1
Fair Work Act
2009
s.394—Unfair dismissal
Kym Larcombe
v
Bis Industries
(U2017/1134)
COMMISSIONER PLATT ADELAIDE, 18 JULY 2017
Application for an unfair dismissal remedy – valid reason – not harsh, unjust or unreasonable
– application dismissed.
Summary
[1] On 3 February 2017, Mr Larcombe lodged an application pursuant to s.394 of the Fair
Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by his former
employer Bis Industries (Bis).
[2] The matter was arbitrated on 17 and 18 May 2017 in Whyalla, South Australia. Mr
Wright of WKLawyers represented Mr Larcombe and Mr Douglas of counsel represented Bis.
Permission was granted pursuant to s.596(2) of the Act.
[3] There was no dispute that Mr Larcombe was protected from unfair dismissal pursuant
to s.382 of the Act.
[4] Mr Larcombe was employed by Bis as a Supervisor up until 22 August 2016 at which
time he was demoted to a Plant Operator.
[5] Mr Larcombe’s dismissal on 18 January 2017 arose from an incident that occurred on
the morning of 9 December 2016 between Mr Larcombe, Ms Buhlmann and Mr Savaidis.
[6] Mr Larcombe provided a witness statement1 and gave evidence on his own behalf. He
also led evidence from:
Mr Brian Murphy – Health and Safety Representative and Australian Workers’
Union (AWU) representative at Bis Industries.
Ms A. Larcombe – relative (daughter) of Mr Larcombe.
Mr Scott Martin – AWU organiser based in Whyalla, South Australia.
[7] Bis provided witness statements and led evidence from:
[2017] FWC 3764 [Note: An appeal pursuant to s.604 (C2017/4357) was
lodged against this decision and order - refer to Full Bench decision dated
25 September 2017 [[2017] FWCFB 4545] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/documents/decisionssigned/html/2017FWCFB4545.htm
[2017] FWC 3764
2
Ms Shanay Buhlmann – Operator at Bis Industries.
Mr Arthur Savaidis – Operator at Bis Industries.
Mr Aaron Thiele – Senior WHSE Advisor at Bis Industries.
Mr Haydn Shepherd – General Manager Site Services SA at Bis Industries.
Ms Rachel Coates – Human Resources Business Partner – East at Bis Industries.
[8] The position of Mr Larcombe is summarised as follows:
Ms Buhlmann and Mr Savaidis have conspired against him since August 2016.
On 9 December 2016, he sought to engage Ms Buhlmann in a conversation about
his concerns that he had been unjustly accused of defacing a poster which
contained a picture of Ms Buhlmann’s face.
He wanted to resolve that matter with Ms Buhlmann prior to going on leave and
had a discussion with her in the car park on the morning of 9 December 2016.
He did not intend to harass or intimidate Ms Buhlmann.
He objected to the involvement of Mr Savaidis in the discussion.
He did not challenge Mr Savaidis to a fight in the car park.
His actions on the morning of 9 December 2016 do not constitute a valid reason for
his dismissal.
The actions of Bis in demoting him in August 2016 were harsh.
His previous disciplinary history does not disclose a pattern of behaviour.
When his 37 year work history at Bis is considered, his performance history is
unremarkable.
[9] The position of Bis is summarised as follows:
There was a valid reason for the termination.
On 9 December 2016, Mr Larcombe was agitated by the poster allegations and
made a decision to approach Ms Buhlmann alone against the advice given to him.
Mr Larcombe made a threat by yelling ‘Come over to the car park’ to Mr Savaidis
which justifies termination.
Mr Larcombe pressed his case against a female, young worker, who had used
words indicating that she wanted him to go away.
Mr Larcombe showed no remorse, as he feels he has been wronged.
During investigation, Mr Larcombe has changed his evidence in a self-serving
fashion.
When put in context, there was a history and culture of bullying directed toward
Ms Shanay Buhlmann and Mr Larcombe’s conduct is a development on that theme.
The Witness Evidence
Kym Larcombe
[10] Mr Larcombe’s relevant evidence is summarised below.
[11] Mr Larcombe was employed by Bis in February 1980.
[12] Whilst he was a Shift Supervisor, he supervised a team including Mr Wellgreen, Ms
Buhlmann, Mr Savaidis, Mr Taylor and Mr Hocking.
