[2017] FWC 6073
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Kristian Weir
v
Bechtel Construction (Australia) Pty Ltd
(U2017/8666)

DEPUTY PRESIDENT BEAUMONT

PERTH, 20 DECEMBER 2017

Application for an unfair dismissal remedy – misconduct – fighting in workplace – self-defence – approach taken when fighting established.

[1] On 11 August 2017, Mr Kristian Weir (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal (the Application).

[2] Bechtel Construction (Australia) Pty Ltd (the Respondent) employed the Applicant as a full-time Rigger Intermediate on the Wheatstone Project (Project). The Applicant worked as part of the maintenance team from the start of his employment in late August 2016 until he was dismissed for serious misconduct on 31 July 2017 because of his involvement in a fight.

[3] Having taken into account each of the matters specified in s.387 of the Act, I am satisfied, based on the Applicant’s conduct, that the Respondent had a valid reason for the dismissal of the Applicant. I have found that the dismissal was not unjust, unreasonable or harsh. The Application for unfair dismissal remedy in the matter U2017/8666 is dismissed. My reasons for dismissing the Application are as follows.

BACKGROUND

Legal representation

[4] Both parties sought permission to be legally represented. I considered the submissions advanced by the parties and was satisfied that the proceedings were likely to involve a degree of complexity that would require detailed consideration of both the Act and case law. I was satisfied that permitting representation for both parties would enable the matter to be dealt with more efficiently before the Tribunal.

[5] The Respondent had an in-house Employee Relations Manager. Having considered the likely matters in dispute, I was satisfied that it would be unfair not to allow the Respondent to be represented on the ground that it was unable to represent itself effectively. While the Employee Relations Manager had an extensive industrial work history it did not simply follow he was positioned to effectively represent the Respondent regarding legal argument on out of hours conduct or where forensic cross examination was required due to contested facts. Neither party objected to permission being granted.

The incident

[6] On the evening of 29 July 2017, the Applicant was in the wet mess at the Project village (village).

[7] The incident that occurred involved, according to Counsel for the Applicant, an unprovoked attack. Counsel for the Respondent submitted it was a fight.

[8] The incident was captured on CCTV footage, which was viewed at the hearing. In short, the Applicant submitted that the following occurred:

•  the Applicant was standing having a beer with work colleagues when a person unknown to him walked past him and took the Applicant’s cowboy hat from his head;

•  the unknown person then walked away with the hat;

•  the Applicant followed the unknown person and grabbed him by the shirt in order to retrieve his hat. The unknown person then threw the hat across an adjacent table;

•  the Applicant went to retrieve his hat and after picking it up was confronted by the unknown person who verbally and aggressively abused the Applicant;

•  in a defensive manner Applicant chest bumped the unknown person in order to clear some space; and

•  the unknown person then punched the Applicant three times in the face.

[9] It was not disputed that the Applicant and the unknown person did not know each other before the incident.

[10] The Applicant reported the incident to Security Officers who attended the wet mess.

The Project

[11] The Project is remotely located in the Pilbara region of Western Australia. At the time of the hearing, the evidence was that there were between 4000 to 4500 employees and contractors working on the Project.

The investigation and disciplinary process

[12] The Respondent conducted an investigation into the incident. It reviewed documentation from Project Security in addition to the CCTV footage of the incident. The unknown person was interviewed, subsequently responded and after considering the response, the Respondent decided to dismiss that person without notice.

[13] On 30 July 2017, Mr Jeremy Lee Harding, Deputy Employee Relations Manager (Mr Harding), arranged to meet with the Applicant on 31 July 2017. The meeting took place on 31 July 2017 and in attendance was the Applicant, his support person, Mr Harding and Mr Ron Epding, Structural Superintendent (Mr Epding). The Applicant was provided with the opportunity to provide his version of events and to view the CCTV footage, which consisted of three videos.

[14] The Applicant said that in the meeting the Respondent alleged he was the aggressor because he had grabbed the unknown person and thereafter given the unknown person a chest bump. Having returned from a short break in the meeting, the Applicant said he was handed a letter of termination. It appeared to the Applicant that the decision to dismiss was made before the meeting took place and before he had had the chance to explain his version of events.

[15] Mr Harding said that he showed the CCTV footage to the Applicant. There was a short break after watching the footage. When the meeting reconvened, the Applicant provided additional information. Mr Harding stated that the Applicant informed him that when he picked up his hat the unknown person had said ‘I don’t like cowboys and I don’t like you’ 1. According to the Applicant, he said he expressed that the unknown person actually said ‘I don’t like you and I don’t fucking like cowboys’2.

[16] Mr Harding said that the Applicant reported feeling threatened by the ‘cowboy’ comment and said that he ‘chest pounded’ him 3. The Applicant explained that the cowboy hat had sentimental value to him and that he had grabbed the unknown person by the shoulder not to be violent toward him but to retrieve his hat. Mr Harding said that the Applicant reported that he had nothing further to add. Therefore, the meeting was suspended to enable consideration of the Applicant’s response.

[17] Having considered the Applicant’s response, Mr Harding formed the view that the Applicant’s behaviour did not align with the Code of Conduct (Code), Project Work Rules (Work Rules) or Wheatstone Village - Golden Rules Acknowledgement Form (Golden Rules Form). On reconvening the meeting with the Applicant, Mr Harding said he asked the Applicant to show why he should not be dismissed 4. Mr Harding expressed that the Applicant referred to having never been involved in other physical altercations, enjoying his job and hoping to continue employment and apologising5.

[18] The meeting was suspended while Mr Harding and Mr Epding considered the Applicant’s response. Mr Harding said that both shared the view that the Applicant should be dismissed and Mr Epding signed a pre-prepared termination letter 6. On returning to the meeting room, Mr Harding said that Mr Epding informed the Applicant that violent behaviour could not be tolerated and the Applicant’s employment was terminated without notice7.

Employment with the Respondent

Behavioural standards at the Project

[19] The Applicant’s employment contract signed on 15 August 2016 (Contract) provides at clause (f):

You agree to comply with any applicable policies and procedures (including Project specific policies and procedures) (together, “Policies”), as varied from time to time. This includes Policies concerning performance or conduct during the work cycle (whether at the workplace, accommodation village or in the community, and whether during the performance of work or outside of working hours).

Such Policies operate independently of this letter and are not incorporated into this letter. You agree that such Policies constitute reasonable and lawful directions and instructions by the Company. You agree that the Policies are for the Company to manage the conduct of its business, and that the Company itself is not bound to abide by the Policies.

Policies setting expected standards of behaviour and conduct include, but are not limited to:

a) Project Work Rules;

b) Employee code of conduct;

c) Village Rules; and

d) Community Code of Conduct.

Each of these policies are provided to you at the same time as this letter of offer with the exception of Village rules which you will be required to sign upon your mobilization to the Project.

Whilst these policies, work rules and codes of conduct are not a term of this contract, a breach may result in disciplinary action which would include termination of your employment 8.

