit A2
35 Exhibit A5
36 Exhibit R12 (34)
37 Exhibit R12 (36)
38 Transcript PN241 and 243
39 Exhibit R12 (35)
40 Transcript PN779
[2015] FWC 7011
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[90] In conclusion having considered the evidence, I find that Mr O’Connell disobeyed a
lawful and reasonable direction by the Employer not to drive his allocated work vehicle on
23 September 2014, save to go home.
[91] I find that non-compliance with this lawful instruction, in totality with other matters,
provided a valid reason for the Employer to terminate Mr O’Connell’s employment.
Did Mr O’Connell drive recklessly on 26 September 2014 resulting in a complaint from
a member of the public? Further, did this driving behaviour have the potential to cause
serious and imminent risk to himself and other parties and also the reputation of the
Employer?
[92] The Employer received notification from a member of the public (Mr McCombe) that
one of its vehicles was being driven “erratically”. The driver of the vehicle was heading north
on the Kwinana Freeway, swerving in and out of lanes and may have been exceeding the
speed limit.41
[93] Mr O’Connell’s written evidence is to deny the allegation both on 13 October 2014
and in his Statement of Facts. Mr O’Connell does not deny that he was driving the vehicle
which was reported by Mr McCombe. Mr O’Connell states he is a safe and experienced
driver. Further, Mr O’Connell sought the “accuser’s” name, address and telephone number”,
to refer the matter to the Police to investigate and report on the issue.
[94] The incident occurred on 26 September 2014 after Mr O’Connell’s meeting with
Mr Hall and Ms Cheeseman. At that meeting, Mr O’Connell was given the first “show cause”
letter as to why his employment should not be terminated regarding the incident on
15 September 2014 at the National Sales Conference.
[95] Mr McCombe gave evidence to the Commission on what he observed relating to
Mr O’Connell’s driving on the Kwinana Freeway.
[96] Mr McCombe is also a sales person. He described Mr O’Connell’s driving as in the
“top 5 worst driving I have seen”.42 In Mr McCombe’s evidence, Mr O’Connell was
endangering other people’s lives. Mr McCombe telephoned the Employer immediately.
[97] Mr McCombe’s evidence was that he had been driving for over 46 years.43
[98] None of Mr McCombe’s evidence was disturbed in cross examination. In my view,
his evidence was honest, straightforward and to the point.
[99] Finally, I have considerable unease regarding the inference by Mr O’Connell that, for
the incident to have relevance to his dismissal, Mr McCombe should have reported the matter
to the Police. Mr O’Connell’s view is misplaced. Mr McCombe’s decision to refer the matter
to the Employer was for him to make. He made that decision within minutes of observing
Mr O’Connell’s driving on the Kwinana Freeway. Mr McCombe could have had no idea of
41 Exhibit R7 (Appendix 13)
42 Exhibit R3 (12)
43 Transcript PN1711
[2015] FWC 7011
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the circumstances which preceded the driving incident. Mr McCombe was sufficiently
concerned at Mr O’Connell’s behaviour to inform the Employer almost immediately.
[100] Mr O’Connell’s attempt to impugn Mr McCombe’s technical capacity to assess the
situation, failed in my view. Mr McCombe did not portray his evidence as that of an “expert”
but just a concerned motorist at somebody else’s driving.
[101] Having considered the evidence, I prefer the evidence of Mr McCombe as to what
happened on the Kwinana Freeway. On Mr McCombe’s evidence, I am satisfied that
Mr O’Connell’s driving, on the balance of probabilities, had the potential to cause risk to
himself and others. Further, in view of the employer’s signage on the vehicle,
Mr O’Connell’s actions had the propensity to cause a risk to Kleenheat’s reputation.
Did Mr O’Connell punch Mr Roberts in May 2005 at a previous sales conference in
breach of his employment obligations?
[102] Mr O’Connell’s Statement of Facts states that he does not recall the incident, however,
if there was such an incident it would have been “horseplay” and no malice intended.44
Further, Mr O’Connell’s evidence is that he has always had a good working relationship with
Mr Roberts.
[103] Mr Roberts’ evidence is that at the 2005 sales conference, Mr O’Connell, “without
warning punched me in the face” and “I didn’t see it coming. It was totally unexpected I don’t
know why he hit me”. Further, at the time, Mr Roberts held the impression that
Mr O’Connell wanted him to respond.
