[2011] FWA 7005 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
John Seaman
v
BAE Systems Australia Logistics Pty Limited
(U2011/6415)
COMMISSIONER ROBERTS |
SYDNEY, 4 NOVEMBER 2011 |
Application for unfair dismissal remedy.
[1] This decision concerns an application lodged on 24 March 2011 by Mr Seaman pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of his employment by BAE Systems Australia Logistics Pty Limited (BAE or the Company).
[2] The application was dealt with by a Fair Work Australia Conciliator on 20 April 2011 but the conciliation was unsuccessful.
[3] The arbitration came before me for hearing in Sydney on 7 July 2011. Mr Seaman was represented by Mr S Crawshaw SC and the Company by Ms K Vermey, solicitor of Arnold Bloch Leibler.
[4] Mr Seaman and his mother, Ms M Bulman, gave sworn evidence. Mr D Hayes (Warehouse and Distribution Supervisor), Mr M Saba (Warehouse Operator) and Mr I Frain (Business Improvement Manager and former Human Resources Manager) gave sworn evidence for the Respondent.
Background
[5] Mr Seaman was employed as a warehouse operator at the Company’s facility at Moorebank NSW from January 2009 until his employment was terminated for alleged serious misconduct on 10 March 2011. Prior to taking up employment with BAE, Mr Seaman was employed by Tenix Toll Defence Logistics Pty Ltd from October 2004. The Tenix business was purchased by BAE in 2009 and Mr Seaman’s employment was transferred from Tenix to BAE. Prior to Tenix becoming his employer, he was employed in the same job by the Department of Defence. The period of his employment was therefore continuous from 1996 until 2011.
[6] Mr Seaman’s employment was terminated by BAE for alleged serious misconduct following an incident on 4 March 2011. The serious misconduct related to Mr Seaman allegedly “racially vilifying, verbally abusing and physically threatening another employee, including by calling him a ‘fucking nigger’ on two occasions, on 4 March 2011.” 1
[7] Mr Seaman believes that the dismissal was unfair and was without a valid reason.
[8] Mr Seaman further argues that, even if a valid reason is established, his dismissal was nonetheless harsh given a number of factors, including his length of service, employment record and remorse for actions which were out of character for him. He further disputes that his actions on 4 March 2011 constitute serious misconduct.
Evidence
Ms Bulman
[9] Ms Bulman gave sworn evidence and submitted a witness statement 2.
[10] Ms Bulman said in her witness statement that Mr Seaman was adopted by her as an infant and during childhood and school years exhibited developmental problems and “he was in special classes for slow learners”. He was unable to read until he was around twelve years old. “Even though John could eventually read he was still very slow and had trouble comprehending and understanding what he read. This is still the case now.”
[11] To her knowledge, Mr Seaman was “devastated when he was sacked from BAE Systems.”
[12] Ms Bulman went on to say: “I have a Social Science degree and I majored in Psychology and in my opinion I would say John has some form of learning difficulty. I have never felt any need to have him diagnosed as it only labels him and he is then identified by his disability and not himself.”
[13] In cross-examination, Ms Bulman confirmed her evidence that Mr Seaman has not been assessed or diagnosed with any form of learning disability. 3
Mr Seaman
[14] Mr Seaman gave sworn evidence and submitted a witness statement 4.
[15] In his witness statement, Mr Seaman said, in summary:
[16] Mr Seaman’s statement went on to set out his duties and workplace practices at the Company during the period of his employment. “Because I was in charge I did a little but of extra work. I send emails off to Defence to find out the account codes and customer codes if they are left off the invoice. Most of the time the codes are on the paper work but if they aren’t there I have to get them. Sometimes I have to ring defence to find out where their ships are so we can send stuff to them.”
[17] Mr Seaman’s statement went on to deal with the incident(s) which led to the termination of his employment. He said:
“On 4 March 2011 I heard Mr Michael Saba, another employee in the office laughing with another person about a mistake he had made inputting information in the computer. This upset me because I had a more responsibility in the warehouse than he did and I was the one who had to answer to my superior Noel Muire for computer input mistakes. I leant over and said ‘fucking nigger’. He turned around and said to me ‘say that again’ which I did. If I had not heard him say ‘say that again’ I wouldn’t have said it again. Mr Saba then walked out the door, I followed him saying I was sorry but he didn’t want to talk to me. He went for a walk, I saw him come back I went out and apologized again saying ‘sorry, so sorry about what I said’ but he was very angry and wouldn’t accept the apology. I never argued with Mr Saba, I wasn’t standing over him, he was standing over me with a stapler in his hand. I do not understand why I used the language I did on that day. I normally don’t swear much and I don’t know why I called Mr Saba a nigger – he isn’t even black. We had been very busy at work all week and I was stressed because we couldn’t get all the work done, when I heard Mr Saba laughing about the mistake he had made. I had also recently been stressed from having a brain scan, the result of which did not reveal why I had been suffering from frequent headaches.”
[18] Mr Seaman further said that he had previously not had any problems during his employment with BAE “apart from about 6 months ago when the team leader spoke to me about my attitude to Mr Saba. I told him I was just joking around and Mr Saba took it the wrong way.”
[19] Mr Seaman went on to say that he had undertaken training on BAE’s Code of Conduct which consisted of two 4 hour training sessions.
[20] “I come to work on Monday 7th March 2011 and Dwayne Hayes, Warehouse Supervisor, asked me to write a statement about what had happened on the Friday afternoon with Michael Saba. I did the statement straight away and gave it to MR Hayes. On the morning of the 10th March 2011, I got an email telling me I had to go to the office, I then got another email telling me not to come at that time but to come in the afternoon I asked Andrew Cochrane the National Union of Workers Delegate to come with me. When I got to the meeting, I was told about statements made by other employees and asked for my side of the story. I tried to explain myself and they asked me to leave the room. They called me back in and told me they were going to dismiss me immediately. Andrew Cochrane [National Union of Workers Delegate] escorted me out the gate.”
