[2017] FWC 3764 [Note: An appeal pursuant to s.604 (C2017/4357) was lodged against this decision and order - refer to Full Bench decision dated 25 September 2017 [[2017] FWCFB 4545] for result of appeal.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Kym Larcombe
v
Bis Industries
(U2017/1134)

COMMISSIONER PLATT

ADELAIDE, 18 JULY 2017

Application for an unfair dismissal remedy – valid reason – not harsh, unjust or unreasonable – application dismissed.

Summary

[1] On 3 February 2017, Mr Larcombe lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by his former employer Bis Industries (Bis).

[2] The matter was arbitrated on 17 and 18 May 2017 in Whyalla, South Australia. Mr Wright of WKLawyers represented Mr Larcombe and Mr Douglas of counsel represented Bis. Permission was granted pursuant to s.596(2) of the Act.

[3] There was no dispute that Mr Larcombe was protected from unfair dismissal pursuant to s.382 of the Act.

[4] Mr Larcombe was employed by Bis as a Supervisor up until 22 August 2016 at which time he was demoted to a Plant Operator.

[5] Mr Larcombe’s dismissal on 18 January 2017 arose from an incident that occurred on the morning of 9 December 2016 between Mr Larcombe, Ms Buhlmann and Mr Savaidis.

[6] Mr Larcombe provided a witness statement 1 and gave evidence on his own behalf. He also led evidence from:

[7] Bis provided witness statements and led evidence from:

[8] The position of Mr Larcombe is summarised as follows:

[9] The position of Bis is summarised as follows:

The Witness Evidence

Kym Larcombe

[10] Mr Larcombe’s relevant evidence is summarised below.

[11] Mr Larcombe was employed by Bis in February 1980.

[12] Whilst he was a Shift Supervisor, he supervised a team including Mr Wellgreen, Ms Buhlmann, Mr Savaidis, Mr Taylor and Mr Hocking.

[13] In August 2016, Bis alleged that Mr Larcombe, as Supervisor, had failed to appropriately respond to a series of events involving persons he supervised in his team. This included inappropriate comments on the radio and during a toolbox meeting, and a practice known as ‘knuckle greeting’. The precise details of these events are not relevant to this matter other than the fact that Ms Buhlmann and Mr Savaidis were members of Mr Larcombe’s team at that time and that the outcome of the investigation resulted in Mr Larcombe receiving a written warning and demotion with significant loss of pay. Since his demotion in August 2016, Mr Larcombe has worked as a Plant Operator in a different team. Mr Larcombe thought that his demotion was unfair, humiliating 2 and arose as a result of a couple of disgruntled employees that he felt he had looked after.3 Mr Larcombe stated that he did not challenge the outcome4 but accepted it under protest.5

[14] In August 2016, Mr Larcombe was accused by Ms Buhlmann of defacing a poster at the workplace. The poster contained a picture of Ms Buhlmann which had been defaced by the addition of a moustache and goatee beard, earrings, a mole, blacked out teeth and the words ‘Sonny’ on each side of the neck. Ms Buhlmann suggested the reference to ‘Sonny’ was a reference to an ex-partner and that Mr Larcombe was the only person at Bis who knew of that relationship. Mr Larcombe denied any involvement in defacing the poster.

[15] After this incident, Mr Larcombe contends he was the subject of rumour and innuendo at the workplace. Other employees asked Mr Larcombe if he had defaced the poster. 6 Mr Larcombe did not report the matter preferring to mind his own business.7 It is apparent that the allegation weighed heavily on his mind for some months.8 Mr Larcombe and Ms Buhlmann were not speaking and were not on good terms.9

[16] Mr Larcombe desired to speak with Mr Brian Murphy (Australian Workers’ Union representative) and Mr Aaron Thiele (Bis Senior Work Health Safety and Environment Supervisor) about reconciling with Ms Buhlmann. Mr Larcombe wanted to try and ‘clear the air’. It had been planned that he would meet Ms Buhlmann in the presence of Bis Management out of hours, 10 but Mr Larcombe wanted to sort it out with a one-on-one discussion with Ms Buhlmann.11

