1
Fair Work Act 2009
s.394—Unfair dismissal
Joseph Johnpulle
v
Toll Holdings Ltd T/A Toll Transport
(U2015/3547)
COMMISSIONER BISSETT MELBOURNE, 11 MARCH 2016
Application for relief from unfair dismissal - Application granted – Reinstated granted.
[1] Mr Joseph Johnpulle was employed by Toll Holdings Ltd T/A Toll Transport Pty Ltd
(Toll) in its warehouse at Erskineville. Mr Johnpulle commenced employment with Toll as a
dock hand in August 2010. Mr Johnpulle’s employment was terminated on 9 February 2015
for misconduct reasons.
[2] Mr Johnpulle says that he was unfairly dismissed and seeks reinstatement to his
position.
Background
[3] On 7 January 2015 Mr Johnpulle was working alongside Mr Younas Karzi. At about
4.30pm Mr Karzi left the workplace and approached Mr James Hewlett, the Operations
Manager – Imports (the area in which Mr Johnpulle and Mr Karzi both worked). Mr Karzi
complained to Mr Hewlett that Mr Johnpulle had made inappropriate comments to him with
respect to the Taliban. Mr Karzi then took a short break and returned to the workplace and
continued working alongside Mr Johnpulle.
[4] About 15 minutes after his conversation with Mr Karzi, Mr Hewlett spoke to Mr
Johnpulle about the incident. On 16 January 2015 Mr Johnpulle was given a formal letter of
allegations and asked to respond. The letter set out four allegations against him. Each of the
allegations was that, during working time, Mr Johnpulle engaged in behaviour contrary to
Toll Group’s Code of Practice – Workplace Behaviours.
[5] The first allegation related to the incident on 7 January 2015, the second allegation
related to an incident on 24 or 25 September 2014, the third allegation related to an incident in
early November 2014 (specific date unknown) and the fourth allegation related to an incident
on 19 or 20 November 2014.
[6] Each of the allegations set out the particular details of the conduct it was said Mr
Johnpulle had engaged in. Suffice it to say, for this decision, that the particulars of each of the
allegations were things Mr Johnpulle was alleged to have said to Mr Karzi.
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DECISION
E AUSTRALIA FairWork Commission
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[7] In his reply of 21 January 2015 Mr Johnpulle denied the allegations and said that Mr
Karzi ‘engages in talking politics, religion and his negative views on the western world.’ He
named a number of individuals who he said had issues in the past with Mr Karzi discussing
religion and politics in the workplace.
[8] Each of the named individuals was also spoken to as part of the formal investigation
into the allegations against Mr Johnpulle.
[9] On 9 February 2015 Mr Johnpulle was advised of the outcome of the investigation. It
was found that he had admitted to the first allegation and the second, third and fourth
allegations were substantiated. The conduct was considered to be a breach of the Toll Group
Code of Practice (Workplace Behaviours) and the Toll Group Workplace Behaviour Standard.
As a consequence Mr Johnpulle’s employment was terminated on that day. He was paid one
month’s wages in lieu of notice.
Was Johnpulle unfairly dismissed?
[10] I am satisfied that Mr Johnpulle is protected from unfair dismissal. I am also satisfied
and do find that he has been dismissed, the Small Business Code does not apply and the
dismissal did not relate to redundancy. In determining if Mr Johnpulle was unfairly dismissed
it is necessary to determine if his dismissal was harsh, unjust or unreasonable.
[11] The Fair Work Act 2009 (the Act) states:
(i) 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
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(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.
[12] I have considered each of these criteria in reaching my decision.
(a) a valid reason
[13] For the Commission to be satisfied that there is a valid reason for dismissal relating to
misconduct it is necessary that the Commission first determine, on the basis of the material
before it, if the misconduct occurred.
[14] In relation to the first allegation, which relates to the incident of 7 January 2015, I am
satisfied that there was an exchange between Mr Johnpulle and Mr Karzi. I accept the
evidence of Mr Hewlett that Mr Karzi approached him and that he was agitated by the
incident. Whilst he was not remonstrating with hand gestures this is no reason to accept that
what had occurred had not been upsetting. Different people react differently to such
situations. Mr Karzi’s evidence was that he tried to keep it inside.