[2017] FWC 3764
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[13] In August 2016, Bis alleged that Mr Larcombe, as Supervisor, had failed to
appropriately respond to a series of events involving persons he supervised in his team. This
included inappropriate comments on the radio and during a toolbox meeting, and a practice
known as ‘knuckle greeting’. The precise details of these events are not relevant to this matter
other than the fact that Ms Buhlmann and Mr Savaidis were members of Mr Larcombe’s team
at that time and that the outcome of the investigation resulted in Mr Larcombe receiving a
written warning and demotion with significant loss of pay. Since his demotion in August
2016, Mr Larcombe has worked as a Plant Operator in a different team. Mr Larcombe thought
that his demotion was unfair, humiliating2 and arose as a result of a couple of disgruntled
employees that he felt he had looked after.3 Mr Larcombe stated that he did not challenge the
outcome4 but accepted it under protest.5
[14] In August 2016, Mr Larcombe was accused by Ms Buhlmann of defacing a poster at
the workplace. The poster contained a picture of Ms Buhlmann which had been defaced by
the addition of a moustache and goatee beard, earrings, a mole, blacked out teeth and the
words ‘Sonny’ on each side of the neck. Ms Buhlmann suggested the reference to ‘Sonny’
was a reference to an ex-partner and that Mr Larcombe was the only person at Bis who knew
of that relationship. Mr Larcombe denied any involvement in defacing the poster.
[15] After this incident, Mr Larcombe contends he was the subject of rumour and innuendo
at the workplace. Other employees asked Mr Larcombe if he had defaced the poster.6 Mr
Larcombe did not report the matter preferring to mind his own business.7 It is apparent that
the allegation weighed heavily on his mind for some months.8 Mr Larcombe and Ms
Buhlmann were not speaking and were not on good terms.9
[16] Mr Larcombe desired to speak with Mr Brian Murphy (Australian Workers’ Union
representative) and Mr Aaron Thiele (Bis Senior Work Health Safety and Environment
Supervisor) about reconciling with Ms Buhlmann. Mr Larcombe wanted to try and ‘clear the
air’. It had been planned that he would meet Ms Buhlmann in the presence of Bis
Management out of hours,10 but Mr Larcombe wanted to sort it out with a one-on-one
discussion with Ms Buhlmann.11
[17] On 9 December 2016, Mr Larcombe was working night shift. It was the last shift he
would work for that year as he was taking leave over the Christmas/New Year period. He was
upset about the matter12 and decided to confront Ms Buhlmann.13
[18] Mr Larcombe waited in the crib room for Ms Buhlmann to arrive in the car park14 and
at about 7:20am approached her in the car park. Ms Buhlmann was about to commence day
shift.
[19] Mr Larcombe initiated a conversation and tried to convince Ms Buhlmann that he did
not deface the poster. Ms Buhlmann told him to get fucked. Mr Larcombe continued the
conversation and reiterated that he did not have anything to do with the graffiti on the poster.
Ms Buhlmann yelled at him to fuck off again. Mr Larcombe was upset that the conversation
was not proceeding as planned and when he was told to fuck off and that he was a liar by Ms
Buhlmann, he became more annoyed.15 Mr Larcombe said the term ‘fuck off’ was used in a
serious tone not a laughing tone.16
[2017] FWC 3764
4
[20] Mr Larcombe was oblivious to whether Ms Buhlmann wanted to hear the message or
not.17 He did not walk away as he wanted to get his message across.18 Mr Larcombe contends
that this conversation took 2 minutes.19
[21] Mr Larcombe contends that Ms Buhlmann did not tell him to stop. Mr Larcombe did
not consider that being told to ‘fuck off’ by Ms Buhlmann indicated that she was not prepared
to speak with him. Mr Larcombe submitted that words ‘fuck off’ meant that she disagreed
with him.