[17] On 9 December 2016, Mr Larcombe was working night shift. It was the last shift he would work for that year as he was taking leave over the Christmas/New Year period. He was upset about the matter 12 and decided to confront Ms Buhlmann.13

[18] Mr Larcombe waited in the crib room for Ms Buhlmann to arrive in the car park 14 and at about 7:20am approached her in the car park. Ms Buhlmann was about to commence day shift.

[19] Mr Larcombe initiated a conversation and tried to convince Ms Buhlmann that he did not deface the poster. Ms Buhlmann told him to get fucked. Mr Larcombe continued the conversation and reiterated that he did not have anything to do with the graffiti on the poster. Ms Buhlmann yelled at him to fuck off again. Mr Larcombe was upset that the conversation was not proceeding as planned and when he was told to fuck off and that he was a liar by Ms Buhlmann, he became more annoyed. 15 Mr Larcombe said the term ‘fuck off’ was used in a serious tone not a laughing tone.16

[20] Mr Larcombe was oblivious to whether Ms Buhlmann wanted to hear the message or not. 17 He did not walk away as he wanted to get his message across.18 Mr Larcombe contends that this conversation took 2 minutes.19

[21] Mr Larcombe contends that Ms Buhlmann did not tell him to stop. Mr Larcombe did not consider that being told to ‘fuck off’ by Ms Buhlmann indicated that she was not prepared to speak with him. Mr Larcombe submitted that words ‘fuck off’ meant that she disagreed with him.

[22] Mr Larcombe contends that after his conversation with Ms Buhlmann, she walked towards the crib room and he was walking in the opposite direction towards the car park. He then saw that Mr Savaidis who was with Ms Buhlmann about 50 metres from him and was pointing towards him, saying ‘You’re gone’. Mr Larcombe was upset at Mr Savaidis’ presence as he felt his conversation with Ms Buhlmann was of a private nature, it was none of his business, and he was interfering. 20

[23] In his statement, Mr Larcombe contended that he shouted to Mr Savaidis ‘Mind your own business and stay out of it’ and ‘Shut the fuck up, mind your own business’. Mr Larcombe denied threatening Mr Savaidis. Mr Larcombe specifically denied stating words to the effect of ‘If you want a go, come over here’ to Mr Savaidis. 21

[24] At the commencement of giving evidence, Mr Larcombe asked to modify his statement to include that he said words to the effect of “Come to the car park” to Mr Savaidis during the car park incident. 22 When asked to explain this omission, Mr Larcombe said he did not believe the omission was relevant.23 Mr Larcombe contends that his comment was designed to allow him and Mr Savaidis to discuss the matter in the car park away from the crib room where the personnel for the next shift were gathering.24 Mr Larcombe was not certain as to the exact words he used.

[25] After the altercation, Mr Larcombe spoke with Mr Andrew Dunn and then reported the incident in a meeting with Mr Haydn Shepherd, Mr Aaron Thiele and Ms Natalie Ward. Mr Larcombe told Mr Thiele, in the absence of the other persons present, that he said to Mr Savaidis to ‘Come to the car park.’ And that he was upset at the time. Mr Larcombe was advised the matter would be investigated.

[26] Mr Larcombe went on annual leave after that meeting.

[27] On 30 December 2016, Mr Hayden Shepherd sent a text message to Mr Larcombe advising he was required to attend a meeting on 2 January 2017 to discuss the events of 9 December 2016.