[20] The Contract provided that the offer of employment was conditional upon, among other things:

•  Your acceptance of the conditions set out in this Letter of Offer;

•  …

•  Your acceptance, as demonstrated by your signature, of the Project policies including but not limited to: Project Work Rules, Employee Code of Conduct and Community interface code of conduct documents attached to this Letter of Offer 9.

[21] On 15 August 2016, and before taking up his employment, the Applicant signed an acknowledgement and acceptance of the Code. Part of that acknowledgement records the following:

I understand and accept the Code of Conduct as part of my Contract of Employment on the Wheatstone Project 10.

[22] The Code regulates the behaviour of workers when at the village. Clause 5.0 of the Code states:

At all times, all persons within the village must conduct themselves with due regard to the safety and health of themselves and other residents, workers and visitors. Activities or behaviour that places any person at risk of injury or illness will not be tolerated. Each person is responsible for their safety and the safety of those around them 11.

[23] Clause 19.0 of the Code provides that:

Conformity with normal accepted standards of community behaviour and this Employee Code of Conduct is expected in the village and the local community for the benefit and wellbeing of all residents. Unacceptable conduct in the village will not be tolerated and will be treated as misconduct or serious misconduct 12.

[24] Clause 19.2 of the Code states:

The following forms of behaviour constitute SERIOUS MISCONDUCT; breaches of which may result in disciplinary action that may include, after due investigatory processes being completed, withdrawal of accommodation entitlement and/or termination of employment without notice.

Behaviour which constitutes ‘Serious Misconduct’ includes, but is NOT limited to the following:

Fighting, and/or offensive, intimidating or violent behaviour in any form (either initiating and/or in response to actions of another; 13…

[25] Clause 21.0 of the Code sets out the rules governing bar areas located at the Camp. It provides:

Residents and guests using this area are required to drink and behave in a responsible manner and any disorderly conduct; fighting or drunken behaviour may result in the loss of entitlement to Project accommodation or possibly the closure of this facility 14.

[26] Before being mobilised to the Project, employees are required to acknowledge they accept the terms of the Work Rules. The Applicant signed the acknowledgment form on 15 August 2016. The Work Rules set out the requirements on the Project ‘construction site’, which relevantly includes the construction village.

[27] Clause 2 of the Work Rules states that each employee is accountable for:

Behaving in a manner that is appropriate, respectful and mindful of the potential impact that anti-social or unreasonable behaviour(s) may have on their employer, their fellow employees, residents, and the local community 15.

[28] Clause 21.0 of the Work Rules states:

The following forms of behaviour do not align with the Project goals. Any demonstrated behaviour as outlined below would constitute serious misconduct; proven breaches of which will result in disciplinary action being taken in accordance with the applicable fair treatment system, which may include, after an appropriate level of investigation has been completed, termination of employment without notice.

Behaviour which constitutes ‘serious misconduct’ includes, but is NOT limited to the following:

[29] In addition to the Code and the Work Rules, on every occasion that the Applicant returned from R&R and checked into the village he was required to sign a Golden Rules Form.

[30] The Golden Rules Form stated:

[31] Tendered into evidence were the Golden Rules Forms for the periods of 1 June 2017 to 29 June 2017 and 6 July 2017 to 3 August 2017 18.

Approach to breaches of behavioural standards

[32] At the time when Mr Harding signed his witness statement on 23 October 2017, he said, having reviewed the business records of the Respondent, some 138 workers had been removed from the Project over the last five years for breaching the Code and/or Work Rules for physical altercations and/or fighting 19.

[33] Mr Harding gave evidence that was not disputed. He said that the Project was in a remote location, was a male dominated environment in the sense that there were many more male employees than female employees and full strength alcohol was served within the village 20.

[34] Mr Harding said it was these factors that resulted in the view there was a potential for anti-social and/or violent behaviour 21. It was because of this, Mr Harding said, that the Respondent had established very strict rules to try to discourage any sort of physical violence or anti-social behaviour, regardless of who had initiated it22.

FINDINGS OF FACT

[35] CCTV footage was played at the hearing 23. It was absent audio. Three videos were watched given that perception may differ depending on the angle or view. I observed that which is set out in the subsequent bullet points.

CCTV Footage Video One

•  In the foreground of the footage is a band playing music to patrons of the wet mess.

•  Time stamped 8:44:06PM the unknown person removes a hat from the head of the Applicant while walking past the Applicant.

•  Time stamped 8:44:08PM the Applicant grabs the unknown person from behind, around the neck region, while the unknown person is holding onto the hat.

•  Time stamped 8:44:08PM – 8:44:09PM the unknown person throws the hat a short distance.

•  Time stamped 8:44:10PM the Applicant pulls the unknown person backward and the unknown person stumbles.

•  Time stamped 8:44:17PM the Applicant has walked to retrieve his hat and the unknown person has followed.

•  Time stamped 8:44:20PM the Applicant propels himself chest and head first toward the unknown person.

•  Time stamped 8:44:22PM the unknown person swings the first of three punches that connect with the Applicant’s head.

•  Time stamped 8:44:25PM a man with a black jumper attempts to separate the unknown person and the Applicant.

•  Time stamped 8:44:27PM both the Applicant and the unknown person fall to the ground.

•  Time stamped 8:44:27PM two other bystanders come over to where the Applicant and the unknown person had fallen to the ground and assist in separating the two.

•  Time stamped 8:44:38PM a man in a red jumper attempts to restrain the Applicant who swings a punch into the air directed to the unknown person who is similarly being restrained.

•  Time stamped 8:45:02PM the Applicant and the unknown person have ceased fighting.

CCTV Footage Video Two

•  In the foreground of the footage are two tables of patrons in the wet mess. The fight between the Applicant and the unknown person occurs slightly right of centre in the upper quarter of the screen.

•  Time stamped 8:44:05PM the unknown person removes a hat from the head of the Applicant while walking past the Applicant.

•  Time stamped 8:44:08PM the unknown person throws the hat a short distance.

•  Time stamped 8:44:09PM the Applicant with knees flexed grabs the unknown person from behind in the neck region with his left hand and proceeds to pull the unknown person backwards such that the unknown person somewhat lands on another patron who is sitting at a table.

•  Time stamped 8:44:16PM the Applicant has bent down to retrieve his hat.

•  Time stamped 8:44:18PM the Applicant has turned to face the unknown person.

•  Time stamped 8:44:20PM the Applicant has propelled himself chest first toward the unknown person.

•  Time stamped 8:44:22PM the unknown person has thrown the first punch with his right hand, which appears to have connected with the Applicant’s face.

•  Time stamped 8:44:23PM the unknown person has thrown a second punch with his left hand that appears to have connected with the Applicant’s face.

•  Time stamped 8:44:24PM the Respondent has thrown a third punch with his right hand, the Applicant stumbled slightly to the ground and then at 8:44:25PM the Applicant has regained his footing.

•  Time stamped 8:44:26PM the Applicant propelled himself onto the unknown person.

•  It is difficult to distinguish what is occurring past that point.

CCTV Footage Video Three

•  Time stamped 8:44:07PM the unknown person is seen entering the screen from the far left followed by the Applicant.