[22] Mr Larcombe contends that after his conversation with Ms Buhlmann, she walked
towards the crib room and he was walking in the opposite direction towards the car park. He
then saw that Mr Savaidis who was with Ms Buhlmann about 50 metres from him and was
pointing towards him, saying ‘You’re gone’. Mr Larcombe was upset at Mr Savaidis’
presence as he felt his conversation with Ms Buhlmann was of a private nature, it was none of
his business, and he was interfering.20
[23] In his statement, Mr Larcombe contended that he shouted to Mr Savaidis ‘Mind your
own business and stay out of it’ and ‘Shut the fuck up, mind your own business’. Mr
Larcombe denied threatening Mr Savaidis. Mr Larcombe specifically denied stating words to
the effect of ‘If you want a go, come over here’ to Mr Savaidis.21
[24] At the commencement of giving evidence, Mr Larcombe asked to modify his
statement to include that he said words to the effect of “Come to the car park” to Mr Savaidis
during the car park incident.22 When asked to explain this omission, Mr Larcombe said he did
not believe the omission was relevant.23 Mr Larcombe contends that his comment was
designed to allow him and Mr Savaidis to discuss the matter in the car park away from the
crib room where the personnel for the next shift were gathering.24 Mr Larcombe was not
certain as to the exact words he used.
[25] After the altercation, Mr Larcombe spoke with Mr Andrew Dunn and then reported the
incident in a meeting with Mr Haydn Shepherd, Mr Aaron Thiele and Ms Natalie Ward. Mr
Larcombe told Mr Thiele, in the absence of the other persons present, that he said to Mr
Savaidis to ‘Come to the car park.’ And that he was upset at the time. Mr Larcombe was
advised the matter would be investigated.
[26] Mr Larcombe went on annual leave after that meeting.
[27] On 30 December 2016, Mr Hayden Shepherd sent a text message to Mr Larcombe
advising he was required to attend a meeting on 2 January 2017 to discuss the events of 9
December 2016.
[28] On 3 January 2017, Mr Larcombe met with Bis accompanied by his support person.
Bis advised it was conducting an investigation and detailed the allegations against him. Mr
Larcombe was stood down with pay.25
[29] On 9 January 2017, Mr Larcombe provided a written response where he denied the
allegations.26
[30] On 11 January 2017, Mr Larcombe met with Bis and AWU representative Mr Scott
Martin. Mr Larcombe said that he approach Ms Buhlmann on 9 December 2016 to ‘clear the
[2017] FWC 3764
5
air’, asked Mr Savaidis not to interfere, and denied acknowledging that he admitted using
threatening language to Mr Savaidis after the event, or threatening Mr Savaidis.27
[31] On 18 January 2017, Bis dismissed Mr Larcombe.
Scott Martin
[32] Mr Scott Martin submitted a statement28 and gave evidence. Mr Martin’s relevant
evidence is summarised below.
[33] Mr Martin supported Mr Larcombe through the process and acted as his support
person on 14 January 2017.
[34] Mr Larcombe was apologetic, stating that he only wanted to ‘clear the air’ with Ms
Buhlmann.
[35] At the meeting on 14 January 2017, Mr Larcombe apologised for what happened.
A.Larcombe
[36] Ms A.Larcombe (Mr Larcombe’s daughter) submitted a statement29 and was not
required to be cross-examined. Ms Larcombe’s relevant evidence is summarised below. I
have excluded most of the hearsay and opinion evidence contained in the statement.
[37] Her father was distraught over the incident that led to his demotion, and he became
withdrawn and introverted. He reported being isolated, secluded and shunned by his
colleagues at work.
[38] Mr Larcombe was upset after the incident on 9 December 2016.
[39] Ms Larcombe and Mr Larcombe corresponded with Bis via text message about the
context of the 2 January 2017 meeting.
[40] Mr Larcombe appeared distressed about that meeting.
[41] Ms Larcombe attended the meeting on 3 January 2017 to support her father.
Brian Murphy
[42] Mr Murphy submitted a statement30 but was not required to be cross-examined. Mr
Murphy’s relevant evidence is as follows.
[43] In the first few days of December 2016, he was ending his shift when he saw Ms
Buhlmann who appeared distressed. He spoke to her and asked if she was okay and she
replied ‘No I am not’ and told Mr Murphy of her concern in relation to the poster with her
face on it which had been defaced.
[44] Ms Buhlmann said that Mr Larcombe was responsible and then left the site.
[45] Mr Murphy advised Mr Aaron Thiele about the matter.
[2017] FWC 3764
6
[46] Mr Larcombe later denied defacing the poster stating ‘No, I am not that fucking
stupid.’
Shanay Buhlmann
[47] Ms Buhlmann submitted a statement31 and gave evidence. Her relevant evidence is
summarised as follows.
