1
Fair Work Act 2009
s.394—Unfair dismissal
Mark Sayers
v
CUB Pty Ltd
(U2015/15099)
DEPUTY PRESIDENT CLANCY MELBOURNE, 26 MAY 2016
Application for relief from unfair dismissal – offensive language – verbal abuse – racial
abuse – threats of violence.
[1] Mr Mark Sayers has applied under s.394 of the Fair Work Act 2009 (Cth) (FW Act)
for reinstatement in relation to his dismissal on 13 November 2015 from his employment as a
Warehouse Employee with CUB Pty Ltd.
[2] CUB terminated the employment of Mr Sayers on the ground of serious misconduct,
alleging that he behaved in a manner that was in breach of the CUB Code of Conduct and
Anti-Harassment, Bullying and Discrimination Policy (CUB Policy) by verbally and racially
abusing and making threats of violence against other CUB employees, during an altercation in
the Stores area of CUB’s Abbotsford Brewery on 13 October 2015.
[3] The misconduct relied upon included:
a) Using offensive language towards another CUB employee, Mr Darren Barmby
by saying words to the effect “where are the fucking tickets? Why didn’t you bring
the fucking tickets over?”;
b) Verbally abusing a second CUB employee, Mr German Mansilla, by saying
words to the effect “Where are the fucking tickets? Why didn’t you bring the fucking
tickets over? Fuck you mate. Fucking cunt. You are nothing but a lazy cunt. Nobody
likes you anyway you lazy cunt. Nobody liked you in the warehouse.”;
c) Racially abusing Mr Mansilla by saying words to the effect “You are nothing
but a dirty gringo cunt.”;
d) Making threats of violence to Mr Mansilla by saying words to the effect “Any
place, any time, you name it you are going down. Wait until tomorrow and I’ll fix
your red wagon.”; and
e) Intimidating and threatening Mr Mansilla as they left work after the incident
by saying words to the effect “I do whatever I fucking want in this company.”
[2016] FWC 3428 [Note: An appeal pursuant to s.604 (C2016/4150) was
lodged against this decision - refer to Full Bench decision dated 30 August
2016 [[2016] FWCFB 5499] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/decisionssigned/html/2016FWCFB5499.htm
[2016] FWC 3428
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Protection from unfair dismissal
[4] An order for reinstatement or compensation may only be issued where I am satisfied
Mr Sayers was protected from unfair dismissal at the time of the dismissal.
[5] Section 382 of the FW Act sets out the circumstances that must exist for Mr Sayers to
be protected from unfair dismissal:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with
his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the
employment;
(iii) the sum of the person’s annual rate of earnings, and such other
amounts (if any) worked out in relation to the person in accordance with
the regulations, is less than the high income threshold.”
[6] There is no dispute, and I am satisfied, Mr Sayers has completed the minimum
employment period and was covered by the CUB Pty Ltd Abbotsford Brewery Enterprise
Agreement 2015-2018. Consequently, I am satisfied Mr Sayers was protected from unfair
dismissal.
[7] Section 396 of the FW Act requires me to decide four specified matters before the
merits of the application may be considered.
Whether the application was made within the period required in subsection 394(2)-s.396(a)
[8] Mr Sayers’ employment was terminated on 13 November 2015 and his unfair
dismissal application was received by the Commission on 16 November 2015. As such, I am
satisfied that Mr Sayers made his application within the required 21 day period in s.394(2) of
the FW Act.
Whether the person was protected from unfair dismissal – s.396(b)
[9] As outlined in paragraph [6] above, I am satisfied Mr Sayers was protected from
unfair dismissal. This is not in dispute.
Whether the dismissal was consistent with the Small Business Fair Dismissal Code – s.396(c)
[2016] FWC 3428
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[10] CUB is not a small business employer within the meaning of s.23 of the FW Act. It is
not disputed and I find that the Small Business Fair Dismissal Code does not apply.
Whether the dismissal was a case of genuine redundancy – s.396(d)
[11] It is not disputed and I find that this is not a case of genuine redundancy.
[12] I must now consider if the dismissal of Mr Sayers by CUB was unfair within the
meaning of the FW Act.
Was the dismissal unfair?
[13] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the
circumstances set out at s.385 of the FW Act existed. Section 385 provides the following:
“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) the dismissal was not consistent with the Small Business Fair Dismissal
Code; and
(d) the dismissal was not a case of genuine redundancy.”
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 3
Was the Applicant dismissed?
[14] A person has been unfairly dismissed if the termination of their employment comes
within the definition of “dismissed” for the purposes of Part 3–2 of the FW Act. Section 386
of the FW Act provides:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on
the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do
so because of conduct, or a course of conduct, engaged in by his or her
employer.”
[15] As outlined above, on 13 November 2015, CUB terminated Mr Sayers’ employment
(s.385(a) of the FW Act).
[2016] FWC 3428
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[16] No issue was raised in relation to ss.385(c) and (d) of the FW Act and I reiterate my
findings at paragraphs [10]-[11] above.
Harsh, unjust or unreasonable
[17] I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable
within the meaning of s.385(b) of the FW Act.
[18] The criteria I must take into account when assessing whether the dismissal was harsh,
unjust or unreasonable are set out at s.387 of the FW Act:
“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.”
Commission proceedings
[19] Mr Sayers gave evidence and Mr Fabio Pamich, CUB Forklift Driver, also gave
evidence on his behalf. Both made a statement of evidence and Mr Sayers also made a
statement in reply. Both were cross-examined on their statements.
[20] The following witnesses gave evidence on behalf of CUB:
Mr German Mansilla – CUB Forklift Driver;
[2016] FWC 3428
5
Mr Darren Barmby – CUB Storeman;
Mr Brenton Duthie – CUB Storeman;
Mr Edwin Lee – CUB Logistics Manager at the relevant time;
Mr Gary Woodburn – CUB General Manager – Southern Operations;
Ms Catherine Vickers – CUB HR Business Partner; and
Ms Angela Gault – CUB Raw Materials Scheduler.
[21] Each of the CUB witnesses made a statement of evidence and, with the exception of
Ms Gault, were cross-examined on their statements.
[22] Both parties relied on written submissions filed prior to the hearing and written
submissions were filed following the conclusion of it.
Employment Background of Mr Sayers
[23] Mr Sayers commenced employment as a forklift driver with CUB in 2000. He was
initially based at the CUB Distribution Centre in Altona and in 2003 transferred to the
Abbotsford brewery site as a Warehouse Employee. In 2008, he was transferred to the Carton
store.
[24] While CUB initially produced correspondence from 20011 to dispute Mr Sayers’ claim
that he had an unblemished work record, this was not pressed at the hearing.2
[25] During 2005, Mr Sayers became a delegate for the Construction, Forestry, Mining and
Energy Union (CFMEU). He was then the CFMEU senior site delegate from 2006 until mid-
2015. He enjoyed a positive and productive working relationship with site management.
CUB Policies
[26] CUB policies that apply to workers at the Abbotsford site include an Occupational
Health & Safety Policy, an Anti-Harassment, Bullying & Discrimination Policy and a Code of
Business Conduct & Ethics.3 Mr Sayers agreed with the proposition outlined in the Anti-
Harassment, Bullying & Discrimination Policy that CUB employees have “the right to work
in a professional atmosphere that promotes equal employment opportunities, prohibits
discriminatory practices and is free from harassment and bullying.”
[27] The policy also stated that if an employees’ actions were in breach of it, they would
face disciplinary action, which might include instant dismissal from their jobs.
