| [2016] FWC 343 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Damien McDaid
v
Future Engineering and Communication Pty Ltd
(U2015/1539)
COMMISSIONER WILLIAMS |
PERTH, 22 JANUARY 2016 |
Termination of employment.
[1] This matter involves an application made by Mr Damien McDaid (Mr McDaid or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Future Engineering and Communication Pty Ltd (FEC or the respondent).
[2] The application was the subject of a conference with a Fair Work Commission conciliator however the matter was not resolved and so has been referred for determination.
[3] Mr McDaid had been employed with FEC since 2008. At the time of his dismissal he was FEC’s Project Coordinator.
[4] FEC’s main activity is the design, manufacture, fabrication and installation of communication towers, powerline infrastructure and associated equipment on sites throughout Australia. The company employs approximately 60 employees.
[5] In March 2015 FEC dismissed Mr McDaid following an investigation into his behaviour on 19 December 2014. The termination of employment letter states the following reasons for termination:
[6] Mr McDaid gave evidence and also called Mr Lindsay Horner (Mr Horner), FEC’s Field Manager to give evidence.
[7] The respondent called as witnesses Mr Craig Davies, FEC’s Director/General Manager, Mr Len Davies who is the Trustee of a trust which owns 50% of FEC’s shares, Mr Lyndon Palmer (Mr Palmer), Director and Construction Manager of FEC, Mr Sugan Sinna (Mr Sinna), a Design Engineer with FEC, Mr Stuart Dyble (Mr Dyble), FEC’s Workshop Manager and Ms Sarah Chambers (Ms Chambers), a Project Manager with FEC.
[8] Considering the evidence of all of these witnesses I make the following findings of fact.
[9] Mr Craig Davies, Mr Len Davies, Mr Palmer, Mr Sinna and Mr Dyble in their evidence each provide examples of instances during Mr McDaid’s employment where he has behaved in a domineering or aggressive manner towards others. I accept the evidence of these witnesses as to the inappropriate manner in which Mr McDaid had at times during his employment behaved towards other employees.
[10] In the lead up to Christmas 2014 FEC arranged for their employees to enjoy a day of go-karting followed by a Christmas party back at the FEC premises. This was held on Friday, 19 December 2014.
[11] Mr Craig Davies had advised everybody that those employees who had not completed all their work would not be included in this event. Consequently Mr McDaid attended work on Saturday, 13 December 2014 to get his scheduling completed.
[12] On the Thursday before this event, 18 December 2014 Mr McDaid had felt there was some tension between him and Mr Craig Davies. Mr McDaid called Mr Craig Davies into his office and asked him if he had done anything wrong. Mr Craig Davies explained he was unhappy about a $84 petrol expenses claim Mr McDaid had made. Whilst Mr McDaid believed this was a legitimate claim he told Mr Craig Davies that he would put this amount back onto his work credit card so FEC would not be out of pocket. Mr McDaid told Mr Craig Davies that if he was doing anything which annoyed Mr Craig Davies that Mr Craig Davies should just approach him and not let things fester.
[13] The following day, Friday, 19 December 2014, Mr McDaid attended the go-karting event. After this the employees participating including Mr McDaid returned to the FEC premises for the Christmas party. Alcohol was available for the employees in attendance, as was soft drinks and food, all of which had been provided by FEC. There were no controls over the amount of alcohol individuals chose to consume. There was a swimming pool in place at the FEC premises where the Christmas party was held.
[14] There is a significant amount of evidence from a number of the respondent’s witnesses which is consistent and supports a finding that at the Christmas party Mr McDaid was inebriated and behaved in an aggressive manner, both verbally and physically towards Mr Sinna. Specifically this evidence is to the effect that Mr McDaid on a number of occasions pushed Mr Sinna in the chest and finally pushed him, fully clothed, into the swimming pool. Mr McDaid however emphatically denies he behaved this way and denies he pushed Mr Sinna into the pool. 1
[15] I accept the evidence is that Mr Craig Davies had been drinking that evening.
[16] The evidence of Ms Chambers which I accept is specifically that she watched Mr McDaid and she could see from his body language he was getting very aggressive with Mr Sinna. She said Mr McDaid was intoxicated. Her evidence was that he looked angry although she could not hear what he was saying because she was 8 meters away. She watched their interactions and saw Mr McDaid push Mr Sinna who was fully clothed into the swimming pool in an aggressive manner. Her evidence was that Mr Sinna appeared to be shocked and she asked him if he was all right and he said that he was fine and he could handle this.
