[2014] FWC 1869

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION


Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Michael Fitzpatrick
v
Bunnings Group Ltd T/A Bunnings
(U2013/14425)

COMMISSIONER CLOGHAN

PERTH, 26 MAY 2014

Unfair dismissal.

[1] On 11 October 2013, Mr Michael Fitzpatrick (Mr Fitzpatrick or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his employment with Bunnings Group Ltd T/A Bunnings (Bunnings or Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] At the hearing on 18 March 2014, the Applicant was represented by Mr Mullally, Workclaims Australia. Mr Fitzpatrick gave evidence on his own behalf. Mr L Johnson, Storeman/Forklift, Bunnings also gave uncontested written evidence on behalf of the Applicant.

[4] Bunnings was represented by Mr McKenna of Counsel. Evidence was given on behalf of Bunnings by:

[5] At the conclusion of the hearing, I reserved my decision. This is my decision and reasons for decision.

RELEVANT LEGISLATIVE FRAMEWORK

[6] There is no dispute between the parties that Mr Fitzpatrick has properly made the application in accordance with s.382 of the FW Act. Accordingly, the relevant statutory framework is ss.385 and 387 of the FW Act.

[7] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:

[8] The criteria for whether a dismissal was harsh, unjust or unreasonable can be found at s.387 of the FW Act and is as follows:

RELEVANT BACKGROUND

[9] The Applicant is 52 years of age and commenced employment with Bunnings on 1 October 2005.

[10] On 20 September 2011, Mr Fitzgerald completed an online training module entitled “Respectful Workplace”.

[11] On 12 December 2012, Mr Fitzpatrick signed a “Record of Discussion/Meeting” document which was retained on his personnel file. The document related to an allegation that had been made by an employee of Action Couriers that the “Applicant had made threatening comments...during a phone conversation on 4 December 2012” 1. Present at the meeting on 12 December 2012 was Mr Vitler and Mr Cherry. The recorded “Specific Action” of the discussion/meeting was “As there is a conflict of what was said and as discussed by Michael [Mr Fitzpatrick] the people concerned are communicating amicably then the matter will be left as resolved”2. Finally, in signing the document, Mr Fitzpatrick declared that he understood “the consequences of not correcting the performance or behaviour [which] has been discussed with me”3.

[12] On 26 September 2013, Mr Fitzpatrick and Mr Simmonds were involved in an incident which was, in part, witnessed or heard by Mr Vitler, Ms Guerrero and Mr Arnold.

[13] On the same day, 26 September 2013, Mr Vitler advised Mr Cherry of the incident, and further, he had suspended Messrs Fitzpatrick and Simmonds. Mr Vitler requested statements from Messrs Fitzpatrick, Simmonds, Arnold and Ms Guerriero.

[14] Mr Vitler received various statements on 27 September 2013.

[15] 30 September 2013 was a public holiday in Western Australia.

[16] On 1 October 2013, Messrs Cherry and Vitler met with Ms Tina McGennity, Human Resources Coordinator “to discuss the investigation” 4 into the incident.

[17] On 2 October 2013, Messrs Cherry and Vitler met with Mr Fitzpatrick. Mr Cherry, who took the lead in the discussions, adjourned the meeting, to enable a re-enactment of the incident between Mr Fitzpatrick and Mr Simmonds. Neither Mr Fitzpatrick nor Mr Simmonds were present for the re-enactment. The “roles” of Mr Fitzpatrick and Mr Simmonds were carried out by Ms Guerriero and Mr Arnold.

[18] Mr Cherry reconvened the meeting with Mr Vitler and Mr Fitzpatrick. At the conclusion of the meeting, Mr Fitzpatrick was advised that his employment was terminated with immediate effect for serious misconduct.

[19] Mr Fitzpatrick was not, or has not, been provided with correspondence from Bunnings stating the reasons why he was dismissed for serious misconduct.

APPLICANT’S CASE

[20] The Applicant submits that the decision to summarily dismiss him was not for a valid reason. While Bunnings may consider that there was a reason for his dismissal, Mr Fitzpatrick submits that the reason was not sound or defensible.