[28] On 3 January 2017, Mr Larcombe met with Bis accompanied by his support person. Bis advised it was conducting an investigation and detailed the allegations against him. Mr Larcombe was stood down with pay. 25

[29] On 9 January 2017, Mr Larcombe provided a written response where he denied the allegations. 26

[30] On 11 January 2017, Mr Larcombe met with Bis and AWU representative Mr Scott Martin. Mr Larcombe said that he approach Ms Buhlmann on 9 December 2016 to ‘clear the air’, asked Mr Savaidis not to interfere, and denied acknowledging that he admitted using threatening language to Mr Savaidis after the event, or threatening Mr Savaidis. 27

[31] On 18 January 2017, Bis dismissed Mr Larcombe.

Scott Martin

[32] Mr Scott Martin submitted a statement 28 and gave evidence. Mr Martin’s relevant evidence is summarised below.

[33] Mr Martin supported Mr Larcombe through the process and acted as his support person on 14 January 2017.

[34] Mr Larcombe was apologetic, stating that he only wanted to ‘clear the air’ with Ms Buhlmann.

[35] At the meeting on 14 January 2017, Mr Larcombe apologised for what happened.

A.Larcombe

[36] Ms A.Larcombe (Mr Larcombe’s daughter) submitted a statement 29 and was not required to be cross-examined. Ms Larcombe’s relevant evidence is summarised below. I have excluded most of the hearsay and opinion evidence contained in the statement.

[37] Her father was distraught over the incident that led to his demotion, and he became withdrawn and introverted. He reported being isolated, secluded and shunned by his colleagues at work.

[38] Mr Larcombe was upset after the incident on 9 December 2016.

[39] Ms Larcombe and Mr Larcombe corresponded with Bis via text message about the context of the 2 January 2017 meeting.

[40] Mr Larcombe appeared distressed about that meeting.

[41] Ms Larcombe attended the meeting on 3 January 2017 to support her father.

Brian Murphy

[42] Mr Murphy submitted a statement 30 but was not required to be cross-examined. Mr Murphy’s relevant evidence is as follows.

[43] In the first few days of December 2016, he was ending his shift when he saw Ms Buhlmann who appeared distressed. He spoke to her and asked if she was okay and she replied ‘No I am not’ and told Mr Murphy of her concern in relation to the poster with her face on it which had been defaced.

[44] Ms Buhlmann said that Mr Larcombe was responsible and then left the site.

[45] Mr Murphy advised Mr Aaron Thiele about the matter.

[46] Mr Larcombe later denied defacing the poster stating ‘No, I am not that fucking stupid.’

Shanay Buhlmann

[47] Ms Buhlmann submitted a statement 31 and gave evidence. Her relevant evidence is summarised as follows.

[48] Ms Buhlmann is 24 years old and works for Bis as an Operator. 32

[49] Ms Buhlmann had a friendship with one of Mr Larcombe’s daughters. In 2016, Ms Buhlmann worked with a team which was supervised by Mr Larcombe. Mr Wellgreen, Taylor, Hocking and Savaidis were operators on that team. 33 Ms Buhlmann had known Mr Larcombe for 7 to 8 years.34 Ms Buhlmann used to have a good relationship with Mr Larcombe.35

[50] In July and August 2016, there were a number of incidents within the team where the conduct of team members towards Ms Buhlmann fell short of diversity expectations. On 17 August 2016, after a discussion with Mr Savaidis outside of work, 36 Ms Buhlmann reported her concerns, to the Operations Supervisor and Workshop Manager, that her Supervisor, Mr Larcombe, was not sufficiently supporting her, a statement was subsequently prepared.37 A few weeks later, Mr Larcombe commenced working on the opposite shift and was no longer her Supervisor.38 Ms Buhlmann became aware that Mr Larcombe had been demoted but did not know the exact reason.39

[51] In early 2016, Ms Buhlmann’s picture was used on posters by Bis. These posters were placed around the workplace. In November 2016, one of the posters had been defaced. The word ‘Sonny’ had been written on one of the posters. Ms Buhlmann believed it was a reference to an ex-partner. Ms Buhlmann was convinced that Mr Larcombe had defaced the poster to get a reaction from her. 40 Ms Buhlmann reported the matter but was advised that there was no evidence of Mr Larcombe or any other person’s involvement.41