[104] Mr Roberts formed the view that if there was alcohol at a work function there was the
potential for Mr O’Connell to turn nasty. Mr Roberts subsequently avoided Mr O’Connell at
work functions if there was alcohol involved.
[105] I am satisfied, on the evidence, that Mr Roberts was punched by Mr O’Connell in May
2005. On Mr Roberts’ evidence, I am not satisfied that it was “horseplay”. However,
Mr Roberts’ evidence is that he did not report the matter. For this reason, and the fact that it
happened approximately 10 years ago, I am reluctant to endorse the Employer’s approach of
including this incident as a reason for Mr O’Connell’s dismissal. While the incident is
relevant in relation to Mr O’Connell’s overall behaviour as an employee, it is not recent.
[106] In any event, with respect to the other reasons set out for Mr O’Connell’s dismissal,
they are more than sufficient, as a valid reason, for the termination of his employment.
s.387(b) - notification of the reasons for termination of employment
[107] I am satisfied that from the Employer’s correspondence of 23 and 26 September and
9, 16 and 22 October 2014, that the Applicant was notified of the reasons which led to the
termination of employment.
44 Exhibit A2 – page 23
[2015] FWC 7011
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[108] In addition to this written communication, I am satisfied that the Applicant was aware
of the reasons leading to his termination of employment through his meetings with the
Employer on 23 and 26 September and 8 October 2014.
s.387(c) - opportunity to respond
[109] I am satisfied, on the evidence, that the Applicant had the opportunity to respond to
the alleged conduct that led to his termination of employment.
s.387(d) - support person
[110] I am satisfied that the Employer did not unreasonably refuse for Mr O’Connell to have
a support person present during discussions which eventually led to the Applicant’s dismissal.
Mr Lilleyman was present at discussions on 8 October 2014. In the Employer’s
correspondence of 16 October 2014, Mr O’Connell was invited to bring a support person to
the meeting on 20 October 2014 when he was to be advised of the outcome of the
investigation.
s.387(e) - unsatisfactory performance
[111] The precise reasons for Mr O’Connell’s dismissal relate to his conduct rather than his
performance as Business Representative. However, in its broadest sense, the performance of
an employee includes their conduct, especially how he or she interacts with their work
colleagues and other people they come into contact with.
[112] The Employer, in its submission to the Commission, raised a number of issues
regarding Mr O’Connell’s performance as an employee. These matters include Mr O’Connell
punching, in a nightclub, a person who was an employee of another company which was in a
joint venture with Kleenheat and who shared the same premises. Mr O’Connell agreed that
the incident occurred but he was responding to the other person. Mr O’Connell also agreed
that, in 2008, he received a written warning for transporting large gas cylinders in the
Employer’s sedan vehicle, contrary to safety regulations. Mr O’Connell agreed that, in 2013,
a female customer made a complaint against him for being aggressive towards her in her
home. Mr O’Connell could not explain why the customer made such a false allegation and
denied he was rude or aggressive towards her. Mr O’Connell also denied and/or cannot recall
that he said, “are you fucking mad” towards a member of the National Emergency Response
Group, who called him late at night and, subsequently, made a complaint to the Employer.
Finally, Mr O’Connell stated that some expense claims, raised by the Employer, were
explainable, and within its policy parameters.45
[113] It is not my role to determine each and every matter raised by the Employer regarding
Mr O’Connell’s performance. However, I am satisfied that Mr O’Connell’s history of work
performance does not sit comfortably with his submission that he had an “exemplary work
history”.46
45 Transcript PN 85 to PN 140
46 Exhibit A1 (3)(b)
[2015] FWC 7011
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s.387(f) - size of enterprise
s.387(g) - Human Resources
[114] The Employer is a relatively large organisation and has access to dedicated human
resources personnel. The investigation was conducted in a thorough and timely manner. The
Employer adopted a process in which: the allegation could be readily understood, the
Applicant given an opportunity to respond and advised of the findings.
s.387(h) - other matters
[115] While I am satisfied that the Employer has discharged its onus in relation to the
summary dismissal of an employee, I have considered whether, notwithstanding, the
Employer had a valid reason for dismissing Mr O’Connell, whether the dismissal was harsh,
unjust or unreasonable as explained by McHugh and Gummow JJ in Byrne v Australian
Airlines Ltd.47
[116] Mr O’Connell submits that the decision to terminate his employment was unjust
“because of the way Kleenheat conducted the investigation and I was not guilty of all the
alleged misconduct”48 (my emphasis). I am satisfied that the investigation was appropriate,
fair and timely. Mr O’Connell, in saying that he was “not guilty” of all the alleged
misconduct, concedes he was guilty of some of the allegations. Presumably, this differential
relates to the abusive language he used towards Mr Ritchie because he denied the remaining
allegation relating to his dismissal. I have set out my findings above in relation to all the
allegations, and it is not necessary to repeat them.
