DECISION

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

Mr Adam O'Connell
v
Wesfarmers Kleenheat Gas Pty Ltd T/A Kleenheat Gas
(U2014/13720)

Application for relief from unfair dismissal.

[1] Mr Adam O’Connell (Mr O’Connell or Applicant) has made an application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Wesfarmers Kleenheat Gas Pty Ltd (Kleenheat or Employer).

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

[3] At the hearing, the Applicant represented himself and gave evidence on his own behalf. Mr Logon Smith, security employee, also gave evidence on behalf of the Applicant.

[4] The Employer was represented, with permission of the Commission ([2015] FWC 2103), by Mr Smetana of counsel. Evidence on behalf of the Employer was given by:

• Ms E Cheeseman – Senior HR Consultant;



• Mr J Ritchie – Business Representative WA North;



• Mr K Naicker – Business Manager / Sales Representative;



• Mr C Dashwood – Natural Gas Sales Executive;



• Mr C Roberts - Draftsman;



• Mr D Bentley – Sales Operations Manager;



• Mr P Hall – Sales Manager WA North and NT; and



• Mr A McCombe – Sales Manager, British Sausage Company.

[5] This is my decision and reasons for decision with respect to Mr O’Connell’s substantive application that he was unfairly dismissed.

RELEVANT BACKGROUND

[6] Following an investigation by the Employer, Mr O’Connell was dismissed by the Employer for the following reasons:

“1. Repeatedly engaged in threatening, offensive, and bullying behaviour towards a fellow employee and threatened to punch that employee during the evening of Monday 15 September 2014 in breach of the WesCEF Code of Conduct and Discrimination, Harassment and Bullying policy;

2. Carried on a private vacation property rental business through your work email and mobile in breach of the Electronic Usage Policy and your employment contract signed by you on 26 February 2008;

3. Disobeyed a lawful request by operating your work vehicle on 26 September 2014 in breach of your employment obligations;

4. Drove recklessly on the 26 September 2014 resulting in a complaint from a member of the public and the potential to cause serious and imminent risk to yourself, other parties and also the reputation of the Company’ and

5. Punched a fellow employee at the previous sales conference event at the Vines Resort in or around May 2005 in breach of your employment obligations.” 1

[7] The process leading to Mr O’Connell’s termination of employment is set out below.

[8] On 19 September 2014, Mr Ritchie filed a grievance against Mr O’Connell regarding the Applicant’s offensive and threatening behaviour at the Employer’s National Sales Conference on 15 September 2014.

[9] As part of the inquiry into the grievance, Ms Cheeseman met with Mr Naicker. Subsequently, Ms Cheeseman and Mr Hall met with Mr Dashwood.

[10] After these meetings, Mr Hall and Ms Cheeseman met with Mr O’Connell on 23 September 2014 to discuss the allegations in Mr Ritchie’s grievance. After a short break, the meeting concluded with Mr O’Connell being given correspondence which stated he was to be “stood down” on pay, pending further investigation of Mr Ritchie’s complaint.

[11] On 26 September 2014, Mr Hall and Ms Cheeseman again met with Mr O’Connell to discuss the outcome of the Employer’s investigation. At the meeting, Mr O’Connell was given a “show cause” letter as to why his employment should not be terminated.

[12] Mr O’Connell responded on 30 September 2014.

[13] On 26 September 2014, the Employer received notification from a member of the public, that one of its vehicles was being driven recklessly on the Kwinana Freeway. The license plate of the vehicle, allegedly being driven recklessly, matched that of Mr O’Connell’s work vehicle.

[14] As Mr O’Connell had been “stood down”, his emails had been directed to Mr Hall. Mr Hall became concerned at the number of emails relating to rental accommodation at Jurien Bay.

[15] During the investigation into Mr Ritchie’s grievance, the Employer also became aware of a further incident at a previous sales conference.

[16] On 3 October 2014, Mr Hall contacted Mr O’Connell and advised him that, during the course of its investigation, the Employer had become aware of additional incidents relating to his employment and it would be necessary to attend a further meeting.

[17] On 8 October 2014, Mr Hall and Ms Cheeseman met with Mr O’Connell and put the further allegations to him. Mr O’Connell did not respond verbally, and requested that the further incidents be put in writing.

[18] On 9 October 2014, Mr O’Connell was advised, in writing, of the further allegations and again given the opportunity to “show cause” why his employment should not be terminated.