[15] Mr Karzi’s evidence is that the following conversation took place between himself and
Mr Johnpulle:
Mr Johnpulle: Younas, does Islam say to kill?
Mr Karzi: No Joe, no religion gives anyone the right to kill any human.
Mr Johnpulle: Younas are you from the Taliban?
Mr Karzi: No.
Mr Johnpulle: How come?
Mr Karzi: Joe didn’t I tell you before not to talk about war, killings and Taliban.
Mr Johnpulle: Come on why are you upset? I am joking with you.
Mr Karzi: Joe I am fed up with your regular remarks about my racial background
and your accusations.
[16] Mr Karzi set out the details of the conversation in a letter to Toll on 12 January 2015,
five days after the incident. What he put in writing, whilst not exactly the same as the words
recorded by Mr Hewlett, is not different in substance from what he told Mr Hewlett had been
said to him.
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[17] Mr Johnpulle gave inconsistent accounts of what occurred on 7 January 2015 with his
answer developing a level of detail over time. I find Mr Johnpulle’s changing answers when
questioned about the incident to be of concern. When he met with Mr Hewlett on 7 January
2015 he said he could not recall a conversation he had less than 30 minutes earlier. Mr
Johnpulle along with his representative met with Mr Hewlett on 9 January 2015. Mr
Hewlett’s notes of that meeting indicate that Mr Johnpulle said that Mr Karzi had started the
conversation ‘relating to his origin and other worldly issues’ on 7 January 2015 and that Mr
Johnpulle said nothing and continued working.
[18] When Mr Johnpulle responded to the allegations on 21 January 2015 he says that he
could ‘vaguely recall’ that Mr Karzi was talking politics and saying how angry he was with
America and the Australian Army.
[19] In his written evidence Mr Johnpulle said that, on 7 January 2015, as they were
working on the belt together, he recalls Mr Karzi ‘discussing the American Army and their
involvement in the Middle East as well as the Australian Defence Force’s involvement.’ He
says that ‘Mr Karzi was asserting that the American Army was killing innocent people in
Arab countries and that the much publicised ISIS beheadings were actually performed by the
Americans.’ Mr Johnpulle says he attempted not to engage with Mr Karzi but continued with
his work.
[20] In his evidence to the Commission during the hearing of the application, Mr Johnpulle
said that he had gone blank in the meeting with Mr Hewlett on 7 January 2015. He said that
he was nervous and the first question asked of him upset him and he could not get beyond
that. He says that, as he thought of the incident he attempted to clear the air, so sought to meet
with Mr Hewlett on 9 January 2015. He said that in this meeting Mr Hewlett said the matter
had been referred to HR so he never got to say anything further.
[21] Mr Johnpulle agreed that he could remember the incident on 7 January 2015 much
better 10 days after it occurred than on the same day.
[22] The evidence of Mr Hewlett is that the file notes were taken by him at or typed up
shortly after the meeting. This statement by Mr Hewlett was not questioned and, given the
contemporaneous nature of the notes, I am prepared to accept them as a true and accurate
account of the meeting.
[23] I find the evidence of Mr Johnpulle on his nervousness and memory disingenuous. If it
was always Mr Karzi raising issues of politics and religion I do not understand why Mr
Johnpulle would be nervous when asked by Mr Hewlett if he had said anything about the
Taliban to Mr Karzi. In this respect I consider his memory loss on 7 January 2015 difficult to
comprehend. If, as he gave in evidence, Mr Karzi talks of such matters all the time and he just
shuts down he did not give this explanation to Mr Hewlett at the time or at any time prior to
the hearing of his application.
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[24] Following the report of the incident by Mr Karzi to Mr Hewlett, Mr Karzi had a
number of conversations over the next couple of days with union delegates on the site. The
substance of these conversations was reported to Mr Hewlett and Mr James Robinson,
National Operations Manager – Global for Toll. It appears that the union delegates attempted
to have Mr Karzi not formalise his complaint against Mr Johnpulle so that it could be dealt
with locally or by the union. Both Mr Hewlett and Mr Robinson recorded their discussions
with Mr Karzi or the delegates about his interaction with the delegates in file notes.