[21] Further, if it is found that there was a valid reason for dismissing Mr Fitzpatrick, taking into account all the circumstances in s.387(b) to (h) of the FW Act, the dismissal was harsh, unjust and unreasonable. Accordingly, the dismissal was unfair.

[22] The Applicant is seeking reinstatement and lost earnings since the date of dismissal.

EMPLOYER’S CASE

[23] Bunnings submits that following an investigation into the incident between Mr Fitzpatrick and Mr Simmonds, there was a sound, defensible and well founded reason to summarily dismiss Mr Fitzpatrick from his employment.

[24] Mr Fitzpatrick knew the reasons for his dismissal. Further, the Applicant was provided with an opportunity to respond to the incident.

[25] The altercation between Mr Fitzpatrick and Mr Simmonds does not warrant a prior warning to render the dismissal valid. In any event, Mr Fitzpatrick had been counselled previously about unacceptable threatening conduct.

[26] Mr Fitzpatrick did not request to have a support person present at the meeting on 2 October 2013. Further, the size of the Employer’s enterprise and the presence of dedicated human resources management expertise is irrelevant.

[27] The Employer submits that summary dismissal was a proportionate response to the Applicant’s conduct. The relationship of mutual trust and confidence has been irreparably damaged. Finally, Mr Fitzpatrick’s length of service was taken into account but deemed not to be a redeeming factor given the seriousness of the conduct.

[28] In conclusion, should the Commission consider that Mr Fitzpatrick was unfairly dismissed, reinstatement is inappropriate and any order for compensation should be significantly reduced on account of the Applicant’s conduct.

CONSIDERATION

[29] Section 387 of the FW Act sets out the matters which the Commission must take into account in determining whether a dismissal was “harsh, unjust or unreasonable”. In seriatim, they are as follows.

s.387 (a) - was there a valid reason for the Applicant’s dismissal?

[30] A valid reason for dismissal is one that is “sound, defensible or well founded and not capricious, fanciful or spiteful”. The authority for this approach is found in the often cited case of Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at page 373 which reads as follows:

[31] A valid reason for dismissal attempts to balance, in a practical way, the needs of employees and employers.

[32] When the reason for the dismissal relates to the employee’s conduct, it is necessary for the Commission to determine, on the balance of probabilities, whether the alleged conduct occurred, and if so, whether it was a sufficient reason for termination 5. Further,

[33] Summary dismissal for misconduct may be warranted in certain circumstances. The Fair Work Regulations relevantly defines at 1.07 the meaning of serious misconduct as:

[34] Notwithstanding, the misconduct may have resulted in summary dismissal, the test remains the same, that is, the decision to terminate the employee’s employment must be “sound, defensible and well founded”.

[35] The Employer submits that summary dismissal of the Applicant was warranted for the following reasons:

The incident which led to Mr Fitzpatrick’s dismissal

[36] What is agreed between the parties is:

[37] Where the parties essentially disagree is:

Outside the Transport Office

[38] It is common ground that Mr Simmonds was looking for a customer order for a bath and approached Mr Fitzpatrick. The bath could not leave the Employer’s premises without the required paperwork.

[39] On making the enquiry of Mr Fitzpatrick, Mr Simmonds alleges that Mr Fitzpatrick said words to the effect that regarding the paperwork “it’s none of his concern” 9.

[40] Mr Fitzpatrick gave evidence that in response to Mr Simmonds’ enquiry he stated words to the effect, “I haven’t seen the order” 10. Irrespective of the exact words that were said following Mr Simmonds’ enquiry, I am satisfied that the discussion between Mr Fitzpatrick and Mr Simmonds degenerated into both swearing at each other11. I am uncertain as to who started the swearing.

[41] What is agreed between the parties is that Mr Fitzpatrick said to Mr Simmonds “go and get fucked” and Mr Simmonds had the “last word” when he said to Mr Fitzpatrick, “go and get fucked yourself”.

[42] Mr Vitler gives confirmatory evidence that he heard the raised voices of Mr Fitzpatrick and Mr Simmonds. As he left his office, Mr Vitler saw Mr Fitzpatrick enter the Transport Office at the same time stating “what the fuck did you say?” 12

Inside the Transport Office

[43] Mr Fitzpatrick followed Mr Simmonds into the Transport Office. Mr Fitzpatrick agrees he commenced the discussion with “what the fuck did you say?” 13. Mr Fitzpatrick agreed he wanted to follow up the conversation that occurred outside the Transport Office.