[21] Mr Seaman’s witness statement goes on to set out his employment history since his dismissal and expresses his desire to return to work at BAE.
[22] Attached to the witness statement was a Clinical Summary issued by the Thirroul Medical Practice dated 19 May 2011 5. That certificate shows a history between January 2008 and February 2011 of the Applicant regularly suffering from headaches. Part of the Clinical Summary includes the results of a CT brain scan performed on Mr Seaman which found no defects or abnormalities and is notated as being “essentially unremarkable”. The Clinical Summary notes the medication prescribed to Mr Seaman as consisting of Diprosone, which is apparently a skin cream.
[23] In cross-examination, Mr Seaman:
[24] In re-examination, Mr Seaman said that swearing is common in the workplace. 24 He said that he was not standing over Mr Saba but rather Mr Saba was standing over him with a stapler in his hand.25 This was possible because he was sitting at the time Mr Saba was standing over him.26
Mr Hayes
[25] Mr Hayes gave sworn evidence and submitted a witness statement 27.
[26] In his statement, Mr Hayes said that he has been employed by BAE since April 2010 in his current position and has over ten years of experience working in a logistics environment in a supervisory role. At BAE’s Moorebank warehouse, he is responsible for supervising four teams consisting of a total of 37 employees. He was supervisor of Mr Seaman’s team and Mr Seaman’s team leader reported to him.
[27] “Mr Seaman’s role was based in the Priority Freight section of the Moorebank warehouse. This section is responsible for packing and dispatching high priority items to various recipients within the Australian armed forces. Mr Seaman’s role, in particular, involved entering into various computer systems the details of freight to be dispatched. This involved a degree of competence and familiarity with the relevant computer programs. These programs would change from time to time, and Mr Seaman would therefore be required to learn to use new systems. Mr Seaman was competent in performing his duties. Mr Seaman was a long-serving employee, and as a result was looked up to by his fellow Warehouse Operators. When a new Warehouse Operator started in his team, Mr Seaman would often be the person the new employee would look to for help and guidance. Indeed, on 17 September 2010, he was re-classified as a Level 6 employee (being a higher grade than his previous Level 7 classification), as a result of the level at which he was operating. I have read Mr Seaman’s witness statement, and note that he talks of being ‘in charge’. It is correct to say that Mr Seaman was a leader among the operators.”
[28] During the afternoon of 4 March 2011, he was informed by a Mr P De La Torre-Greene, Mr Seaman’s acting team leader, that the team leader had witnessed Mr Seaman and Mr Saba arguing “and that Mr Saba had complained that Mr Seaman had called him a ‘fucking nigger’.”
[29] “The warehouse environment is fairly robust, and there will often be swearing. However, neither I nor other supervisors or managers tolerate swearing or verbal abuse which is directed at another employee. This type of behavior would generally result in informal counseling, or a warning. Beyond this, racial abuse is recognized and treated as misconduct of an entirely different severity to swearing, or other (relatively mild) verbal abuse. Based on my experience, all employees are aware that racial abuse is absolutely unacceptable in the workplace. This is consistent with BAE’s policies and procedures. I was, therefore, very concerned to hear of the complaint.”
[30] Mr Hayes went on to say that he initiated an investigation into the incident between the Applicant and Mr Saba and asked a number of persons who either witnessed the incident, or were involved in subsequent events, to prepare statements. Also, Mr Hayes spoke with Mr Saba who confirmed that the Applicant had called him a ‘nigger’, claimed that this was not the first time he had abused him and said that “he felt that BAE did not do anything about this sort of behavior.” Mr Saba provided a brief written statement to Mr Hayes.
[31] Before reading the various statements from other employees, Mr Hayes spoke with Mr Seaman on 8 March 2011. “I asked him if he recalled an incident that had occurred on Friday 4 March 2011 between him and Mr Saba. I told him that Mr Saba had complained about angry words that had been exchanged between them. I stressed that these were only allegations, and that it was important for Mr Seaman to provide his side of the story so that it could be dealt with fairly. Mr Seaman did not make any substantive response at that time. I asked him to write a statement setting out his view of the Incident. I said that he should take him time preparing the statement, and that, if he needed any help, he should ask me. Mr Seaman said that he understood and would do so.”
[32] The brief written statement from Mr Seaman to Mr Hayes was attached to Mr Hayes’ witness statement. That statement, which was signed by Mr Seaman, said: “I was stressed last week about the amount of work we got that we couldn’t get all done so I took it out on Michael and called him a F__k nigger.” 28
[33] Mr Hayes went on to say that he did not put any pressure on Mr Seaman to produce a written statement and did not agree with any suggestion that Mr Seaman has a diminished intellectual capacity. “I worked with Mr Seaman for nearly a year and found him to be perfectly capable intellectually.”
[34] Mr Hayes said that he was very concerned by Mr Seaman’s admission that he called Mr Saba a ‘nigger’, “particularly as I knew that conduct of this kind was serious and would result in serious disciplinary action.” He had gone on to ask the Applicant if he wished to add anything to his written statement and when the Applicant declined that offer, asked him to sign the statement, which he did.