[48] Ms Buhlmann is 24 years old and works for Bis as an Operator.32
[49] Ms Buhlmann had a friendship with one of Mr Larcombe’s daughters. In 2016, Ms
Buhlmann worked with a team which was supervised by Mr Larcombe. Mr Wellgreen,
Taylor, Hocking and Savaidis were operators on that team.33 Ms Buhlmann had known Mr
Larcombe for 7 to 8 years.34 Ms Buhlmann used to have a good relationship with Mr
Larcombe.35
[50] In July and August 2016, there were a number of incidents within the team where the
conduct of team members towards Ms Buhlmann fell short of diversity expectations. On 17
August 2016, after a discussion with Mr Savaidis outside of work,36 Ms Buhlmann reported
her concerns, to the Operations Supervisor and Workshop Manager, that her Supervisor, Mr
Larcombe, was not sufficiently supporting her, a statement was subsequently prepared.37 A
few weeks later, Mr Larcombe commenced working on the opposite shift and was no longer
her Supervisor.38 Ms Buhlmann became aware that Mr Larcombe had been demoted but did
not know the exact reason.39
[51] In early 2016, Ms Buhlmann’s picture was used on posters by Bis. These posters were
placed around the workplace. In November 2016, one of the posters had been defaced. The
word ‘Sonny’ had been written on one of the posters. Ms Buhlmann believed it was a
reference to an ex-partner. Ms Buhlmann was convinced that Mr Larcombe had defaced the
poster to get a reaction from her.40 Ms Buhlmann reported the matter but was advised that
there was no evidence of Mr Larcombe or any other person’s involvement.41
[52] At about 7:15am on 9 December 2016, Ms Buhlmann arrived at work and, as she was
walking from the car park to the crib room, Mr Larcombe approached her and asked to speak
to her about the poster. Ms Buhlmann was expecting the topic of the conversation to be about
the poster.42 Mr Larcombe said he did not deface the poster, Ms Buhlmann said he did. The
conversation continued, Ms Larcombe started crying and told Mr Larcombe to ‘fuck off’ in a
manner which would get rid of him. Mr Larcombe remained and continued seeking to engage
Ms Buhlmann. The conversation continued. Mr Larcombe would not desist and Ms Buhlmann
started walking away with Mr Larcombe following her.
[53] Mr Savaidis approached Ms Buhlmann and put his arm around her.
[54] Mr Larcombe and Mr Savaidis spoke and she heard Mr Larcombe say to Mr Savaidis
in a loud voice ‘Do you want to go, come here and have a go.’43
[55] Ms Buhlmann reported the incident to Ms Natalie Ward (Manufacturing Manager).
[2017] FWC 3764
7
Arthur Savaidis
[56] Mr Arthur Savaidis submitted a statement44 and gave evidence. His relevant evidence
is summarised as follows.
[57] Mr Savaidis is employed by Bis as an Operator on the same team as Ms Buhlmann and
Mr Larcombe was his Supervisor until August 2016.45
[58] On or about 13 August 2016,46 Mr Savaidis was involved in a discussion with Ms
Buhlmann about workplace events involving Mr Larcombe’s performance as a Supervisor
which led to Ms Buhlmann reporting the matter to management in August 2016.
[59] Mr Savaidis also complained to Bis in August 2016 that Mr Larcombe, as Supervisor,
was not appropriately dealing with team behaviour. After this complaint, Mr Larcombe was
moved to another team and demoted.47
[60] At about 7:20am on 9 December 2016, Mr Savaidis attended Bis to commence work
and saw Mr Larcombe and Ms Buhlmann conversing. He could not hear what was being said.
Mr Larcombe looked angry and Ms Buhlmann was crying and looked distraught.48
[61] Ms Buhlmann approached Mr Savaidis who comforted her by embracing her for a few
seconds.49
[62] Mr Larcombe spoke first, and said to him in an aggressive tone words to the effect of,
‘You are the main instigator of this whole situation. Do you want a go, come on come here
and have a go.’50 Mr Larcombe was approximately 15 metres away and pointed with his left
arm as he said those words. Mr Savaidis thought there was potential for a fight.51 Mr Savaidis
said ‘Just go’ and pointed towards Mr Larcombe.
[63] Later that morning, Mr Haydn Shepherd met with Mr Savaidis and asked him to
prepare a statement of what he had seen and heard that morning.