[28] Additionally, when Mr Woodburn commenced at CUB as General Manager –
Southern Operations in 2011, he delivered a presentation4 to employees outlining the
expectations he and CUB had regarding workplace safety and behaviour. It was not in dispute
that Mr Woodburn had outlined his standards and expectations, that were clear and
reasonable, and that he had attempted to ensure they were maintained across the site.
[2016] FWC 3428
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[29] Mr Woodburn met separately with Mr Sayers to discuss the presentation. He
specifically raised the topic of swearing at other employees and outlined his position that it
was intolerable and contrary to the expectations he and CUB held. Mr Sayers expressed his
support for that position.
[30] Following Mr Woodburn’s presentation, Ms Vickers confirmed that CUB acted in
reliance of those expectations and the Anti-Harassment, Bullying & Discrimination Policy in
terminating the employment of three other employees who had engaged in verbal abuse
and/or the threat of violence.5 Mr Sayers was vague regarding these but Mr Pamich had
knowledge of two of the three terminations.
[31] In his final written submissions, Mr Sayers said he was aware of the tone and tenor of
the relevant CUB workplace policies and that his conduct giving rise to his dismissal was in
breach of them.6
Workplace changes
[32] One issue that had to be worked through during Mr Sayers’ tenure as a CFMEU
delegate was a restructure of the Logistics area which saw the introduction of the SAP
recording system. It required a reduction in the number of employees. Mr Sayers was
involved in meetings regarding this proposal. At one point, the CFMEU lodged a dispute with
the Commission about the changes. The sticking point on that occasion concerned whether the
reduction should be implemented via one employee being redeployed or made redundant and
the result was a redundancy.7
[33] It is agreed that there were changes introduced by CUB that stretched into 2014 that
resulted in the reduction in the number of employees in the logistics area, firstly from ten
down to nine and then nine down to seven. This downsizing came as a result of the
introduction of the SAP recording system.
[34] There was some debate about the impact of these workplace changes. Mr Sayers said
he made regular complaints to his immediate manager, Mr Neville Brown and to Mr Lee
because the changes resulted in understaffing. Mr Lee’s evidence was that the restructure was
discussed throughout a lengthy consultation process and the result as far as the Carton store
was concerned, were manning levels well matched against workload.8 Mr Lee also denied
receiving complaints about the workload in the Carton store.9
Mr Sayers and Mr Mansilla
[35] It is not in dispute that Mr Sayers and Mr Mansilla did not get along. Both men gave
evidence of a poor working relationship.
[36] In his witness statement, Mr Sayers asserted that Mr Mansilla was not a team player.
Mr Mansilla responded in his witness statement, outlining treatment he had received from Mr
Sayers, including Mr Sayers ‘snapping’ and swearing at him and suggesting to management
that he was not doing his duties.10
[37] Mr Mansilla also alleged that in 2011, Mr Sayers threatened him by saying, “I know
where you live, I can get you any time, I can do damage to you or your family.”11 Mr Sayers
denied this incident occurred.12
[2016] FWC 3428
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[38] Mr Mansilla says the only person he reported this to was his then team leader, Mr
Joyce, so he became concerned when Mr Sayers subsequently approached him to ask whether
he was going to take the matter further. As a result of this and despite his concern about Mr
Sayers, Mr Mansilla decided to let the matter go because he did not think any action would be
taken against Mr Sayers. Mr Joyce was not called to give evidence.
[39] It is clear that Mr Mansilla was aggrieved at being selected for transfer from the
Supply store to the main warehouse in 2013 on the basis that he had been the last to join the
Supply store crew. This had been the preferred criteria of Mr Sayers but Mr Mansilla
disagreed with it and as a result, he sought to limit his contact with Mr Sayers upon his return
to the Supply store in mid-2014.
[40] Mr Sayers said that he was always friendly to Mr Mansilla upon his return and would
always give him a hand to try and repair the relationship. This was denied by Mr Mansilla,
albeit he did concede that Mr Sayers said ‘hello’ sometimes, delivered some delivery dockets
to him on one occasion and helped unload a truck on another. Mr Barmby gave evidence that
Mr Sayers and Mr Mansilla did not talk to each other unless it was work related.
[41] There were approximately 15 months between Mr Mansilla’s return to the Supply
store and the incident on 13 October 2015. It was common ground that Mr Sayers and Mr
Mansilla were not always rostered onto the same shift pattern during this period. They did not
work together on a weekly basis but Mr Sayers maintained that when Mr Mansilla was on his
shift, he found it very hard to get his duties done.
[42] The primary complaint Mr Sayers had about Mr Mansilla was that he did not deliver
the delivery dockets to him in the Carton store when they were on shift together. There was
perhaps one exception but the evidence otherwise establishes Mr Mansilla did not take the
delivery dockets to Mr Sayers during the period between his return to the Supply store until
13 October 2015.
Build–up to the 13 October 2015 Incidents
[43] Mr Mansilla collected the delivery dockets on 13 October 2015. His evidence was that
there was only one for the Carton store and he placed it in the tray in the Supply store office.
It is agreed that this would have occurred by approximately 10.15am. There was no evidence
of Mr Mansilla doing anything further with the Carton store delivery docket after that.
[44] Mr Barmby gave evidence that he subsequently made an attempt to deliver a delivery
docket or dockets (he could not recall if it was one or more than one) to the Carton store at
lunchtime but could not do so because the door to the Carton store was shut. He said he then
took the delivery docket or dockets back to the Supply store and placed them in the tray or on
the desk.13
[45] The timeline of events from the point at which the delivery docket in question was
collected at approximately 10.15am to when Mr Sayers found it on the table in the Supply
store after 1.00pm is not clear. While Mr Sayers gave evidence in cross examination and re-
examination that he had some delivery dockets delivered to him at approximately 10.00am,
which he entered into the system,14 Mr Mansilla’s subsequent evidence, referred to above,
was that there was only one delivery docket for the Carton store on 13 October 2015.
[2016] FWC 3428
8
[46] Mr Sayers said he received a telephone call at approximately 10.30am-10.45am from
Mr Rod Tollick, CUB Raw Materials Planner, advising him that there was one delivery
docket missing. Mr Sayers said that he then went and walked through the Supply store and
asked colleagues there whether there were any delivery dockets before having a look in the
Supply store office and finding there were none in the tray or on the desk. He said that Mr
Mansilla and Mr Barmby gave no answer to his enquiry about the delivery dockets15 but also
said that when in the Supply store office, the answer to his inquiry as to whether there were
any delivery dockets was in the negative.16
[47] Mr Sayers said he then went to B1 to make enquiries before attending to various other
tasks and taking another phone call with Mr Tollick about the delivery docket. As the time
approached 1.00pm, he saw Mr Mansilla and Mr Barmby locking the front entrance to the
Supply store in order to attend a colleague’s farewell and while they were doing so, Mr Sayers
unloaded supplies which arrived for the Supply store, delivered a parcel and entered the
Supply store via the back entrance. He had another look for the missing delivery docket, and
found it rolled up on the table where Mr Mansilla sat.
Was the dismissal harsh, unjust or unreasonable?
[48] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or
unreasonable’ was explained in Byrne v Australian Airlines Ltd17 by McHugh and Gummow
JJ as follows:
“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but
not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust
because the employee was not guilty of the misconduct on which the employer acted,
may be unreasonable because it was decided upon inferences which could not
reasonably have been drawn from the material before the employer, and may be harsh
in its consequences for the personal and economic situation of the employee or
because it is disproportionate to the gravity of the misconduct in respect of which the
employer acted.”