[17] Mr Sinna’s evidence is that at the Christmas party Mr he had been drinking quite heavily and Mr McDaid had also been drinking. He says that Mr McDaid was haranguing him about work matters. Mr McDaid’s demeanour towards him was aggressive and he kept pushing him in the chest with his hands. At one stage Mr Craig Davies intervened and rescued him from Mr McDaid’s aggressive conduct. Some time later Mr McDaid returned and again aggressively pushed him in the chest. Mr Sinna’s evidence was that he told him to stop and Mr McDaid pushed him into the swimming pool fully clothed. Under cross-examination on this evidence Mr Sinna did not resile from his statement as to Mr McDaid’s actions and explained that Mr McDaid pushed him a few times in the chest and Mr McDaid said to him “Listen to me, listen to me” before he pushed him into the pool. 2
[18] I am satisfied then that at the Christmas party Mr McDaid was inebriated, that he on a number of occasions poked or pushed Mr Sinna on the chest in an aggressive manner whilst haranguing him. I also find that Mr Craig Davies intervened to separate Mr Sinna from Mr McDaid. Some time later the two men came together again and the haranguing continued and Mr McDaid then threw Mr Sinna, who was fully clothed, into the swimming pool without warning in what was an aggressive act.
[19] The evidence of Mr Craig Davies which I accept is that prior to these interactions and prior to Mr Sinna having been pushed into the swimming pool he had twice told Mr McDaid that he should go home but he had refused to do so.
[20] I am satisfied from the witness evidence that shortly after Mr McDaid pushed Mr Sinna into the pool Mr Craig Davies approached Mr McDaid and told him that he should leave the premises and go home. I accept the evidence of Mr McDaid that in all likelihood Mr Craig Davies expressed this direction on the second occasion by telling him that he should “Fuck off”. Mr McDaid’s own evidence is that he was upset by Mr Craig Davies’ direction to him being expressed this way and pointed his finger at Mr Craig Davies and said “You fuck off”.
[21] The evidence is that with respect to what occurred next which was a fight between Mr McDaid and Mr Craig Davies, Mr McDaid does not have a positive recollection. In his witness statement Mr McDaid refers to what others told him they believed happened. 3 It appears these people were not witnesses to the events that night but rather formed an opinion as to what had occurred having after the event watched CCTV recordings and merely expressed their opinion to Mr McDaid.
[22] Under cross-examination Mr McDaid’s evidence relevantly is as follows:
“So what happened? It’s in my witness statement. I was talking with Sugan and Stewie and that’s when the conversation got animated and like no - like Sugan saying that I was poking him in the chest. It was actually affirmation. Craig being heavily intoxicated thought probably that we were being arguing(sic) and he says in his statement that it was reported to him that I aggressively pushed him into the pool. Craig came over and he did ask me to leave, but how did he ask me to leave?
PN189
Well he asked - - -? Excuse me, sir, am I allowed to curse or do I say the eff word or - without offending anyone?
PN190
THE COMMISSIONER: If you’re just repeating things that were said on the night, say the words? The - right, okay. Craig came over to me and says, "Damien go" and I said - I was like, “What are you talking about Craig?” you know what I mean? And he says, “Damien fuck off” and I’m like “What?” And he says “Oh seriously, Damien, fuck off. You know? Seriously, just go. Fuck off” and I says, “Craig, you can't talk to me like that”, you know what I mean? I says, “You can't talk to me like that” and he says “Damien, seriously, fuck off”. You know, that's all he kept on repeating and saying and I says, “Craig I'm not afraid of you” and Craig was up in my face, you know, and I said to Craig, "Well you know what? You fuck off" and that's the last thing I remember until as pointed out in my police statement and pointed out in - when other people asked me, that's the last thing that I remember. I remember everything else on that night, and I was clear in my questions when I was asked in FEC, until I was standing talking to Steve Miles out the front, feeling my head. At that point I don't even know what happened. I have no memory of it whatsoever. Saying “He shouldn't have fucking hit me. He shouldn't have fucking hit me” you know, and Steve Miles says “Yes, Damien, you're right. He shouldn’t have hit you but I think it’s time we should go home” and I says “That’s fair enough, Steve”. You can see in the CCTV as explained by Maurice. Craig was up in my face and I says, “Like no” - I push him and I says “Did I push him aggressively, Maurice, or did I say more like ‘Craig, get out of my face’?” and Maurice says “It’s more like ‘Get out of my face’,”” (Underlining added)
[23] Mr McDaid’s evidence is that he has no memory of what occurred between him responding to Mr Craig Davies “Well you know what? You fuck off” and some time after the altercation with Mr Craig Davies had ended.