[19] On 10 October 2014, the Employer couriered to Mr O’Connell’s home address, at his request, copies of his contract of employment and the Employer’s Electronic Usage Policy.

[20] On 16 October 2014, the Employer, by correspondence, requested Mr O’Connell attend a meeting on 20 October 2014.

[21] On 17 October 2014, Mr O’Connell presented the Employer with a medical certificate stating that he was unfit for work between 13 October and 13 November 2014. In addition, Mr O’Connell provided a response to the Employer’s “show cause” correspondence of 9 October 2014.

[22] Mr O’Connell did not attend the meeting on 20 October 2014.

[23] After repeated attempts to make contact with Mr O’Connell, Mr Hall, on 22 October 2014, summarily terminated the Applicant’s employment for serious misconduct. The reasons are set out above in paragraph [6].

RELEVANT LEGISLATIVE FRAMEWORK

[24] There is no dispute between the parties that Mr O’Connell 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.

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

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) ...
(d) ...”

[26] 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:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

CONSIDERATION

[27] 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?

[28] 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:

“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 reasons 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 treated fairly’.”

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

[30] 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 2. Further,

“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 the termination”. 3

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

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) ...”

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

Did Mr O’Connell engage in threatening, offensive and bullying behaviour towards Mr Ritchie, including threatening to punch him on the evening of 15 September 2014, contrary to the Employer’s Code of Conduct and Harassment and Bullying policy?

[33] On 19 September 2014, Mr Ritchie provided a document to Mr Hall and Ms Cheeseman concerning an incident between himself and Mr O’Connell on 15 September 2014 in the Muscat Bar of the Vines Hotel.

[34] The relevant parts of the documents are that Mr O’Connell said to Mr Ritchie, over a period of 15 to 20 minutes, on a number of occasions, “I fucking hate you”, “fuck off”, “drop dead”, “fuck off and die”, “go kill myself” and “every time I see you I just want to punch you in the face”. After this initial exchange between Mr O’Connell and Mr Ritchie, Mr Ritchie left the bar. 4

[35] After 20 minutes, Mr Ritchie returned to the bar and states that he sought the basis of Mr O’Connell’s verbal “barrage” and states, “I asked Adam whether it was the fact that I currently drive the Hilux that was previously his work vehicle which was causing the issue between them, and his answer was, “yes it is”. 5

[36] Mr O’Connell then told him to “fuck off out of my face” to which Mr Ritchie responded “tonight you’ve confirmed what a pathetic person you are and I am not the only person who thinks so” and “you’re a train wreck of a human being”. 6

[37] Mr Ritchie states that other people were present in the bar at the time of the exchange between himself and Mr O’Connell.

[38] On the same day (19 September 2014), Ms Cheeseman interviewed Mr Naicker. Mr Naicker confirmed that Mr O’Connell had told Mr Ritchie to “fuck off” and to “drop dead”. 7 Ms Cheeseman’s notes of the discussion, reveal that Mr Ritchie was not aggressive, and it was Mr O’Connell who was behaving aggressively.

[39] Mr Dashwood was interviewed by Mr Hall and Ms Cheeseman on 22 September 2014. The notes of the meeting state that Mr Dashwood recalled Mr O’Connell saying to Mr Ritchie, “I fucking hate you” out of the blue.

[40] Further, the notes of the meeting with Mr Dashwood indicate that Mr Dashwood could not recall Mr O’Connell telling Mr Ritchie to “fuck off and die”, but recalls Mr O’Connell saying to Mr Ritchie that he was a “waste of space”.

[41] Mr Dashwood’s observations are that Mr O’Connell’s comments were unprovoked and he had acted aggressively. 8

[42] Mr Hall and Ms Cheeseman interviewed Mr O’Connell on 23 September 2014. Ms Cheeseman’s notes of the meeting are that Mr O’Connell denies telling Mr Ritchie to, “fuck off and die”, “go kill yourself [Mr Ritchie]”, that he was a “loser” or that he was a “waste of space”. However, he concedes most “probably”, he told Mr Ritchie to “fuck off” repeatedly.

[43] Mr O’Connell denies that he said to Mr Ritchie that he wanted to “punch him in the face”, but agrees that he explained to Mr Ritchie, in a hypothetical case, where he would punch him.

[44] Finally, Mr O’Connell vaguely remembers Mr Naicker and Mr Dashwood physically separating Mr O’Connell and Mr Ritchie.