[64] Ms Savaidis prepared some handwritten notes on two separate occasions after the
incident. The notes are not identical. One was written at work on the day of 9 December
2016,52 the second was written a couple of days later.
Aaron Thiele
[65] Mr Aaron Thiele submitted a statement53 and gave evidence. His relevant evidence is
summarised as follows.
[66] Mr Thiele is employed by Bis as a Senior Work Health Safety and Environment
Advisor.
[67] In early December 2016, Mr Larcombe approached him concerning difficulties he was
having with Ms Buhlmann over an allegation that he had defaced a poster with her picture on
it. Mr Larcombe asked Mr Thiele what he should do, and he advised if you want to say hello
to her that’s your choice but if she refuses to speak with you that’s her choice and I would not
push the matter further.
[2017] FWC 3764
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[68] On 9 December 2016 at about 7:45am, Mr Larcombe approach him and said:
“I think I have just fucked it.
I have just ended night shift and I knew that Shanay Buhlmann was coming onto the
Site on the day shift. I saw her get out of her car. I approached her near the car park
area.
I said to her that I wanted to sort this issue out. I was referring to the issue regarding
the graffiti on the poster of Shanay in the crib room. Shanay told me to fuck off. I then
said to her that I really just wanted to sort this situation out. Shanay said to me 'You're
a fucking liar.”54
[69] Mr Thiele said he would have to involve others in the matter.
[70] A short time later, Mr Thiele was present in a meeting between Mr Larcombe and Mr
Shepherd where he took notes. At that meeting, Mr Larcombe said that he stated to Mr
Savaidis ‘Come over here and sort it out’ whilst Mr Larcombe was in the car park. The words
‘and sort it out’ were not contained in his notes.55
[71] Mr Thiele was present at the meeting between Mr Shepherd and Mr Larcombe and his
support person on 3 January 2017. Mr Larcombe was stood down with pay at this time.
[72] Mr Thiele was also present at a disciplinary meeting attended by Mr Larcombe on 11
January 2017.
Haydn Shepherd
[73] Mr Haydn Shepherd submitted a statement56 and gave evidence. His relevant evidence
is summarised as follows.
[74] Mr Shepherd is the General Manager Sites Services SA for Bis with overall
responsibility for Bis Operations at the Arrium Onesteel site.
[75] Mr Larcombe commenced employment with a Bis predecessor in February 1980.
[76] Mr Larcombe had been the subject of two final written warnings for safety issues,
three written warnings for safety and compliance issues and seven file notations for discipline
issues.
[77] On 9 December 2016, he was advised of an incident involving Mr Larcombe.
[78] One or two shifts prior to 9 December 2016, he had arranged to meet with Mr
Larcombe at the end of his shift to check his welfare and discuss a process of reconciliation
between Mr Larcombe and Ms Buhlmann. This meeting was to occur on 9 December 2016
after Mr Larcombe had finished his shift and showered. This meeting did not occur as a result
of the incident between Mr Larcombe, Ms Buhlmann and Mr Savaidis.
[79] Mr Shepherd met with Mr Larcombe later in the morning of 9 December 2016.
[2017] FWC 3764
9
[80] One or two days prior to 9 December 2016, Mr Shepherd met with Mr Larcombe to
discuss his concerns about the allegation that he defaced a poster and during that conversation
asked Mr Larcombe not to engage or talk to Ms Buhlmann prior to a specific meeting being
arranged.57
[81] Mr Larcombe spoke of his interaction with Ms Buhlmann and Mr Shepherd gained the
impression that Mr Larcombe was angry and frustrated with Ms Buhlmann’s responses and he
persevered despite her rejection of the offer to talk.
[82] Mr Larcombe said to him after the incident ‘Maybe I should have walked away,
however I wanted to talk to her before I started my holidays.’58
[83] Mr Larcombe reported that he said to Mr Savaidis ‘We should take this to the car park
and sort this out.’
[84] Mr Shepherd initiated an investigation to be conducted by Ms Rachel Coates (HR
Business Partner).
[85] On 3 January 2017, Mr Shepherd met with Mr Larcombe and his support person and
advised him of the misconduct investigation and stood him down with pay and asked for a
written response to the allegations. This was provided on 9 December 2016 by Mr Scott
Martin from the AWU.