[24] Mr McDaid also made the point he had no memory of these events in questioning one of his witnesses as follows:
“MR McDAID: I made concerns to you, Maurice, that the only thing that concerned me about that night was the CCTV because I had no recollection of what happened at that incident. And it was worrying me what was on it, because it had been reported to Lindsay by Craig that I had pushed him, and I was, like – pushed him, pushed Craig, you know what I mean? I can't make a comment because I wasn’t there.” 4
[25] Whilst a number of the other witnesses were in the vicinity of the altercation between Mr McDaid and Mr Craig Davies none of them directly witnessed how it commenced.
[26] Mr Craig Davies’ statement is that it was around 10.30 p.m. he caught up with Mr McDaid and told him that he had to leave the premises immediately. His evidence is that Mr McDaid became aggressive towards him, that Mr McDaid stepped forward and pushed him hard enough for Mr Craig Davies to stagger backwards several metres and fall down hitting the front gate of the premises. Under cross-examination he says that Mr McDaid pushed him twice. As a result of this he suffered grazing to his legs and feet and to his right shoulder where he crashed into the front gate. Mr Craig Davies evidence is that Mr McDaid then helped him up and he and Mr McDaid then exchanged punches. At some point after this Mr Craig Davies threw a punch at Mr McDaid’s head and hit him on the left side. At this point the fighting ended. Mr Craig Davies says he then walked away for some minutes to calm the situation and returned with another employee Mr Miles who told Mr McDaid to leave the premises and go home. Mr McDaid was driven home approximately 30 minutes later. Mr Craig Davies injured his hand when he punched Mr McDaid in the head.
[27] The fight between Mr McDaid and Mr Craig Davies was partly captured on CCTV. Mr McDaid was provided with a copy of this recording by FEC and this has been tendered in these proceedings. The Commission has viewed the video recording a number of times and as the transcript shows a number of witnesses were asked to view the CCTV recording.
[28] I have viewed the CCTV recording which does not clearly show how the fight between Mr McDaid and Mr Craig Davies began. At the point they first apparently physically interact they are both largely obscured from view by a parked vehicle. While some movement can be detected it is not possible to determine who is doing what to whom. After a few moments Mr Craig Davies is propelled backwards with some force from behind the parked vehicle a few metres towards the gates with Mr McDaid following an arms-length behind him. Mr Craig Davies has lost his footing and he hits the ground and the gate with Mr McDaid standing over him. Mr McDaid immediately helps Mr Craig Davies to his feet and another person steps in between the two men. Mr Craig Davies pushes this person away and moves towards Mr McDaid and the two men engage, swapping blows.
[29] Mr Craig Davies was cross-examined on his evidence and was unshaken as to what occurred. Consequently his evidence is the only evidence before the Commission as to how the physical altercation between himself and Mr McDaid began. I accept his evidence that what occurred was that Mr McDaid pushed him twice and on the second occasion with such force that he was propelled backwards falling into the front gate of the business premises.
[30] The critical elements of what occurred then can be summarised as follows, Mr Craig Davies who is the General Manager approaches Mr McDaid and tells him that he should leave the premises. Mr McDaid on his own evidence does not readily comply with this direction but rather challenges Mr Craig Davies who repeats his direction swearing at Mr McDaid. The evidence which I accept of Mr Craig Davies is that it is Mr McDaid who then initiates the physical alteration by pushing Mr Craig Davies twice and the second time with such force as explained above that Mr Craig Davies is propelled backwards and hits the gate and so suffers some minor injuries. Mr Craig Davies then having been helped to his feet by Mr McDaid continues on with the altercation and they exchange blows. Having just been pushed twice by Mr McDaid and with sufficient force to hit the ground and the gate this reaction by Mr Craig Davies can reasonably be seen as an act of self-defence. There is no dispute that the altercation ends when Mr Craig Davies hits Mr McDaid with some force on the side of the head.
[31] After the events of 19 December 2014 Mr McDaid remained on leave over the Christmas break and in early January 2015 Mr Craig Davies phoned him and told him to come into work on Wednesday, 7 January 2015 so they could discuss what happened on the night of 19 December 2014.