[35] On 8 March 2011, Mr Hayes informed Ms V Liebrand (Human Resources Advisor) of the incident between the Applicant and Mr Saba. On 9 March 2011, he and Ms Liebrand held interviews with four employees who either witnessed the incident or had knowledge of subsequent events. They also interviewed Mr Saba on the same day. Each interview was conducted in private with Ms Liebrand conducting the interviews and taking notes and Mr Hayes observing. There was no suggestion from any interviewee that Mr Seaman had been joking during his exchange with Mr Saba on 4 March. “All those who witnessed the exchange agreed that it was heated, that Mr Seaman appeared to be very angry and that Mr Saba had been upset. Mr Seaman also admitted to making the comment in frustration and to taking his stress out on Mr Saba.” None of the interviewees supported Mr Seaman’s version of events.
[36] “I was satisfied, based on what the witnesses had told Ms Liebrand and me, that they believed that Mr Seaman had racially abused Mr Saba, physically intimidated him and had intended to cause him to be upset.”
[37] On 10 March 2011, he and Ms Leibrand discussed the incident of 4 March with Mr I Frain and Mr W Burton, the Warehouse and Distribution Manager. “My view was that, if it was found that Mr Seaman had directed racial abuse at Mr Saba (as was likely, based on what I had been told by the witnesses and given that Mr Seaman had admitted to calling Mr Saba a ‘nigger’), then it would be difficult to do anything other than dismiss Mr Seaman. The conduct was seriously inappropriate and involved a safety risk to another employee. It was discrimination and bullying in my view. I felt that any lesser sanction would risk giving the impression that we tolerated racial abuse, and would leave BAE open to suggestions that it did not adequately protect its staff. I was disappointed about this, as I thought Mr Seaman was generally a competent worker and a nice person. However, depending on the outcome of our discussions with Mr Seaman, I did not see any other practical option.”
[38] Consideration was also given to the training Mr Seaman had received in BAE’s Code of Conduct, including a relent refresher course. “Ms Liebrand confirmed that this training was given on 21 October 2010, and that he had received full training on 8 July 2009.” Mr Hayes was also of the view that Mr Seaman should have been aware of the provisions in the BAE enterprise agreement which provide that discrimination, harassment or bullying is serious misconduct which may result in summary dismissal.
[39] “BAE’s House Rules set out examples of behavior which would constitute ‘serious misconduct’ or ‘less serious misconduct’. One of the examples given of serious misconduct is ‘intimidating or assaulting other employees … on Company property’. It is made clear that this could result in instant dismissal. I have been told by Mr Muir, and believe, that Mr Seaman received guidance from Mr Muir on the practical effect of the House Rules, and was provided with a copy of the House Rules, at a pre-shift ‘Tool Box’ meeting on 30 July 2010.”
[40] A disciplinary meeting was held with Mr Seaman on 10 March 2011. The meeting was conducted by Mr Frain and Mr Burton, Ms Leibrand and Mr Cochrane were also present. At this meeting, the Applicant admitted calling Mr Saba a ‘fucking nigger’ and acknowledged having been spoken to on an earlier occasion concerning his treatment of Mr Saba. The Applicant accepted that he should not have spoken to Mr Saba in the way he did on 4 March 2011. Mr Cochrane raised arguments in mitigation, especially Mr Seaman’s length of employment and employment record.
[41] Mr Hayes went on to say that company representatives met privately during a break in the meeting: “We all felt that Mr Seaman had directed racial abuse at Mr Saba. We discussed whether it was appropriate to give any sanction lesser than dismissal. None of us thought it was in the circumstances, having regard to the nature of the conduct, BAE’s policies, the Collective Agreement and BAE’s wellknown approach to racial harassment, safety and bullying. We were also concerned that other employees could perceive that BAE tolerated racial harassment. Ultimately, it was Mr Frain’s decision to terminate the employment.”
[42] Mr Seaman was then advised, in the presence of Mr Cochrane, by Mr Frain that he was to be dismissed for serious misconduct. The Applicant was further advised that he would receive a payment in lieu of notice equivalent to four weeks pay.
[43] “I understand that, since his dismissal, Mr Seaman has said that he was very stressed as a result of concerns regarding his health. Mr Seaman had not mentioned anything to me along these lines in the lead-up to, or following, the Incident, and I had not witnessed anything which would cause me to have concern about Mr Seaman’s health. I was not aware, until hearing in the course of these proceedings, that Mr Seaman had had a brain scan. Mr Seaman had taken four days’ sick leave in the six months leading up to his dismissal. This level of absence did not cause me any concern.”
[44] It was also decided to give Mr Saba a first written warning “in relation to his inappropriate and unprofessional conduct in arguing with Mr Seaman”.
[45] Mr Hayes was not cross-examined.
Mr Saba
[46] Mr Saba gave sworn evidence and submitted a witness statement 29.
[47] It was, in summary, Mr Saba’s statement that:
[48] Mr Saba’s statement goes on to set out his evidence about the incident of 4 March 2011. He said: “When we were working at our computers, John was stamping his feet on the ground. We work in a portable office, and John’s stamping made the whole office shake. It was making my computer monitor jump up and down, so I told him to stop it. John leaned over and called me a ‘nigger’. I asked him not to say it again, but he repeated it and said ‘nigger, nigger, nigger’. I was very upset by this, so can’t remember whether he said the word ‘fucking’. In any case, it was the use of the word ‘nigger’ that upset me. I had to go outside to calm down. On my way out, I told John I was going to report him. The reason I was so upset was because I found the term ‘nigger’ offensive. I have a Maltese/Italian father - but even if I didn’t, everyone knows that it is an offensive term. While I had put up with John’s abuse before, on this occasion I could not take it any longer. There was nothing funny about what John said. John was angry and I am certain he meant to upset me. It was definitely not a joke. When I returned to our office a short time later, John squared up to me and stood over me, with his face about 5 cm from my face. John is physically much bigger than me, and had an angry look on his face. I felt extremely threatened and thought he was going to hit me. I became quite defensive at this point, as I did not want John to know I was intimidated. I said something like ‘just try it’ to show that I wasn’t afraid of him.”