[45] The notes of the meeting with Mr O’Connell indicate that he had an inability to recall a number of matters raised by Mr Ritchie or others present. Mr O’Connell has a “vague” recollection of other matters. However, he agrees that the exchange ended with Mr O’Connell telling Mr Ritchie to “fuck off out of my face” and Mr Ritchie responding that Mr O’Connell was a “train wreck of a person”. 9

[46] Mr O’Connell’s version of events, as recorded in the notes of the discussion with Mr Hall and Ms Cheeseman, is that Mr Ritchie provoked the incident and he responded.

[47] In his “Statement of Facts”, Mr O’Connell denies that he used the words “I fucking hate you”, “drop dead”, “fuck off and die” or “go kill yourself [Mr Ritchie]”. Mr O’Connell also denies threatening Mr Ritchie with physical violence.

[48] With respect to the statements of Mr Dashwood and Mr Saratis, Mr O’Connell records, “with all due respect they were both intoxicated” and “other employees had more alcohol than I did”. 10

[49] In cross examination, Mr O’Connell conceded that he said to Mr Ritchie, “fuck off” on a number of occasions. 11

[50] Despite earlier responses to the Employer, and in his Statement of Facts, in cross examination, Mr O’Connell agreed that he told Mr Ritchie to “drop dead”. In doing so, Mr O’Connell gave evidence of the meaning of “drop dead” in the “urban dictionary”, and “it’s just a term”. 12

[51] Mr O’Connell also agreed in cross examination that he told Mr Ritchie to “fuck off out of my face” on two occasions. 13 Further, that Mr Ritchie was a “loser”.14

[52] In his written witness statement, Mr O’Connell gives evidence that he recalls saying to Mr Ritchie, “fuck off, you’re a loser” and “don’t fucking talk to me” on a number of occasions. 15

[53] On his own evidence, in a moment of clarity, Mr O’Connell states that he does not like Mr Ritchie and that he does not need a reason not to like him. 16 This much is clear also from the evidence of others, who were present at the incident on 15 September 2014.

[54] To illustrate Mr O’Connell’s dislike for Mr Ritchie, and at the same time demonstrating the differences between both gentlemen, I set out the following exchange in cross examination between both. Mr O’Connell establishes that Mr Ritchie worked with Mr Semmens, and then asked the following question:

“On a number of occasion Mr Semmens has mentioned to me and other colleagues that sharing an office with you is like working with a child.  Why do you think he makes these claims?---I'm not sure, to be honest.  I haven't heard anything in regards to that at all and I'm sure if Mr Semmens felt that way, he would have said it to me as well.” 17

[55] While the above chronology and evidence sets out aspects of the incident on 15 September 2014, at least two questions arise from it. The first question is whether Mr O’Connell was provoked into his invective outburst towards Mr Ritchie. Mr Dashwood’s assessment, in evidence, is that even if Mr Ritchie had left Mr O’Connell alone, it would still have escalated to the level it did, because Mr O’Connell had a “bee in his bonnet” about something. 18 Mr Dashwood’s undisturbed evidence was that, Mr Ritchie was not being provocative19 and that Mr O’Connell was being abusive and threatening towards Mr Ritchie. Finally, the aggression by Mr O’Connell “came out of nowhere”. 20

[56] The second question relates to those occasions where there is a disparity in the evidence; which should be preferred. After careful consideration of the documentary evidence and the witnesses oral evidence, where there is a material difference in the evidence overall, I prefer the account given by Mr Ritchie and Mr Dashwood, to Mr O’Connell.

[57] While Mr O’Connell has attempted to lay the blame for the incident at the door of the Employer or Mr Hall, for a culture of heavy drinking, this incident, in my view, comes down to Mr O’Connell’s dislike for Mr Ritchie. Even if the Employer had taken a more responsible approach to the serving of alcohol on the evening, in my view, the striking feature of the evening was not its histrionics, but the vehement, forceful, threatening behaviour of Mr O'Connell towards Mr Ritchie, for no other reason than he does not like him.

[58] I am satisfied that the verbal assault on Mr Ritchie, for a person who suffers a mental illness, required him to leave the bar, return to his room to calm down, and absorb what had happened to him. 21

[59] Mr O’Connell’s failure to conduct himself appropriately is to be contrasted with the Employer’s Code of Conduct which expects employees to, “value, promote and maintain professionalism”, “show fairness, courtesy, respect, consideration and sensitivity in all dealings within their workplace” and to “avoid…bullying, harassment or other inappropriate workplace behaviour”. 22

[60] The Employer’s Code of Conduct includes circumstances outside the workplace and working hours, such as the conference at the Vines Hotel.