[52] At about 7:15am on 9 December 2016, Ms Buhlmann arrived at work and, as she was walking from the car park to the crib room, Mr Larcombe approached her and asked to speak to her about the poster. Ms Buhlmann was expecting the topic of the conversation to be about the poster. 42 Mr Larcombe said he did not deface the poster, Ms Buhlmann said he did. The conversation continued, Ms Larcombe started crying and told Mr Larcombe to ‘fuck off’ in a manner which would get rid of him. Mr Larcombe remained and continued seeking to engage Ms Buhlmann. The conversation continued. Mr Larcombe would not desist and Ms Buhlmann started walking away with Mr Larcombe following her.

[53] Mr Savaidis approached Ms Buhlmann and put his arm around her.

[54] Mr Larcombe and Mr Savaidis spoke and she heard Mr Larcombe say to Mr Savaidis in a loud voice ‘Do you want to go, come here and have a go.’ 43

[55] Ms Buhlmann reported the incident to Ms Natalie Ward (Manufacturing Manager).

Arthur Savaidis

[56] Mr Arthur Savaidis submitted a statement 44 and gave evidence. His relevant evidence is summarised as follows.

[57] Mr Savaidis is employed by Bis as an Operator on the same team as Ms Buhlmann and Mr Larcombe was his Supervisor until August 2016. 45

[58] On or about 13 August 2016, 46 Mr Savaidis was involved in a discussion with Ms Buhlmann about workplace events involving Mr Larcombe’s performance as a Supervisor which led to Ms Buhlmann reporting the matter to management in August 2016.

[59] Mr Savaidis also complained to Bis in August 2016 that Mr Larcombe, as Supervisor, was not appropriately dealing with team behaviour. After this complaint, Mr Larcombe was moved to another team and demoted. 47

[60] At about 7:20am on 9 December 2016, Mr Savaidis attended Bis to commence work and saw Mr Larcombe and Ms Buhlmann conversing. He could not hear what was being said. Mr Larcombe looked angry and Ms Buhlmann was crying and looked distraught. 48

[61] Ms Buhlmann approached Mr Savaidis who comforted her by embracing her for a few seconds. 49

[62] Mr Larcombe spoke first, and said to him in an aggressive tone words to the effect of, ‘You are the main instigator of this whole situation. Do you want a go, come on come here and have a go.’ 50 Mr Larcombe was approximately 15 metres away and pointed with his left arm as he said those words. Mr Savaidis thought there was potential for a fight.51 Mr Savaidis said ‘Just go’ and pointed towards Mr Larcombe.

[63] Later that morning, Mr Haydn Shepherd met with Mr Savaidis and asked him to prepare a statement of what he had seen and heard that morning.

[64] Ms Savaidis prepared some handwritten notes on two separate occasions after the incident. The notes are not identical. One was written at work on the day of 9 December 2016, 52 the second was written a couple of days later.

Aaron Thiele

[65] Mr Aaron Thiele submitted a statement 53 and gave evidence. His relevant evidence is summarised as follows.

[66] Mr Thiele is employed by Bis as a Senior Work Health Safety and Environment Advisor.

[67] In early December 2016, Mr Larcombe approached him concerning difficulties he was having with Ms Buhlmann over an allegation that he had defaced a poster with her picture on it. Mr Larcombe asked Mr Thiele what he should do, and he advised if you want to say hello to her that’s your choice but if she refuses to speak with you that’s her choice and I would not push the matter further.

[68] On 9 December 2016 at about 7:45am, Mr Larcombe approach him and said:

“I think I have just fucked it.

I have just ended night shift and I knew that Shanay Buhlmann was coming onto the Site on the day shift. I saw her get out of her car. I approached her near the car park area.

