1
Fair Work Act 2009
s.394—Unfair dismissal
Joseph Johnpulle
v
Toll Holdings Ltd T/A Toll Transport
(U2015/3547)
COMMISSIONER RIORDAN SYDNEY, 17 JUNE 2015
Application for relief from unfair dismissal.
This is the printed version of the ex-tempore decision handed down on transcript on 3 June
2015. Minor changes have been made to improve grammar and fluency. Minor editorial
changes have been made based on relevance and clarity.
[1] An application was lodged on 27 February 2015 in accordance with section 394 of the
Fair Work Act, 2009 (the Act) on behalf of Mr Joseph Johnpulle in relation to his dismissal
from Toll Holdings Limited, trading as Toll Transport (Toll) on 9 February 2015. Mr
Johnpulle commenced employment in 2008 and during the course of his employment there
were no relevant performance issues that have been raised. His dismissal revolved around an
incident which occurred on 7 January 2015 which, associated with three previous incidents in
2014, the company believed showed a total disregard for its policies and procedures and code
of conduct. Toll have labelled these actions as serious misconduct.
[2] Mr Guy a Legal Officer from the Transport Workers’ Union, represented Mr
Johnpulle in these proceedings, and Toll was represented by their internal Legal Counsel, Ms
Alam. It is fair to say that the evidence in this proceeding was highly contested. There are
very few agreed facts. The evidence which was sworn and attested by 13 witnesses was
contradictory between the evidence of Mr Johnpulle, Mr Monda, Mr Dasik, Mr Grampsas, Mr
Singh, Mr Penna and Mr Risteski compared to that of Mr Fath, Mr Touba, Mr Hewlett, Mr
Robinson, Mr Grant, and Mr Karzi.
[2015] FWC 3830 [Note: An appeal pursuant to s.604 (C2015/4453) was
lodged against this decision - refer to Full Bench decision dated 11 January
2016 [[2016] FWCFB 108] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2016FWCFB108.htm
[2015] FWC 3830
2
[3] If one wished to develop a conspiracy theory, it would not be hard in this case to say
that both sides were involved in fabricating evidence to meet the purposes of their case.
However, I make no such accusation.
[4] When dealing with matters of this nature, that is, an application of relief from unfair
dismissal, the Commission is obligated to take into account the objects of the Act. Section
381 of the Act says:
“(1) The object of this part is:
(a) To establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) To establish procedures for dealing with unfair dismissal that are:
(i) quick, flexible and informal; and
(ii) addresses the needs of employers and employees
(c) To provide remedies if a dismissal is found to be unfair, with an emphasis
on re-instatement.
(2) The procedures and remedies referred to in paragraph 1(b) and (c) in the matter of
deciding on and working out such remedies are intended to ensure that a “fair go all
around” is accorded to both the employer and the employee concerned.
[5] It goes on to note that:
“The expression “fair go all around” was used by Sheldon J in re Loty and Holloway
v Australian Workers’ Union [1971]”
[2015] FWC 3830
3
[6] The issue at hand is whether Mr Johnpulle knowingly made inappropriate comments
to Mr Karzi, one of his work colleagues, which could be regarded as racist, sectarian, and
inappropriate. If such comments were made by Mr Johnpulle, was termination of employment
the appropriate or fair disciplinary outcome. The statutory provisions which requires the Fair
Work Commission to make an assessment can be found in section 387 of the Act. The parties
separately took me to those provisions this afternoon. They are:
“s.387 Criteria for considering harness, etc”
(a) Whether there was a valid reason for the dismissal related to the person’s capacity
or conduct;
(b) whether the person was notified of that reason;
(c) whether the person was given an opportunity to respond to any reason related to
the capacity or conduct of the person;
(d) any reasonable refusal by the employer to allow the person to have a support
person present to assist in any discussion relating to dismissal;
(e) if the dismissal related to unsatisfactory performance with the person, whether the
person had been warned about that unsatisfactory performance before the dismissal;
(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;
(g) the degree to which the absence of dedicated human resource management
specialists in the enterprise would be likely to impact on the procedures followed in
effecting the dismissal; and
(h) any other matters that the Fair Work Commission considers relevant.