[117] Mr O’Connell submits that his dismissal was unreasonable because “the evidence
before Kleenheat does not support all of its conclusions, and my length of service (18+ years)
together with my exemplary work history”. My conclusions, on the evidence, together with
my observation of Mr O’Connell’s work history, are set out above.
[118] Mr O’Connell claims that his dismissal was harsh in that it was disproportionate,
together with the economic and personal circumstances he has suffered.
[119] The Applicant’s dismissal was not a case of “instant dismissal” but “summary
dismissal” after an investigation. The conduct of Mr O’Connell can be divided into three
parts. The first part is that Mr O’Connell deliberately, without provocation, engaged in 15 to
20 minutes of swearing, demeaning and torrid abuse of a work colleague.
[120] While all of what was said cannot be accurately set out, I am satisfied that it was
scornful and despising of a work colleague, and inconsistent with Mr O’Connell’s contract of
employment. His conduct was wilful and deliberate and continued, albeit, for a brief period,
after Mr Ritchie returned from his room. The volley of abuse was a verbal assault upon
Mr Ritchie of significant proportion.
[121] Faced with an investigation into his conduct, Mr O’Connell refused to accept a
reasonable and lawful direction not to drive his work vehicle, except home on 23 September
2014.
47 (1995) 18 CLR 410 at 465
48 Exhibit A1 (3)(a)
[2015] FWC 7011
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[122] In his submission, Mr O’Connell describes himself as having a “direct personality”.
Mr Smetana contextualised Mr O’Connell “as a person who was prepared to break the rules
when it suits”. Mr O’Connell rejected such a characterisation and gave evidence, “I try to
follow the rules to the best of my ability”.49
[123] In my view, Mr O’Connell’s evidence demonstrated that he does not break the “rules”,
it is a case that he is unmoved by them and subsequently attempts to explain his actions with
implausible explanations. For example, Mr O’Connell gave evidence that it was not a case of
disliking Mr Ritchie, but there is a “personality clash”50 and that he does not have any “ill
feelings” towards him51. Further, with respect to running his rental property business,
Mr O’Connell attempts to negate all the Employer’s evidence with a “deeming” argument; an
argument with no foundation.
[124] In the circumstances, I am satisfied that Mr O’Connell’s conduct was serious
misconduct.
[125] It is almost always the case that dismissal of an employee, including summary
dismissal, will result in economic and personal hardship. However, notwithstanding the
probable economic and personal hardship in an employee’s dismissal, including summary
dismissal, the FW Act and its Regulations envisage such circumstances.
[126] In the circumstances of this application, the problem for the Applicant is that he could
have avoided the consequences of his dismissal if he had a different approach to lawful
instructions, complied with policies and resisted the urge to tell Mr Ritchie what he thought of
him. While I have taken into account Mr O’Connell’s personal circumstances, I am unable to
conclude that the dismissal was a disproportionate penalty or that his personal or economic
circumstances are sufficient to warrant the termination of employment as being harsh.
CONCLUSION
[127] In conclusion, for the reasons set out above, I am satisfied that Mr O’Connell’s
dismissal from his employment was not unfair pursuant to s.387 of the FW Act. Accordingly,
the application must be dismissed. An Order to this effect is issued jointly with this Decision.
COMMISSIONER
49 Transcript PN251
50 Transcript PN311
51 Transcript PN317
[2015] FWC 7011
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Appearances:
A O’Connell, the Applicant, on his own behalf.
A Smetana, of counsel, on behalf of Wesfarmers Kleenheat Gas Pty Ltd.
Hearing details:
2015:
Perth,
21 and 22 May.
Printed by authority of the Commonwealth Government Printer
Price code C, PR572814