•  Time stamped 8:44:08PM the unknown person has thrown the hat and the Applicant’s left hand appears to be on the left side of the unknown person near his neck and shoulder.

•  Time stamped 8:44:11PM the Applicant has pulled the unknown person backward with sufficient force that the unknown person has stumbled backward landing on a patron sitting at a table.

•  Time stamped 8:44:12PM the Applicant has walked away and the unknown person now proceeds to follow the Applicant.

•  Time stamped 8:44:16PM the Applicant has bent down to retrieve his hat.

•  Time stamped 8:44:18PM the Applicant turns and faces the unknown person.

•  Time stamped 8:44:20PM the Applicant is seen propelling himself chest first toward the unknown person.

•  Time stamped 8:44:22PM the unknown person has punched the Applicant in the face with his right hand.

•  Time stamped 8:44:23PM the unknown person has punched the Applicant in the face with his left hand.

•  Time stamped 8:44:25PM both the unknown person and the Applicant have hold of one another.

[36] Having viewed CCTV Footage Videos One, Two and Three, I am satisfied that the Applicant engaged in two physical acts toward the unknown person before being punched three times. Post being punched the Applicant propelled himself onto the unknown person and then both seem to fall to the ground entwined.

[37] The first act involved grabbing the unknown person from behind in or around the neck region and pulling him backward. With regard to this act the Applicant gave the following evidence in cross examination:

I think I grabbed him by about the collar of the shirt. 25

At the time I’ve grabbed him - it all happened - I already had it in my head to grab him and pull him back to retrieve my property. So it was not like he’s thrown it and all of a sudden I’ve gone well I’m going to pull you back. It’s all in one motion. 26

During the process of walking towards him I yelled out to him saying hey, what are you doing, give me my hat back. So I’m walking towards him, I’ve yelled out to him, and he just blatantly didn’t acknowledge me at all and then - so I’ve reached out to grab him to get my property back and he’s thrown it. 27…

[38] The second act involved the Applicant propelling himself chest first toward the unknown person.

And then he said “I don’t like you, I don’t like fucking cowboys”. At that point I felt threatened. 30 I was sort of backed into the table, and I chest-bumped him to get him out of my space.31

MATTERS IN DISPUTE

[39] There are several matters in dispute between the parties. I have set out those matters below in summary form.

[40] The parties are in dispute concerning whether there was a valid reason for termination. Both Applicant and Respondent are opposed in their views on whether:

•  the Applicant was in a fight, or engaged in conduct that was offensive, intimidating or violent in any form (either initiating and/or in response to actions of another between the Applicant and the unknown person) concerning the incident;

•  the content of the Code, Working Rules or Golden Rules Form were reasonable;

•  the Applicant was obliged to comply with the Code, Working Rules or Golden Rules Form;

•  the Applicant’s conduct breached the content of the Code, Working Rules or Golden Rules Form; and

•  extenuating circumstances existed, and if they did were they such that there was not a valid reason for dismissal.

[41] The parties disagree on whether the misconduct of the Applicant was sufficient to warrant summary dismissal.

[42] Whether the Applicant was afforded procedural fairness is another source of contention. The Applicant submitted that procedural fairness was denied, the Respondent’s argument is contrary.

[43] The parties are in disagreement concerning the economic impact and the impact on future employment opportunities the dismissal would have on the Applicant.

AGREED MATTERS

[44] It is not in contest and I am satisfied on the evidence that:

(a) the Applicant is a person protected from unfair dismissal because, at the time of his dismissal, he had completed a period of employment with the Respondent of at least the minimum employment period, an enterprise agreement applied to the Applicant in relation to the employment 32 (s.382 of the Act);

(b) the Applicant was dismissed by the Respondent (ss.385(a) of the Act);

(c) the Respondent was not a “small business employer” as defined in s.23 of the Act, so the Small Business Fair Dismissal Code was inapplicable (ss.385(c) of the Act);

(d) the Applicant’s dismissal was not a case of genuine redundancy (ss.385(d) of the Act); and

(e) the Applicant’s unfair dismissal application (the Application) was made within the period required (ss.394(2) of the Act).

Unfair dismissal

[45] The stated objects of Pt 3–2 are to establish a framework for dealing with unfair dismissal that balances the needs of business with the needs of employees, to establish quick, flexible and informal procedures for dealing with unfair dismissals that address the needs of both parties, and to provide remedies if a dismissal is found to be unfair (with an emphasis on reinstatement). The express intention behind these procedures and remedies is to afford the parties ‘a fair go all round’ 33.

Harsh, unjust or unreasonable

[46] Section 387 of the Act lists the matters the Commission must take into account or consider when determining whether a dismissal was harsh, unjust or unreasonable.

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.

[47] The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd 34. McHugh and Gummow JJ explained as follows:

It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted 35.

[48] It is clear that s.387 of the Act contemplates that an overall assessment as to the nature of the dismissal must be made by the Commission. In so doing, the Act sets out a number of considerations that must, where relevant, be weighed up in totality. In circumstances where a valid reason is found to exist, and procedural fairness has been afforded, significant mitigating circumstances are required in order to lead to a conclusion that the dismissal is nevertheless harsh, unjust or unreasonable 36.

[49] It is convenient therefore to use the various matters in s.387 of the Act to outline my consideration of the case.

Valid reason for the dismissal – ss.387(a)

[50] In the decision of Owen Sharp v BCS Infrastructure Support Pty Limited 37 the Full Bench stated that the correct approach to the assessment under to ss.387(a) of the Act was stated by the Full Bench in B, C, and D v Australia Postal Corporation T/as Australia Post38 (Australian Postal Corporation).

[51] In Australian Postal Corporation the Full Bench stated:

[52] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal 40. The reason for the dismissal should not be ‘capricious, fanciful, spiteful or prejudiced’41.

[53] The provisions must be applied in a practical, common sense way to ensure that the employer and employee are treated fairly 42.

[54] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer 43. The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees)44.

[55] 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 matter before it. As referred to in Australian Postal Corporation, the test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination 45.

[56] It was submitted that it was accepted jurisprudence that in the absence of extenuating circumstances a dismissal for fighting would not be considered harsh, unjust or unreasonable 46.

[57] In the Full Bench decision of Tenix Defence Systems Pty Ltd v K Fearnley 47 (Tenix) observations were made regarding the approach taken by industrial tribunals when fighting or an assault had been established. The Full Bench considered AWU-FIME Amalgamated Union v Queensland Alumina Limited48 (AWU-FIME Case) where it was said by Moore J:

[58] Having considered T.M. Giuffrida and Mobil Oil 50, Torbet v Commissioner for Public Employment51, the AWU-FIME Case and Qantas Airways Limited v Cornwall52, the Full Bench concluded the Commission should have regard to all of the circumstances in which the fight occurred to determine whether there was a valid reason for dismissal.

[59] These circumstances included, but were not limited to:

•  whether the terminated employee was provoked and whether he or she was acting in self-defence;

•  the employer’s need to establish and retain discipline amongst its employees; and

•  the service and work record of the employee concerned 53.