[7] As I said earlier, the evidence in relation to this matter is highly conflicted. On the one
hand, we have Mr Karzi indicating that Mr Johnpulle had made inappropriate comments in
relation to his religion, his race, and tried to attribute the universally acknowledged criticisms
of the conduct being undertaken in the Middle East to that of Mr Karzi and his heritage. Mr
Johnpulle denied all allegations, including the allegations of inappropriate comments being
made in 2014, and the inappropriate comments of 7 January 2015. I note that in all four
scenarios the comments were made with no additional witnesses.
[2015] FWC 3830
4
[8] The incident on 7 January, 2015, was captured on Toll’s CCTV footage. Unfortunately
the footage is quite poor and for obvious reasons does not have any audio. However, the
footage has been of benefit in establishing that Mr Johnpulle approached Mr Karzi, at which
point in time Mr Karzi walked away and sought out Mr Hewlett to make a complaint about
Mr Johnpulle’s conduct.
[9] Complaints were also made against Mr Karzi to Mr Hewlett during the investigation
of this matter. It is fair to say that certainly one complaint from Mr Monda in relation to the
comments of Mr Karzi and the subsequent and recent actions of Mr Karzi, also required
further investigation. I note that investigation did not take place. Whilst I accept that the
allegations attached to Mr Johnpulle and the alleged comments he made would be regarded as
being offensive, I also regard the comments attributed to Mr Karzi, that he made to Mr
Monda, as being equally offensive.
[10] In this situation it becomes very difficult for the Fair Work Commission to make an
assessment in relation to the veracity of each individual witness that appears in a proceeding
such as this. In many respects it boils down to an argument of “he said/she said”, to use the
vernacular. The Commission has to weigh up what has transpired, in accordance with the
principles enunciated in Brigginshaw, which introduces the balance of probabilities test.
[11] There are any number of decisions which have referred to this type of issue when it
goes to matters of conduct. In Qantas Airways Limited v Cornwall1 the Full Court of the
Federal Court said:
“The question is whether there was a valid reason. In general, conduct of that kind
would plainly provide a valid reason. However, conduct is not committed in a vacuum,
but in the course of the interaction of persons and circumstances, and the events which
lead up to an action, and those which accompany it, may qualify or characterise the
nature of the conduct involved.”
[2015] FWC 3830
5
[12] Mr Guy took me to the decision in Edwards v Giudice2 where Moore J said:
“The paragraph requires consideration of the validity of the reason when the reason
is, relevantly, based on the conduct of the employee. It is, in my opinion, difficult to
avoid the conclusion that the Commission is obliged in such circumstances to
investigate in the inquiry process contemplated by the Act whether the conduct relied
on occurred as a necessary step in the process of determining whether a valid reason
existed.
The reason would be valid because the conduct occurred and justified termination.
The reason might not be valid because the conduct did not occur or it did occur but
did not justify termination.”
[13] His Honour referred to section 170CG of an earlier Act.
[14] Perhaps the most often used quote in these sort of circumstances is set out in Byrne
and Frew v Australian Airlines, the comments of the joint judgment of McHugh and
Gummow JJ, where they said:
“It may be that the termination is harsh, but not unjust or unreasonable; unjust but
not harsh or unreasonable; or unreasonable but not harsh or unjust. In many cases
the concepts will overlap, thus the one termination of employment might be unjust
because the employee was not guilty of misconduct in which the employer acted. It
may be unreasonable because it was decided upon inferences which could not
reasonably have been drawn from material before the employer, and may be harsh
in its consequences for the personal situation of the employee, or because it is
disproportionate to the gravity of the misconduct in respect of which the employer
acted. Procedures adopted in carrying out the termination might properly be taken
into account in determining whether the termination thus produced was harsh,
unjust, or unreasonable.”
[2015] FWC 3830
6
[15] In this matter I share the view of Mr Grant that if Mr Johnpulle was guilty of this
conduct, that it would be a serious breach of the code of conduct, a policy of Toll, and would
warrant his termination. I concur with his statement under cross-examination that if Mr Karzi
was guilty of making comments in the manner which he has been accused, that such
comments would also warrant termination. The question at hand though is not that of Mr
Karzi, or what occurred in 2013 in relation to an incident between Mr Karzi and Mr Penna,
although it does have some relevance in this determination, but whether or not Mr Johnpulle
is guilty of breaching the code of conduct of Toll by making inappropriate comments.