[25] Mr Ali Touba, a labour hire employee who works for Toll, gave evidence that in
January 2015 he had a conversation with Mr Johnpulle in which he asked Mr Johnpulle if he
had said anything to Mr Karzi abut ‘9/11 and that’. Mr Johnpulle answered that he had. Mr
Touba told Mr Hewlett of the conversation who made a file note of that conversation. Nothing
has been put to convince me that I should ignore the evidence of Mr Touba. Whilst he said he
had the conversation with Mr Johnpulle because he had heard he was saying things about
‘9/11’ I am satisfied that it would take little for whispers in the workplace to find a short hand
(albeit inaccurate) method of describing what had, in fact, taken place. Mr Touba’s evidence
cannot be dismissed because it was ‘understandably denied’ by him that his recollection of the
conversation was wrong.
[26] Mr Johnpulle said that the Commission should accept that Mr Karzi was the one
making the inappropriate comments based on his past behaviour. To this extent Mr Johnpulle
relied on evidence given by a number of workers at the site. For the reasons given below I do
not consider that the evidence of those employees provides any assistance to Mr Johnpulle’s
contention as to how the conversation proceeded on 7 January 2015.
[27] The standard of proof in a matter such as this is that I must be satisfied, on the balance
of probabilities, that the conduct complained of did, in fact, occur.
[28] I have taken into account all of those matters set out above. I have also taken into
account Mr Johnpulle’s emphatic denial under oath that he said any of these things to Mr
Karzi. On this question however I prefer the evidence of Mr Karzi to that of Mr Johnpulle. Mr
Karzi’s evidence is supported by the evidence and records of Mr Hewlett. My conclusion is
further supported by the evidence of Mr Robinson and Mr Touba. On the balance of
probabilities I am satisfied that Mr Johnpulle made inappropriate comments to Mr Karzi on
7 January 2015 with respect to the Taliban and its activities and, that in doing so, he implied
that Mr Karzi would have some knowledge or would have some sympathy with the activities
of the Taliban.
[29] In making the comments contained in the first allegation to Mr Karzi, Mr Johnpulle
caused Mr Karzi unnecessary distress. These were not unfortunate comments but were
designed to hurt Mr Karzi who has an Afghani background.
[30] Prior to determining if the conduct provided a valid reason for the dismissal of Mr
Johnpulle, it is necessary to say something of remaining allegations put to Mr Johnpulle.
[31] I am satisfied, on the basis of the evidence before me that the conduct in those further
allegations occurred. In this respect I prefer the evidence of Mr El Mostafa Fath to that of Mr
Johnpulle. I consider that Mr Johnpulle’s recollection of past events is not reliable. His ability
to recall events that occurred 30 minutes ago (as was the case on 7 January 2015) suggests
that his memory is convenient, at best.
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[32] However, the events of 2014 were dealt with by Toll at the time, albeit at a relatively
low level in the organisation. This is not a criticism but rather a reflection on a desire by Toll
to have matters dealt with as close to the workplace as possible. Having been dealt with, and
Mr Johnpulle having agreed that he would not engage in such conduct again, those incidents
cannot now be used to support a finding that there was a valid reason for the dismissal of Mr
Johnpulle. This does not mean that they are not relevant matters in determining if the
dismissal was harsh, unjust or unreasonable and are proper matters to be considered in that
context, but they are not relevant at this point of the decision making.1
[33] For a reason for dismissal to be valid it must be ‘sound, defensible and well-founded.’
[34] Toll has a Code of Practice (the Code). The Code says, of workplace behaviours that
employees should treat everyone in line with Toll’s values of integrity and trust and
employees should never discriminate, harass, verbally abuse, bully, or victimise others. It also
says, that equal opportunity and diversity is about treating employees and potential employees
fairly and equitably regardless of age, nationality, race, gender, political views…religious
beliefs…personal associations or cultural background.’ The Code indicates that breaches of it
may lead to a variety of outcomes including further training through to termination of
employment.
[35] The Toll Group Workplace Behaviours Policy and Standard reinforce the Code.
[36] I am satisfied that Mr Johnpulle was aware of the Code, the Policy and Standard. Even
if he was not aware, social norms dictate compliance with standards such as those. I am
satisfied that the Code establishes fair and reasonable workplace standards. There is nothing
obscure or novel in them such that a lack of detailed examination and training in them could
lead to some inadvertent breach. Mr Johnpulle is bound to observe the policies of Toll
including the Code. This much is clear from his contract of employment. That the policies do
not form part of his contract does not alter the obligation placed on Mr Johnpulle with respect
to those policies.