[32] Mr McDaid met with Mr Craig Davies and Mr Palmer on 7 January 2015. Mr McDaid was accompanied by Mr Horner as a support person. I accept that Mr Craig Davies at that meeting began by making a series of statements that were critical of Mr McDaid’s performance in his work and behaviour over an extended period. There was initially no reference to what occurred on 19 December 2014. During the course of those discussions Mr McDaid asked whether he was being fired or whether he was being made redundant and Mr Craig Davies said no he was not but that Mr McDaid had until the end of the month to find another job. I accept the evidence of Mr Horner that Mr Palmer said something to the effect to Mr McDaid that in light of what happened at the Christmas function that he should take what was being offered. Neither Mr Craig Davies nor Mr McDaid had the opportunity at this meeting to explain in detail what occurred on 19 December 2014. 5
[33] After the meeting Mr McDaid attended the doctor and was provided with a medical certificate for the next week off. He then rang Mr Len Davies and arranged to meet with him the next day to discuss things. Mr McDaid met with Mr Len Davies and told him his version of what had happened on 19 December 2014 and suggested to Mr Len Davies that they could settle this and he could walk away quietly. After some discussion it was agreed that Mr McDaid would put some proposal to Mr Len Davies for his consideration. The following day 9 January 2015 the two men again met and Mr McDaid put a detailed terms of settlement to Mr Len Davies. Later that afternoon after the meeting Mr Len Davies contacted him and put a detailed financial offer to Mr McDaid which Mr McDaid rejected saying it was not good enough. Subsequently there was correspondence between the parties including a letter from Mr McDaid’s solicitor proposing particular settlements but ultimately no agreement was reached.
[34] Mr McDaid remained absent from work supported by doctors’ certificates until he returned to work on 17 March 2015 and attended a prearranged meeting with Mr Len Davies and Mr Palmer. 6 Mr Craig Davies had arranged the meeting by email on 9 March 2015 which explained that they wish to continue their discussions that had begun on 7 January 2015 and they were asking him to explain his actions on the night of 19 December 2014. Mr McDaid attended that meeting as arranged accompanied by Mr Horner. Mr McDaid gave his account of what occurred on 19 December 2014 reading from a detailed statement he had written. Mr Len Davies requested that he give them a copy of his statement but Mr McDaid said only that he would think about doing that. Much of the statement dealt with historical matters during Mr McDaid’s employment and little of what he said was directly relevant to the events of 19 December 2014.7 Mr McDaid requested that Mr Len Davies and Mr Palmer provide Mr Craig Davies’ account of what he had done on that night but they did not do so. Mr Len Davies asked him a series of questions which Mr McDaid answered although many he felt were bizarre.
[35] I accept Mr Palmer’s and Mr Len Davies’ evidence that notes or minutes of the meeting were made afterwards which generally reflect what was discussed. Those notes 8 include a list of questions and answers some of which summarised are as follows:
Q: Aggressive behaviour towards Sugan. Did you poke him in the chest and push him in the pool?
A: Mr McDaid said he was not aggressive and could not remember pushing him into the pool.
Q: Did you say to Craig Davies “Lets go out the back and sort it out?”
A: Mr McDaid denies saying this.
Q: You were told repeatedly by multiple people you were no longer welcome at the premises and to leave, why did you not leave?
A: Mr McDaid said he was only told to leave after the scuffle with Mr Craig Davies.
Q: Did you push Mr Craig Davies into the fence after being told to leave? Did you then throw punches at him?
A: Mr McDaid said he doesn’t remember and doesn’t remember throwing punches.
[36] The evidence is that Mr Palmer had discussed what occurred on 19 December 2014 with most of the people that were present there that night. 9 Mr Palmer’s evidence which I accept is that at the meeting on 17 March 2015 he explained what had been reported to him about Mr McDaid’s fighting with Mr Craig Davies and these assertions were not denied by Mr McDaid because he could not remember what had occurred. I also accept the evidence of Mr Len Davies that during these discussions Mr McDaid said he could not remember some of what occurred on the night of 19 December 2014.10
[37] Mr Horner’s evidence was that during this meeting Mr McDaid was given a full opportunity to explain his conduct on 19 December 2014 and that he read from his statement and neither of the employer’s representatives interjected at any point during this.
[38] At the meeting Mr Len Davies advised that he believed Mr McDaid’s version of what occurred on 19 December 2014 conflicted with the statements of others and they would consider this and respond to Mr McDaid later that day. The meeting ended approximately at 7.50 a.m.
[39] Mr Len Davies and Mr Palmer then took advice from their advisers and later that afternoon Mr McDaid was asked to attend another meeting at around 4.00 p.m. The evidence is that Mr Palmer asked Mr McDaid if there was anything he want to add, was there some reason why he should not be terminated, but he did not have anything further to say. 11 He was then advised that they had found his responses to their questions unsatisfactory and as a result his employment would be terminated effective immediately. Mr McDaid was then provided with his termination letter.