[49] The argument between him and Mr Seaman was stopped by another employee. During the altercation a member of the Defence Forces was present in the office.
[50] Mr Saba went on to say: “Later that afternoon, I told [Mr Hayes] I wanted a transfer out of the department because I had had enough and could not work with John anymore. I thought that, if I was not transferred, I would be better off resigning than having to continue working with John, because, given the small team and set up of our workplace, there was no way I could avoid having contact with him.”
[51] Mr Saba’s statement continues: “I would be anxious about John coming back to BAE after everything that has happened and I would not be comfortable working with him. The way he treated me was unacceptable. I had told him that he was upsetting me and I wanted him to stop it, but he kept going. I am extremely concerned that it would happen again. We work as a team and there are only four people in our team in priority freight. If John came back, we would be working together all day. Even if he worked in a different part of freight, we would still be working in the same area and would cross paths with each other every day. We would not be able to avoid each other. I have found this whole experience to be extremely upsetting and do not want to have to go through it again.”
[52] In his supporting oral evidence, Mr Saba said that he was often teased by Mr Seaman and made to feel “pretty incompetent. You know, nobody wants to be old, but I tried to do my best on the job.” 30 Mr Saba went on to say that when he was first called a ‘nigger’ he responded to Mr Seaman: “If you call me that again I’m going to report you.”31 Mr Seaman then leaned over and said to him: “Nigger, nigger, nigger”.32 He found the term ‘nigger’ to be offensive.33
[53] In cross-examination, Mr Saba:
[54] The cross-examination went on in some detail to examine the exact words used on 4 March 2011 between Mr Seaman and Mr Saba and their context. Mr Saba maintained his evidence that Mr Seaman said: “Nigger, nigger, nigger”. 37 Mr Saba went on to say that he had been called a ‘nigger’ by the Applicant on previous occasions also.38
[55] Mr Saba denied fabricating his evidence as to the conversation on 4 March 2011. 39
[56] In further cross-examination, Mr Saba:
[57] In re-examination, Mr Saba agreed that his general memory “is not very good”. 48 He went on to say that the first statement produced for Mr Hayes on 8 March was done in a hurry.49
Mr Frain
[58] Mr Frain gave sworn evidence and submitted a witness statement 50.
[59] Mr Frain was BAE’s Human Resources Manager between July 2009 and May 2011 when he took up his current role. His previous career was with the Royal Air Force and the Royal Australian Air Force. “In total, I have approximately 21 years’ experience in managing defence industry personnel, including significant human resources experience.”
[60] Mr Frain’s witness statement goes on to detail BAE’s conduct standards, Code of Conduct and House Rules and the terms of relevant enterprise agreements, together with details of training and information provided to Mr Seaman concerning the standards expected by BAE to be observed at work. That evidence is in line with that of Mr Hayes.
[61] I have paid regard to Mr Frain’s evidence regarding the above matters together with his further evidence concerning the process conducted by BAE in establishing to its own satisfaction the events and circumstances of Mr Seaman’s altercation with Mr Saba on 4 March 2011.
[62] Mr Frain went on to say that he: “considered that the allegations were serious, and could result in the termination of Mr Seaman’s employment. This was not in my mind merely a case of alleged verbal abuse. The alleged conduct was discriminatory, and raised serious questions about bullying and a safety breach by exposing another employee to a serious risk to his health and safety at work. The behaviour potentially exposed the company to legal liability.”
[63] When the allegation of misconduct was put to Mr Seaman on 10 March 2011, Mr Seaman conceded that he had called Mr Saba a ‘fucking nigger’. The Applicant had offered the following concerning his conduct:
“(a) he was under a lot of pressure at the time, and did not know how to handle it;
(b) while he felt that his outburst had helped ‘relieve his stress’, he accepted that it was unacceptable and that he ‘should not have said it’; and
(c) he had tried to apologise to Mr Saba.”
[64] At the meeting on 10 March 2011, Mr Seaman did not dispute that comments of a racial nature are completely unacceptable or that BAE does not tolerate racial abuse. Earlier incidents concerning Mr Seaman’s behaviour towards Mr Saba were also raised with the Applicant.
[65] “In all of the circumstances, I was satisfied that Mr Seaman had called Mr Saba a ‘fucking nigger’ and had acted in an intimidating manner. Throughout the disciplinary process, and in making the decision to terminate, I also gave consideration to the following factors:
(a) Mr Seaman’s conduct constituted racial harassment and racial vilification, which was not only a breach of BAE’s Code of Conduct and Collective Agreement, but was also unlawful and completely unacceptable.
(b) Mr Seaman had previously been counselled regarding his interactions with other employees, and had not regarded this as being serious or warranting a change in his conduct.
(c) Mr Seaman had continued to argue with Mr Saba in the presence of a representative of BAE’s sole customer, showing no regard for the need to maintain BAE’s reputation.”
[66] Mr Frain went on to say that BAE does not tolerate racial abuse or the use of bad language or abuse directed at any individual. “Employees who engage in abusive conduct are subject to disciplinary action. The character of the conduct will dictate the nature of the disciplinary action. For example, if an employee were to swear at another employee, it may be appropriate to issue a warning. However, if an employee were to engage in unlawful conduct, such as racial vilification or discrimination, this will be treated as serious misconduct, which may result in termination of the employment including, where appropriate, summary dismissal.”