[49] As outlined above, the criteria I must take into account when assessing whether the
dismissal was harsh, unjust or unreasonable are set out in s.387 of the FW Act. I am under a
duty to consider each of these criteria in reaching my conclusion.18
[50] I will now consider each of the criteria at s.387 of the FW Act separately.
Valid reason - s.387(a)
[51] CUB must have a valid reason for the dismissal of Mr Sayers, although it need not be
the reason given to him at the time of the dismissal.19 The reasons should be “sound,
defensible and well founded”20 and should not be “capricious, fanciful, spiteful or
prejudiced.”21
[52] Principles governing circumstances where the reason or reasons relied upon include
misconduct were recently considered in Farmer v KDR Victoria Pty Ltd T/A Yarra Trams:22
[2016] FWC 3428
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“However in matters such as this, in which the conduct of the person is said to have
involved misconduct, there is a need to subject the allegations to careful scrutiny,
avoiding “inexact proofs, indefinite testimony, or indirect inferences”.23 In considering
the evidence, a “proper degree of satisfaction is required having regard to the
seriousness of the allegations”24, noting that “the strength of the evidence necessary to
establish a fact or facts on the balance of probabilities may vary according to the
nature of what it is sought to prove”.25 In a case such as this involving misconduct the
Commission must determine whether the conduct occurred.”26
[53] CUB dismissed Mr Sayers for serious misconduct it alleges was in breach of CUB
Policy.
[54] In his final written submissions, Mr Sayers admits to substantial parts, but not all of
the conduct alleged against him.
[55] Mr Sayers admits that he raised his voice. He admits he yelled at Mr Mansilla and that
he used abusive language. He admits that he was aware of the tone and the tenor of the
relevant workplace policies and that his conduct was in breach of those policies. However
notwithstanding these admissions, Mr Sayers contends the reasons of CUB were not valid
reasons for dismissal because:
a) He did not engage in all of the conduct alleged against him, specifically:
(i) He did not make a racial slur against Mr Mansilla; and
(ii) He did not make a threat of violence by using the words “I’ll fix your
little red wagon”;
b) The dismissal was disproportionate to the conduct in fact engaged in;
c) Seen in its proper context, the events leading to Mr Sayers’ dismissal were the
result of an ongoing failure by CUB to manage inappropriate behaviour in the
workplace by Mr Mansilla; and
d) The dismissal was harsh in the context of Mr Sayers’ unblemished work
history and commitment and dedication to CUB across fifteen years of employment.
Did Mr Sayers make a racial slur against Mr Mansilla?
[56] Having completed its investigation, CUB found, on the balance of probabilities and on
consistent evidence from witness statements, that it was substantiated that Mr Sayers called
Mr Mansilla a ‘dirty gringo cunt’ and advised Mr Sayers of this finding.27 Mr Sayers did not
admit this allegation at the time, stating he could not remember all of what was said.28
[57] It was nonetheless submitted on his behalf at that time that there was no proper basis
for the allegation that Mr Sayers had racially abused Mr Mansilla because the term ‘gringo’
has no racial connotation and no derogatory connotation, simply being a non-derogatory term
used by Spanish speaking people to refer to white people who are not Hispanic or Latino.29
[58] Mr Sayers did not admit the allegation in his witness statement either, stating that he
did not recall using the words30 and nor did he respond to the allegations made in the
[2016] FWC 3428
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statements of Mr Mansilla,31 Mr Barmby32 or Mr Duthie,33 which remained unchallenged
notwithstanding cross-examination.
[59] In his oral testimony, Mr Sayers repeated that he did not remember saying to Mr
Mansilla that he was a ‘dirty gringo cunt’34 but offered the following as his understanding of
the word ‘gringo’: “Gringo to me is - I own horses, and, yeah, we use that word all the time,
Gringo, you know, about a white - a white horse, or - I've come back from America and I was
using it over there. I met a lot of people and they just said just call me Gringo, you know. I
mean to me it's just a slang word.”35 This was the first occasion on which he offered an
explanation of what he meant when he used the word.
[60] In his final written submissions, Mr Sayers accepted that the weight of evidence is that
he did say those words, that they were improper and that he should not have said them.36
[61] Mr Sayers submitted that the words ‘dirty gringo cunt’ were not intended as a racial
slur and nor do they make sense as a racial slur because its etymology establishes that
‘gringo’ is a disparaging term for a person who is not a native Spanish speaker or who is
unable to develop a Spanish pronunciation and is commonly used by South Americans to
disparage North Americans. It was submitted that whether this meaning or Mr Sayers’
meaning was employed, it made no sense as applied to Mr Mansilla because he is Peruvian
and his first language is Spanish.
[62] Mr Sayers contended that CUB assumed and treated the term as a racial slur and three
things emerged from the evidence:
The CUB Employees who conducted the investigation did not know what the word
‘gringo’ meant;
CUB did not understand the importance of understanding what Mr Sayers
understood the term to mean; and
CUB agreed that an employee has to be given a proper chance to explain their
conduct.
[63] Ultimately, Mr Sayers submitted that the words ‘dirty gringo cunt’ were not a racial
slur and while they formed part of the incident, they did not stand out from it.37
[64] Mr Mansilla’s evidence was that he felt ‘gringo’ was meant as a racial slur38 and in
reply, CUB submitted:39
It was correctly pointed out by Mr Sayers that ‘gringo’ is commonly used by South
Americans as a disparaging term for North Americans;
CUB’s investigating officer did not have a precise understanding of the term , other
than regarding it as a “racial sledge” and “used to put someone down of another
race”40;
It must be accepted that the use of the term ‘dirty gringo cunt’ by Mr Sayers
towards Mr Mansilla was one of abuse and disparagement irrespective of it being a
racial slur;
Even if it was perhaps strictly used incorrectly, there is no apparent reason why the
word ‘gringo’ would have been introduced into the abusive phrase ‘dirty gringo
cunt’ other than Mr Sayers’ knowledge of the South American racial background of
Mr Mansilla; and
[2016] FWC 3428
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Regardless, the conduct of Mr Sayers was racially abusive.
[65] I have not found Mr Sayers’ explanation or submissions persuasive. In circumstances
where he knew Mr Mansilla was Peruvian and he was reacting angrily and aggressively to
circumstances the responsibility for which he lay at the feet of Mr Mansilla, I am not
persuaded that he decided to refer to him as a white horse or was reflecting on his recent trip
to America. I am even less convinced that considerations of etymology, such as those outlined
in his written submissions, would have entered his mind. Mr Sayers chose to use a term with
racial connotations and he used it in conjunction with the words ‘dirty’ and ‘cunt.’ He was
furious with Mr Mansilla and he let fly in what he describes as a “minute of madness.”41 Mr
Sayers’ choice of words persuades me that his intention was to insult, intimidate and express
his contempt for Mr Mansilla by using a term associated with racial and/or ethnic origins and
adding further derogatory words to it. The complete phrase he used cannot be justified on any
level. I find that it was offensive, degrading and a racial slur.
[66] I do not regard the submission that the intention of Mr Sayers is essential to
determining the degree to which he is culpable as reflective of contemporary attitudes to what
constitutes acceptable behaviour. Community condemnation regarding abusive terms
associated with race, colour, nationality or ethnicity is stronger now than it has been in the
past and rightly so. It is no longer acceptable to defend a slur that is racially based with the
explanation “but I meant no offence” or “my comment was misinterpreted”.