[60] This approach was similarly adopted in the decision of Jetstar Services Pty Ltd v L Ishak 54 (Jetstar) where at a rehearing of the matter the Full Bench said it would have regard to all of the circumstances in which the altercation occurred including in assessing the conduct of the party.

[61] Counsel for the Applicant referred the Commission to the decision in Peter Bridges v McCain Foods (Aust) Pty Ltd 55 (Bridges). In Bridges, Ryan Cmr noted that Tenix had been applied in Jetstar but that the Full Bench had adopted a different approach in Australia Postal Corporation, based upon the difference between the Act and earlier legislation applicable at the time of earlier decisions56.

[62] I have considered the decision of Ryan Cmr in Bridges, in addition to the decision in Australian Postal Corporation, which he applied, and the appeal of that decision 57. In Bridges, Ryan Cmr referred to the following excerpt from Australian Postal Corporation58:

[63] In Bridges, there was a tension between those matters that ought to be considered under ss.387(a) of the Act and those that should more properly be considered under ss.387(h) of the Act. That is, in the broader context of whether the dismissal was harsh, unjust or unreasonable.

[64] The Applicant sought to have the Commission consider matters under ss.387(a) of the Act which were, in the view of Ryan Cmr, relevant matters that were more properly considered under ss.387(h) of the Act. The Respondent similarly had made submissions about societal expectations concerning violence that Ryan Cmr considered relevant under ss.387(h) rather than (a).

[65] The situation in Bridges differed to the current matter. Prior to the unfair dismissal application, the Commission had issued a Findings of Fact to the parties; both of whom were involved in a dispute under an industrial instrument. It was within that context that Ryan Cmr stated:

[66] I see no reason to depart from the established line of authority arising from Tenix. It has been aptly observed that what is required is to have regard to all of the circumstances in which the altercation occurred when considering whether there is a valid reason for dismissal 60. There is nothing controversial with regard to that.

[67] Counsel for the Applicant submitted that it was accepted jurisprudence that in the absence of extenuating circumstances if two people have had a blue, then they are going to be dismissed and there is no doubt at all that that would be a fair dismissal 61. Counsel for the Respondent similarly submitted that absent extenuating circumstances physical violence and fighting and the like, call it what you want, all justify termination62.

[68] Both Counsels submitted that Tenix remained good authority. I am satisfied that I should have regard to the extenuating circumstances of the incident when considering whether there was a valid reason for dismissal.

Consideration

The incident

[69] Counsel for the Applicant submitted that if I were to find that a fight had occurred then I must be mindful that there were a multifold of extenuating circumstances 63 that would render the dismissal harsh. These extenuating circumstances included:

•  the Applicant did not instigate the incident;

•  the Applicant’s initial response was in order to retrieve his hat which had been taken from his head;

•  the Applicant’s secondary response was in self-defence and was in reply to an aggressive verbal assault and of feeling threatened;

•  the Applicant did not hit or punch his assailant and at no stage did he threaten his assailant;

•  the Applicant was hit three times sustaining a facial injury. His assailant was not hit at all and received no injuries;

•  the Applicant had no history of physical or verbal aggression; and

•  the Applicant was not fighting he was attacked.

[70] Counsel framed the extenuating circumstances as relevant to whether the dismissal was harsh. However, having considered Tenix and Australian Postal Corporation, I am satisfied that in the context of considering the criterion of valid reason under ss.387(a) of the Act, extenuating circumstances are a relevant consideration 64.

[71] While the Applicant submitted that there was no fight, I am unpersuaded by this contention. Counsel for the Applicant submitted that it was the case that the Applicant was provoked twice and then violently attacked 65. This position was supported, according to Counsel for the Applicant, by contemporaneous evidence66.

[72] Having had the opportunity to view contemporaneous evidence in the form of the CCTV footage it is clear to me that the Applicant and the unknown person engaged in a fight.

[73] After consideration of all the evidence before me, I am of the view that the Applicant was a willing participant.

[74] The initiator of the interaction between the Applicant and the unknown person was the unknown person. The act of removing the cowboy hat from the head of the Applicant, walking away with it and then tossing it, was juvenile, or as Counsel for the Respondent stated ‘infantile’ 67. However, from viewing the CCTV footage there was no evidence to suggest that the act was aggressive.

[75] I accept that the interaction provoked the Applicant to act. However, as far as the Applicant pulled the unknown person backward by his collar of his shirt, he was, in my view, adopting an aggressive approach as a means to seek retrieval of his cowboy hat.

[76] The action of the Applicant was disproportionate to that engaged in by the unknown person. The Applicant applied sufficient force to the unknown person that when pulled backward the unknown person stumbled back onto a person seated at a table. This much was acknowledged when the Applicant stated:

I was emotional at the time for my hat being taken. I didn’t mean to pull him back with that much force that he went onto the table, and I did follow him and I did yell out to him 69.

[77] What was initially a stupid act by the unknown person then quickly escalated into an interaction that was open to be characterised as an aggressive or violent confrontation. The provocation by the unknown person was in my view insufficient to justify, or as Counsel for the Applicant would phrase it, provide explanation for, the Applicant’s conduct.

[78] The evidence is that the unknown person then followed the Applicant to where the Applicant was retrieving his hat and proceeded, according to the Applicant to state: ‘I don’t like you and I don’t fucking like cowboys’ 70. I accept the evidence of the Applicant in this respect.

[79] What then followed was the Applicant’s physical act of launching his chest toward the unknown person. There was some dispute between both the Applicant and the Respondent whether it was a chest bump or a head butt.

[80] However, I have found that the Applicant launched his chest toward the unknown person. So much is clear from the CCTV Footage and the admission of the Applicant:

[81] If one is then to consider extenuating circumstances it is relevant to consider whether the act of exerting force via the use of the Applicant’s chest was one of self-defence or could be explained by some form of provocation.

[82] The Applicant purported that his act was one of self-defence. His evidence was that the unknown person caused him to be in fear, he acted in the manner he did because he felt threatened and he considered that an assault was imminent 72. The Applicant gave evidence:

[83] While the evidence of the Applicant is that the act of exerting force via his chest was an act of self-defence, I do not believe his evidence having viewed the CCTV footage. I understand that the actions occurred in a fleeting moment of time but there is such contradiction when one professes to have used one’s chest against the unknown person ‘to get out of my space’ 74 and an act that was one of self-defence.

[84] Counsel for the Respondent questioned the Applicant on why he had given evidence that he had deliberately chosen not to raise his hands. In response the Applicant said:

[85] Counsel for the Applicant submitted that when considering extenuating circumstances the Commission must give consideration to the point that the Applicant did not hit nor strike his assailant and at no stage did he threaten his assailant 76.

[86] It is a misperception on behalf of the Applicant that refraining from using his hands to assert force, but instead using his chest, would negate that his act was an aggressive act, an assault or threatening behaviour. The Applicant launched himself at the unknown person with an expanse of his body mass.