[37] By his actions Mr Johnpulle’s treatment of Mr Karzi could not be said to comply with
the Code, Policy or Standards. Mr Johnpulle’s actions were designed to harass, vilify and
victimise Mr Karzi. Those things he said to Mr Karzi were unnecessary and attempted to
stigmatise Mr Karzi. They demonstrated a total disregard for Mr Karzi for no reason except
that he thought he was having a bit of fun.
[38] There is no excuse for the conduct of Mr Johnpulle. It was intended to hurt and offend
and could not, in anyone’s view, be considered a joke.
[39] Having found that the conduct did occur I am satisfied that it was a valid reason for
the dismissal of Mr Johnpulle.
(b) notified of the reason
[40] I am satisfied that Mr Johnpulle was notified of this reason (along with others) for his
dismissal prior to the decision being made to dismiss him.
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(c) an opportunity to respond
[41] Mr Johnpulle was provided with a letter of allegations (the show cause letter) on
16 January 2015. He was given until 20 January 2015 (extended to 21 January 2015) to
provide his response to the letter. Mr Johnpulle provided his response on 21 January 2015 and
this was considered by Toll prior to a decision being taken to terminate his employment.
[42] Mr Hewlett, who undertook the investigation into the incident, provided a report to
both Mr Robinsons and Ms Emilia Cvetkovic of Toll HR and recommended to them that Mr
Johnpulle’s employment be terminated. They agreed with his recommendation and Mr
Robinson and Ms Cvetkovic subsequently made this recommendation to Mr Cameron Grant,
General Manager – International Operations.
[43] Mr Grant determined that Mr Johnpulle’s employment be terminated. This was
conveyed to Mr Johnpulle on 6 February 2015.
[44] Mr Johnpulle says that he was not given an opportunity to respond to the evidence
relied on by Mr Grant, in particular, the CCTV footage or the evidence of Mr Touba.
[45] I agree that he was not given an opportunity to respond to these two matters. It is my
opinion that, in the course of the investigation it would have been prudent to put these matters
to Mr Johnpulle. Of course the CCTV footage does not provide any evidence as to what was
said between Mr Johnpulle and Mr Karzi but does provide the movement around the incident.
The statement of Mr Touba was important in Mr Grant reaching his decision. I have taken this
failure into account in reaching my decision as to whether the dismissal was harsh, unjust or
unreasonable.
[46] In all other respects I am satisfied that Mr Johnpulle was given an opportunity to
respond to the reason for the termination of his employment before the decision was taken to
do so.
[47] I take nothing from the fact that Mr Grant did not physically meet with Mr Johnpulle
before he made the decision to terminate his employment.
(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
[48] Mr Johnpulle says that, at the meeting of 7 January 2015, on the day of the incident, he
was refused access to a support person. There is no complaint by him that such support was
refused at any subsequent meeting. Mr Hewlett says Mr Johnpulle never asked for a support
person.
[49] It is agreed that at all other meetings Mr Johnpulle had with respect to the incident he
had a support person with him.
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[50] I prefer the evidence of Mr Hewlett to that of Mr Johnpulle as to whether Mr
Johnpulle asked for a support person at the meeting on 7 January 2015. By Mr Johnpulle’s
own evidence he always takes a delegate with him to meetings with management. He clearly
is aware of his right to do so. It is not explained why, on this occasion, if he did seek and was
denied access to a support person, he would have continued with the meeting.
(e) dismissal in relation to performance
[51] Mr Johnpulle’s dismissal was not related to performance. This is not a matter I need to
consider.
(f) & (g) 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 the impact of the absence of dedicated
human resource management specialists or expertise in the enterprise
[52] Toll is a large enterprise. It has well established human resource policies and practices
and has dedicated human resource experts. It also clearly has well developed procedures for
dealing with matters involving misconduct of employees.
[53] There is certainly no latitude to be given to Toll in the procedures it adopted in dealing
with the dismissal because of its size.
[54] There is no substantive criticism to be made of the procedures adopted by Toll. Mr
Hewlett is to be commended for maintaining detailed file notes of the initial incident and all
the followed from that, it is evidence of good practice.