[86] Mr Shepherd and Ms Coates (by telephone) met with Mr Larcombe and Mr Martin
(support person) on 11 January 2017. Mr Shepherd felt that Mr Larcombe was not being
honest with him, and did not show any remorse for his actions. Mr Shepherd asked for further
witnesses to be interviewed.
[87] On 13 February 2017, Mr Shepherd was provided with an investigation report and
approved the dismissal of Mr Larcombe in accordance with the recommendation in the report.
[88] Mr Larcombe was advised of Bis’ decision by letter dated 18 January 2017.
Rachel Coates
[89] Ms Rachel Coates submitted a statement59 and gave evidence. Her relevant evidence is
summarised as follows.
[90] On 19 December 2016, Ms Coates received an email from Mr Shepherd containing
statements by Mr Savaidis and Ms Buhlmann concerning an incident which occurred on 9
December 2016 involving Mr Larcombe.
[91] On 20 December 2016, Ms Coates discussed the matter with Mr Shepherd. As Mr
Larcombe was on leave, it was decided that they would meet with him upon his return in early
January 2017.
[92] On 11 January 2017, Ms Coates attended a meeting (by telephone) with Mr Shepherd,
Mr Larcombe and Mr Martin. The meeting discussed the differing accounts of the incident on
9 December 2016. Mr Larcombe suggested that Bis should interview Mr Bull who was in the
vicinity of the incident.
[2017] FWC 3764
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[93] Mr Bull was interviewed by Mr Shepherd who advised Ms Coates that Mr Bull did not
hear what was said during the incident.
[94] Ms Coates submitted an account of the incident provided by Mr Larcombe on 2
January 2017,60 a copy of Mr Larcombe’s contract of employment,61 the Bis Industries
Employee Performance and Behaviours Code,62 the Bis Industries Workplace Bullying and
Harassment Standard,63 the Bis Industries Whyalla Drivers and Operators Enterprise
Agreement 2016,64 an internal Disciplinary Review Form which summarised the matters
which were considered by Bis in determining to dismiss Mr Larcombe including his
disciplinary history.65
[95] The Disciplinary Review Form was emailed to Bis’ Employee Relations Manager for
review, accompanied by advice that the investigation conducted by Ms Coates had found that
Mr Larcombe had said words to the effect of ‘You want a go come over here’ to Mr Savaidis
and that Mr Larcombe had persisted with a conversation which led to Ms Buhlmann
becoming quite upset. In light of Mr Larcombe’s disciplinary history, termination was
recommended.
[96] On 18 January 2017, Ms Coates prepared the termination letter.66
Findings of Fact
[97] It appears that prior to the events of August 2016, Ms Buhlmann and Mr Larcombe
had a good working relationship with Mr Larcombe ‘protecting her’, ‘looking after her’ by
giving her a good machine and by allocating her the better jobs.67
[98] However, after Ms Buhlmann and Mr Savaidis were involved in the August 2016
complaint concerning Mr Larcombe’s supervision, the relationship soured. Mr Larcombe
seemed to resent the fact that Ms Buhlmann had made a complaint which had resulted in his
demotion and assignment to a different team.
[99] Each of these witnesses, whilst giving evidence, appeared to best recall and highlight
matters that were more favourable to their position. The witness statements of Ms Buhlmann
and Mr Savaidis were remarkably consistent - although this may have resulted from the
manner in which they were drafted by the representatives - and they collaborated to some
degree in lodging a complaint against Mr Larcombe in August 2016. Each of these witnesses
had a tendency to not directly answer questions put to them when they were under pressure,
and there were inconsistencies between their accounts. Mr Larcombe contended that they
have colluded against him. As a result of the above, I have treated the evidence of these
witnesses with caution.
Interaction with Ms Buhlmann
[100] It is clear that Mr Larcombe was preoccupied with his dispute with Ms Buhlmann. Mr
Shepherd advised him prior to the incident that he would organise a structured meeting where
Mr Larcombe could talk to Ms Buhlmann, he advised Mr Larcombe not to engage or talk to
Ms Buhlmann prior to that meeting being arranged. Mr Thiele told Mr Larcombe not to
engage with Ms Buhlmann unless it was clear that she agreed to discuss the matter. Mr
[2017] FWC 3764
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Larcombe exercised poor judgement in not waiting for a ‘mediated’ meeting to be conducted.