[67] I agree with this proposition Senior Deputy President Lacy outlined in Rothfield v
Australian Bureau of Statistics:
“Employees reasonably can be expected to work harmoniously with one another and
have regard to the sensitivities of other people within the workplace. This, it seems to
me, is a corollary of an employer’s duty to provide a safe and healthy work
environment free of hostility and harassment.”42
[68] I also note that in Ashworth v Shire of Wiluna,43 the Commission upheld the validity of
the dismissal of an employee who had referred to a colleague as a “nigger fucking piece of
shit” and it was unmoved by the employee’s evidence that he did not think he had made a
racial slur by explaining “I mean, like as far as a racial slur goes, he’s white.”44
Did Mr Sayers make a threat of violence by using the words “I’ll fix your little red
wagon”?
[69] CUB also found, having completed its investigation, it was substantiated on the
balance of probabilities and the consistent evidence from witness statements that Mr Sayers
made threats of violence to Mr Mansilla saying ‘[a]ny place, any time, you name it you are
going down. Wait until tomorrow and I’ll fix your red wagon’ and advised Mr Sayers of this
finding.45
[70] Mr Sayers denied using the term ‘red wagon’ when asked to respond to the allegation
when the initial investigation was completed and stated that in any event, this statement,
viewed in its proper context, was not serious misconduct.46
[71] In his witness statement, Mr Sayers said he did not recall saying these words but that
he understood the phrase to refer to a child hauling a red wagon of other children’s things and
[2016] FWC 3428
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that it meant that the maker of the statement was going to put a stop to the child taking other
people’s things and using them, or taking credit for them. He also stated that this was the only
context in which he would have used that phrase and he had never heard it used as a threat of
violence.47 He did not respond to the allegations made in the statements of Mr Mansilla,48 Mr
Barmby49 or Mr Duthie,50 which remained unchallenged by cross-examination.
[72] In his oral testimony, Mr Sayers stated that he could not recall saying “I’ll fix your red
wagon” but offered another explanation of its meaning as follows:
“PN596
You also say you can't recall that?---No. The terms "a red wagon" I don't know how
old you are, but as growing up it was always - "red wagon" to me always meant that
you're in a soft spot, you've got it pretty easy. It was just a school term of, "I'll fix
your little red wagon". That would mean I'd fix your good times because you've got it
pretty easy and you're neglecting it.
PN 597
You don't recall it, but Mr Barmby and Mr Duthie you will see both say you said
something like that. So everybody that was there bar you say you did say something
like, "I'll fix your red wagon"?---As - as I said I don't recall saying it, because it was a
moment of madness, you know.”51
[73] Mr Mansilla’s evidence was that Mr Sayers yelled the words “I’ll fix your red wagon.”
He said that he perceived this as a threat to hurt him and that he felt threatened by Mr
Sayers.52 This evidence was not challenged in cross-examination. Mr Duthie said that Mr
Sayers told Mr Mansilla “wait until tomorrow, I’ll fix your red wagon” and Mr Barmby gave
evidence that Mr Sayers said “I’ll fix your little red wagon mate.”
[74] In the broader context, Mr Mansilla’s evidence was that Mr Sayers was out of control
and he thought Mr Sayers was going to hit him.53 Mr Barmby’s evidence was that he had not
previously witnessed as serious a work incident.54 He acknowledged he could not have known
what Mr Sayers intended but his observation was that Mr Sayers’ behaviour was of a
threatening nature.55
[75] In his final written submissions, Mr Sayers maintained:
He did not make a threat of violence by using the words “I’ll fix your little red
wagon”;56 and
He did not, by saying these words, threaten Mr Mansilla with violence.57
[76] CUB submitted that the three word phrase ‘little red wagon’ should not be extracted
and looked at in isolation of the words used around it and the circumstances in which they
were said. It was submitted by CUB that put in the context of the events on 13 October 2015
and the full text of what was said, the phrase can and must only be viewed as a threat. In this
regard, CUB submitted the immediate operative context was Mr Sayers saying “I’ll fix your
red wagon” within the broader context of Mr Barmby’s evidence that Mr Sayers said
“Nobody likes you, nobody liked you at the warehouse, you dirty gringo cunt, I’ll fix your
little red wagon mate.”58
[2016] FWC 3428
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[77] Having initially denied using the phrase "I’ll fix your little red wagon,” Mr Sayers
then offered two versions of what he understood it meant in his later evidence but they were
not particularly similar. Of the other witnesses, no one offered a firm view as to what it
meant. Given the context and nature of the exchange between Mr Sayers and Mr Mansilla
and the words that passed between them, I am not persuaded that in using these words Mr
Sayers was not threatening Mr Mansilla with violence.
[78] Under cross examination, Mr Sayers accepted the phrases “You’re a dirty gringo cunt”
and “I’ll fix your red wagon” put together constituted threatening language and that having
someone in the workplace speaking to him in that way would have been a concern for Mr
Mansilla.59
[79] I note that in Hennigan v Xmplar Building Solutions Pty Ltd T/A Xmplar Building
Solutions, the Commission formed the view that from an objective assessment, most people
would associate the term “I’ll fix you up” as either someone indicating they were going to
repay money or alternatively that they meant it as a threat and this supported a finding in the
context of that case that it was reasonable for the employer to term it as a threat warranting
summary dismissal.60
[80] In the context of this case, I find on the balance of probabilities Mr Sayers did say
words to the effect of "I’ll fix your little red wagon” and that it is reasonable to characterise
those words as a threat.
Offensive language and Verbal Abuse
[81] It is not disputed that having found the missing delivery docket, Mr Sayers approached
Mr Barmby and then Mr Mansilla. The particulars of the ensuing offensive language and
verbal abuse alleged against Mr Sayers were as follows:
He used offensive language towards Mr Barmby by saying “where are the fucking
tickets? Why didn’t you bring the fucking tickets over?”; and
He verbally abused Mr Mansilla, by saying “Where are the fucking tickets? Why
didn’t bring the fucking tickets over? Fuck you mate. Fucking cunt. You are nothing
but a lazy cunt. Nobody likes you anyway you lazy cunt. Nobody liked you in the
warehouse.”
[82] As far as his behaviour towards Mr Barmby is concerned, Mr Sayers has admitted his
conduct was inappropriate and did not dispute the particulars of the language used.
[83] When Mr Sayers approached him, Mr Barmby told Mr Sayers that he was on the
phone to Ms Gault and that she could hear him. When Mr Barmby was asked how loud Mr
Sayers’ voice was, he answered ‘not really loud’ and described it as a little bit raised.61 Ms
Gault, who was not required for cross examination, gave evidence that she could hear Mr
Sayers yelling the words ‘fucking’, ‘fuck’ and ‘delivery dockets.’
[84] Ms Gault also stated the yelling continued and the volume did not change after Mr
Barmby said to Mr Sayers, “[s]hut up. I’m on the phone to Ange.’ Both Mr Barmby and Ms
Gault gave evidence that the yelling continued after that, with the words ‘fucking’ and ‘fuck’
[2016] FWC 3428
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being used frequently and that Ms Gault ultimately told Mr Barmby to hang up and see what
he could do about it.62
[85] It is agreed that Mr Sayers left Mr Barmby and immediately sought out Mr Mansilla. It
does not appear that the range of expletives and statements Mr Sayers is alleged to have then
directed at Mr Mansilla is disputed either. Mr Sayers admits he lost his temper, used
aggressive language and was yelling.63
[86] There are differing versions as to how Mr Sayers and Mr Mansilla were positioned at
the time, but what is clear is that it was Mr Sayers who initiated their exchange. In his witness
statement, Mr Sayers said that he walked across to Mr Mansilla and stopped about a metre
away.64 The distance was revised to become one metre and a half during cross examination.65
Mr Barmby also gave evidence saying that when he observed Mr Sayers and Mr Mansilla,
they were roughly one and a half metres apart.66 Mr Mansilla’s evidence was that Mr Sayers
was right in his face, while Mr Duthie’s evidence was that Mr Sayers’ face was very close to
Mr Mansilla’s face.67 Mr Mansilla could not be shifted on this during cross examination68 and
Mr Duthie was not cross examined on this part of his evidence.