I said to her that I wanted to sort this issue out. I was referring to the issue regarding the graffiti on the poster of Shanay in the crib room. Shanay told me to fuck off. I then said to her that I really just wanted to sort this situation out. Shanay said to me 'You're a fucking liar.” 54

[69] Mr Thiele said he would have to involve others in the matter.

[70] A short time later, Mr Thiele was present in a meeting between Mr Larcombe and Mr Shepherd where he took notes. At that meeting, Mr Larcombe said that he stated to Mr Savaidis ‘Come over here and sort it out’ whilst Mr Larcombe was in the car park. The words ‘and sort it out’ were not contained in his notes. 55

[71] Mr Thiele was present at the meeting between Mr Shepherd and Mr Larcombe and his support person on 3 January 2017. Mr Larcombe was stood down with pay at this time.

[72] Mr Thiele was also present at a disciplinary meeting attended by Mr Larcombe on 11 January 2017.

Haydn Shepherd

[73] Mr Haydn Shepherd submitted a statement 56 and gave evidence. His relevant evidence is summarised as follows.

[74] Mr Shepherd is the General Manager Sites Services SA for Bis with overall responsibility for Bis Operations at the Arrium Onesteel site.

[75] Mr Larcombe commenced employment with a Bis predecessor in February 1980.

[76] Mr Larcombe had been the subject of two final written warnings for safety issues, three written warnings for safety and compliance issues and seven file notations for discipline issues.

[77] On 9 December 2016, he was advised of an incident involving Mr Larcombe.

[78] One or two shifts prior to 9 December 2016, he had arranged to meet with Mr Larcombe at the end of his shift to check his welfare and discuss a process of reconciliation between Mr Larcombe and Ms Buhlmann. This meeting was to occur on 9 December 2016 after Mr Larcombe had finished his shift and showered. This meeting did not occur as a result of the incident between Mr Larcombe, Ms Buhlmann and Mr Savaidis.

[79] Mr Shepherd met with Mr Larcombe later in the morning of 9 December 2016.

[80] One or two days prior to 9 December 2016, Mr Shepherd met with Mr Larcombe to discuss his concerns about the allegation that he defaced a poster and during that conversation asked Mr Larcombe not to engage or talk to Ms Buhlmann prior to a specific meeting being arranged. 57

[81] Mr Larcombe spoke of his interaction with Ms Buhlmann and Mr Shepherd gained the impression that Mr Larcombe was angry and frustrated with Ms Buhlmann’s responses and he persevered despite her rejection of the offer to talk.

[82] Mr Larcombe said to him after the incident ‘Maybe I should have walked away, however I wanted to talk to her before I started my holidays.’ 58

[83] Mr Larcombe reported that he said to Mr Savaidis ‘We should take this to the car park and sort this out.’

[84] Mr Shepherd initiated an investigation to be conducted by Ms Rachel Coates (HR Business Partner).

[85] On 3 January 2017, Mr Shepherd met with Mr Larcombe and his support person and advised him of the misconduct investigation and stood him down with pay and asked for a written response to the allegations. This was provided on 9 December 2016 by Mr Scott Martin from the AWU.

[86] Mr Shepherd and Ms Coates (by telephone) met with Mr Larcombe and Mr Martin (support person) on 11 January 2017. Mr Shepherd felt that Mr Larcombe was not being honest with him, and did not show any remorse for his actions. Mr Shepherd asked for further witnesses to be interviewed.

[87] On 13 February 2017, Mr Shepherd was provided with an investigation report and approved the dismissal of Mr Larcombe in accordance with the recommendation in the report.

[88] Mr Larcombe was advised of Bis’ decision by letter dated 18 January 2017.

Rachel Coates

[89] Ms Rachel Coates submitted a statement 59 and gave evidence. Her relevant evidence is summarised as follows.

[90] On 19 December 2016, Ms Coates received an email from Mr Shepherd containing statements by Mr Savaidis and Ms Buhlmann concerning an incident which occurred on 9 December 2016 involving Mr Larcombe.