[67] It is Mr Frain’s view that the Applicant’s words to Mr Saba on 4 March 2011 were deliberate and spoken in the knowledge that BAE does not condone such conduct. “This was not simply a matter of Mr Seaman swearing at Mr Saba, or engaging in banter. This was an expression of anger and a clear case of wilful and deliberate racial vilification.”
[68] Mr Frain was also satisfied that Mr Seaman “had engaged in physically intimidating behaviour towards Mr Saba.”
[69] “I was satisfied that Mr Seaman was aware of our expectations around conduct of this kind, given his participation in training and the fact that the Collective Agreement had only recently been concluded. He also acknowledged in our interview with him that he had attended Code of Conduct training as recently as October 2010. I also considered the options available to me, including whether BAE could take some other kind of disciplinary action instead, such as a warning - particularly given his service with BAE and the fact that he had apologised over the incident. However, this was not just a matter of Mr Seaman directing foul language towards Mr Saba, in which case a warning may have been justified. Rather, this was a clear case of racial harassment and vilification, directed towards another employee in an intimidating and deliberate manner. Further, the conduct was unlawful, a serious breach of expected standards of behaviour of which Mr Seaman was aware, and involved exposing another employee to a risk to his health and safety. The conduct was unequivocally serious and inconsistent with the employment continuing.”
[70] Mr Frain said that dismissal was justified. “My reasons for the termination were as follows:
(a) Mr Seaman admitted to calling another employee, Mr Saba a ‘fucking nigger’ and repeating the statement.
(b) The statement amounted to racial harassment and racial vilification, which is completely unacceptable at BAE.
(c) Mr Seaman had otherwise engaged in inappropriate and physically intimidating conduct.
(d) The conduct was unlawful, exposed another employee to a risk to his health and safety and potentially exposed the company to significant liability.
(e) This was in breach of BAE’s Code of Conduct and amounted to serious misconduct under the terms of the BAE Systems Australia Logistics Pty Ltd, Defence Integrated Distribution Systems (DIDS) Collective Agreement 2010 - 2013 (Collective Agreement), the terms of which Mr Seaman was aware.”
[71] Mr Frain went on to say that he considered other disciplinary options before reaching his decision to terminate Mr Seaman’s employment. After reaching his conclusion, he spoke with Mr Cochrane to provide a further opportunity for Mr Cochrane or Mr Seaman “to raise any final relevant matters before we proceeded to implement the decision”. Mr Cochrane submitted to Mr Frain that Mr Seaman’s good employment record was a factor which mitigated against dismissal. It was then decided to pay Mr Seaman four weeks notice despite the termination being for serious misconduct.
[72] Mr Frain said that at no time prior to the dismissal was he made aware of any alleged health issues affecting Mr Seaman. Mr Seaman’s personnel file discloses no health concerns and “I am not aware of any circumstances which would give rise to Mr Seaman being under undue stress at work during the relevant period.”
[73] Mr Frain went on to say that Mr Saba’s actual ethnicity was not considered a relevant consideration during BAE’s investigation of the 4 March 2011 incident. The key issues considered were that the language used by Mr Seaman in itself may be considered racially offensive, that the language was used in a manner which was perceived to be racially offensive and Mr Saba was in fact offended by the Applicant’s use of such language.
[74] Mr Frain’s statement further notes that Mr Saba received a first written warning as a result of his conduct on 4 March 2011.
[75] In his supporting oral evidence, Mr Frain said that he believed that reinstatement of Mr Seaman would send a message to the rest of the workforce that the Code of Conduct was not to be regarded as an important document. 51
[76] In cross-examination, Mr Frain:
[77] In answer to questions from both Mr Crawshaw and myself, Mr Frain said that Mr Saba received a first written warning because he engaged in an argument with Mr Seaman in front of a customer when “he could have walked away at any stage”. 54
[78] In re-examination, Mr Frain said that the conduct of Mr Saba was less serious than “racial discrimination or racial harassment” by Mr Seaman. 55
Submissions
The Applicant
[79] Mr Seaman, per Mr Crawshaw, filed a written outline of submissions. 56 The relevant part of those submissions was brief and is reproduced below:
“The applicant has admitted to and apologised for the incident on 4 March 2011. The applicant submits that the dismissal was unfair because there was not a valid reason. The applicant relies on the grounds set out in the application as to why there was not a valid reason. Alternatively, the applicant submits that if there was a valid reason the circumstances of the case are such that the dismissal was nonetheless harsh. In relation to s 387(h), the applicant submits that the following other relevant matters support the proposition that the dismissal was harsh: (a) the applicant’s length of service (15 years); (b) his essentially unblemished employment in that long time; (c) his hardworking attitude; (d) his financial and personal circumstances; (e) the applicant’s conduct was out of character; and (f) the applicant is remorseful.”
[80] Mr Crawshaw supported his written submissions orally at the close of proceedings. I have also paid regard to the supporting material filed by Mr Seaman as part of his application for relief 57
The Respondent
[81] The Respondent, per its solicitors, also filed a written outline of submissions. 58 Those submissions argued that BAE has policies in place that require employees as follows:
“(a) respect other staff;
(b) do not humiliate or act in a hostile manner towards other staff;
(c) do not harass or bully other staff; and
(d) do not intimidate or assault other staff in the workplace.”
[82] The Applicant was aware of the expected standards of behaviour from the terms of the agreement, BAE’s Code of Conduct and BAE’s House Rules. He received relevant training and information and acknowledged receipt of same.