[87] Each of Mr Mansilla, Mr Duthie and Mr Barmby gave evidence indicating that Mr
Mansilla told Mr Sayers to “fuck off” in response to abuse from Mr Sayers, including the
threat that he would take Mr Mansilla on anywhere or any place.69 For his part, Mr Barmby
described Mr Mansilla as having acted ‘defensively.’70 Mr Sayers gave evidence, confirmed
by Mr Mansilla in cross examination, that Mr Mansilla said to him that he was ‘not fucking
scared’ of him.
[88] Mr Sayers submitted that his use of the words “any time, any place” should be
regarded as ‘bravado’ because they were said in response to Mr Mansilla saying “I’m not
fucking scared of you”. In response, CUB submitted that none of the abusive behaviour of Mr
Sayers should be accepted or dismissed as simply ‘bravado.’ It was language aggressively and
personally directed at Mr Mansilla which could not be justified or explained away.
[89] I regard this behaviour directed towards Mr Barmby and Mr Mansilla by Mr Sayers as
highly inappropriate and hold the view such sustained foul-mouthed tirades have no place in
the workplace. Mr Sayers lost control at work and instead of pursuing other avenues or taking
a number of opportunities to arrest his behaviour, he amplified it negatively and recklessly.
He could have waited until Mr Barmby was off the phone or he could have taken up the
matter with Mr Lee or his site delegate. He simply decided Mr Mansilla was responsible and
initiated contact aggressively. He continued his behaviour despite Mr Barmby’s suggestions
and attempts to calm things down.
[90] Mr Sayers submitted that there is no evidence on which the Tribunal could safely
conclude that he approached Mr Mansilla and stood in close proximity to him.71 I do not
agree.
[91] Firstly, Mr Mansilla was neither the initiator nor the aggressor and the evidence is
clear that Mr Sayers approached him. Secondly, I regard a distance of between only one and
one and a half metres as close proximity and that it is amplified when accompanied by
aggression and yelling. To suggest there is no evidence on which the Tribunal could safely
conclude that Mr Sayers approached Mr Mansilla and stood in close proximity to him is in
direct conflict with the evidence of Mr Sayers himself.72
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Post-Incident event on 13 October 2015
[92] The final allegation of misconduct CUB relied on, Mr Mansilla’s allegation that Mr
Sayers threatened and intimidated him as they were leaving work on the day of the incident
by coming very close to him and saying “I do whatever I fucking want in this company,” was
contested. Mr Sayers denies talking to Mr Mansilla on the way out and said he had no contact
with Mr Mansilla after their earlier exchange. Mr Barmby’s evidence was that Mr Sayers was
walking out of work in front of him and Mr Mansilla but he did not give evidence of a
conversation taking place.
[93] On 14 October 2015, Mr Mansilla made hand written notes of what had occurred on
13 October 2015 between himself and Mr Sayers. The notes were in four parts. They do not
include a description of Mr Sayers approaching Mr Mansilla on the way out of work on 13
October 2015, but there is a record made on 14 October 2015 of Mr Sayers saying to Mr
Mansilla “I do here whatever I fucking want” amongst the range of statements Mr Mansilla
recorded Mr Sayers as having made to him.73
[94] While I am persuaded by Mr Mansilla’s contemporaneous note that Mr Sayers made
the comment “I do whatever I fucking want in this company” at some stage on 13 October
2015, I am not persuaded the evidence establishes on the balance of probabilities that the
comment was made when Mr Sayers and Mr Mansilla were leaving work that day.
14 October 2015 and beyond
[95] Both Mr Sayers and Mr Mansilla attended work on the following day, 14 October
2015. Mr Mansilla was uncomfortable in the presence of Mr Sayers and wanted to avoid
contact with him. He said that Mr Sayers approached him, called out “[c]ome over here. I
want to talk to you” and gestured with his finger for Mr Mansilla to come towards him. Mr
Sayers confirmed he called out to Mr Mansilla, asked him to come back and said he wanted to
have a talk to him.74 Ultimately, it was not a useful exchange.
[96] Mr Mansilla says that he began to feel worried and unwell and went to the site’s
Health Centre. The nurse on duty subsequently contacted Mr Lee and he came to see Mr
Mansilla. Mr Lee described Mr Mansilla as being upset and emotional. Following a
discussion, Mr Mansilla made his notes of what had occurred between himself and Mr Sayers
and then left work for the day. He did not attend work on 15 October 2015.
[97] Nothing of significance occurred between Mr Mansilla and Mr Sayers during the next
two working days that followed. It appeared they had minimal, if any contact. On Tuesday 20
October 2015, Mr Sayers was interviewed as part of the CUB investigation into the events
and left site immediately following it.
Context for the behaviour of Mr Sayers
[98] The initial response of Mr Sayers following CUB’s investigation was to admit some
but not all of the conduct alleged against him.75
[99] Mr Sayers expressed remorse for the conduct admitted, agreed that he should not have
acted in the way he did and accepted some measure of discipline was appropriate. The points
[2016] FWC 3428
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Mr Sayers made in response were firstly, that he showed honesty, integrity and a willingness
to accept responsibility for his conduct by making appropriate admissions. Secondly, he
submitted that CUB had not considered the incident on 13 October 2015 in its proper context
and thirdly, he submitted that he had been provoked and that both he and Mr Mansilla
contributed to the incident.76 In this latter respect, he suggested that Mr Mansilla was the
provocateur.
[100] As early as his written response to the allegations CUB made during the investigation
that followed the events on 13 October 2015, Mr Sayers blamed Mr Mansilla for the
confrontation by:
placing Mr Mansilla’s work performance in issue;
alleging that it was Mr Mansilla who was the provocateur and the initiator of the
argument in response to a proper and reasonable request by him; and
claiming that he had responded to verbal abuse and offensive language used by Mr
Mansilla.77
[101] In summary, Mr Sayers’ position was that seen in its proper context, the events leading
to Mr Sayers’ dismissal were the result of an ongoing failure by CUB to manage
inappropriate behaviour in the workplace by Mr Mansilla.
[102] The crux of the problem as far as Mr Sayers was concerned was that Mr Mansilla did
not bring delivery dockets to him. While there was evidence that Mr Mansilla would bring the
delivery dockets to another worker, Mr Pamich, Mr Mansilla did not go out of his way to
bring the delivery dockets to Mr Sayers, only doing so on one occasion.
[103] Mr Sayers submitted that the collection of all delivery dockets from the B1 area of the
warehouse area of the Abbotsford brewery site for entry onto the SAP system was a critical
area of cooperation between the Supply and Carton stores and that all Supply store employees
except Mr Mansilla performed the task of dropping the Carton store dockets to the Carton
store employees without difficulty or complaint.