[61] By a wide margin, Mr O’Connell’s behaviour is outside the Employer’s Code of Conduct and I find accordingly.

[62] The Employer’s Harassment and Bullying Policy defines “bullying” as, “repeated and unreasonable behaviour, towards a person or persons that creates a risk to health and safety, whether verbal, physical or otherwise in the course of their employment. It includes behaviour that harms, threatens, victimises, intimidates, offends, degrades or humiliates another person or persons.” Examples of such bullying behaviour include, but is not limited to, “abusive language”, “intimidation” and “constant humiliation”. 23

[63] While Mr O’Connell’s behaviour was over one evening, I am satisfied on the evidence, that it was repeated, humiliating, offensive and degrading towards Mr Ritchie. For that reason, I find that Mr O’Connell’s conduct was contrary to the Employer’s Harassment and Bullying Policy.

Did the Applicant conduct a private vacation property rental business through work email and mobile telephone in breach of the Employer’s Electronic Usage Policy?

[64] Mr O’Connell admitted, in evidence, that he used the Employer’s email system concerning Dhufish Lodge, Jurien Bay 24 for a number of years.25

[65] In response to the allegation, Mr O’Connell:

• does not deem rental of the property, Dhufish Lodge, as a “business”; 26



• in his view, his usage of the email system was “minor” 27, consequently, he deems his usage of the email system as not breaching the policy;



• “recalled and read the policy in detail in July 2014 and started to shift the emails through a Yahoo account…because I didn’t want to be seen to be potentially doing the wrong thing”; 28



• “the rental of the holiday home is not a conflict of interest with the Respondent. The rental actually complements the Respondent because it is connected to LPG and the more it is rented out, more gas is used and the Respondent makes more profit.” 29

[66] The Employer’s Electronic Usage Policy sets out the standards of behaviour expected for all employees who use the Employer’s electronic communication system. The Policy provides for “reasonable personal purposes”. “Reasonable” is defined as the “occasional local phone call, receiving and sending the occasional personal email and accessing the internet for legitimate personal information”. 30

[67] A separate and discrete heading in the Policy is entitled “UNACCEPTABLE USE”. Examples of “unacceptable” use includes, “pursuing your own business interests” 31.

[68] Again, under a separate heading, is a section called “BREACHES”. This section provides that breaches of the Policy may result in disciplinary action. The disciplinary action includes a range of penalties, up to and including, “termination of employment”.

[69] I am satisfied that the Electronic Usage Policy applied to Mr O’Connell and he had read, understood and was required to comply with the Policy.

[70] From the large amount of “hard copies”, I am satisfied that Mr O’Connell used the Employer’s electronic communication system to assist him in running the rental property, Dhufish Lodge. Mr O’Connell described himself as the owner in the emails and clearly all the communications in the emails, are associated with what one would expect in running a rental property business.

[71] Mr O’Connell “deems” that it is not a “business”. Mr O’Connell does not offer an explanation for why he deems Dhufish Lodge not as a business. Dhufish Lodge is a property for rent. The property requires payment for persons to stay at the house. Residents pay a bond and the owners have to ensure that the property meets the resident’s expectations in terms of furniture and appliances. Mr O’Connell discusses, in some of his emails, various vacancies of the property. Finally, Mr O’Connell agrees he has expenses, including repayment of a loan.

[72] In my view, Mr O’Connell’s deeming of Dhufish Lodge not a business is, firstly, contrary to the evidence and any normal understanding of what a business is. Secondly, not only is the deeming argument wrong, but the argument is made, obviously to counteract, the Policy’s specific provision, that using the Employer’s electronic communication system, to pursue a personal business interest, is unacceptable.

[73] Having purportedly disposed of the argument that Dhufish Lodge is not a business, it is necessary for Mr O’Connell to address the issue of whether his use of the communication system, was reasonable personal use. Similarly, Mr O’Connell “deems” his email usage, reasonable. In doing so, Mr O’Connell asserts that he has not breached the Policy.

[74] Despite what Mr O’Connell may think is true, in the absence of any evidence, his “deeming” arguments are nothing more than mere assertions. On the evidence, I have no reason to disagree with the Employer, that Mr O’Connell was, in part, running a rental business through its communication system. Secondly, even in the absence of that specific breach of the Policy, Mr O’Connell’s usage of the email system appears, on the evidence, was unreasonable personal use.