[16] I find that Mr Johnpulle made comments to Mr Karzi on 7 January which caused him
distress and anxiety. I have no reason not to believe the evidence of Mr Karzi in relation to the
comments that he attributes to Mr Johnpulle on that day. As such, I find that there was a valid
reason for the termination of Mr Johnpulle (s.387(a)). I find that Mr Johnpulle was notified of
that reason (s.387(b)) and that Mr Johnpulle was given an opportunity to respond to the
reason in relation to his conduct (s.387(c)).
[17] I accept the evidence of Mr Hewlett that at the time that he interviewed Mr Johnpulle
that it was not part of a disciplinary process in relation to his termination, but a simple fact-
finding exercise. However, in saying that, if Mr Johnpulle had in fact requested a support
person to be present, it would have been appropriate for that to occur. However, I do not
regard the fact that a support person was not present to be a breach of section 387(d) of the
Act.
[18] The dismissal does not relate to unsatisfactory performance, so section (s.387(e)) is
not relevant. Toll is a large organisation (s.387(f)). The human resources department of Toll
was involved in this process, and the procedures that were followed were appropriate
(s.387(g)). Which leaves to me any other matter which the Fair Work Commission considers
relevant in relation to determining whether or not the dismissal was harsh, unjust, or
unreasonable (s.387(h)).
[2015] FWC 3830
7
[19] As indicated earlier, I believe that the investigation process was flawed in relation to
the lack of investigation, particularly in relation to the interview and statement of Mr Monda.
I also note that former Fair Work Commissioner, Mr Greg Harrison, was engaged to provide a
report on issues in this department, whilst not going to the precise issue of this application. It
is fair to say that there is some overlap in relation to the evidence that Mr Harrison had the
opportunity to look at the evidence that is before the Commission.
[20] However, I note that Mr Harrison did not have the opportunity to hear submissions
from the parties, or conduct an examination under oath of any of the witnesses. As such,
whilst I have read the report, the evidence that he has seen is not of the same standard or
quality as that which is currently before the Fair Work Commission.
[21] In final submissions, Ms Alam took me to the four allegations that were contained in
the show cause letter of January 16, 2015, and the termination letter of 9 February 2015 which
was signed by Mr Robinson on behalf of Mr Grant. The relevance of allegation 2, 3 and 4 are
important considerations in relation to determining whether or not the dismissal was harsh,
unjust, or unreasonable. It is fair to say that allegations 2, 3 and 4 contained comments that
are nowhere near the severity or inappropriateness of the alleged comments of January 7
2015. I also note that, these three issues, were all resolved by way of a shop floor resolution,
for want of a better term, where Mr Johnpulle had acknowledged the comments and indicated
that he would not make such comments again.
[22] It is fair to say that I do not accept that Mr Johnpulle has been forthright in relation to
the comments that he has allegedly made throughout the last 18 months of his employment.
But in saying that, that does not necessarily mean that the comments that have been made
necessarily lead to a determination that the dismissal was not harsh, unjust, or unreasonable.
[23] Since the 1970s and 1980s Australian workplaces have been forced to transition from
the old fashioned prejudicial Angelo-Saxon male domains. It is no longer appropriate for
employees to “stir up” or “take the Mickey” out of their colleagues based on their sex,
religion, culture or heritage in order to get a reaction. It appears to me that this is the type of
[2015] FWC 3830
8
conduct in which Mr Johnpulle has participated. He was under the misconception that he was
being funny or was looking for a reaction. In fact, he was just being stupid.
[24] The changes to Australian workplaces has followed the changes to Australian society
where multiculturalism, equal rights, and the Anti-Discrimination Act have forced these
changes to occur. Toll has a multicultural workforce, but it would appear that the concept of
multiculturalism has not evolved at the site. Rather than accepting and encouraging the
variety of cultures, beliefs and values of every employee, some employees have taken on a
role of intimidation, vilification, and harassment to try and assume some type of supremacy
for their faith or culture. Others have participated in this type of behaviour for personal
gratification. Such a practice is dangerous, divisive, and unproductive. Toll have
acknowledged that there is a hostile work environment which exists in their depot at
Erskineville. I am not convinced that the dismissal of Mr Johnpulle has done anything but
exacerbate that situation.