[104] CUB submitted that Mr Sayers overstated this issue and described the position as
follows:
It is not a prescribed task of Supply store employees to collect delivery dockets for
the Carton store but rather a practice that has developed and which happens most,
but not all of the time;
The practice includes that once obtained from the B1 area, the delivery dockets are
either taken directly to employees at the Carton store or placed in a tray at the
Supply store office;
It is not always the case that employees other than Mr Mansilla will always
personally deliver the dockets to the Carton store and nor is it a prescribed
requirement of an employee’s role;
There is no prescription or roster of which Supply store employees will collect the
dockets on any given day and this is worked out on any given day, depending on
work requirements.
Personal delivery may not occur on a given day for a number of reasons which may
include when Supply store employees are busy or where the Carton store is locked.
[2016] FWC 3428
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[105] Mr Duthie’s evidence was that Mr Mansilla was not the only worker who did not bring
the delivery dockets over. He said they would bring the delivery dockets over if they had time
and this was sometimes, but not all the time. As to his own practice, Mr Duthie said that
whether he would bring the delivery dockets back to the Supply store only or drop them into
the Carton store depended on how busy he was at the time. If he was busy, he would leave
them in the tray in the Supply store but if he had time, he would take them over. He estimated
he would drop the delivery dockets over to the Carton store between 50% and 75% of the
time.
[106] Mr Barmby’s evidence confirmed that the Supply store workers did not have access to
the Carton store area if it was locked. He said he would take the delivery dockets over to the
Carton store if the Carton store workers were there and if not, he would place them in the tray
in the Supply store, perhaps taking them over later when he knew they are back.
[107] Mr Sayers submits that Mr Mansilla could have delivered the delivery docket. CUB
submits that by placing it in the tray, Mr Mansilla fulfilled the required task.
[108] CUB submits that notwithstanding the importance Mr Sayers claimed to have placed
on finding the delivery docket on 13 October 2015, he did not conduct a thorough search for
the delivery docket and went about both his normal duties plus other tasks of assistance to the
Supply store. CUB further submits that Mr Sayers did not stop and directly discuss it with Mr
Barmby or Mr Mansilla and nor did he seek their assistance in locating it, even when he
observed them locking up the Supply store in order to go to the function.
[109] While Mr Sayers’ evidence was that he was ‘stressed out’ about the missing delivery
docket and was under pressure from Mr Tollick, CUB submits that he overstated the
significance of the missing delivery docket, citing the evidence given by Mr Lee that a lost
delivery docket would not physically stop production, although it might create an error in the
inventory system that would have to be resolved, ideally during the same shift.78
[110] Based on the evidence regarding how Mr Sayers approached things between 10.00am
and 1.00pm on 13 October 2015 prior to locating it and Mr Lee’s evidence as to the
consequences of it going missing, I am not persuaded the missing delivery docket was an
issue of such importance to justify Mr Sayers’ subsequent reaction and behaviour.
[111] There was no evidence capable of supporting a finding that Mr Mansilla rolled the
missing delivery docket up and left it on his desk, thereby provoking Mr Sayers and I reject
this can be inferred and the submission to this effect. It is established that Mr Mansilla did not
deliver dockets to Mr Sayers and his practice was to leave them in the tray. There was no
evidence of him ever tampering with or withholding delivery and nor was there evidence
suggesting he was responsible for previous instances of delivery dockets going missing at the
Abbotsford site.
[112] In submitting that the events of 13 October 2015 that led to his dismissal were the
result of an ongoing failure by CUB to manage inappropriate behaviour in the workplace by
Mr Mansilla, Mr Sayers said that he raised the difficulties he was experiencing with Mr
Mansilla with both Mr Brown and Mr Lee.
[113] Mr Brown was a CUB Team Leader and the manager of Mr Sayers, although he was
frequently absent from work due to illness during the twelve months preceding 13 October
[2016] FWC 3428
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2015. Mr Brown resigned his employment with CUB on grounds of ill health and neither
party took issue with there being no evidence from him during the proceeding.
[114] There was however evidence of Mr Sayers having raised issues concerning another
CUB employee, Mr Neskovski, with Mr Brown. Mr Sayers and Mr Lee confirmed that after
Mr Sayers had raised performance issues of Mr Neskovki with Mr Brown, they were
escalated to Mr Lee who then placed Mr Neskovski on a performance improvement plan.79
[115] If Mr Sayers had raised with Mr Brown the issues he was having with Mr Mansilla,
they were not escalated by Mr Brown to Mr Lee.80 Mr Lee’s evidence in this regard was not
challenged and he also said that Mr Brown’s practice had been to escalate issues
immediately.81
[116] Ms Vickers said that Mr Brown did not pass on any complaints Mr Sayers had about
Mr Mansilla to her. Her evidence was that Mr Sayers mentioned to her once that Mr Mansilla
was causing him frustration because he was not helping out in the same way as others in the
Supply store did. However, Mr Sayers did not lay a complaint and nor did he ask Ms Vickers
to do anything about it. This evidence of Ms Vickers was not addressed in statements in reply
or cross-examination.
[117] Mr Sayers was a CFMEU delegate and then senior site delegate for nearly a decade.
He enjoyed a very good working relationship with site management, including Mr Woodburn,
confirming that they had a very positive and productive working relationship. Mr Woodburn
also gave evidence that Mr Sayers was very capable and when he did not feel as though he
was being heard, he would escalate matters, such that Mr Woodburn would have been
surprised that Mr Sayers had not done this if it had been the case that his complaints to Mr
Brown were going unanswered.
[118] The evidence of Mr Sayers confirmed that he had adopted a practice whereby if he
was unsure about how to deal with an issue at work, he would ring a CFMEU official for
advice, particularly if it was a major issue.82 He also gave the following evidence:
“PN235
Look, we'll come back to that in a moment, but as a delegate you did know the
processes that were required to be followed at the site, either through enterprise
agreements or other procedures, that if you had an issue you knew how to raise them
and if needs be elevate them further along the chain to get a result, correct?---Yes.
PN236
And in your time as a delegate over that almost decade of that, you had pursued a good
number of issues on behalf of your members through those various steps, where
necessary elevating it to the next step to ensure a final result was reached,
correct?---That's right, a fair result, yes.
PN237
[2016] FWC 3428
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And sometimes that might be a good result and sometimes not, but you would
progress it through those steps to an outcome?---I think nine times out of ten it'd come
out to a fair result.
PN238
And indeed some of those issues may have even progressed as far as this Commission,
correct?---Yes, I have been into the Commission, yes.
PN239
So if there was a matter in your workplace, you knew how to deal with it; you
wouldn't have just let it sit there and fester away, you would pursue it through the
various steps until an outcome could be reached, correct?---That's correct.
PN240
As a result of your long-serving period as a delegate, you knew the various company
staff people of different levels that things got elevated to in order to keep things
moving to get those results?---Yes.
PN241
And sometimes the issues that you would have to raise might even relate to some of
your own members and that they weren't behaving or performing as they should,
correct?---Yes, I mentioned that.
PN242
So for example, in the second - well let's say somewhere around about April or May of
last year, you raised with your then supervisor, Mr Brown, that a Mr Neskovski was
not performing his work as he should be, correct?---Yes, that's correct.
PN243
And Mr Neskovski was a CFMEU member?---That's correct.
PN244
And Mr Brown, as I've said, at that time was your supervisor?---Yes.
PN245
You'd be aware that Mr Brown took that issue up with Mr Lee, who was then the
logistics manager?---Yes, that's correct.
PN246
And Mr Neskovski, as a result, was placed on a performance improvement
plan?---That's correct.”
[2016] FWC 3428
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[119] Given the course of action adopted in relation to Mr Neskovski, it seems to me to be
inconceivable that Mr Sayers would not have been encouraged to raise or escalate his issues
with Mr Mansilla, knowing the course of action that might be adopted by CUB in response.