[40] Throughout the hearing Mr McDaid made a number of assertions about instances of past bad behaviour by Mr Craig Davies and Mr Palmer. Whilst these were directly refuted by Mr Craig Davies and Mr Palmer the specificity of Mr McDaid’s evidence about some of these instances suggests that on balance that his assertions may have been accurate. None of these examples however related to the reasons for which Mr McDaid was dismissed.
[41] The matters the Commission must consider when determining whether Mr McDaid’s dismissal was unfair or not are set out in section 387 of the Act below.
“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.”
[42] On the 19 December 2014 Mr McDaid repeatedly harangued a fellow employee Mr Sinna in an aggressive manner, repeatedly pushing or poking him on the chest and then without warning threw him, fully clothed, into a swimming pool. This conduct was a valid reason for Mr McDaid’s dismissal.
[43] On 19 December 2014 Mr McDaid refused to leave the business premises when directed to do so by the General Manager Mr Craig Davies. This conduct was a valid reason for Mr McDaid’s dismissal.
[44] On 19 December 2014 Mr McDaid initiated a fight with Mr Craig Davies by twice pushing him with such force that on the second occasion he lost his footing and crashed into the ground and a gate suffering minor injuries. This conduct was a valid reason for Mr McDaid’s dismissal.
[45] Before Mr McDaid was dismissed he was notified that FEC was investigating his conduct on the night of 19 December 2014 and after his dismissal Mr McDaid was notified in writing of the reasons for his dismissal.
[46] Mr McDaid had a proper opportunity to respond to the reasons for which he was dismissed at the meetings he attended on 17 March 2015.
[47] There was no refusal of a request to have a support person present at any discussions. At the discussions held on 17 March 2015 Mr McDaid was accompanied by his support person.
[48] The reasons for dismissal were not related to Mr McDaid’s work performance.
[49] The respondent’s enterprise is a medium sized business but does not have dedicated human resource specialists. The procedures followed in the circumstances were appropriate given these factors.
[50] Mr McDaid has been employed with FEC since 2008.
[51] Whilst there is no evidence of physical confrontations initiated by Mr McDaid in the past there is evidence that he at times in the workplace behaved in a verbally aggressive manner towards work colleagues. Given this background this is not a case where Mr McDaid’s conduct on the evening of 19 December 2014 surprised his colleagues or was viewed as being out of character.
[52] It is clear that a number of the employees present on the night in question including Mr McDaid were affected by alcohol. To his credit Mr McDaid did not attempt to use the fact that he had been drinking as an excuse for his conduct. He did however criticise the employer generally for its actions in supplying the alcohol. Whilst in some circumstances an employer that provides alcohol at a work function and takes no steps to ensure it is consumed responsibly may be culpable for events attributable to the consumption of alcohol, such as a drunken employee being injured falling down stairs, employees who drink will also be held responsible for their own actions. The fact that someone has been drinking when they behave badly may in part explain their actions but it should not be accepted as an excuse for that misbehaviour. How much alcohol someone drinks is a choice they make and with that choice comes consequences. Society no longer readily accepts alcohol consumption as an excuse for bad behaviour and certainly not for physical violence.
[53] While some criticism can be levelled at Mr Craig Davies for his behaviour on the night in question, particularly given his role as General Manager, as I have found he did not initiate the physical altercation with Mr McDaid and whilst he carried on with it, in the circumstances, that is properly viewed as self-defence.
[54] Mr McDaid on the night in question was physically aggressive towards two employees. He had harangued one employee, repeatedly poking or pushing him in the chest and then threw him, fully clothed, into a swimming pool. Some time afterwards he had disputed the General Manager’s direction to leave the premises and then initiated a physical altercation with the General Manager that evolved into a full-blown fight.
[55] In all the circumstances it is not surprising that Mr McDaid was dismissed. Mr McDaid’s dismissal was neither harsh, unjust nor unreasonable. Mr McDaid was not unfairly dismissed.
[56] An order will now be issued dismissing this application.
COMMISSIONER
Appearances:
D McDaid on his own behalf.
D Jones of the Chamber of Commerce & Industry of Western Australia for the respondent.
Hearing details:
2015.
Perth:
September 17 and October 15.
1 Transcript at PN154 and PN808.
2 Ibid., at PN1460 to PN1468.
3 Exhibit A1 at paragraphs 92 to 94.
4 Transcript at PN649.
5 Ibid., at PN1681 to PN1683.
6 Exhibit A1 at paragraph 61.
7 Transcript at PN1273.
8 Exhibit R6, Appendix 1.
9 Transcript at PN1715.
10 Ibid., at PN1043 and PN1044.
11 Ibid., at PN1279.
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