[75] I do not propose to consider Mr O’Connell’s argument that there was no conflict of interest between renting out Dhufish Lodge and his employment, on the basis that the more gas used, the more profit to the Employer. It is tempting to make comment on the proposition, but I consider it better left unsaid.

[76] I am satisfied that Mr O’Connell’s breach of the Employer’s Electronic Usage Policy was wilful from at least, December 2008. In view of the length of time, and the volume of emails, it appears a substantial breach of the Policy.

[77] Mr O’Connell, notwithstanding that he read the Policy in detail in July 2014, and “didn’t want to be seen to be potentially doing the wrong thing” 32, continued to use the Employer’s communication system to run the rental property business, up until the time of being stood down from his employment. For this reason, I am satisfied that during the period July to September 2014, his breach of the Electronic Usage Policy was deliberate.

[78] Mr O’Connell’s actions were inconsistent with his contract of employment. The Employer is entitled to set out standards of behaviour expected of its employees in policies, and enforce compliance of those policies. If necessary, the Employer is able to ensure compliance with its policies by disciplinary action, which included termination of employment.

[79] I am satisfied that Mr O’Connell’s dismissal, for this reason, either separately or in totality, was sound, defensible and well founded.

Did Mr O’Connell disobey a lawful request by driving his work vehicle on 26 September 2014?

[80] On 23 September 2014, Mr Hall and Ms Cheeseman met with Mr O’Connell regarding the grievance made by Mr Ritchie. Ms Cheeseman’s evidence is that she informed Mr O’Connell that he was to be stood down and that he could not have access to his work vehicle except to drive it home that day. 33

[81] Mr O’Connell’s response to the allegation in his Statement of Facts is that he complied with all the instructions contained in the Employer’s “stand down” correspondence dated 23 September 2014. 34 There is no specific instruction in the correspondence of 23 September 2014, for Mr O’Connell not to drive the Employer’s work vehicle while being stood down.

[82] Firstly, it is quite obvious that there is a distinction between a verbal instruction to Mr O’Connell not to drive the Employer’s vehicle, and compliance with the contents of the “stand down” correspondence of 23 September 2014.

[83] Mr O’Connell does not refer to this reason for his dismissal, in his written witness statement. 35

[84] Ms Cheeseman’s evidence is that at the conclusion of the 23 September 2014 meeting, she read out the directions in the “stand down” correspondence. Mr O’Connell raised the issue of his work vehicle; Ms Cheeseman stated words to the effect, “you can drive it home, but you will need to leave it there after that”. 36 Mr O’Connell appeared, according to Ms Cheeseman’s evidence, “unhappy” with the response.

[85] Kleenheat employees are not able to access a work vehicle while on annual leave or long service leave. In Ms Cheeseman’s evidence, the situation of being stood down and not being able to access a vehicle, is comparable. 37

[86] Mr O’Connell, in cross examination, could not recall the Employer’s direction not to drive the work vehicle allocated to him. 38

[87] Mr Hall, who was also present at the meeting on 23 September 2014, corroborates Ms Cheeseman’s evidence that Mr O’Connell was informed that he could not use the Employer’s work vehicle. 39 Further, Ms Cheeseman confirmed, in cross examination, that it was Mr O’Connell who raised the issue of the motor vehicle, in the first instance.40

[88] It appears Mr O’Connell, evidentially, considers that as the correspondence of 23 September 2014 omits an instruction not to drive the Employer’s motor vehicle, it proves he was not given a verbal instruction to the same effect. As I stated earlier the two matters are separate and distinct.

[89] On the evidence, I am satisfied that Ms Cheeseman gave Mr O’Connell a lawful and reasonable instruction on 23 September 2014 that he was not to drive the vehicle while being stood down, except to go home that day. The instruction was consistent with a policy not to allow employees access to vehicles while on leave. Further, it was consistent with Mr O’Connell not having access to his mobile telephone and laptop and being directed not to attend any of the Employer’s work sites.

[90] In conclusion having considered the evidence, I find that Mr O’Connell disobeyed a lawful and reasonable direction by the Employer not to drive his allocated work vehicle on 23 September 2014, save to go home.

[91] I find that non-compliance with this lawful instruction, in totality with other matters, provided a valid reason for the Employer to terminate Mr O’Connell’s employment.