[83] The submissions go on to summarise events leading up to the termination of Mr Seaman’s employment in the following terms:
“(a) On Friday, 4 March 2011, Mr Seaman, Mr Saba and John Lazarus were working at their computers in the Moorebank warehouse. The work area was a small portable office (approximately 5.8m x 2.85m x 2.8m), containing three computer terminals and a photocopier. The computers are approximately 1 metre from each other. Mr Seaman and Mr Saba were both seated at their computers and therefore approximately 1 metre away from each other.
(b) Mr Seaman was stamping his feet on the floor in a noisy and disruptive manner. Mr Saba told Mr Seaman to stop stamping his feet. Mr Seaman then called Mr Saba a ‘fucking nigger’. Mr Seaman said this aggressively.
(c) Mr Saba responded by saying ‘do not call me that’
(d) Mr Seaman then said again ‘fucking nigger’.
(e) Mr Saba left the office in distress. After a short period of time, Mr Saba returned to the office. At the same time that Mr Saba was walking into the office, Mr Seaman was making to leave. However, Mr Seaman stopped and turned to face Mr Saba. Mr Seaman then moved towards Mr Saba and stood in very close proximity to him.
(f) Mr Seaman and Mr Saba then began to argue. They both were angry and used raised voices. The argument was increasingly heated. Mr Seaman, who is much physically bigger than Mr Saba, stood over Mr Saba and ‘in his [personal] space’ in a manner that was intended to physically threaten and intimidate him.
(g) This argument (although not the initial incident) was conducted in the presence of a member of the Australian armed forces, BAE’s sole customer. It was also observed by Mr Lazarus, Paul De La Torre-Greene and Richard Raynham (both Warehouse Operators).
(h) Shortly after the argument, Mr Seaman attempted to apologise to Mr Saba.
(i) Later that morning, Mr Saba complained about the incident to Chris Sharpe (Mr Sharpe) (the acting Team Leader at the time). Mr Saba said that he did not want to work in the Priority Freight section (in which both he and Mr Seaman worked) if Mr Seaman was allowed to continue to harass him.
(j) Mr De La Torre-Greene informed Dwayne Hayes (a Warehouse and Distribution Supervisor responsible for Mr Seaman’s team) of the abusive episode and its aftermath (Incident).
(k) On Tuesday, 8 March 2011, Mr Hayes commenced an investigation process.
(I) When Mr Hayes spoke with Mr Seaman, he told him that a complaint had been made regarding an incident between him and Mr Saba. Mr Hayes made clear that they were only allegations, and that John would be treated fairly. Mr Hayes explained that, in order that Mr Seaman’s views could be considered, he should write a statement setting out his perception of the Incident. Mr Hayes stressed that Mr Seaman should take his time preparing the statement, and that he should ask for help if necessary.
(m) Mr Seaman provided Mr Hayes with a typed statement which read as follows:
‘I was stressed last week about the amount of work we got that we couldn’t get all done so I took it out on Michael and called him a F_k nigger John Seaman [signed J Seaman]’
(n) Mr Hayes confirmed the statement with Mr Seaman and asked whether he wanted to add any further explanation. Mr Seaman confirmed that the typed note was his full statement.
(o) Over the course of the following few days, Mr Hayes spoke with each of the individuals involved in the Incident, and obtained a written statement from each individual. The statements made at these interviews supported the allegations made by Mr Saba. The statements also identified previous inappropriate conduct on the part of Mr Seaman, which had led to him being counselled about his approach to dealing with Mr Saba.
(p) Mr Hayes asked Mr Seaman to attend a meeting to discuss the Incident and what disciplinary action (if any) should be taken. Mr Seaman was told by Mr Hayes that he could bring a representative to this meeting if he wished.
(q) At the disciplinary meeting, held at 2pm on 10 March 2011:
(i) Mr Frain provided Mr Seaman with a further opportunity to provide his version of events about the Incident and to raise any matters he wished BAE to take into account.
(ii) Mr Frain informed Mr Seaman that BAE was concerned that he had called Mr Saba a ‘fucking nigger’, that he had argued with Mr Saba in a manner which was physically threatening, and that he acted in this manner in the presence of a representative of BAE’s sole customer.
(iii) Mr Frain asked Mr Seaman about his previous interactions with Mr Saba and that, on a number of occasions, he been warned not to speak down to colleagues, but had failed to heed these warnings.
(iv) Mr Frain explained further that these alleged actions would constitute a breach of his employment obligations, including BAE’s Code of Conduct and the Collective Agreement.
(r) Mr Seaman and his representative, Andrew Cochrane (a delegate of the National Union of Workers) did not deny the allegations. However they raised the following points:
(i) Mr Seaman was under a lot of pressure at the time, and did not know how to handle it;
(ii) whilst Mr Seaman felt that the act of abuse helped relieve his stress, he accepted that it (and racial abuse in general) was unacceptable and that he ‘should not have said it’;
(iii) Mr Seaman had tried to apologise to Mr Saba; and
(iv) Mr Seaman had worked at the site for 15 years, had a generally ‘clean’ record and the Incident was ‘out of character’.”
[84] After the BAE’s investigation was completed, Mr Frain was satisfied that:
“(a) based on the circumstances, the admissions made by Mr Seaman and comments of other witnesses:
(i) Mr Seaman racially abused a colleague, Mr Saba, calling him a ‘fucking nigger’ and repeating the statement despite being asked to refrain from doing so;
(ii) Mr Seaman acted deliberately because he was angry and frustrated with Mr Saba and intended to abuse and intimidate him;
(iii) Mr Seaman also argued with Mr Saba, and acted in a way intended to physically intimidate and threaten him; and
(iv) the above conduct took place in the presence of a representative of BAE’s sole customer.