[87] Based on an objective assessment this action is unreflective of posturing in a manner to create space, or to defend oneself. It is an offensive act. The avoidance of using hands does not diminish the action of Applicant. He was violent toward the unknown person. I have considered that the Applicant said he acted in self-defence, but contemporaneous evidence shows that his act was one that was intentional and threatening. I am unconvinced that the Applicant was defending himself by his action. It was not the case that the Applicant had no other option but to act how he did.

[88] I have deliberated on whether the statement to the Applicant of ‘I don’t like you and I don’t fucking like cowboys’ was so provocative that it somehow mitigated the action of the Applicant. It was not. The statement was inflammatory. However, I am satisfied that the provocation was not such that it reduced the blameworthiness or seriousness of the act of the Applicant.

[89] I have in addition given due consideration to whether the statement was such that it imparted a threat to injure the Applicant and as such created a fear that the threat to injure would be carried out. I am satisfied that it was not a threat to injure the Applicant.

[90] I accept that the Applicant was hit three times sustaining a facial injury and that the unknown person received no injuries. However, the Applicant received three punches in circumstances where immediately prior he had exerted force against the unknown person with his chest. While it was reprehensible that the Applicant was punched, I do not consider the Applicant’s unfortunate injury a circumstance to which weight should be afforded in determining whether there was a valid reason for his dismissal.

[91] In Tenix, the Full Bench found that consideration should be given to the service and work record of the employee concerned when taking into account whether there was a valid reason 77. In arriving at this conclusion the Full Bench considered the AWU-FIME Case in which Moore J considered the operation of ss.170DE(1) of the Industrial Relations Act 1988 (Cth) (IR Act).

[92] The Full Bench in Australian Postal Corporation 78 explained that when the unfair dismissal remedy was first enacted, the existence or otherwise of a ‘valid reason’ for dismissal was the determinant of whether or not the dismissal attracted the unfair dismissal remedy. Subsection (1) contained a prohibition against termination unless there was a valid reason.79 Subsection (2) invalidated a reason if the ‘harsh, unjust or unreasonable’ criterion was met.80 It was the case then that by virtue of ss.170DE(2) of the IR Act dismissals that were harsh, unjust and unreasonable were a subset of dismissal where there was no valid reason for dismissal81. This may go some way to explain why extenuating circumstances in the AWU-FIME Case included consideration of the length of service of the employee and his or her work record82.

[93] I am minded that these circumstances, that is the length of service and work record would, in my view, be best considered under ss.387(h) of the Act. This would better align with the approach of the Full Bench in Australian Postal Corporation. However, in the circumstances of this case little turns on this point, if anything, given my finding. I am unpersuaded that the service and work record of the Applicant is sufficient to negate the validity for the reason for the Applicant’s termination and given the Applicant had worked for the Respondent for a relatively short period, I find this to be a neutral point.

Behavioural standards

[94] The Respondent has taken a consistent approach to ensure its employees and the employees of its subcontractors were aware of the obligations regarding behavioural standards in the Code, Work Rules and the Golden Rules Form.

[95] This approach was outlined within Mr Harding’s witness statement. It was traversed again in the Respondent’s submissions. At all material times the Respondent had in place the three aforementioned documents that clearly prohibited fighting and/or offensive, intimidating or violent behaviour in any form whether instigated or acted upon in response.

[96] The Respondent had gone to great lengths to alert employees of their obligations regarding their behaviour and the consequences that may follow with regard to a breach of such obligations.

[97] Counsel for the Applicant submitted that if the Code, Work Rules and Golden Rules Form could be elevated to a Wheatstone policy then no policies were breached. The submission was again reiterated that the Applicant was not fighting, he was attacked, and he did not exhibit offensive or intimidating behaviour.

[98] I am satisfied that the content of the Code, Work Rules and Golden Rules Form were not unreasonable in their terms with regard to the regulation of behaviour within the village.

[99] The Respondent considered that the Project location, gender and number of workers increased the potential for anti-social and/or violent behaviour. It established strict rules to discourage such behaviour including the establishment of regulations that disallowed anti-social and/or violent behaviour whether initiated or acted upon in response. This was to ensure that employees did not involve themselves in violence.

[100] It is incumbent on the Respondent to keep their employees, whether working on the Project, or resident in the village, safe. It is an obligation that is paramount and involves providing and maintaining, so far as is practicable, a working environment where employees are not exposed to hazards therefore obviating harm. It is therefore reasonable for an employer to establish behavioural standards that preclude anti-social and/or violent behaviour and to regulate the same consistently.

[101] Counsel for the Applicant submitted that the incident occurred outside of work hours and there was no right on the part of the employer to extend supervision to that behaviour 83. Counsel, referred to the decision of Appellant v Respondent84 and said that it was only in exceptional circumstances that an employer had a right to extend any supervision over the private activities of employees. There were, according to Counsel, only limited circumstances when exceptional circumstances would arise as outlined in the decision of Rose v Telstra Corporation Limited85 (Rose).

[102] Counsel for the Applicant submitted that the relevant connection to the employment, which would legitimately give grounds to a dismissal, was absent. I disagree and am satisfied that the Respondent needed to establish and retain discipline amongst its employees whether they were within construction or operations, or resident in the village. In determining that there was a relevant connection to the employment, I am satisfied that:

•  as a matter of contract, the Applicant committed to comply with both the Code and Work Rules;

•  the Respondent had a legitimate interest in regulating employee behaviour in the village whilst those employees were not on duty; and

•  the Applicant was aware of the Respondent’s stance in relation to misconduct, including misconduct which occurred in the village, and he effectively (through his own acknowledgments) accepted the Respondent’s interest in policing that conduct.

[103] In the decision of Rose, Ross VP, as he was then, considered the decision of North Australian Workers’ Union v Newcastle Protective Coating Pty Ltd 86. He distinguished the circumstances of that decision from those in Rose identifying amongst other matters that the relevant contracts of employment contained a term that made it clear to the employees that their duties extended to the proper use of accommodation facilities.

[104] Counsel for the Respondent aptly submitted that the Applicant had accepted that there were certain behavioural standards required of him and such standards would be regulated. Counsel continued:

[105] To reiterate, the content of the Code, Work Rules and Golden Rules Form were reasonable in terms of their impost on employees in the particular circumstances of the Project, and in circumstances where the regulation of behavioural standards extended to conduct that otherwise was outside working hours.

Breach of behavioural standards

[106] The Respondent’s contention was that the Applicant’s misconduct was manifestly serious and in clear breach of the various policies that he had expressly acknowledged 88.

[107] Counsel for the Applicant submitted that there were no policies breached because the Applicant was not fighting but rather was attacked. Further, the Applicant did not exhibit offensive or intimidating behaviour. The Applicant took no issue with having signed a multifold of policies which were prescriptive of his behavior on site 89.

[108] The principles outlined in this decision establish that fighting in the workplace usually amounts to a valid reason for dismissal and an employer has every right to establish policies against fighting and ensure compliance with those policies by dismissing employees engaged in fighting absent extenuating circumstances 90.