[25] I find the practice of going back to revisit settled disputes, issues and allegations to be
inappropriate and unfair. It fails the fair go test for an employee to be subjected to a form of
double jeopardy in relation to conduct which has been dealt with previously by management.
It is not fair or consistent for Toll to be able to ignore or claim that Mr Karzi’s involvement in
a matter in 2013 is settled and concluded, yet not provide the same courtesy to Mr Johnpulle.
I have taken this into account.
[26] As I said earlier, I believe there was a valid reason to terminate Mr Johnpulle. He
obviously made some comments on 7 January which were highly offensive and inappropriate
that resulted in Mr Karzi immediately going to see Mr Hewlett. Mr Hewlett claimed that Mr
Karzi was clearly upset and distressed, yet had no problem in sending him back to work
alongside Mr Johnpulle for the rest of his shift. Whilst I do not deny that Mr Karzi was upset
and undoubtedly disappointed that Mr Johnpulle had breached his word in relation to not
raising these issues on another occasion, his response to Mr Hewlett when asked if he was
right to go back to work was, according to Mr Hewlett’s notes:
[2015] FWC 3830
9
“Yep. No problem. I am okay.”
[27] To me that almost sounds jovial. It certainly does not show an employee who was
fearful or showed concern about working with Mr Johnpulle. In fact, I note that the rest of the
shift concluded with the two gentlemen working alongside each other and that they continued
to work alongside each other for some weeks until Mr Johnpulle was dismissed in February.
[28] Mr Robinson indicated, in his evidence, that he had the capacity to sign off on a first
and final warning. He also agreed that it would be appropriate for an employee to be given a
formal warning in relation to misconduct. Mr Johnpulle was not given a formal warning. In
relation to any form of a disciplinary process, Mr Johnpulle had been spoken to on two
occasions by his leading hand Mr Fath, a leading hand who has no direct control, in a
disciplinary sense, over Mr Johnpulle. It is a quantum leap from an informal verbal warning
for conduct which may be bordering on inappropriate, to being terminated for serious
misconduct when the company claims there is an escalation and continuation of inappropriate
conduct. I have taken this into account.
[29] Having found that it was inappropriate and unfair for Toll to rely on allegations 2, 3
and 4, as identified in the termination letter, I now seek to turn to the commentary in
allegation 1. The termination letter states that Mr Johnpulle’s explanation was not accepted
for the following reasons:
“When James Hewlett first questioned you a very short time after the incident as to
what had occurred, you firstly said you could not recall having a conversation with
Younas, then you said that you could not recall the content of that conversation.”
[30] These statements are contradictory. I find the behaviour of Mr Johnpulle in relation to
this interview to be outrageously inappropriate. It beggars belief to think that an employee
invited into a meeting some 30 to 45 minutes after a discussion which resulted in his work
colleague leaving the work area, would not recall at least some component of that discussion.
I have taken this into account.
[2015] FWC 3830
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[31] The letter then states:
“The CCTV footage at the time of the incident indicates that immediately before
Younas went to see James Hewlett, you approached Younas and faced up to him in a
confronting manner as he left the work space.” (my emphasis)
[32] Whilst that may be Mr Robinson and Mr Hewlett’s view of that incident whilst
viewing the CCTV footage, that is certainly not the view of Mr Karzi. Mr Karzi indicated that
there was no confrontation. He did not feel threatened or intimidated by the actions of Mr
Johnpulle. In fact, Mr Karzi testified, Mr Johnpulle was trying to calm him down and stop
him from becoming agitated as a result of the inappropriate comments that he had recently
made. I have taken into account the fact that no confrontation occured.