[44] Mr Fitzpatrick gave evidence that Mr Simmonds was between him and the desk 14. When he turned, Mr Fitzpatrick formed the view that he was going to hit him.

[45] Mr Fitzpatrick’s written evidence is that:

[46] At this point, it is necessary to interpose that Mr Simmonds is 69 years old and a good deal lighter in weight than Mr Fitzpatrick. In the Employer’s estimation the weight difference between both gentlemen is 20 kilograms 16.

[47] Mr Fitzpatrick concedes he was “angry” and stepped forward to grab Mr Simmonds’ lapels. However, Mr Fitzpatrick denies that he grabbed Mr Simmonds by the throat/neck and lifted one hand in a fist as if to hit him 17. Further, Mr Fitzpatrick denies he had Mr Simmonds “up against a desk”18.

[48] Inside the Transport Office, there is no dispute between the parties that Mr Simmonds was at Mr Fitzpatrick’s desk looking through invoices.

[49] Mr Simmonds’ written evidence is that Mr Fitzpatrick came alongside him, face to face, and started swearing. Mr Simmonds cannot recall what was said but Mr Simmonds turned back to Mr Fitzpatrick’s desk and continued looking for invoices.

[50] Mr Simmonds’ written witness evidence is that “Mike grabbed me around the throat and pinned me up against the desk. I was not expecting physical contact, which lasted a couple of seconds” 19. The written witness evidence of Mr Simmonds is similar to the statement prepared by Mr Simmonds for Mr Vitler as part of the investigation. While there are slight differences between both documents, there is nothing materially different.

[51] The written witness evidence of Mr Fitzpatrick is that Mr Simmonds was preventing him from getting to his work station. Mr Fitzpatrick requested Mr Simmonds to “move out of his way. He turned onto me and looked aggressive and looked as though he was going to hit me. I grabbed him by the lapels of his jacket and asked him to calm down on several occasions” 20.

[52] Mr Fitzpatrick provided a “Letter of Explanation” for Mr Vitler on 25 September 2013 which reads:

[53] Cross-examination of both Mr Fitzpatrick and Mr Simmonds did not disturb the essential features of their written witness evidence.

[54] Mr Simmonds, to his credit, gave evidence that the incident was over quickly, he did not suffer an injury and that there was no redness or soreness after being held by Mr Fitzpatrick around the throat 22.

[55] Mr Simmonds also gave evidence that, despite the robust discussion outside, he was not angry, “and I walked away and as far as I’m concerned, that’s the end of the matter” 23. I consider Mr Simmonds having the last word in the discussion by telling Mr Fitzpatrick to “go and get fucked” and walking into the Applicant’s work area (Transport Office) to look for invoices on the Applicant’s desk, as an unlikely demonstration of bringing the matter to an end.

[56] Mr Simmonds cannot recall being asked to leave the Transport Office by Mr Fitzpatrick. Mr Simmonds cannot recall saying anything to Mr Fitzpatrick while in the Transport Office despite Mr Fitzpatrick entering the Transport Office with the words “what the fuck did you say”. Given the circumstances, I am of the view that further words were probably exchanged between Mr Fitzpatrick and Mr Simmonds in similar terms to the verbal robustness outside the Transport Office. Most probably Mr Fitzpatrick objected to Mr Simmonds looking for invoices on his desk. However, it still remains to be determined whether Mr Fitzpatrick grabbed Mr Simmonds around his lapels or throat and also whether Mr Fitzpatrick feared that Mr Simmonds was going to hit him. For this reason, I now turn to the evidence of Ms Guerriero.

[57] On hearing noises in the Transport Office, Ms Guerriero ran into the area from her office, which is located next door. Ms Guerriero gave evidence that she saw Mr Fitzpatrick had Mr Simmonds “pinned on a chair against a desk...Mick [Mr Fitzpatrick] held Jeff [Mr Simmonds] with one hand and his other hand was raised with a clenched fist pointing towards Jeff...I yelled Mick...I stepped between Mick and Jeff, I turned Mick towards the door and walked him out of the office” 24.