[55] My only criticism is that, whilst Mr Hewlett signed the letter of termination on behalf
of Mr Grant, it would be better if Mr Grant had himself signed the letter or, if for good reason
he could not, that a person other than Mr Hewlett, who a had undertaken the investigation,
should have done so.
[56] Overall however, I consider both of these matters neutral in my consideration.
(h) any other matters that the FWC considers relevant
[57] There are a number of other matters that it is relevant I consider before determining if
the dismissal was harsh, unjust or unreasonable.
The second, third and fourth allegations of the letter of 16 January 2015
[58] I have found above that the matters contained in the second, third and fourth
allegations of the letter of 16 January 2015 were not relevant to a determination as to whether
or not there was a valid reason for the dismissal. That does not mean that they are not matters
which I might take into account in reaching my final conclusion as to whether the decision to
dismiss was harsh, unjust or unreasonable.
[59] Mr Johnpulle denied that he had engaged in any of the conduct set out in these
allegations. In his letter in reply to the letter of allegations of 21 January 2015 Mr Johnpulle
said that Mr Karzi should have complained to management on the first or second occasions
raised in the complaint if these things did actually happen.
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[60] Mr Fath, in his evidence, says that on two occasions in 2014 he dealt with Mr
Johnpulle making inappropriate comments to Mr Karzi along similar lines to those made on
7 January 2015. On both occasion Mr Johnpulle undertook not to say such things to Mr Karzi
again. On one of the occasions Mr Fath says he wanted to raise the matter with his manager
but was convinced by a co-worker to deal with it locally which he did. He considered the
matter dealt with when Mr Johnpulle agreed not to say such things again. Beyond this he says
he had not had complaints with respect to Mr Johnpulle again in respect to such comments
although had received complaints as to Mr Johnpulle’s performance.
[61] Mr Karzi’s evidence is that after the second incident he went to see Mr Hewlett
however, he was out and spoke to Mr Fath instead. He says that while Mr Johnpulle had
agreed not to say such things again, when he did for a fourth time on 6 January 2015 Mr Karzi
took the matter to Mr Hewlett.
[62] I am satisfied that these earlier incidents occurred. Mr Fath was steadfast in his
evidence as to the events and as to what he understood to be correct behaviour in the
workplace. There are no grounds on which to doubt his evidence.
[63] Mr Johnpulle’s comment that Mr Karzi should have complained about the incidents,
suggesting Mr Karzi did nothing about them, is not borne out by the facts. Mr Karzi sought to
have Mr Johnpulle stop making the comments to him by going to his leading hand. He
believed this was the appropriate place to get the matters resolved and thought they had been
when Mr Johnpulle agreed not to make such comments again.
[64] These incidents do show a pattern of behaviour of Mr Johnpulle that is, in a modern
workplace, unacceptable and disrespectful. It is no joke to make comments of the sort Mr
Johnpulle made. This pattern of behaviour is not one that could, or should, be ignored.
Mr Karzi’s past conduct
[65] During the conduct of the investigation into the 7 January 2015 incident a number of
witnesses say they raised matters with Mr Hewlett in relation to how Mr Karzi behaves in the
workplace but that nothing was done about it.
[66] Mr Tome Risteski says that Mr Karzi said the twin towers attack was carried out by
the Americans; the CIA use Taliban to stage suicide bombings; that America was involved in
the downing of an aeroplane and that he questioned another employee – Mr P – as to why he
had joined the army to fight in the Middle East. Mr Risteski said he did not know exactly who
made the comment to Mr P as he had his back to the conversation but says that Mr P
complained to Mr Hewlett who did nothing about it.
[67] Mr Ace Pena gave evidence that there was an incident involving him and Mr Karzi in
October 2013 in which he considered Mr Karzi had threatened his safety. Mr Karzi was stood
down while the matter was investigated. Whilst in his written evidence Mr Pena said nothing
happened with his complaint, he agreed that he had been advised the outcome of the
investigation in late 2013. Mr Pena said he has had limited interaction with Mr Karzi since
2013.
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[68] Mr Pena said that Mr Karzi regularly expressed views on politics and religion in the
workplace including stating that one day the majority of the population would be Muslim and
questioning why Australia was involved in the Middle East.
[69] Mr Kristian Dasik said Mr Karzi had made a number of statements to him in relation
to orthodox religion, made pro-Russian and anti-American statements and said that there
would be a big war coming soon. These were discussed in the meeting with Mr Hewlett
although Mr Dasik indicated he was not bothered by them.