[33] Mr Robinson testified that a “key component” of his decision to recommend
termination was the fact that the TWU played such an active role in trying to get Mr Karzi to
withdraw his complaint. He accepted, under cross-examination, that he had made a huge
assumption in the termination letter;
“I am satisfied that if there had been no substance to Younas’s complaints against
you, the delegates would not have been so persistent in their attempts to have to deal
with the complaint.”
[34] It is clear that the union delegates knew that an incident had occurred and that it was a
reasonably serious incident. Whilst under re-examination Mr Robinson indicated that if he
had not made that assumption, he still may have landed on the decision to recommend
termination. We will never know. I rely on his original evidence that he regarded the TWU’s
involvement as a key component in his decision to recommend termination. I accept the
submissions of Mr Guy that such an assumption in relation to the actions of a third party is
grossly unfair to Mr Johnpulle. I have taken this into account.
[2015] FWC 3830
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[35] In determining this matter I have taken into consideration all of the evidence,
submissions, and conflicting reports of the parties. I have not gone into a detailed examination
of the evidence of each witness for obvious reasons, but have merely focused on what I regard
to be the relevant issues in this determination.
[36] Mr Karzi’s comments and conduct towards Mr Monda were equally offensive and
inappropriate. Having found that Mr Johnpulle has involved himself in a manner which
breached the code of conduct, I also find that Mr Karzi has allowed himself to be involved in
conduct which would also fall under the same description in relation to the code of conduct.
The lack of consistency in dealing with Mr Karzi compared to Mr Johnpulle is a relevant
consideration when trying to ascertain whether a termination is harsh, unjust, or unreasonable.
And I refer the parties to a decision of APS Group v O’Loughlin [2011] 209 IR 351. I have
taken this into account.
[37] Ms Alam took me to the decision of McQuinn v Alcoa, which is a recent decision of
the Full Bench of the Fair Work Commission. I note in that decision the conduct of the
employee concerned resulted in obscene and foul language being broadcast over a two-way
radio to members of the public. In my view that type of conduct can be distinguished from
this incident where inappropriate comments were made privately between two employees on
the shop floor.
[38] For the reasons stated I find that the dismissal of Mr Johnpulle to be harsh, unjust or
unfair. Mr Johnpulle was not given a formal warning for his ongoing conduct, nor was he
treated in a consistent manner. The decision to terminate was based on a flawed investigation
and unreasonable assumption. He was not afforded a fair go.
[39] In accordance with s.381(1)(c) of the Act, I order that Mr Johnpulle’s be reinstated,
with no loss of continuity of service. My calculations indicate that it is 16 weeks since Mr
Johnpulle was terminated. I note that Mr Karzi was without pay for three weeks as a result of
an incident in 2013. Mr Johnpulle deserves that penalty as well. In addition, I order that Mr
Johnpulle be denied a further six weeks pay as a result of the misconduct in breaching the
[2015] FWC 3830
12
code of conduct in using inappropriate language to Mr Karzi. That means that Mr Johnpulle
should receive a back payment of seven weeks of his ordinary pay, less any payment that he
has already received by way of a payment for notice (which I understand to be 4 weeks). I
also order that Mr Johnpulle be issued with a final warning. Such warning to remain on his
file for a period of 12 months.
[40] Mr Johnpulle’s conduct cannot be condoned in 2015. It is highly offensive and
inappropriate to insinuate or assert that one’s religion or culture can be generalised in the
manner in which occurred in January. I also believe that Mr Karzi should be issued with a
formal warning. Making comments about other religions, or comments in relation to the
supremacy of his religion, in the workplace, are also inappropriate and a breach of the policies
of Toll. I so order.
[41] I am concerned about the ongoing relationship which exists between the management
and the two different factions of employees at the Erskineville site. I would encourage the
parties to utilise the Fair Work Commission in accordance with its recently announced
capacity in relation to developing better workplaces (s.576(2)(aa)). I note that Hamberger
SDP and Booth DP have had a great deal of success in improving the productivity of a
number of organisations where there has been a level of distrust in the past between the
parties. Whilst this case is a little bit different, I am sure that there will be a Member of the
Fair Work Commission who will be able to assist the parties, if the parties wish to avail
themselves of that opportunity.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
Price code C, PR568097
1 [1998] FCA 865.
2 [1999] FCA 1836.