Did Mr O’Connell drive recklessly on 26 September 2014 resulting in a complaint from a member of the public? Further, did this driving behaviour have the potential to cause serious and imminent risk to himself and other parties and also the reputation of the Employer?

[92] The Employer received notification from a member of the public (Mr McCombe) that one of its vehicles was being driven “erratically”. The driver of the vehicle was heading north on the Kwinana Freeway, swerving in and out of lanes and may have been exceeding the speed limit. 41

[93] Mr O’Connell’s written evidence is to deny the allegation both on 13 October 2014 and in his Statement of Facts. Mr O’Connell does not deny that he was driving the vehicle which was reported by Mr McCombe. Mr O’Connell states he is a safe and experienced driver. Further, Mr O’Connell sought the “accuser’s” name, address and telephone number”, to refer the matter to the Police to investigate and report on the issue.

[94] The incident occurred on 26 September 2014 after Mr O’Connell’s meeting with Mr Hall and Ms Cheeseman. At that meeting, Mr O’Connell was given the first “show cause” letter as to why his employment should not be terminated regarding the incident on 15 September 2014 at the National Sales Conference.

[95] Mr McCombe gave evidence to the Commission on what he observed relating to Mr O’Connell’s driving on the Kwinana Freeway.

[96] Mr McCombe is also a sales person. He described Mr O’Connell’s driving as in the “top 5 worst driving I have seen”. 42 In Mr McCombe’s evidence, Mr O’Connell was endangering other people’s lives. Mr McCombe telephoned the Employer immediately.

[97] Mr McCombe’s evidence was that he had been driving for over 46 years. 43

[98] None of Mr McCombe’s evidence was disturbed in cross examination. In my view, his evidence was honest, straightforward and to the point.

[99] Finally, I have considerable unease regarding the inference by Mr O’Connell that, for the incident to have relevance to his dismissal, Mr McCombe should have reported the matter to the Police. Mr O’Connell’s view is misplaced. Mr McCombe’s decision to refer the matter to the Employer was for him to make. He made that decision within minutes of observing Mr O’Connell’s driving on the Kwinana Freeway. Mr McCombe could have had no idea of the circumstances which preceded the driving incident. Mr McCombe was sufficiently concerned at Mr O’Connell’s behaviour to inform the Employer almost immediately.

[100] Mr O’Connell’s attempt to impugn Mr McCombe’s technical capacity to assess the situation, failed in my view. Mr McCombe did not portray his evidence as that of an “expert” but just a concerned motorist at somebody else’s driving.

[101] Having considered the evidence, I prefer the evidence of Mr McCombe as to what happened on the Kwinana Freeway. On Mr McCombe’s evidence, I am satisfied that Mr O’Connell’s driving, on the balance of probabilities, had the potential to cause risk to himself and others. Further, in view of the employer’s signage on the vehicle, Mr O’Connell’s actions had the propensity to cause a risk to Kleenheat’s reputation.

Did Mr O’Connell punch Mr Roberts in May 2005 at a previous sales conference in breach of his employment obligations?

[102] Mr O’Connell’s Statement of Facts states that he does not recall the incident, however, if there was such an incident it would have been “horseplay” and no malice intended. 44 Further, Mr O’Connell’s evidence is that he has always had a good working relationship with Mr Roberts.

[103] Mr Roberts’ evidence is that at the 2005 sales conference, Mr O’Connell, “without warning punched me in the face” and “I didn’t see it coming. It was totally unexpected I don’t know why he hit me”. Further, at the time, Mr Roberts held the impression that Mr O’Connell wanted him to respond.

[104] Mr Roberts formed the view that if there was alcohol at a work function there was the potential for Mr O’Connell to turn nasty. Mr Roberts subsequently avoided Mr O’Connell at work functions if there was alcohol involved.

[105] I am satisfied, on the evidence, that Mr Roberts was punched by Mr O’Connell in May 2005. On Mr Roberts’ evidence, I am not satisfied that it was “horseplay”. However, Mr Roberts’ evidence is that he did not report the matter. For this reason, and the fact that it happened approximately 10 years ago, I am reluctant to endorse the Employer’s approach of including this incident as a reason for Mr O’Connell’s dismissal. While the incident is relevant in relation to Mr O’Connell’s overall behaviour as an employee, it is not recent.

[106] In any event, with respect to the other reasons set out for Mr O’Connell’s dismissal, they are more than sufficient, as a valid reason, for the termination of his employment.