He ignored that advice and waited for Ms Buhlmann as she came to work and confronted her.
[101] Ms Buhlmann repeatedly told Mr Larcombe to ‘fuck off’. Mr Larcombe invites me to
consider this expression as an expression of disbelief by Ms Buhlmann, but I am unable to do
so in the circumstances. I accept that Ms Buhlmann was seeking to end the conversation and
that context should have been clear to Mr Larcombe.
[102] It should be noted that Ms Buhlmann and Mr Larcombe were not equals. Mr
Larcombe had been her Supervisor, was much older and larger in stature.
[103] Having been told to ‘fuck off’ by Ms Buhlmann, Mr Larcombe should have dis-
engaged. Regrettably he persisted, escalating the events which led to an altercation with Mr
Savaidis. It appears to me that Mr Larcombe was fixated on clearing his name, he persisted
despite Ms Buhlmann’s objection.
[104] I find Mr Larcombe harassed and/or intimidated Ms Buhlmann in breach of the Bis
Industries Workplace Bullying and Harassment Standard.
Interaction with Mr Savaidis
[105] During the formal investigation, Mr Larcombe denied saying words to the effect of ‘If
you want a go, come over here’ to Mr Savaidis. At the commencement of the hearing, Mr
Larcombe varied his evidence and conceded that he said to Mr Savaidis words to the effect of
‘Come to the car park’.
[106] This is consistent with the evidence given by Mr Thiele, that shortly after the 9
December 2016 incident Mr Larcombe told him that he used the words ‘Come over here and
sort it out’ whilst he was in the car park.
[107] I find that Mr Larcombe said to Mr Savaidis words to the effect of ‘Come over here’,
whilst in the car park, and thus challenged Mr Savaidis to come to his position and have an
altercation.
[108] I find that this behaviour was a significant breach of the Bis Industries Employee
Performance and Behaviour Code as detailed under the heading ‘Intimidation / Assault.’
Was the dismissal harsh unjust or unreasonable?
[109] Pursuant to s.387 of the Act, 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
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(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.”
Valid reason - s.387(a)
[110] Notwithstanding its formulation under a different legislative environment, I have
adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron
Plastics Pty Ltd68 which requires the reason for termination to be ‘sound, defensible or well
founded.’
[111] Mr Larcombe’s conduct towards Ms Buhlmann on 9 December 2016 was in breach of
the Bis Industries Workplace Bullying and Harassment Standard and constituted a valid
reason to terminate his employment.
[112] Mr Larcombe’s subsequent verbal exchange with Mr Savaidis was in effect a
challenge to a fight, a serious breach on its own and a breach of the Bis Industries Employee
Performance and Behaviour Code.
[113] Finally, the fact that Mr Larcombe was not forthcoming with a thorough account of
the events that occurred between himself and Mr Savaidis during the investigation reflects
poorly on him. His concession that he said words to the effect of ‘Come to the car park’ was
not made until he gave evidence on the first day of the hearing.
[114] I find the conduct of Mr Larcombe formed a valid reason for Bis to dismiss him.
Notification of valid reason - s.387(b)
[115] Mr Larcombe was notified of the reasons for the dismissal via meeting and letter of
termination which set out the grounds.
Opportunity to respond - s.387(c)
[116] Mr Larcombe was provided with and took advantage of two opportunities to respond
to the allegations.
[2017] FWC 3764
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[117] Mr Larcombe was notified of the allegations on 3 January 2017 and was given 2 days
to respond. Mr Larcombe was granted an extension in order to speak to his Union. Mr
Larcombe provided a response to the allegations in writing on or about 9 January 2017.
[118] A further meeting was held on 11 January 2017 where Mr Larcombe was supported by
Mr Martin from the AWU. This provided an additional opportunity for Mr Larcombe and his
representative to respond to the allegations.
Any unreasonable refusal by the employer to allow Mr Larcombe to have a support
person present to assist at any discussions relating to dismissal - s.387(d)
[119] Mr Larcombe was accompanied by a support person, Ms Larcombe, at the 3 January
2017 meeting and Mr Martin from the AWU on 11 January 2017.