(b) Mr Seaman had completed training which covered the need to respect colleagues and was aware at the time of the incident that:
(i) his conduct was wrong and racial abuse was a serious matter.
(ii) such conduct was a serious breach of BAE’s policies of which Mr Seaman was aware.
(c) Mr Seaman had previously been verbally warned for speaking inappropriately to, and taunting, his colleagues and had not responded to the opportunity to correct inappropriate behaviour.”
[85] The submissions go on to say that after considering Mr Seaman’s length of service and the likely impact of a dismissal upon him, Mr Frain had decided that Mr Seaman’s conduct constituted serious misconduct which was not compatible with continued employment.
[86] The submission go on to deal with the questions of valid reason and harshness and the criteria for establishing those questions. BAE acknowledges that there are some mitigating factors which weighed in favour of Mr Seaman but argues that they “are not sufficient to make dismissal a disproportionate response to a conduct engaged in by Mr Seaman”. I have also paid regard to the written submissions on behalf of BAE in relation to BAE’s duties to protect staff from racial abuse and provide a safe workplace and Mr Seaman’s employment history and character.
[87] Ms Vermey supported the written submissions orally and I have paid regard to those oral submissions.
Conclusions and Findings
[88] Mr Seaman’s employment was terminated on the ground of serious misconduct. That serious misconduct consisted of the incident(s) on 4 March 2011 in the context of previous alleged misbehaviour by Mr Seaman towards Mr Saba. Despite the termination being for serious misconduct, the Respondent chose to pay Mr Seaman the equivalent of four weeks wages as an ex gratia termination benefit.
[89] As the Applicant’s conduct is the reason given by BAE for the termination, I have to determine for myself the nature of the impugned conduct occurred and, if so, whether it amounted to a valid reason for termination of employment. In this regard I respectfully agree with the following observations of the Full Bench in King v Freshmore (Vic) Pty Ltd 59:
“When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.
The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”
[90] In Container Terminals Australia Limited v Toby 60, a Full Bench of the Australian Industrial Relations Commission said: “In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable…”61
[91] Northrop J in Selvachandran v Peteron Plastics Pty Ltd 62 said:
“In its context in s 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, ….”
[92] In Qantas Airways Ltd v Cornwall 63, the Full Court of the Federal Court said:
“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”
[93] In Edwards v Justice Giudice 64, Moore J said:
“The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.”
[94] My task in this particular case is made easier by Mr Seaman’s early admission to the Respondent that he had called Mr Saba ‘a fucking nigger’ on 4 March 2011. Mr Saba himself was not sure if the word ‘fucking’ was used by Mr Seaman and there are variances between the evidence of Mr Seaman and Mr Saba as to the exact sequence of events and the exact words exchanged between them. It is not necessary for me to determine the exact words used by Mr Seaman on 4 March but I am satisfied that they included the words ‘fucking nigger’ and the repetition of the word ‘nigger’ by Mr Seaman towards Mr Saba after the initial comment was made by Mr Seaman. Mr Saba admitted that his memory is not good but I accept his evidence that Mr Seaman also attempted to physically intimidate him.
[95] All in all, I am satisfied and find that Mr Seaman abused Mr Saba on 4 March 2011 by using the term ‘nigger’ to him in an aggressive manner and that the words were either accompanied by, or shortly followed by, behaviour which Mr Saba was entitled to consider intimidating. Further, I find that Mr Seaman’s actions on 4 March 2011 followed earlier occasions on which he had spoken to Mr Saba in a manner designed to be insulting and demeaning. In that regard, I prefer the evidence of Mr Saba to that of Mr Seaman.
[96] In relation to the evidence of Ms Bulman, I have no reason to believe that it was not subjectively truthful as to her belief that Mr Seaman has suffered from a learning disability since early childhood. However, there is no objective medical evidence to support her opinion and, in any event, a learning disability would not go to explain the pattern of behaviour of Mr Seaman towards Mr Saba. The limited evidence adduced by Mr Seaman (see paragraph 22 above) provides no support for an argument that Mr Seaman suffers from any form of mental deficit or abnormality. I believe Mr Hayes’ evidence that he was never aware of Mr Seaman suffering from any psychological or mental condition which affected his work in any way. Mr Saba’s assessment of Mr Seaman as ‘strange’ may well be correct but it cannot form an excuse for his behaviour. Likewise, any propensity by Mr Seaman to suffering from regular headaches cannot excuse his behaviour also. Certainly, Mr Seaman appears to have been an otherwise valued employee who played an important role in the warehouse and was a source of leadership and advice to other employees. However, for some reason or reasons which will probably never be fully known, Mr Seaman took an active dislike to Mr Saba and this escalated over time and culminated in the events of 4 March 2011.
[97] I consider the evidence of Mr Hayes and Mr Frain to be entirely reliable and note in particular that Mr Hayes was not subject to cross-examination during proceedings. Mr Saba struck me as an honest witness, who while sometimes easily confused as to details, nevertheless endeavoured to truthfully relate his dealings with Mr Seaman. Mr Seaman’s evidence was far from credible particularly as it related to his alleged failure to remember the content of previous discussions with management concerning his attitude towards Mr Saba and also in relation to his alleged lack of knowledge at the time he used the word ‘nigger’ towards Mr Saba that such a term would be innately offensive to any person on the receiving end of such remarks. His evidence that he believed Mr Saba invited and welcomed the repetition of the word ‘nigger’ must be totally rejected and I do so. I further reject the proposition that Mr Saba’s racial background is relevant in any way.