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

[107] I am satisfied that from the Employer’s correspondence of 23 and 26 September and 9, 16 and 22 October 2014, that the Applicant was notified of the reasons which led to the termination of employment.

[108] In addition to this written communication, I am satisfied that the Applicant was aware of the reasons leading to his termination of employment through his meetings with the Employer on 23 and 26 September and 8 October 2014.

s.387(c) - opportunity to respond

[109] I am satisfied, on the evidence, that the Applicant had the opportunity to respond to the alleged conduct that led to his termination of employment.

s.387(d) - support person

[110] I am satisfied that the Employer did not unreasonably refuse for Mr O’Connell to have a support person present during discussions which eventually led to the Applicant’s dismissal. Mr Lilleyman was present at discussions on 8 October 2014. In the Employer’s correspondence of 16 October 2014, Mr O’Connell was invited to bring a support person to the meeting on 20 October 2014 when he was to be advised of the outcome of the investigation.

s.387(e) - unsatisfactory performance

[111] The precise reasons for Mr O’Connell’s dismissal relate to his conduct rather than his performance as Business Representative. However, in its broadest sense, the performance of an employee includes their conduct, especially how he or she interacts with their work colleagues and other people they come into contact with.

[112] The Employer, in its submission to the Commission, raised a number of issues regarding Mr O’Connell’s performance as an employee. These matters include Mr O’Connell punching, in a nightclub, a person who was an employee of another company which was in a joint venture with Kleenheat and who shared the same premises. Mr O’Connell agreed that the incident occurred but he was responding to the other person. Mr O’Connell also agreed that, in 2008, he received a written warning for transporting large gas cylinders in the Employer’s sedan vehicle, contrary to safety regulations. Mr O’Connell agreed that, in 2013, a female customer made a complaint against him for being aggressive towards her in her home. Mr O’Connell could not explain why the customer made such a false allegation and denied he was rude or aggressive towards her. Mr O’Connell also denied and/or cannot recall that he said, “are you fucking mad” towards a member of the National Emergency Response Group, who called him late at night and, subsequently, made a complaint to the Employer. Finally, Mr O’Connell stated that some expense claims, raised by the Employer, were explainable, and within its policy parameters. 45

[113] It is not my role to determine each and every matter raised by the Employer regarding Mr O’Connell’s performance. However, I am satisfied that Mr O’Connell’s history of work performance does not sit comfortably with his submission that he had an “exemplary work history”. 46

s.387(f) - size of enterprise

s.387(g) - Human Resources

[114] The Employer is a relatively large organisation and has access to dedicated human resources personnel. The investigation was conducted in a thorough and timely manner. The Employer adopted a process in which: the allegation could be readily understood, the Applicant given an opportunity to respond and advised of the findings.

s.387(h) - other matters

[115] While I am satisfied that the Employer has discharged its onus in relation to the summary dismissal of an employee, I have considered whether, notwithstanding, the Employer had a valid reason for dismissing Mr O’Connell, whether the dismissal was harsh, unjust or unreasonable as explained by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd. 47

[116] Mr O’Connell submits that the decision to terminate his employment was unjust “because of the way Kleenheat conducted the investigation and I was not guilty of all the alleged misconduct” 48 (my emphasis). I am satisfied that the investigation was appropriate, fair and timely. Mr O’Connell, in saying that he was “not guilty” of all the alleged misconduct, concedes he was guilty of some of the allegations. Presumably, this differential relates to the abusive language he used towards Mr Ritchie because he denied the remaining allegation relating to his dismissal. I have set out my findings above in relation to all the allegations, and it is not necessary to repeat them.

[117] Mr O’Connell submits that his dismissal was unreasonable because “the evidence before Kleenheat does not support all of its conclusions, and my length of service (18+ years) together with my exemplary work history”. My conclusions, on the evidence, together with my observation of Mr O’Connell’s work history, are set out above.

[118] Mr O’Connell claims that his dismissal was harsh in that it was disproportionate, together with the economic and personal circumstances he has suffered.

[119] The Applicant’s dismissal was not a case of “instant dismissal” but “summary dismissal” after an investigation. The conduct of Mr O’Connell can be divided into three parts. The first part is that Mr O’Connell deliberately, without provocation, engaged in 15 to 20 minutes of swearing, demeaning and torrid abuse of a work colleague.