Warnings relative to unsatisfactory performance - s.387(e)
[120] During Mr Larcombe’s employment he received a number of warnings as detailed by
Ms Coates. The most recent warning, in August 2016, similarly involved the exercise of poor
judgement. In this instance Mr Larcombe was demoted for failing as a Supervisor to deal with
inappropriate behaviour in his team.
[121] Whilst the disciplinary outcome was severe, it was not challenged at the time and it is
not appropriate for me to try and balance out the ledger by taking into account the severity of
that outcome in determining this matter.
Size of the employer’s enterprise and absence of dedicated human resources support -
ss.387(g) and (f)
[122] Bis is a large employer with dedicated human resource management specialists.
Other matters considered relevant - s.387(h)
[123] Mr Larcombe is 56 years of age and has worked at Bis for 37 years.
[124] He has received a number of warnings on a variety of issues.
[125] Mr Larcombe does not believe that he had done anything wrong.
Conclusion
[126] The Explanatory Memorandum to the Act69 explains the approach of the Commission
in considering the elements of s.387 of the Act:
“FWA must consider all of the above factors in totality. It is intended that FWA will
weigh up all the factors in coming to a decision about whether a dismissal was harsh,
unjust or unreasonable and no factor alone will necessarily be determinative.”
[127] In Byrne and Frew v Australian Airlines Pty Ltd,70 the following observations made by
McHugh and Gummow JJ are relevant to my conclusion:
[2017] FWC 3764
14
“It may be that the termination is harsh but not 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.”
[128] Having considered each of the factors detailed in s.387 of the Act, I have concluded
that the termination of Mr Larcombe’s employment was not harsh, unjust or unreasonable and
as such the application has been dismissed.
[129] An Order71 reflecting this decision will be issued.
COMMISSIONER
Appearances:
A.Wright of counsel on behalf of the Applicant.
M.Douglas of counsel on behalf of the Respondent.
Hearing details:
2017.
Whyalla:
17 & 18 May.
Printed by authority of the Commonwealth Government Printer
Price code C, PR594630
1 Exhibit L1
2 PN260
3 PN291
4 PN279-283
5 PN261-263
6 PN365-372
THE FAIR SEAL OF THE THE KCOMMISSION
[2017] FWC 3764
15
7 PN372
8 Exhibit L1, paragraph 1
9 PN385
10 PN375
11 PN377
12 PN382
13 PN373
14 PN425
15 PN458
16 PN472-475
17 PN478
18 PN481-482
19 PN489
20 PN518
21 Exhibit A1, paragraphs 25, 29, 42
22 PN20
23 PN541
24 PN549
25 Exhibit L1, paragraphs 48,49
26 Exhibit L1, paragraph 52
27 Exhibit L1, paragraphs 55, 56
28 Exhibit L2
29 Exhibit L4
30 Exhibit L3
31 Exhibit B3
32 Exhibit B3, paragraphs 2,4
33 Exhibit B3, paragraph 15
34 PN1060
35 PN1062
36 PN1234-1244
37 Exhibit B3, attachment SB-1
38 Exhibit R3, paragraphs 50,51
39 PN1262-1266
40 Exhibit B3, paragraphs 52-59, see also PN1102-1196, 1121
41 Exhibit B3, paragraphs 64,65, see also PN1109-1120
42 PN1274
43 Exhibit B3, paragraph 72-75
44 Exhibit B5
45 Exhibit B5, paragraphs 3-7, 40, 45, 46
46 PN1827
47 Exhibit B4, paragraphs 43- 45, see also PN1909
48 Exhibit B5, paragraph 50, see also PN1621
49 PN1638-1646
50 PN1650-1660
51 PN1695
52 Exhibit B5, AS2
53 Exhibit B6
[2017] FWC 3764
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54 Exhibit B6, paragraph 7
55 PN1974
56 Exhibit B2
57 PN2193, 2236-2240
58 Exhibit B2
59 Exhibit B1
60 Exhibit B1, RC7
61 Exhibit B1, RC7
62 Exhibit B1, RC1
63 Exhibit B1, RC1
64 Exhibit B1, RC8
65 Exhibit B1, RC9
66 Exhibit B1, RC10
67 PN307, 309
68(1995) 62 IR 371 at 373
69 Explanatory Memorandum to the Fair Work Bill 2008
70 Byrne and Frew v Australian Airlines Pty Ltd [1995] HCA 24
71 PR594631