Even if I was to accept that Mr Brown, for his own reasons, did not consider the complaints of
Mr Sayers worthy of escalation, Mr Sayers had extensive experience in how to escalate his
issues with the assistance of the CFMEU and had an established line of communication with
Mr Woodburn. There was no evidence of Mr Sayers having raised his issues regarding Mr
Mansilla with Mr Lee and Mr Sayers sought to explain why he did not escalate matters above
Mr Brown by saying that he did not want to get Mr Brown in trouble. I do not find this
explanation convincing. Having heard and considered the evidence, I am not persuaded there
was an ongoing failure by CUB to manage inappropriate behaviour in the workplace by Mr
Mansilla that would justify Mr Sayers’ behaviour on 13 October 2015.
Was the dismissal of Mr Sayers disproportionate to the conduct engaged in?
[120] Mr Sayers submitted it is appropriate for me to adopt the approach of the Full Bench
of the Australian Industrial Relations Commission in Tenix Defence Systems Pty Ltd v
Fearnley83 even though the case before me does not involve fighting or brawling. In that case,
the Full Bench, having reviewed a range of authorities, concluded:
“[25] We think these authorities support the view that in determining whether there is a
valid a reason for a termination of employment arising from a fight in the workplace
the Commission should have regard to all of the circumstances in which the fight
occurred including, but not limited to:
- whether the terminated employee was provoked and whether he or she was acting in
self-defence;
- the employer's need to establish and retain discipline amongst its employees; and
- the service and work record of the employee concerned.”
[121] I accept these well settled principles and accept they provide guidance. I agree that I
should have regard to all of the circumstances in which the incident on 13 October 2015
occurred and there is a need for employers to establish and retain discipline amongst its
employees. I should also and will have regard to the service and work record of Mr Sayers.
[122] However, I am not satisfied the evidence establishes that the scenario before me
involved a fight between Mr Sayers and Mr Mansilla and nor does it establish that Mr Sayers
was acting in self-defence.
[123] Mr Sayers aggressively sought out Mr Mansilla and he initiated the confrontation. I
am satisfied the evidence establishes Mr Sayers made a racial slur and a threat of violence
against Mr Mansilla, having earlier unleashed a tirade of verbal abuse and offensive language
as well. Mr Mansilla felt threatened and this motivated the action he took in response. It
involved swearing and offensive language and was the subject of sanction.
[2016] FWC 3428
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[124] Having regard to all of the circumstances in which the exchange between Mr Sayers
and Mr Mansilla took place requires looking at all things that were said and done, not just
phrases and words viewed in isolation.
[125] As outlined above, I am not persuaded that the actions of Mr Sayers can be justified on
grounds that he was provoked by Mr Mansilla nor can it be justified on grounds that CUB had
failed to manage inappropriate behaviour of Mr Mansilla.
[126] CUB was entitled to set standards and having outlined them to its employees, insist
upon adherence. As refered to in paragraph [30] above, it had terminated the employment of
other employees for verbal abuse and/or the threat of violence. I find that the offensive
language and verbal abuse Mr Sayers meted out to Mr Barmby and Mr Mansilla was highly
inappropriate, his calling Mr Mansilla a “dirty gringo cunt” an offensive, degrading and racial
slur and his saying to Mr Mansilla, “I’ll fix your red wagon” was, in the context of the
exchange and all the language and body language used, a threat of violence. This behaviour of
Mr Sayers on 13 October 2015 constituted a breach of CUB Policy of such seriousness as to
constitute a valid reason for the termination of his employment.
2011 Incident
[127] Although it occurred in 2011, CUB submitted the incident I have referred to in
paragraphs [37] and [38] above can be relied upon to justify the dismissal of Mr Sayers on the
basis that it is serious misconduct of which it was previously unaware. I do not consider it
necessary to make a finding on this matter as I am satisfied the behaviour of Mr Sayers on 13
October 2015 of itself constitutes a valid reason for his termination.
Notification of the valid reason - s.387(b)
[128] Notification of a valid reason for termination must be given to an employee protected
from unfair dismissal before the decision is made,84 in explicit terms85 and in plain and clear
terms.86 In Crozier v Palazzo Corporation Pty Ltd87 a Full Bench of the Australian Industrial
Relations Commission dealing with a similar provision of the Workplace Relations Act 1996
stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be
notified of a valid reason for their termination before any decision is taken to terminate
their employment in order to provide them with an opportunity to respond to the
reason identified. Section 170(3)(b) and (c) would have very little (if any) practical
effect if it was sufficient to notify employees and give them an opportunity to respond
after a decision had been taken to terminate their employment. Much like shutting the
stable door after the horse has bolted.”
[129] Mr Sayers was notified of the reasons CUB relied on for his dismissal in two letters
and at a meeting. Mr Sayers received a letter dated 19 October 2015.88 It outlined the
allegations and advised that an investigation into allegations of misconduct was going to be
undertaken and a meeting had been arranged for 20 October 2015 for him to respond to the
allegations. On 20 October 2015, CUB interviewed Mr Sayers about the events of 13 October
2015. A further letter from CUB dated 27 October 201589 outlined a number of findings and
Mr Sayers was invited to provide a response prior to a final decision being made regarding his
employment.
[2016] FWC 3428
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[130] I find Mr Sayers was notified of the reason for the dismissal prior to the decision to
terminate his employment.
Opportunity to respond - s.387(c)
[131] Ordinarily, an employee protected from unfair dismissal must be provided with an
opportunity to respond to any reason for dismissal relating to the conduct or capacity of the
person. This criterion is to be applied in a common sense way to ensure the employee is
treated fairly and should not be burdened with formality.90
[132] As discussed in paragraph [128], Mr Sayers was invited to a meeting on 20 October
2015 to discuss the events of 13 October 2015. By letter dated 27 October 2015, Mr Sayers
was given an opportunity to provide any additional information he wished CUB to consider.
In response, a letter dated 4 November 2015 was sent by the CFMEU to CUB on Mr Sayers’
behalf,91 which made further submissions on CUB’s findings and provided general comments.
[133] I am satisfied Mr Sayers was given several opportunities to respond to the reason for
the dismissal.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[134] Where an employee protected from unfair dismissal has requested a support person be
present to assist in discussions relating to the dismissal, the employer should not unreasonably
refuse that person being present.
[135] On 20 October 2015, Mr Sayers attended a meeting with Ms Catherine Vickers and
Mr Ed Lee of CUB, along with Mr Joe Myles (an organiser with the CFMEU).92 I find that
the issue of an unreasonable refusal does not arise and is not a relevant consideration.
Warnings regarding unsatisfactory performance - s.387(e)
[136] Where an employee protected from unfair dismissal is dismissed for the reason of
unsatisfactory performance, the employer should warn the employee about the unsatisfactory
performance before the dismissal. Unsatisfactory performance is more likely to relate to an
employee’s capacity than their conduct.93
[137] In this case, Mr Sayers’ dismissal was on the basis of misconduct, not unsatisfactory
performance, so the issue of prior warnings does not arise.
Impact of the size of the Respondent on procedures followed - s.387(f)
[138] CUB is a large company with approximately 280 employees and a dedicated human
resources function.
[139] I find that the size of CUB’s enterprise did not impact on the procedures followed in
effecting the dismissal.
[140] This is a neutral consideration in determining whether the termination of Mr Sayers’
employment was harsh, unjust or unreasonable.
[2016] FWC 3428
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Absence of dedicated human resources management specialist/expertise on procedures
followed - s.387(g)
[141] CUB has dedicated human resources personnel.