[91] On 20 December 2016, Ms Coates discussed the matter with Mr Shepherd. As Mr Larcombe was on leave, it was decided that they would meet with him upon his return in early January 2017.

[92] On 11 January 2017, Ms Coates attended a meeting (by telephone) with Mr Shepherd, Mr Larcombe and Mr Martin. The meeting discussed the differing accounts of the incident on 9 December 2016. Mr Larcombe suggested that Bis should interview Mr Bull who was in the vicinity of the incident.

[93] Mr Bull was interviewed by Mr Shepherd who advised Ms Coates that Mr Bull did not hear what was said during the incident.

[94] Ms Coates submitted an account of the incident provided by Mr Larcombe on 2 January 2017, 60 a copy of Mr Larcombe’s contract of employment,61 the Bis Industries Employee Performance and Behaviours Code,62 the Bis Industries Workplace Bullying and Harassment Standard,63 the Bis Industries Whyalla Drivers and Operators Enterprise Agreement 2016,64 an internal Disciplinary Review Form which summarised the matters which were considered by Bis in determining to dismiss Mr Larcombe including his disciplinary history.65

[95] The Disciplinary Review Form was emailed to Bis’ Employee Relations Manager for review, accompanied by advice that the investigation conducted by Ms Coates had found that Mr Larcombe had said words to the effect of ‘You want a go come over here’ to Mr Savaidis and that Mr Larcombe had persisted with a conversation which led to Ms Buhlmann becoming quite upset. In light of Mr Larcombe’s disciplinary history, termination was recommended.

[96] On 18 January 2017, Ms Coates prepared the termination letter. 66

Findings of Fact

[97] It appears that prior to the events of August 2016, Ms Buhlmann and Mr Larcombe had a good working relationship with Mr Larcombe ‘protecting her’, ‘looking after her’ by giving her a good machine and by allocating her the better jobs. 67

[98] However, after Ms Buhlmann and Mr Savaidis were involved in the August 2016 complaint concerning Mr Larcombe’s supervision, the relationship soured. Mr Larcombe seemed to resent the fact that Ms Buhlmann had made a complaint which had resulted in his demotion and assignment to a different team.

[99] Each of these witnesses, whilst giving evidence, appeared to best recall and highlight matters that were more favourable to their position. The witness statements of Ms Buhlmann and Mr Savaidis were remarkably consistent - although this may have resulted from the manner in which they were drafted by the representatives - and they collaborated to some degree in lodging a complaint against Mr Larcombe in August 2016. Each of these witnesses had a tendency to not directly answer questions put to them when they were under pressure, and there were inconsistencies between their accounts. Mr Larcombe contended that they have colluded against him. As a result of the above, I have treated the evidence of these witnesses with caution.

Interaction with Ms Buhlmann

[100] It is clear that Mr Larcombe was preoccupied with his dispute with Ms Buhlmann. Mr Shepherd advised him prior to the incident that he would organise a structured meeting where Mr Larcombe could talk to Ms Buhlmann, he advised Mr Larcombe not to engage or talk to Ms Buhlmann prior to that meeting being arranged. Mr Thiele told Mr Larcombe not to engage with Ms Buhlmann unless it was clear that she agreed to discuss the matter. Mr Larcombe exercised poor judgement in not waiting for a ‘mediated’ meeting to be conducted. He ignored that advice and waited for Ms Buhlmann as she came to work and confronted her.

[101] Ms Buhlmann repeatedly told Mr Larcombe to ‘fuck off’. Mr Larcombe invites me to consider this expression as an expression of disbelief by Ms Buhlmann, but I am unable to do so in the circumstances. I accept that Ms Buhlmann was seeking to end the conversation and that context should have been clear to Mr Larcombe.