[120] While all of what was said cannot be accurately set out, I am satisfied that it was scornful and despising of a work colleague, and inconsistent with Mr O’Connell’s contract of employment. His conduct was wilful and deliberate and continued, albeit, for a brief period, after Mr Ritchie returned from his room. The volley of abuse was a verbal assault upon Mr Ritchie of significant proportion.

[121] Faced with an investigation into his conduct, Mr O’Connell refused to accept a reasonable and lawful direction not to drive his work vehicle, except home on 23 September 2014.

[122] In his submission, Mr O’Connell describes himself as having a “direct personality”. Mr Smetana contextualised Mr O’Connell “as a person who was prepared to break the rules when it suits”. Mr O’Connell rejected such a characterisation and gave evidence, “I try to follow the rules to the best of my ability”. 49

[123] In my view, Mr O’Connell’s evidence demonstrated that he does not break the “rules”, it is a case that he is unmoved by them and subsequently attempts to explain his actions with implausible explanations. For example, Mr O’Connell gave evidence that it was not a case of disliking Mr Ritchie, but there is a “personality clash” 50 and that he does not have any “ill feelings” towards him51. Further, with respect to running his rental property business, Mr O’Connell attempts to negate all the Employer’s evidence with a “deeming” argument; an argument with no foundation.

[124] In the circumstances, I am satisfied that Mr O’Connell’s conduct was serious misconduct.

[125] It is almost always the case that dismissal of an employee, including summary dismissal, will result in economic and personal hardship. However, notwithstanding the probable economic and personal hardship in an employee’s dismissal, including summary dismissal, the FW Act and its Regulations envisage such circumstances.

[126] In the circumstances of this application, the problem for the Applicant is that he could have avoided the consequences of his dismissal if he had a different approach to lawful instructions, complied with policies and resisted the urge to tell Mr Ritchie what he thought of him. While I have taken into account Mr O’Connell’s personal circumstances, I am unable to conclude that the dismissal was a disproportionate penalty or that his personal or economic circumstances are sufficient to warrant the termination of employment as being harsh.

CONCLUSION

[127] In conclusion, for the reasons set out above, I am satisfied that Mr O’Connell’s dismissal from his employment was not unfair pursuant to s.387 of the FW Act. Accordingly, the application must be dismissed. An Order to this effect is issued jointly with this Decision.

COMMISSIONER

Appearances:

A O’Connell, the Applicant, on his own behalf.

A Smetana, of counsel, on behalf of Wesfarmers Kleenheat Gas Pty Ltd.

Hearing details:

2015:

Perth,

21 and 22 May.

 1   Exhibit R6 (19)

 2   Brink v TWU PR922612 at paragraph [7]

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

 4   Exhibit R6 (8)

 5   Exhibit R6 (8)

 6   Exhibit R7 Appendix 1

 7   Exhibit R7 Appendix 2

 8   Exhibit R7 (3)

 9   Exhibit R7 Appendix 4

 10   Exhibit A2 (12)

 11   Transcript PN148

 12   Transcript PN149

 13   Transcript PN154

 14   Transcript PN151

 15   Exhibit A5 (69)

 16   Exhibit A5 (66)

 17   Transcript PN963

 18   Transcript PN1328

 19   Transcript PN1227

 20   Transcript PN1228 and PN1229

 21   Transcript PN870

 22   Exhibit R6 (5)

 23   Exhibit R6 (7)

 24   Transcript PN261

 25   Transcript PN262

 26   Transcript PN268

 27   Transcript PN268

 28   Transcript PN268

 29   Exhibit A2 (16)

 30   Exhibit R6 (6)

 31   Exhibit R6 (6)

 32   Transcript PN268

 33   Exhibit R7 (8)

 34   Exhibit A2

 35   Exhibit A5

 36   Exhibit R12 (34)

 37   Exhibit R12 (36)

 38   Transcript PN241 and 243

 39   Exhibit R12 (35)

 40   Transcript PN779

 41   Exhibit R7 (Appendix 13)

 42   Exhibit R3 (12)

 43   Transcript PN1711

 44   Exhibit A2 – page 23

 45   Transcript PN 85 to PN 140

 46   Exhibit A1 (3)(b)

 47   (1995) 18 CLR 410 at 465

 48   Exhibit A1 (3)(a)

 49   Transcript PN251

 50   Transcript PN311

 51   Transcript PN317

Printed by authority of the Commonwealth Government Printer

<Price code C, PR572814>