[142] This is a neutral consideration in determining whether the termination of Mr Sayers’
employment was harsh, unjust or unreasonable.
Other relevant matters - s.387(h)
[143] Section 387(h) of the FW Act provides the Commission with a broad scope to consider
any other matters it considers relevant.
[144] Mr Sayers is 57 years old and at the time of his termination had approximately 15
years’ service. He was well regarded by site management, recognised as a good worker and
had an unblemished employment record. Mr Sayers still largely blames Mr Mansilla for his
actions but has also expressed remorse for his behaviour. I have had regard to these factors.
[145] However, the behaviour of Mr Sayers on 13 October 2015 was a very serious breach
of CUB Policy and highly destructive to the working environment in the Carton and Supply
stores. There is no place for behaviour in the workplace that combines threats of violence,
racial slurs of such an offensive and degrading nature and such inappropriate verbal abuse and
offensive language.
[146] I am fortified in my conclusion having also had regard to the strong stance the
Commission has previously taken in cases involving racial abuse.
[147] In MacQuarrie v Alcoa of Australia Limited T/A Alcoa World Alumina Australia,94 the
Applicant’s assertion of the context of the remarks he made and his lack of malicious intent or
intent to offend, together with his contrition, thirty years’ service and the significant impact of
his termination did not render his termination for deliberate, overt and highly offensive racist
comments harsh, unjust or unreasonable.
[148] Similarly, the Applicant’s fifteen years of service, unblemished record, remorse and
financial and personal circumstances did not render his termination for calling a colleague a
“fucking nigger” harsh, unjust or unreasonable in Seaman v BAE Systems Australia Logistics
Pty Limited.95 The Applicant’s use of that term was considered to be innately offensive to any
person on the receiving end and the fact that it was directed to a colleague of Italian/Maltese
extraction was regarded as irrelevant.96
Conclusion
[149] Having considered each of the matters specified in s.387 of the FW Act, I am satisfied
the dismissal of Mr Sayers was not harsh, unjust or unreasonable. Accordingly, I find that Mr
Sayers’ dismissal was not unfair. The Application is therefore dismissed.
[2016] FWC 3428
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DEPUTY PRESIDENT
Appearances:
Ms S Kelly of Counsel for the Applicant.
Mr K Brotherson for the Respondent.
Hearing details:
2016.
Melbourne:
March 1-2.
Final written submissions:
Applicant: 18 March 2016
Respondent: 31 March 2016
Printed by authority of the Commonwealth Government Printer
Price code G, PR580878
1 Exhibit R8 – Attachment CLV8.
2 Transcript PN 2348-2352.
3 Exhibit R10 – Attachments GW2, GW3 and GW4.
4 Exhibit R10 – Attachment GW5.
5 Exhibit R8 – paragraph [26].
6 Applicant’s Final Written Submissions – Paragraph [5].
7 Exhibit R9 - paragraph [73].
8 Transcript PN 2576.
9 Transcript PN 2575.
10 Transcript PN 1739 and Exhibit R6 – paragraph [12].
11 Exhibit R6 – paragraph [15].
12 Transcript PN 354.
13 Transcript PN1326-1336.
14 Transcript PN 400-401 and 973-975.
15 Transcript PN 426.
16 Transcript PN 488 and 531.
17 [1995] HCA 24; (1995) 185 CLR 410 at 465.
18 Sayer v Melsteel [2011] FWAFB 7498.
19 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
20 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
21 Ibid.
22 [2014] FWC 6539 at [37].
THE FAIR WOR COMMISSION THE SEAL
[2016] FWC 3428
25
23 Briginshaw v Briginshaw (1938) 60 CLR 336, per Dixon J.
24 Budd v Dampier Salt Ltd 166 IR 407; [2007] AIRCFB 797 at [14].
25 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, per Mason CJ, Brennan, Deane and Gaudron JJ,
at [2].
26 Edwards v Giudice and Others [1999] FCA 1836, [6]-[7], per Moore J.
27 Exhibit A1 – Attachment MS1.
28 Exhibit A1 – Attachment MS2.
29 Ibid.
30 Exhibit A1 – paragraph [113].
31 Exhibit R6 – paragraph [41].
32 Exhibit R4 – paragraph [29].
33 Exhibit R7 – paragraph [19].
34 Transcript PN 586.
35 Transcript PN 584.
36 Applicant’s Final Written Submissions at Paragraphs [81], [82] and [86].
37 Applicant’s Final Written Submissions at Paragraphs [88].
38 Exhibit R6 – paragraphs [43] and [94].
39 Respondent’s Final Written Submissions at Paragraphs [22] - [25].
40 Transcript PN 2381.
41 Exhibit A1 – paragraph [87].
42 PR927240 at [87].
43 PR951247.
44 Ibid at [33].
45 Exhibit A1 – Attachment MS1.
46 Exhibit A1 – Attachment MS2.
47 Exhibit A1 – paragraph [114].
48 Exhibit R6 – paragraph [41].
49 Exhibit R4 – paragraph [29].
50 Exhibit R7 – paragraph [19].
51 Transcript PN 596-597.
52 Exhibit R6 – paragraphs [44] and [95].
53 Exhibit R6 – paragraph [40].
54 Exhibit R4 – paragraph [38].
55 Transcript PN 1463.
56 Applicant’s Final Written Submissions – paragraph [6(a)(ii)].
57 Applicant’s Final Written Submissions – paragraph [90].
58 Exhibit R4 – paragraph [29].
59 Transcript PN 598-599.
60 Hennigan v Xmplar Building Solutions Pty Ltd T/A Xmplar Building Solutions [2016] FWC 2938 at [32].
61 Transcript PN 1363 and 1369.
62 Exhibit R5 – paragraphs [12]-[18], Transcript PN 1384-1389 and Exhibit R4 – paragraphs [18]-[19].
63 Transcript PN 568, 570 and 571.
64 Exhibit A1- paragraph 81.
65 Transcript PN 614.
66 Transcript PN 1402.
67 Exhibit R7 – paragraph [18].
68 Transcript PN 1963-1974.
[2016] FWC 3428
26
69 Exhibit R6 – paragraphs [38]-[40], Exhibit R7 – paragraph [20] and Exhibit R4 – paragraphs [21]-[25] and Transcript PN
1392-1397.
70 Transcript PN 1410.
71 Applicant’s Final Written Submissions – Paragraph [61].
72 Exhibit A1 – paragraph 81.
73 Exhibit R6 – Attachment GRM1.
74 Exhibit A2 – paragraph [13].
75 Exhibit A1 – Attachment MS2.
76 Exhibit A1 – Attachment MS2.
77 Exhibit A1 – Attachment MS2.
78 Transcript PN 2550-2557.
79 Transcript PN 242-247 and PN 2702.
80 Exhibit R9 – paragraphs [18] and [19].
81 Transcript PN 2598.
82 Transcript PN 900.
83 Tenix Defence Systems v Fearnley Print s6238
84 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
85 Previsic v Australian Quarantine Inspection Services Print Q3730.
86 Ibid.
87 (2000) 98 IR 137 at 151.
88 Exhibit R9 – Attachment EL5.
89 Exhibit A1 – Attachment MS1.
90 RMIT v Asher (2010) 194 IR 1, 14-15.
91 Exhibit A1 – Attachment MS2.
92 Exhibit A1 – paragraph [101], Exhibit R8 – paragraph [36].
93 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
94 [2013] FWC 6813.
95 [2011] FWA 7005.
96 Ibid at [97].