[109] Clauses 5.0 and 19.0 of the Code clearly set out required behaviour within the village. Having regard to all of the evidence I am satisfied that the Applicant was obliged to comply with these behavioural standards and breached them. The extenuating circumstances traversed did not weigh in favour of a finding that there was no valid reason for termination. It follows that there was a valid reason for the dismissal of the Applicant.

[110] It is well established that, for the purposes of ss.387(a) of the Act, it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal 91. Accordingly, consideration of the gravity or seriousness of the Applicant’s misconduct is considered under other relevant matters.

Notification of the valid reason –ss.387(b) and an opportunity to respond –ss.387(c)

[111] The Commission must take into account whether notification of a valid reason for termination has been given to an employee protected from unfair dismissal before the decision is made 92, and in explicit93, plain and clear terms. It is accepted that this is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality94.

Consideration

[112] The parties were opposed in the views on whether procedural fairness was afforded to the Applicant. The Applicant said there was no proper opportunity for him to respond to the allegations against him. The decision to dismiss him was made before he was given an opportunity to respond.

[113] In support of its submission, the Applicant drew the Commission’s attention to a pre-prepared termination letter. Counsel submitted that Mr Harding’s attendance at the disciplinary meeting with one letter alone meant there were no other options on the cards. This contention was further supported, said Counsel, by Mr Harding’s acknowledgement in evidence that he said:

[114] The Applicant further submitted that there was a de facto policy in place, which resulted in dismissal for any worker engaged in a fight 96. The Applicant said that Mr Harding did not disagree with this proposition in the witness box97.

[115] The pre-prepared termination letter coupled with a de facto policy led, according to Counsel, to the inevitable conclusion that the decision to dismiss had been formed in advance of the Applicant being permitted to state his case.

[116] When asked at hearing, Counsel for the Applicant confirmed that forming a view is not the same as making a decision. I agree.

[117] Consideration is given to whether notification of a valid reason for termination has been provided to an employee before a decision is made. The conduct of the Applicant displayed in the CCTV footage would have undoubtedly caused legitimate concern for Mr Harding. While Mr Harding had undoubtedly formed a view about the conduct of the Applicant after viewing the CCTV Footage, he had not made a decision to dismiss. So much was clear from his evidence:

[118] Counsel for the Respondent asked Mr Harding about the absence of alternatives to a termination letter, such as a written warning, first and final written warning or a letter banning the Applicant from the wet mess. Mr Harding confirmed that he had pre-prepared only the one letter. I find nothing unusual about the practice of pre-preparing a termination letter that may or may not be used in circumstances where a view has been formed concerning certain conduct. I would consider that in some businesses this would be usual practice.

[119] It does not follow that the inference to be derived from the pre-prepared termination letter was that Mr Harding had decided to dismiss the Applicant before providing him with the notification of a valid reason for the dismissal. Again, the direct evidence of Mr Harding, who appeared to be a balanced and candid practitioner was:

I accept Mr Harding’s evidence.

[120] I have considered the submission of Counsel that that there was a de facto policy in place which resulted in dismissal for any worker involved in a physical altercation, blue or fight. Counsel for the Applicant questioned Mr Harding:

…

[121] The evidence of Mr Harding has been considered 102. While reference was made to 138 dismissals for physical altercations there was no evidence put before the Commission that would allow it to arrive at a finding that a de facto policy was in place or in operation. Mr Harding had been in the employment of the Respondent from April 2017. In that time he had been present for two dismissals where fighting was involved. It remains unknown what was, or was not considered in the previous 136 dismissals.

[122] There is a requirement to consider extenuating circumstances when a fight occurs in the workplace. In his evidence Mr Harding attested that the whole purpose of the discussion with the Applicant was to ascertain if there was anything that militated against a dismissal.

[123] A meeting with the Applicant took place on 31 July 2017. In this meeting the Applicant was provided with an opportunity to view the CCTV footage, respond to what was alleged to have occurred in the wet mess, and to provide to Mr Harding and Mr Epding information on why he should not be dismissed 103.

[124] I am satisfied that the Applicant was notified of the reasons why the Respondent was considering terminating his employment and was given an opportunity to respond to those reasons. I am not satisfied that the decision to dismiss the Applicant was made before notification of a valid reason or providing the opportunity to respond.

Unreasonable refusal of a support person – ss.387(d)

[125] When considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.

Consideration

[126] At all relevant times, the Applicant was allowed a support person.

Warnings regarding unsatisfactory performance – ss.387(e)

[127] When considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal.

[128] Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct 104. The Commission must take into account whether there was a period between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period gives the employee the opportunity to understand their employment is at risk and to try to improve their performance105.

Consideration

[129] This is a neutral factor in light of the finding that the reason for dismissal was the misconduct of the Applicant rather than his performance.

Impact of the size of the respondent on procedures followed and absence of dedicated human resources management specialist/expertise on procedures followed – ss.387(f)-(g)

[130] When considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which: (a) the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (b) 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.

Consideration

[131] The size of the Respondent’s business did not affect the procedures followed by it in effecting the dismissal. The Respondent is a large company, employing approximately 1910 employees and has a dedicated Employee Relations function. The procedures followed by the Respondent in affecting the Applicant’s termination of employment were well documented, with an investigation conducted in determining the legitimacy of the reasons relied on for his dismissal.

Other relevant matters – ss.387(h)

Serious misconduct

[132] Whether the Applicant’s conduct justified summary dismissal is a factor relevant for consideration under ss.387(h) of the Act 106.

[133] The term ‘serious misconduct’ does not operate as a fixed standard for the determination of the type of conduct by the employee which may warrant summary dismissal 107. In Owen Sharp v BCS Infrastructure Support Pty Limited108 (Sharp) the Full Bench referred to the decision in Rankin v Marine Power International Pty Ltd109 in which Gillard J stated that ‘[T]here is no rule of law that defines the degree of misconduct which would justify dismissal without notice’ and identified the touchstone as being whether the conduct was such a grave nature as to be repugnant to the employment relationship110.

Consideration

[134] The Respondent dismissed the Applicant on 31 July 2017 stating in his letter of termination that he would be paid out for accrued but untaken annual and long service leave, if any 111. The payment of a sum in lieu of notice is not consistent with a summary dismissal and in this case such payment was not made. It is not in contest that the Applicant was summarily dismissed on 31 July 2017.

[135] The Respondent’s Code and Work Rules set out a number of examples of misconduct and serious misconduct. There is express reference within those documents to occasions of fighting, or offensive, intimidating or violent behavior.

[136] Counsel referred to 19.2 of the Code that dealt with the notion of ‘serious misconduct’. A similar clause was present at clause 21.0 of the Work Rules:

[137] I have found that the Applicant engaged in fighting. That conduct could alternatively be considered intimidating or violent behaviour. I am satisfied that the actions of the Applicant were of such a nature that justified summary dismissal. Fighting within the workplace is, in my view, sufficiently grave as to be repugnant with the employment relationship. I accept the incident was an isolated incident, meaning that the Applicant had not been involved in fighting historically. However, that in the circumstances of this matter is insufficient to obviate the seriousness of the misconduct.