[58] Ms Guerriero’s written evidence was not disturbed in cross examination. Ms Guerriero conceded that Mr Fitzpatrick’s left hand would have been on Mr Simmonds’ clothing at the top of his T shirt next to his neck 25.

[59] While Ms Guerriero’s evidence is of assistance as to what happened in the Transport Office, there still remains the fact that Mr Simmonds at no time claims that Mr Fitzpatrick raised a clenched fist as if to throw a punch at him.

[60] Whether Mr Fitzpatrick had both his hands on Mr Simmonds’ lapels or one hand around his throat with a raised fist, it is agreed between the parties is that Ms Guerriero entered the Transport Office and was sufficiently alarmed to “yell out the Applicant’s name to gain his attention”, step “between the Applicant and Mr Simmonds” and turn “the Applicant towards the door and walk him out the Transport Office” 26.

[61] What is clear is that this incident was not “hand bags at ten paces” but a sufficiently serious incident between two work colleagues which demanded swift and decisive de-escalation by Ms Guerriero. Mr Fitzpatrick did not claim that Ms Guerriero over reacted and I found her evidence as very much “matter of fact”, even though there was some incompatibility with Mr Simmonds’ evidence regarding the raised fist.

[62] Notwithstanding this incompatibility, I am satisfied, on the evidence, that Mr Fitzpatrick did have threatening physical contact with Mr Simmonds. I am also satisfied that the physical contact was a continuation of a distinctly abusive exchange of swearing outside the Transport Office. On the balance of probabilities, the swearing is likely to have continued inside the Transport Office where Mr Simmonds started to look for an invoice on Mr Fitzpatrick’s desk. I am satisfied that the physical contact was sufficient to raise an immediate level of concern by Ms Guerriero. However, the evidence does not demonstrate an incident at the more severe end of aggressive workplace physical violence. Finally, I find that it did not have its genesis in anything which the Employer condoned or created in the workplace environment.

[63] The workplace, compared to other social settings, is fortunately not the site of frequent physical violence. While there may be aggression in the workplace, this aggression does not frequently culminate in physical violence. Physical violence is “not part of the job”. However, when it does happen, it is generally spontaneous and unpredictable. One of the reasons why physical violence is less frequent in the workplace than other societal settings is that it is not tolerated. Workplace violence is seen as serious misconduct with the resultant penalty of summary dismissal.

[64] I now address the crucial questions to be answered with respect to this application. Firstly, did the Employer have a valid reason to terminate Mr Fitzpatrick’s employment? From the proceedings, I am satisfied that Mr Fitzpatrick did grab Mr Simmonds in an aggressive manner and had physical contact with him. The physical contact followed an odious and disagreeable verbal exchange. Having considered the evidence, I am of the view that the Employer had a valid reason to terminate Mr Fitzpatrick’s employment.

[65] However, a valid reason is but one of the criterion in determining whether a dismissal was harsh, unfair or unreasonable. Further, the existence of a valid reason, of itself, does lead to the conclusion that a dismissal was fair. In determining whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account the criterion in paragraphs 387(b) to (g) of the FW Act, and importantly, at paragraph 387(h) “any other matters that FWC considers relevant”. It is the consideration of other relevant matters that rounds off the objective of a “fair go all round” in s.381(2) of the FW Act. I shall turn my attention to this issue later in these reasons for decision.

s.387(b) - notification of the reasons for termination of employment

[66] While Mr Fitzpatrick was not notified in writing of the reasons for termination of his employment, I am satisfied that he was aware that he was to be dismissed following his physical altercation with Mr Simmonds.

s.387(c) - opportunity to respond

[67] Subject to what I say later in my reasons for decision, I am satisfied that Mr Fitzpatrick had the opportunity to provide a response, and did so, on the day of the incident. Secondly, I am satisfied, on the evidence, that the Applicant was able to respond at the meeting with Mr Cherry and Mr Vitler on 2 October 2013.

s.387(d) - support person

[68] The Applicant did not request a support person to be present. Consequently, the Employer did not unreasonably refuse to allow a support person.