[70] Mr Sanjev Singh said Mr Karzi had said to him that Islam was the only religion and all
others were incorrect. He advised Mr Hewlett that Mr Karzi was always discussing religion
and politics. Mr Singh has had little or no interaction with Mr Karzi since mid-2014.
[71] Mr Theo Grampsas said he had overheard Mr Karzi say to other workers that Australia
should not be in the Middle East and heard that he had asked another employee why he
wanted to join the army and kill people in the Middle East although was not a direct witness
to the conversation.
[72] Mr Tony Monda said that on many occasion Mr Karzi spoke to him of the war in the
Middle East, religion and politics including that within fifty years Muslims would rule the
world, comments with respect to the Lindt café and that he did not like how Australian
women dressed. Mr Monda raised his concerns at what Mr Karzi said to him with Mr
Hewlett. Mr Monda says that when he asked Mr Karzi to stop talking to him of such things
Mr Karzi did stop but that he heard him speak to others of such matters. He also said that Mr
Karzi walked behind his back hissing.
[73] Most of these witnesses gave evidence that they never raised issues with Mr Karzi
with management because nothing was done when complaints were made.
[74] Mr Hewlett’s notes of the meetings he had with the witnesses indicate that some of
them did mention that Mr Karzi spoke of matters in relation to religion and politics to his co-
workers. Mr Hewlett’s notes of those meetings indicate direct complaints only from Mr
Monda and Mr Pena which appear an accurate record of what the individuals said was
happening in the workplace.
[75] Mr Hewlett was asked why nothing was done of the allegations raised in respect to Mr
Karzi’s conduct during the investigation into Mr Johnpulle. Whilst initially Mr Hewlett said
no-one else had witnessed the incidents, on reflection he said that a number of the matters
had, in fact, not been raised with him and that, if they had been, he would have made note of
them.
[76] On balance I am satisfied that some general matters were raised with Mr Hewlett (eg
Mr Karzi spoke of religion and politics in the workplace) along with the specifics in relation
to Mr P who had joined the army, Mr Monda’s complaint regarding hissing and Mr Pena’s
gut feeling.
[77] Mr Hewlett gave evidence that he followed up with Mr P as to the comments said to
have been made by Mr Karzi but Mr P did not consider this an issue. I am satisfied that Mr
Hewlett did not follow up on the hissing matter. It is difficult to understand why Mr Hewlett
would follow up on that one matter but not others where specific concerns had been raised.
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Even where matters were general in nature they did warrant some investigation into Mr
Karzi’s conduct.
[78] As to the complaint that Mr Karzi’s conduct had not been raised earlier because
management did not do anything about complaints, this is not borne out by the facts. The
complaint of Mr Pena was investigated and it seems that Mr Monda’s issues were followed
through at the time they were raised. Mr Hewlett also looked into the matter involving Mr P
who joined the army and Mr Karzi’s complaint of 7 January 2015 was also investigated. The
evidence suggests the opposite of what the witnesses said at least in relation to specific
matters. When specifics were raised they were investigated.
[79] I am satisfied that the union delegates did speak to Mr Karzi in an attempt to resolve
the complaint at the shop floor level (without involving HR). That talk was occurring in the
workplace however is evident from what was observed by Mr Hewlett and Mr Robinson. To
this extent the actions of the delegates suggests that they did know that matters would be
investigated should they be formalised to Mr Hewlett, contrary to the statements made by
witnesses that complaints are not investigated if they are raised with Mr Hewlett.
[80] I am satisfied that Mr Karzi did, at times, speak to his co-workers of religion and
politics. I am satisfied however that when he was specifically asked to stop he did so. It seems
to be however that some reinforcement of the policies that apply in the workplace would be
warranted for all employees. Whilst Mr Karzi may not think he is offending others by his
comments (innocuous as they may seem), references to religion and politics are matters more
likely to offend or stir up passions (perhaps along with sport) in the workplace more.
Industrial action post dismissal
[81] There is evidence that, following the decision to dismiss Mr Johnpulle, members of
the Transport Workers Union (TWU) took industrial action to protest the decision. Related to
this an investigation was undertaken by Mr Greg Harrison (a previous Commissioner of the
Fair Work Commission). I do not consider this matter or report relevant to the matter before
me and have not had regard to either the action taken or the report except to say that it does
support my finding that Mr Karzi did speak of religion and politics in the workplace.