[138] Counsel for the Applicant submitted that if there was misconduct and a valid reason, the misconduct was not serious and did not warrant summary dismissal 113. The Applicant said that for the purpose of Regulation 1.07 and the common law, the Applicant had not engaged in serious misconduct114. I now turn to consider the Respondent’s submission concerning Regulation 1.07 of the Fair Work Regulations 2009 (Regulations).

[139] As was the case in Sharp the relevance of the definition of ‘serious misconduct’ in Regulation 1.07 to this matter has not been established.

[140] Section 12 of the Act defines ‘serious misconduct’ as having ‘the meaning prescribed by the regulations’. Regulation 1.07 provides:

(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.

[141] In Sharp 115, the Full Bench stated:

[142] With regard to the circumstances of this matter, it appears that Regulation 1.07 had no work to do in the application of the provisions of Part 3-2. If I am incorrect with this conclusion I remain satisfied that the conduct of the Applicant was such that it was wilful behavior that was inconsistent with the contract of employment. Further, the conduct caused both a serious and imminent risk to the health and safety of the unknown person. Regulation 1.07(3) refers to an assault as constituting misconduct. It is open on the evidence to find that the Applicant assaulted the unknown person.

[143] I am satisfied, having considered all the evidence before me, the Applicant engaged in misconduct that was grave and justified summary dismissal.

[144] The conduct of the Applicant was wilful and intentional. It breached the aforementioned behavioural requirements of the Respondent. The Respondent was entitled to establish and enforce those requirements.

Proportionality and harshness

[145] Amongst other considerations, it is necessary to consider the impact the dismissal had on the Applicant given all of the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct found by the Commission 116.

[146] Further, a dismissal may, depending upon the overall circumstances be considered to be harsh on the person due to the economic and personal consequences resulting from being dismissed 117.

[147] When considering the question of what is ‘harsh, unjust or unreasonable’ the Commission is to ensure that ‘a fair go all round’ is accorded to both the employer and the employee in line with the object of Part 3-2 of the Act 118.

Consideration

[148] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) 119 it was said:

[149] The circumstances of this individual case are that the Applicant breached obligations established to ensure the safety of workers, employees, residents and guests. These were not arbitrary obligations.

[150] On each occasion, the Applicant returned from swing he was required to sign a Golden Rules Form before being issued a room key for accommodation.

[151] The Applicant gave evidence that he did not read the Golden Rules Forms that he had signed 120. He should have. Every time he returned from swing, he was reminded that fighting or threatening behaviour was not tolerated.

[152] The Code, Work Rules and Contract clearly set out the behavioural requirements within the village. Having decided to become an employee of the Respondent, the Applicant was obliged to comply with instructions that prohibited fighting, offensive, intimidating or violent behaviour in any form (either initiating and/or in response to actions of another).

[153] Fighting, offensive, intimidating or violent behaviour is unacceptable. All that enter a workplace, accommodation facility, or wherever there is the requisite nexus to the workplace, should understand that. The law makes it resoundingly clear. To borrow from the words of Counsel for the Applicant, if two people have had a blue, then they are going to be dismissed and there is no doubt at all that that would be a fair dismissal in the absence of extenuating circumstances.

[154] I have found that the Applicant engaged in conduct that was wilful and intentional and it breached the aforementioned behavioural requirements of the Respondent. The dismissal was not disproportionate to the actual conduct found.

[155] The parties disagreed on the economic impact and the impact on future employment opportunities the dismissal would have on the Applicant.

[156] The Applicant drew the Commission’s attention to the rating of the Applicant on what was referred to as a mobilisation system of the Respondent. Counsel for the Applicant referred to the evidence of Mr Harding and submitted that it was going to be harder for the Applicant to obtain future employment with the Respondent and other employers 121. Counsel submitted the Commission should consider this under ss.387(h) of the Act.

[157] The Respondent disputed the submission of the Applicant and submitted that how the mobilisation system exactly worked, who accessed it and whether or not that was in any way relevant to the Applicant, other than vaguely hypothetically, and was not in evidence 122.

[158] I have considered all of the evidence and submissions made by both Counsels on this point. It is unclear on the evidence whether the rating of the Applicant on the mobilisation system of the respondent would prove to be a bar for future employment with other employers 123. I accept that with regard to future employment with the Respondent the Applicant’s dismissal itself may make it harder for him to obtain future employment with it. The rating on the mobilisation system would not in itself give rise to such difficulty. Therefore, the rating on the mobilisation system is a factor, which when considering other relevant matters, is unable to be afforded any weight.

[159] Reference was made to a program that Chevron might potentially run at the end of the construction phase to engage top performing Indigenous employees to continue to maintain the facility. The Applicant was of the opinion that he potentially could have been part of a future Indigenous employment scheme.

[160] Mr Harding in evidence said that there was a dialogue between Chevron and others but there were no positions that existed just as there was no program in existence 124. I consider the evidence of Mr Harding credible and believe him. He struck me as a person who simply told it as it was.

[161] The Applicant submitted that the dismissal had a severe detrimental effect on his economic situation and he had a clean work record with the Respondent. I have considered these factors. I have also taken into account that the Applicant demonstrated contrition during the disciplinary process.

[162] However, it is only in circumstances where it is considered the actions of the Respondent lie outside the description of a reasonable and just response to the relevant conduct and are disproportionate should a finding of unreasonableness or injustice be made 125. This is not the case with this matter.

[163] In circumstances where a valid reason is found to exist, and procedural fairness has been afforded, significant mitigating circumstances are required in order to lead to a conclusion that the termination is nevertheless harsh, unjust or unreasonable 126. The mitigating circumstances in this matter are not so significant.

Findings

[164] I am satisfied that the dismissal of the Applicant was not disproportionate to the Applicant’s non-compliance with the behavioural requirements that he was obliged to comply with. The Respondent was entitled to regulate the behaviour of its employees and require compliance with the obligations set out in the Contract, Code and Work Rules.

[165] The initiator of the interaction between the Applicant and the unknown person was the unknown person. The act of removing the cowboy hat from the head of the Applicant, walking away with it, and then tossing it, was juvenile. Nevertheless, there was no evidence to suggest that the act was aggressive. Rather it looked like horsing around.

[166] In response the Applicant pulled the unknown person backward by his collar near his neck. The Applicant was, in my view, adopting an aggressive approach as a means to seek retrieval of his cowboy hat. The action of the Applicant was disproportionate to that engaged in by the unknown person. The Applicant applied sufficient force to the unknown person that when pulled backward by the back of his neck the unknown person stumbled back onto a person seated at a table. The Applicant acknowledged as much 127.

[167] What was initially a stupid act by the unknown person then quickly escalated into an interaction that was open to be characterised as an aggressive or violent confrontation. The provocation by the unknown person was in my view insufficient to justify, or as Counsel for the Applicant would phrase it, provide explanation for, the Applicant’s conduct.