s.387(e) - unsatisfactory performance

[69] In its broadest sense, performance relates to how an employee carries out their specific tasks or activities at work. How a person carries out those tasks includes their behaviour towards fellow employees and other persons who they come into contact with in the workplace. In this respect, the Applicant was the subject of a previous incident which involved allegations of swearing and physical violence. Irrespective of the outcome of the previous discussion, Mr Fitzpatrick declared that he understood that it was unacceptable behaviour to use threatening words against people. Aggressive physical contact is an extension of that unacceptable behaviour.

s.387(f) - size of enterprise

s.387(g) - Human Resources

[70] While the Employer’s counsel considers these criteria are irrelevant, I consider that they are relevant in a negative way. With greater assessment and engagement of the Employer’s dedicated human resources management expertise, many of the procedural activities relating to the dismissal would have been addressed properly.

s.387(h) - other matters

[71] I now turn to events post the incident in the Transport Office.

[72] Mr Vitler arrived at the Transport Office as Ms Guerriero and the Applicant were walking out. Mr Vitler directed Mr Fitzpatrick to go to his office. Both Mr Fitzpatrick and Mr Simmonds were suspended pending an investigation. Mr Fitzpatrick, Mr Simmonds, Ms Guerriero and Mr Arnold were required to provide written statements regarding the incident. Mr Arnold was first to arrive in the Transport Office following the noise but did not give evidence in the proceedings.

[73] Mr Vitler received the written statements on 27 September 2013.

[74] On 1 October 2013, Mr Cherry and Mr Vitler met with Ms McGennity, Human Resources Coordinator. The evidence of the meeting I have is that, “...it was agreed that the investigation findings (which at this stage were just the written statements) suggested that the Applicant was the aggressor, and that his behaviour potentially constituted gross misconduct. It was agreed that a meeting should be held with the applicant to provide him with an opportunity to clarify his version of events and to respond to the investigation findings.” 27

[75] In my view, it is at this point, matters go wrong for the Employer.

[76] There were good reasons for the Employer to conduct an investigation into the incident. The Employer needed to understand what had happened but in doing so, it was necessary to conduct the investigation in a fair and appropriate manner.

[77] Mr Cherry gives evidence that he was the lead investigator in conjunction with Mr Vitler. I did not see any formal appointments and I would be surprised, if an employer the size of Bunnings did not have formal disciplinary procedures. However, I was not provided with any documentation to this effect. In my view, the more serious a complaint regarding conduct and potential consequences, the greater the necessity for a more formal disciplinary procedure commencing with a consideration of who should be the investigators. Notwithstanding this lack of written process, both Mr Cherry and Mr Vitler gave evidence that they had no training in human resources. To put it colloquially, the Human Resources department left it to Mr Cherry and Mr Vitler to “sort out” 28.

[78] In my view, the approach adopted by the Employer’s Human Resources Department can be likened to a school taking Year 11 students on a bush camp and requiring them to go bushwalking without any training, teacher, map, compass or survival equipment. It is no wonder that the investigation, and disciplinary process, went amiss.

[79] Both Mr Cherry and Mr Vitler gave evidence that on 1 October 2013, when they met with Ms McGennity, they had in their possession all the statements of the persons involved. Mr Cherry agreed in cross examination that, as at 1 October 2013, when they met with Ms McGennity, the Employer could have summarised in writing and put to Mr Fitzpatrick what was being alleged that ultimately led to his dismissal - however, this was not done.

[80] It should be recalled that only nine (9) months previously Mr Cherry and Mr Vitler were involved in investigating a separate incident in which it was alleged that Mr Fitzpatrick had made threatening comments to an external supplier to the Employer (2012 incident). While Mr Vitler denies that the Employer took the 2012 incident into account when dismissing Mr Fitzpatrick, it was reasonable for Mr Mullally, on behalf o the Applicant, to infer, as he did in cross examination, that both Mr Vitler and Mr Cherry had a perceived bias in carrying out the investigation.