Effect of dismissal on Mr Johnpulle
[82] The effect of his dismissal has been severe on Mr Johnpulle. He was the sole
breadwinner for his family and has the care of his aging father.
[83] Mr Johnpulle is 58 years old and, whilst he has attempted to find work, at the time of
hearing, had not secured any employment.
Both remained working together
[84] Immediately following the incident of 7 January 2015, after Mr Hewlett had spoken to
both Mr Karzi and Mr Johnpulle, both employees returned to work and continued to work
alongside each other and both remained at work during the investigation.
[85] That neither employee was stood down (in contrast to Mr Karzi having been stood
down while the incident between him and Mr Pena was investigated) suggests that
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management did not see the incident to be so inflammatory that action should be taken to
ensure their paths did not cross. It is further surprising that management took no action to
protect Mr Karzi from what it says now was behaviour of the delegates to force him to
withdraw or not proceed with his complaint.
Conclusion as to harsh, unjust or unreasonable
[86] Mr Johnpulle knew that language, of the type he used on 7 January 2015, was
unacceptable. He had been told at least twice that he was not to speak that way to Mr Karzi
and had, both times, agreed it would not happen again. The evidence and my findings indicate
that it did happen again.
[87] Mr Johnpulle was aware of the standards of conduct in the workplace. He had
disregard for these policies and, in doing so has caused a level of distress to a co-worker.
[88] That Mr Karzi may have engaged in inappropriate discussions at work does not excuse
Mr Johnpulle or the seriousness of his action.
[89] My decision in this matter has been very carefully considered. The evidence suggests
that there is either a lack of awareness by Mr Johnpulle of appropriate workplace conduct or a
disdain of the need to treat others at work with respect and to be sensitive to cultural, religious
and ethnic backgrounds. It seems to me that these are matters which require regular
reinforcement in a diverse workforce. Just as Mr Johnpulle would be appalled if his co-
workers made assumptions about his background, so he must understand that it is totally
inappropriate to make assumptions about others.
[90] Cultural and ethnic awareness however are not things that happen by the writing of
policies. It is through training and raising and discussion of issues that knowledge is gained,
understanding is reached and tolerance found.
[91] I have very carefully considered Mr Karzi’s past conduct and the actions taken in
respect to it.
[92] I have also carefully considered Mr Johnpulle’s past conduct and actions that have
been taken in respect to it. It is my strong view that appropriate formal disciplinary action
should have been taken against Mr Johnpulle in the past so that he was fully aware that his
conduct, should it persist, would not be tolerated. But, by its actions, Toll has not provided
such an indication. While its Code may be clear on what is tolerable, this is undermined if
such behaviour continues to be tolerated by inaction or mild rebuke. Mr Fath should have
reported Mr Johnpulle’s conduct to more senior management in November 2014.
[93] I have also carefully considered Mr Johnpulle’s service, his age and the impact of the
decision to terminate his employment on him.
[94] In all of these circumstances and after careful consideration I am satisfied that the
decision to terminate Mr Johnpulle’s employment was harsh for the personal consequences of
it for him and because of the severity of the punishment when little has been done with
respect to his past behaviours. Whilst I do not say that Toll condone the behaviour of Mr
Johnpulle I consider that the decision to dismiss is severe given the absence of any earlier
[2016] FWC 1507
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sanctions. In circumstances where the personal effect of the decision to terminate employment
had not been so sever my decision may well have been different.
[95] Mr Johnpulle and those who have supported him in this matter should not feel
vindicated by my decision. Conduct such of that displayed by Mr Johnpulle must be called
out. Employees engaging in such conduct must be warned that the conduct is not acceptable
and further conduct of that type may lead to dismissal.
Unfairly dismissed
Having reached the conclusion that Mr Johnpulle’s dismissal was harsh I therefore find that
his dismissal was unfair.
Remedy
[96] Having found that Mr Johnpulle was unfairly dismissed I must now determine remedy.
Mr Johnpulle seeks reinstatement. Toll says that it has no confidence that Mr Johnpulle would
not engage in the same misconduct should he be returned to the workplace.