[168] The Applicant held the misperception that the use of his chest to assert force, rather than his hands, would not be seen as threatening behaviour. The Applicant launched himself at the unknown person using the expanse of his chest. To affirm this behaviour as an acceptable means to place distance between two individuals would be unsound. I have found that it was not an act undertaken in self-defence and that the provocation was not such that it reduced the blameworthiness or seriousness of the act of the Applicant.

[169] It was reprehensible that the unknown person assaulted the Applicant and deservedly so he was likewise dismissed.

[170] I am satisfied that the Applicant engaged in serious misconduct. The response to that misconduct was reasonable, just and was not disproportionate.

Conclusion

[171] The Application for unfair dismissal remedy in the matter U2017/8666 is dismissed.

DEPUTY PRESIDENT

Appearances:

K Sneddon Counsel for the Applicant.

R Wade Counsel and M Taylor for the Respondent

Hearing details:

2017

November

Perth

al

 1   Exhibit R2 Witness Statement of Jeffrey Lee Harding [65].

 2   Transcript PN195.

 3   Above n 1, [66].

 4   Ibid [72].

 5   Ibid [73], [74].

 6   Ibid [75], [76].

 7   Ibid [77].

 8   Exhibit R1, Exhibit Book, 26-30.

 9   Ibid 30.

 10   Ibid 24.

 11   Ibid 4.

 12   Ibid 9.

 13   Ibid 10.

 14   Ibid 11.

 15   Ibid 16.

 16   Ibid 21.

 17   Ibid 75.

 18   Ibid 75-76.

 19   Above nb 1, [27].

 20   Ibid [22].

 21   Ibid [23].

 22   Ibid [23].

 23   Exhibit A1, A2, A3, A4.

 24   Transcript PN189.

 25   Transcript PN190.

 26   Transcript PN198.

 27   Transcript PN201.

 28   Transcript PN205.

 29   Transcript PN193.

 30   Transcript PN195.

 31   Transcript PN195.

 32   Bechtel Construction (Australia) Pty Ltd Wheatstone Project Agreement 2013 [2013] FWCA 9914.

 33   Subsection 381(2) of the Act.

 34   (1995) 185 CLR 410.

 35   Ibid 465.

 36   Parmalat Food Products Pty Ltd v Wililo (2011) 207 IR 243.

 37   [2015] FWCFB 1033 [25].

 38   [2013] FWCFB 6191.

 39   Ibid [34] – [36].

 40   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 377-8.

 41   Ibid.

 42   Ibid as cited in Potter v WorkCover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation (2010) 202 IR 17 [36].

 43   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 685.

 44   Ibid.

 45   King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019 [24]; B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 [34].

 46   Tenix Defence Systems Pty Ltd v K Fearnley Print S6238 22 May 2000; Peter Bridges v McCain Foods (Aust) Pty Ltd [2015] FWC 6797; AWU-FIME Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385.

 47   Tenix Defence Systems Pty Ltd v K Fearnley Print S6238 22 May 2000.

 48   (1995) 62 IR 385 [22].

 49   Above nb 47, [22].

 50   Print N4832, 11 September 1996 per Polites SDP, Duncan DP and Hodder C

 51   (1993) 51 IR 445

 52   (1998) 83 IR 102, 109, 110 .

 53   Tenix Defence Systems Pty Ltd v K Fearnley Print S6238 22 May 2000; Peter Bridges v McCain Foods (Aust) Pty Ltd [2015] FWC 6797 [25].

 54   [2013] FWCFB 7030 [50]-[51].

 55   [2015] FWC 6797.

 56   Peter Bridges v McCain Foods (Aust) Pty Ltd [.2015] FWC 6797 [27].

 57   Australian Postal Corporation v D’Rozario [2014] FCAFC 89.

 58   Peter Bridges v McCain Foods (Aust) Pty Ltd [2015] FWC 6797 [29]; Australia Postal Corporation T/as Australia Post [2013] FWCFB 6191 [22].

 59   Above nb 56, [33]

 60   Above nb 54.

 61   Transcript PN600.

 62   Transcript PN813.

 63   Applicant’s Outline of Submissions [14].

 64   Tenix Defence Systems Pty Ltd v K Fearnley Print S6238 22 May 2000; Peter Bridges v McCain Foods (Aust) Pty Ltd [2015] FWC 6797; AWU-FIME Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385.

 65   Transcript PN489.

 66   Transcript PN491.

 67   Transcript PN818.

 68   Transcript PN201.

 69   Transcript PN205.

 70   Transcript PN210.

 71   Transcript PN226.

 72   Transcript PN215.

 73   Transcript PN214.

 74   Transcript PN216.

 75   Transcript PN216.

 76   Transcript PN571.

 77   Tenix Defence Systems Pty Ltd v K Fearnley Print S6238 22 May 2000; Peter Bridges v McCain Foods (Aust) Pty Ltd [2015] FWC 6797 [25].

 78   B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 [7].

 79   Ibid.

 80   Ibid.

 81   Ibid.

 82   AWU-FIME Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385.

 83   Transcript PN488.

 84   (1999) 89 IR 407, 416.

 85   (1998) 45 AILR 3.

 86   (1971) 139 CAR 707.

 87   Transcript PN806.

 88   Respondent Outline of Submissions [29].

 89   Transcript PN693.

 90   DP World Sydney Limited v Mr Stephen Lambley [2012] FWAFB 4810 [27].

 91   Owen Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 [32].

 92   Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 151.

 93   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151; Previsic v Australian Quarantine Inspection Services Print Q3730.

 94   Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1 14-15.

 95   Transcript PN655.

 96   Transcript PN665 and PN426.

 97   Transcript PN667.

 98   Transcript PN435.

 99   Transcript PN467-468.

 100   Transcript PN409 - 426.

 101   Transcript PN451.

 102   Ibid.

 103   Exhibit R1 Exhibit Book: Pages 63-67.

 104   Annetta v Ansett Australia Ltd (2000) 98 IR 233 237.

 105   Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie [2012] FWA 2 [58].

 106   Owen Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 [32]; Potter v WorkCover Corporation (2004) 13 IR 458, 474.

 107   Owen Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 [34]; Grandbridge Limited v Mrs Diane Wiburd [2017] FWCFB 6732.

 108   [2015] FWCFB 1033 [34].

 109   (2001) 7 IR 117.

 110   Owen Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 [34].

 111   Exhibit R1 Exhibit Book: Pages 71.

 112   Transcript PN694.

 113   Transcript PN487.

 114   Transcript PN677.

 115   [2015] FWCFB 1033 [33]

 116   Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 14, citing Byrne v Australian Airlines Ltd (1995) 185 CLR 410 465.

 117   Above nb 34, 465.

 118   Section 381(2) of the Act.

 119   (1992) 41 IR 452.

 120   Transcript PN123-131.

 121   Transcript PN770.

 122   Transcript PN880.

 123   Transcript PN330 – 334.

 124   Transcript PN363 and PN370.

 125   DP World Sydney Limited v Mr Stephen Lambley [2012] FWAFB 4810.

 126   Ibid.

 127   Transcript PN205.

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