[81] Mr Vitler gave evidence that although the 2012 incident was not considered when making the decision to terminate Mr Fitzpatrick’s employment, it was discussed with Ms McGennity and Mr Cherry at their meeting on 1 October 2013. 29 Further, the 2012 incident was prominently highlighted in Mr Vitler’s written evidence. While I do not dispute the honesty of Mr Vitler, the fact that the Employer gave Mr Cherry and Mr Vitler the task of completing the investigation, creates a perception of bias, if not actual bias.

[82] Further, and probably more importantly, is the evidence of Mr Vitler that he “overheard raised voices” and saw Mr Fitzpatrick enter the Transport Office with the words, “what the fuck did you say?” 30. Having been a witness to these preliminary events, Mr Vitler made the decision to suspend both employees, be one of the investigation team and part of the process which led to Mr Fitzpatrick being dismissed.

[83] If Mr Vitler had only overheard raised voices, this may not have been sufficient to disqualify him as an investigator. However, to have heard the alleged “aggressor” 31 utter the words “what the fuck did you say?” leads to the perception that he may have had some preconceived view about what happened in the Transport Office especially when taking into account the 2012 incident.

[84] In dealing with such a workplace incident it is necessary for the Employer to act promptly - it did. However, in this case, it would seem fair, reasonable and appropriate that after receiving the various statements from those involved in the incident, to put to Mr Fitzpatrick any allegation regarding his conduct. In addition, Mr Fitzpatrick should have been advised of the proposed course of the investigation, including the opportunity to respond to any allegations and the possible consequences of his actions should the allegations be found to be true. In this particular case, it appears the investigation and disciplinary meeting were rolled into one. My view is reinforced by the disciplinary meeting being adjourned to hold a reconstruction of the incident - and then reconvened - to impose the sanction of immediate dismissal for serious misconduct.

[85] In addition to not providing Mr Fitzpatrick with the basis of the allegation, in a written form, the Commission was not provided with a written record of the disciplinary investigation. The Commission was not provided with a written record of what actions were taken against Mr Fitzpatrick or provided with an adequate written record of the reasons why he was dismissed for serious misconduct. The only evidence provided to the Commission was a very abridged record of a disciplinary discussion/meeting on 2 October 2013 at the time of Mr Fitzpatrick’s dismissal.

[86] Mr McKenna, in closing submissions, put the view that the “reasons for discussion at exhibit BC1 at page 1 is the crux for the reasons for dismissal. They were put to him squarely and he responded to them. Now, after that happened there was a further picking up on what the applicant said. He said, "No, that's not true, they must be lying.” Picking up on that, the respondent took - made further inquiries and conducted the role play...the essence of that role play was then conveyed back to the applicant”. 32

[87] I shall return to the role play later. For now, I want to focus on exhibit BC1 which is a Record of Discussion/Meeting on 2 October 2013.

[88] Firstly, the “Reason for Discussion” is completed prior to conducting the discussion. The “guide” to the “Reasons for Discussion” requires the “known facts” to be set out. Ms Guerriero’s statement that she saw Mr Fitzpatrick “holding Jeff around the neck, threatening him with a clenched fist” is recorded as a known fact 33. In short, Ms Guerriero’s version of the event is a “fact” before being put to Mr Fitzpatrick during the discussion.

[89] The only reasons for coming to the decision to terminate Mr Fitzpatrick are also contained in exhibit BC1 which is, “the conduct demonstrated in this instance [Mr Fitzpatrick] has not met our values of respect and teamwork” 34. I was not provided with the content of the respectful workplace online course. Also, with regard to the Employer’s values, I was only provided with the words “Respect” and “Teamwork”.

[90] The decision for the Commission to make is whether the decision was “harsh, unjust or unreasonable”. The interrelationship, in an alleged unfair dismissal, between the statutory provisions of “valid reason” and “harsh, unjust and unreasonable” is best expressed in the judgement of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd [1995] HCA 24 in the following paragraphs:

[91] In this particular application, it is clearly questionable whether Mr Vitler should have been involved in the investigation at all given he was a witness to the behaviour of Mr Fitzpatrick moments before the incident. Secondly, it is questionable whether Mr Vitler and Mr Cherry should have been involved in the investigation, as approximately nine (9) months previously, both had to inquire into the 2012 incident involving Mr Fitzpatrick. While there was a conflict regarding what was said by Mr Fitzpatrick in the 2012 incident, it involved the use of physical violence to resolve a dispute. When it was immediately apparent that there was a conflict in the statements of Mr Fitzpatrick, Mr Simmonds and Ms Guerriero regarding the physical contact between the Applicant and Mr Simmonds, the Employer should have reduced to writing the allegations regarding Mr Fitzpatrick’s conduct which could lead to his dismissal. This would have enabled Mr Fitzpatrick to respond to the specific allegations and supporting evidence, rather than Mr Vitler and Mr Cherry making a choice regarding the “facts” based on the initial statements. Further, the Employer submits that it also had the benefit of a re-enactment of the altercation.

[92] I am not critical of Mr Vitler and Mr Cherry deciding, as part of the decision making process, to undertake a re-enactment. However, in my view, given the contradictory statements they had received, Mr Fitzpatrick and Mr Simmonds should have been present and able to respond to any re-enactment.

[93] What did the Employer gain from the re-enactment? The first thing to note is that the re-enactment took place without Mr Fitzpatrick being informed that it was taking place. Secondly, and as a consequence of not being informed, he was not able to contest or contribute to the knowledge (truth) of what actually happened inside the Transport Office. To be candid, the re-enactment was no more than Ms Guerriero visualising her statement of what she saw in the Transport Office. By way of analogy, because Ms Guerriero states that the ball is red and Mr Fitzpatrick says it is blue, does not make the ball red without Ms Guerreiro’s reasons, and furthermore, not giving Mr Fitzpatrick the opportunity to say why he thinks it is blue.

[94] Mr Cherry who was the lead investigator 35 and decision maker did not inform Mr Fitzpatrick what was going to be discussed at the meeting36. Mr Cherry agreed that Mr Fitzpatrick was not privy to the actions or any statements made by Ms Guerriero and Mr Arnold at the re-enactment37. During the re-enactment and at the discussions with Mr Fitzpatrick, both Mr Cherry and Mr Vitler did not have the statement of Mr Simmonds38 with them, which I find very surprising. Consequently, despite there being differences between Mr Simmonds’ statement and evidence and Ms Guerriero’s evidence, Mr Cherry stated, “the decision was made on the evidence of Alysha [Ms Guerriero] and Michael [Mr Arnold] and the aggressive behaviour that was demonstrated.”39

[95] Mr Cherry made the decision to terminate Mr Fitzpatrick’s employment on his conclusion of what happened in the Transport Office. While he may have been aware of Mr Fitzpatrick’s employment service, I find that no other personal circumstances were taken into account in making the decision to terminate Mr Fitzpatrick’s employment.

CONCLUSION

[96] In conclusion, while I find that the Employer had a valid reason to terminate Mr Fitzpatrick’s employment, after taking into account all the remaining criteria in s.387 of the FW Act, especially the procedural shortcomings, I find that the dismissal of the Applicant was harsh, unjust and unreasonable.

REMEDY

[97] Section 390 of the FW Act provides as follows:

[98] Section 392 of the FW Act provides for compensation as follows:

[99] The Applicant submitted that should his dismissal be found harsh, unjust and unreasonable, he be reinstated.

[100] Reinstatement is a discretionary order provision available to the Commission. The question for the Commission is whether reinstatement is appropriate in the circumstances.

[101] The Applicant submits that he is seeking reinstatement because he has been unable to obtain employment since his dismissal, was never the subject of written warnings while employed and that the Employer is a large enterprise and should have no difficulty in finding him a position.

[102] In contrast, the Employer submits that reinstatement is not appropriate in the circumstances. I agree that reinstatement is not appropriate for the following reasons.

[103] Firstly, this is not the first time Mr Fitzpatrick has been involved in a workplace issue in which physical violence is a factor. In the 2012 incident, it was alleged that Mr Fitzpatrick stated that if the complainant had whinged to him, “he would fucking deck him’. Mr Fitzpatrick denied these words were said but that, “if he did that on the street, someone would belt him.” While it is not my role to determine what happened in the 2012 incident, it would appear that Mr Fitzpatrick considers recourse to physical violence as a ready means to resolve conflict.