The Act states:
(i) 391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at
the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed
immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less
favourable than those on which the person was employed immediately
before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the
dismissal is no longer a position with the person’s employer at the time of
the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity
of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed
immediately before the dismissal; or
[2016] FWC 1507
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(d) appoint the person to another position on terms and conditions no less
favourable than those on which the person was employed immediately
before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do
so, the FWC may also make any order that the FWC considers appropriate to
maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if
subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do
so, the FWC may also make any order that the FWC considers appropriate to cause
the employer to pay to the person an amount for the remuneration lost, or likely to
have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the
FWC must take into account:
(a) the amount of any remuneration earned by the person from employment or
other work during the period between the dismissal and the making of the order
for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the
person during the period between the making of the order for reinstatement and
the actual reinstatement.
[97] Mr Hewlett, Mr Robinson and Mr Grant all gave evidence that they do not believe Mr
Johnpulle should be returned to the workplace as each said he had lost trust and confidence in
Mr Johnpulle to act in accordance with the required standards of employees of Toll.
[98] I have given Mr Grant’s evidence in respect to this matter little weight. He does not
know Mr Johnpulle and has met him briefly once. His views are an apparent reflection of the
views of Mr Hewlett and Mr Robinson although I accept that he takes any breach of Toll
policies seriously. Had Mr Grant had greater hands on involvement in the process leading to
Mr Johnpulle’s dismissal I might have given more weight to his views.
[99] I find the resort to a loss of trust and confidence as a statement as to why a dismissed
employee should not be reinstated formulaic, as if a recitation of the phrase is evidence of it
as a fact.
[100] There is no evidence that reinstatement would cause general disruption in the
workplace. Mr Karzi was not so distraught or fearful of Mr Johnpulle following the incident
that he could not return to work with him. Any claims he makes as to concern about Mr
[2016] FWC 1507
15
Johnpulle are diminished by his willingness to return to work with him straight away. I do
note however that events following the termination of Mr Johnpulle’s employment where
union members took industrial action may have had some impact on Mr Karzi.
[101] Mr Hewlett’s concern with Mr Johnpulle returning to work seems to relate to concerns
it would create an environment of hostility. It is not evident, beyond some industrial action
having been taken in the workplace in relation to the termination of Mr Johnpulle’s
employment, what this hostility is. It does not appear grounds to refuse reinstatement
[102] Mr Robinson outlined in some more detail the concerns he would have with the
reinstatement of Mr Johnpulle to his work team but agreed that there were other work areas in
which he could be placed at the Erskineville site.
[103] Whilst I acknowledge the real concerns of Toll as to what message is sent if Mr
Johnpulle is reinstated I do not believe this to be insurmountable.
[104] Consideration of whether to order for reinstatement requires a fine balancing act
between the dictates of the Act (compensation should only be considered if it is deemed that
reinstatement is not appropriate), the circumstances of the individual, the views of the
business and some general assessment of the impact of reinstatement to the business and other
employees. I have carefully considered each of these matters and have decided to order the
reinstatement of Mr Johnpulle with Toll.
[105] In accordance with the requirements of the Act I shall order the Mr Johnpulle be
reinstated by appointing him to another position in a different work area on terms and
conditions no less favourable than those on which he was employed immediately before the
dismissal.
[106] I shall also order that the continuity of his service and continuous service with Toll
should be maintained.
[107] I am prepared to order that Mr Johnpulle should be paid an amount for remuneration
lost since the time of his dismissal. I am not satisfied that this should reflect the entire period
that he was without pay and shall reduce this amount by 3 months’ pay. In order to do so the
parties should confer with a view to reaching agreement about any remuneration Mr Johnpulle
has received through other employment wince the time of his dismissal.
[108] The parties are required to confer on as to what refresher training it may be necessary
for Mr Johnpulle to undertake as part of a return to the workplace (given his extended
absence) Toll should advise of the location/work area Mr Johnpulle will return to.
[109] I do not consider that Mr Johnpulle’s conduct should go without some sanction by Toll
but this is a matter it must consider and not something I can properly order. Further, in
ordering the reinstatement of Mr Johnpulle it is my recommendation that Toll ensure he is not
placed to work in an area where he may come into contact with Mr Karzi.
[2016] FWC 1507
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[110] The parties may apply for a variation to the order should this be necessary to ensure it
can be properly effected.
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