[102] It should be noted that Ms Buhlmann and Mr Larcombe were not equals. Mr Larcombe had been her Supervisor, was much older and larger in stature.

[103] Having been told to ‘fuck off’ by Ms Buhlmann, Mr Larcombe should have dis-engaged. Regrettably he persisted, escalating the events which led to an altercation with Mr Savaidis. It appears to me that Mr Larcombe was fixated on clearing his name, he persisted despite Ms Buhlmann’s objection.

[104] I find Mr Larcombe harassed and/or intimidated Ms Buhlmann in breach of the Bis Industries Workplace Bullying and Harassment Standard.

Interaction with Mr Savaidis

[105] During the formal investigation, Mr Larcombe denied saying words to the effect of ‘If you want a go, come over here’ to Mr Savaidis. At the commencement of the hearing, Mr Larcombe varied his evidence and conceded that he said to Mr Savaidis words to the effect of ‘Come to the car park’.

[106] This is consistent with the evidence given by Mr Thiele, that shortly after the 9 December 2016 incident Mr Larcombe told him that he used the words ‘Come over here and sort it out’ whilst he was in the car park.

[107] I find that Mr Larcombe said to Mr Savaidis words to the effect of ‘Come over here’, whilst in the car park, and thus challenged Mr Savaidis to come to his position and have an altercation.

[108] I find that this behaviour was a significant breach of the Bis Industries Employee Performance and Behaviour Code as detailed under the heading ‘Intimidation / Assault.’

Was the dismissal harsh unjust or unreasonable?

[109] Pursuant to s.387 of the Act, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

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

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

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

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

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

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

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

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

Valid reason - s.387(a)

[110] Notwithstanding its formulation under a different legislative environment, I have adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd68 which requires the reason for termination to be ‘sound, defensible or well founded.’

[111] Mr Larcombe’s conduct towards Ms Buhlmann on 9 December 2016 was in breach of the Bis Industries Workplace Bullying and Harassment Standard and constituted a valid reason to terminate his employment.

[112] Mr Larcombe’s subsequent verbal exchange with Mr Savaidis was in effect a challenge to a fight, a serious breach on its own and a breach of the Bis Industries Employee Performance and Behaviour Code.

[113] Finally, the fact that Mr Larcombe was not forthcoming with a thorough account of the events that occurred between himself and Mr Savaidis during the investigation reflects poorly on him. His concession that he said words to the effect of ‘Come to the car park’ was not made until he gave evidence on the first day of the hearing.

[114] I find the conduct of Mr Larcombe formed a valid reason for Bis to dismiss him.

Notification of valid reason - s.387(b)

[115] Mr Larcombe was notified of the reasons for the dismissal via meeting and letter of termination which set out the grounds.

Opportunity to respond - s.387(c)

[116] Mr Larcombe was provided with and took advantage of two opportunities to respond to the allegations.

[117] Mr Larcombe was notified of the allegations on 3 January 2017 and was given 2 days to respond. Mr Larcombe was granted an extension in order to speak to his Union. Mr Larcombe provided a response to the allegations in writing on or about 9 January 2017.

[118] A further meeting was held on 11 January 2017 where Mr Larcombe was supported by Mr Martin from the AWU. This provided an additional opportunity for Mr Larcombe and his representative to respond to the allegations.

Any unreasonable refusal by the employer to allow Mr Larcombe to have a support person present to assist at any discussions relating to dismissal - s.387(d)

[119] Mr Larcombe was accompanied by a support person, Ms Larcombe, at the 3 January 2017 meeting and Mr Martin from the AWU on 11 January 2017.

Warnings relative to unsatisfactory performance - s.387(e)

[120] During Mr Larcombe’s employment he received a number of warnings as detailed by Ms Coates. The most recent warning, in August 2016, similarly involved the exercise of poor judgement. In this instance Mr Larcombe was demoted for failing as a Supervisor to deal with inappropriate behaviour in his team.