[98] As noted above, I have formed the view that the BAE witnesses were truthful in their evidence and also Mr Saba was truthful as to both Mr Seaman’s behaviour on 4 March 2011 towards him, and previously. Mr Seaman was a competent employee performing a valued role but this cannot excuse his behaviour on 4 March 2011, compounded by his previous behaviour. Mr Saba is in no way responsible for Mr Seaman’s behaviour and I am satisfied that he did nothing to provoke it. The words used by Mr Seaman towards Mr Saba, together with actions designed to intimidate Mr Saba were of a most serious character. Mr Saba was entitled to feel insulted and degraded by Mr Seaman’s words and actions and BAE was entitled to form the view it did as to the seriousness of Mr Seaman’s behaviour. The Code of Conduct and the House Rules, together with the enterprise agreement, make it clear that such behaviour is not to be tolerated. Even if the Code of Conduct and the House Rules did not exist, Mr Seaman’s behaviour would still be seriously unacceptable and amount to serious misconduct. Mr Saba moreover was entitled to perform his duties in an atmosphere which did not threaten or degrade him. The use of the racial slur ‘nigger’ was appalling and in my view, the Company’s reaction was proportionate and appropriate. I therefore find that there was a valid reason for the termination of Mr Seaman’s employment.
[99] I now turn to the question whether the dismissal of the Applicant was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria for considering harshness etc. It provides:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
[100] In Byrne v Australian Airlines 65, McHugh and Gummow JJ of the High Court said:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment 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.”
[101] The question of valid reason is dealt with above.
[102] I am satisfied and find that Mr Seaman was notified of the reason for his dismissal and further find that he was given an opportunity to respond and to have a support person present to assist him in any discussions relating to dismissal. The question of unsatisfactory performance does not arise in this case. I am further satisfied that the employer enterprise is a large one with dedicated human resources management specialists within the Company. In this context, I can find no fault with the procedure followed by the Company in its investigation or in its dealings with Mr Seaman leading up to his dismissal.
[103] I therefore have determined and find that the termination of Mr Seaman’s employment was not harsh, unjust or unreasonable. In reaching that conclusion, I have considered the length of Mr Seaman’s service, his educational history, his family circumstances and his future employment prospects together with the undoubted emotional impact that the termination of employment has had on him. None of those factors persuade me that there is any element of harshness in the dismissal. In the end, Mr Seaman must accept responsibility for his actions and understand that he alone is responsible for the situation he has found himself in.
[104] I now turn in passing to Mr Saba’s situation. As I understand it, BAE has placed Mr Saba on a written warning for his alleged role in the altercation with Mr Seaman on 4 March 2011. It would not be proper for me to make any formal finding in this regard but I wish to note my view that I do not believe this to be a just outcome for Mr Saba. On 4 March 2011, Mr Saba was placed by a situation which no one could prepare for. He was entitled to be outraged by his treatment at Mr Seaman’s hands and to provide a vigorous response to such treatment. It appears that any response from Mr Saba was purely verbal and I believe fully understandable in the circumstances he was faced with. It is my recommendation to BAE that it remove any warning to Mr Saba regarding the 4 March 2011 incident from his personnel file. In the end, it was Mr Saba who was the victim of vile abuse and I see no reason for him to be punished for anything he did on that day. I request that BAE inform my Chambers within seven days of the issuing of this decision to inform me whether it is willing to accept my recommendation.
[105] Mr Seaman’s application for relief is dismissed.
COMMISSIONER
Appearances:
S Crawshaw SC for John Seaman.
K Vermey of Arnold Bloch Leibler for BAE Systems Australia Logistics Pty Limited.
Hearing details:
2011.
Sydney:
July 7.
1 See Exhibit BAE 1.
2 Exhibit Seaman 2.
3 Transcript PNs93-94.
4 Exhibit Seaman 3.
5 Attachment A to Exhibit Seaman 3.
6 Transcript PN133.
7 Transcript PN135.
8 Transcript PNs144-146.
9 Transcript PNs147-148.
10 Transcript PNs150-151.
11 Transcript PNs165-166.
12 Transcript PNs186-187.
13 Transcript PN189.
14 Transcript PNs196-197.
15 Transcript PN201.
16 Transcript PN203.
17 Transcript PN204.
18 Transcript PN221.
19 Transcript PN222.
20 Transcript PN226.
21 Transcript PN230.
22 Transcript PN231.
23 Transcript PN232.
24 Transcript PNs244-245.
25 Transcript PN248.
26 Transcript PN249.
27 Exhibit BAE 2.
28 Attachment DH2 to Exhibit BAE 2.
29 Exhibit BAE 3.
30 Transcript PN498.
31 Transcript PN502.
32 Transcript PN504.
33 Transcript PN505.
34 Transcript PN538 and following.
35 Transcript PNs589 -591 and 608-609.
36 Transcript PN623.
37 Transcript PN664.
38 Transcript PN681.
39 Transcript PNs685 and 691.
40 Transcript PNs700-701.
41 Transcript PN706.
42 Transcript PN719.
43 Transcript PNs729-731.
44 Transcript PN743 and following.
45 Transcript PN787-789.
46 Transcript PN797.
47 Transcript PN840.
48 Transcript PN851.
49 Transcript PN891.
50 Exhibit BAE 4.
51 Transcript PNs982-985.
52 Transcript PNs1052-1055.
53 Transcript PN1071.
54 Transcript PN1088.
55 Transcript PN1104.
56 Exhibit Seaman 1.
57 Form F2.
58 Exhibit BAE 1.
59 Print S4213, 17 March 2000.
60 Print S8434, 24 July 2000.
61 Ibid at para 15.
62 (1995) 62 IR 371 at 373.
63 [1998] FCA 865.
64 [1999] FCA 1836.
65 (1995) 185 CLR 410.
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