[104] Secondly, there are some aspects of Mr Fitzpatrick’s evidence which I have significant discomfort with and that relates to the confrontation in the Transport Office. Mr Fitzpatrick’s evidence that Mr Simmonds “looked aggressive and looked as though he was going to hit me” 40; I do not find this credible. Mr Fitzpatrick states in his evidence that he is “a much bigger and younger man” than Mr Simmonds; I agree. I do not find that Mr Fitzpatrick notes immediately after the incident that “I grabbed Jeff to stop his punches landing” either happened or is plausible. I note that he does not repeat this assertion in his formal written statement to the Employer or in evidence.

[105] Thirdly, I find that Mr Fitzpatrick was honest and reflective when he stated at the 2 October 2013 meeting, “I should have walked away” and did not. When Mr Fitzpatrick was asked by Mr Cherry what he would do following the investigation, if he was Mr Cherry, the Applicant replied “probably sack me” 41. This incident was not a minor performance issue which could be passed off by the Employer but a grave and serious rupture in the employment relationship is entirely inconsistent with Mr Fitzpatrick’s contract of employment.

[106] One of the objects of Part 3-2 Unfair dismissal of the FW Act is that there is a framework for unfair dismissals that balances the needs of employers and employees. A need for employers, is that employees do not destroy, by their conduct, the mutual trust and confidence upon which the employment relationship is built. In this application, it is alleged that this mutual trust and confidence has been destroyed by what the Employer describes as an assault by Mr Fitzpatrick on Mr Simmonds and the Applicant’s subsequent dishonesty during the investigation.

[107] While I do not agree entirely with the Employer’s submission that it was a “serious, violent and aggressive” assault 42, it certainly was serious and aggressive and sufficient for Mr Fitzpatrick to be validly dismissed. Mr Fitzpatrick’s actions destroyed the fundamental trust and confidence expected of an employee especially in light of his recent predisposition to violent behaviour in the 2012 incident.

[108] Further, I have found some aspects of the Applicant’s evidence which are doubtful. This conflict of evidence with the Employer’s witnesses cannot be explained away by the Applicant simply stating that “they’re all lying”. For this reason, the Employer has good grounds to question the ongoing honesty of the Applicant.

[109] In summary, I am satisfied for the reasons outlined in paragraphs [103] to [108], that reinstatement is inappropriate and compensation appropriate.

[110] An order for compensation will be made after I have heard from both parties. My Associate will contact both parties regarding a hearing or submissions relating to this matter. A hearing does not preclude Mr Fitzpatrick, his representative and the Employer communicating without reference to the Fair Work Commission, on a consent order. In the absence of an agreed position, the Commission will make an appropriate order.

COMMISSIONER

Appearances:

Mr Mullally for the Applicant.

Mr McKenna of Counsel for the Respondent.

Hearing details:

2014:

Perth,

18 March.

 1   Exhibit A2

 2   Exhibit R4

 3   Exhibit R4

 4   Exhibit R4 paragraph 23

 5   Brink v TWU PR922612 at paragraph [7]

 6   King v Freshmore (Vic) Pty Ltd S4213 at paragraph [24]

 7   Respondent’s Outline of Submission

 8   Exhibit R1

 9   Transcript PN1007

 10   Transcript PN207

 11   Transcript PN259-265

 12   Exhibit R4(10)

 13   Transcript PN285

 14   Transcript PN312

 15   Exhibit A4

 16   Transcript PN344

 17   Transcript PN374 and PN377

 18   Transcript PN371

 19   Exhibit R6

 20   Exhibit A4(15)

 21   Exhibit A3

 22   Transcript PN1124 to PN1126

 23   Transcript PN1110

 24   Exhibit R5

 25   Transcript PN928

 26   Exhibit A2

 27   Exhibit R1

 28   Transcript PN733

 29   Transcript PN671

 30   Exhibit R4

 31   Transcript PN654

 32   Transcript PN1466

 33   Exhibit R7

 34   Exhibit R7

 35   Transcript PN1207

 36   Transcript PN1272

 37   Transcript PN1242

 38   Transcript PN1258

 39   Transcript PN1266

 40   Exhibit A4

 41   Exhibit R7

 42   Transcript PN1436

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