[121] Whilst the disciplinary outcome was severe, it was not challenged at the time and it is not appropriate for me to try and balance out the ledger by taking into account the severity of that outcome in determining this matter.

Size of the employer’s enterprise and absence of dedicated human resources support - ss.387(g) and (f)

[122] Bis is a large employer with dedicated human resource management specialists.

Other matters considered relevant - s.387(h)

[123] Mr Larcombe is 56 years of age and has worked at Bis for 37 years.

[124] He has received a number of warnings on a variety of issues.

[125] Mr Larcombe does not believe that he had done anything wrong.

Conclusion

[126] The Explanatory Memorandum to the Act69 explains the approach of the Commission in considering the elements of s.387 of the Act:

“FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.”

[127] In Byrne and Frew v Australian Airlines Pty Ltd,70 the following observations made by McHugh and Gummow JJ are relevant to my conclusion:

“It may be that the termination is harsh but not unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[128] Having considered each of the factors detailed in s.387 of the Act, I have concluded that the termination of Mr Larcombe’s employment was not harsh, unjust or unreasonable and as such the application has been dismissed.

[129] An Order 71 reflecting this decision will be issued.

al of the Fair Work Commission with member’s signature.

COMMISSIONER

Appearances:

A.Wright of counsel on behalf of the Applicant.

M.Douglas of counsel on behalf of the Respondent.

Hearing details:

2017.

Whyalla:

17 & 18 May.

 1   Exhibit L1

 2   PN260

 3   PN291

 4   PN279-283

 5   PN261-263

 6   PN365-372

 7   PN372

 8   Exhibit L1, paragraph 1

 9   PN385

 10   PN375

 11   PN377

 12   PN382

 13   PN373

 14   PN425

 15   PN458

 16   PN472-475

 17   PN478

 18   PN481-482

 19   PN489

 20   PN518

 21   Exhibit A1, paragraphs 25, 29, 42

 22   PN20

 23   PN541

 24   PN549

 25   Exhibit L1, paragraphs 48,49

 26   Exhibit L1, paragraph 52

 27   Exhibit L1, paragraphs 55, 56

 28   Exhibit L2

 29   Exhibit L4

 30   Exhibit L3

 31   Exhibit B3

 32   Exhibit B3, paragraphs 2,4

 33   Exhibit B3, paragraph 15

 34   PN1060

 35   PN1062

 36   PN1234-1244

 37   Exhibit B3, attachment SB-1

 38   Exhibit R3, paragraphs 50,51

 39   PN1262-1266

 40   Exhibit B3, paragraphs 52-59, see also PN1102-1196, 1121

 41   Exhibit B3, paragraphs 64,65, see also PN1109-1120

 42   PN1274

 43   Exhibit B3, paragraph 72-75

 44   Exhibit B5

 45   Exhibit B5, paragraphs 3-7, 40, 45, 46

 46   PN1827

 47   Exhibit B4, paragraphs 43- 45, see also PN1909

 48   Exhibit B5, paragraph 50, see also PN1621

 49   PN1638-1646

 50   PN1650-1660

 51   PN1695

 52   Exhibit B5, AS2

 53   Exhibit B6

 54   Exhibit B6, paragraph 7

 55   PN1974

 56   Exhibit B2

 57   PN2193, 2236-2240

 58   Exhibit B2

 59   Exhibit B1

 60   Exhibit B1, RC7

 61   Exhibit B1, RC7

 62   Exhibit B1, RC1

 63   Exhibit B1, RC1

 64   Exhibit B1, RC8

 65   Exhibit B1, RC9

 66   Exhibit B1, RC10

 67   PN307, 309

68 (1995) 62 IR 371 at 373

69 Explanatory Memorandum to the Fair Work Bill 2008

70 Byrne and Frew v Australian Airlines Pty Ltd [1995] HCA 24

 71   PR594631

Printed by authority of the Commonwealth Government Printer

<Price code C, PR594630>