DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Boris
v
Metcash Trading Limited T/A Metcash
(U2019/2038)

Application for an unfair dismissal remedy.

[1]  Boris, a gentleman known by the one name, made an application to the Fair Work Commission (the Commission) for a remedy in respect of his dismissal. The remedy sought was reinstatement and compensation.

[2] Boris is a former store person of Metcash Trading Limited T/A Metcash (Metcash). He began working for Metcash in a full-time capacity in 2005. More recently, however, he was employed on a part-time basis, for 20 hours per week. He was dismissed for serious misconduct on 15 February 2019.

[3] It was said that Boris had not complied with his Supervisor’s lawful and reasonable instruction on 23 November 2018. That instruction was to attend a debrief meeting with his Supervisor later that day to discuss his performance. While providing the instruction to Boris, Boris opted to record his Supervisor using his mobile phone, notwithstanding his Supervisor’s instruction not to do so. Boris asserted that at the time of recording, he was repeatedly advising his Supervisor that he wanted advanced written notice of the debrief meeting to enable him to organise a representative to attend.

[4] There was said to have been historical antagonism between Boris and his Supervisor that had simmered for some time. A meeting was convened on 30 November 2019 by Boris’ Supervisor to discuss what had occurred on 23 November 2018. In attendance at the meeting were Boris, his support person Mr Bacon, a SDA Delegate; Mr Torres, Boris’ Supervisor; and Ms Dyk, Metcash’s Leadership and Talent Consultant.

[5] Leading up to the meeting, on Boris’ day off, Mr Torres sent Boris a text message to inform him of the meeting on 30 November 2019. He also called Boris three times without leaving a voice message. While on its face informing an employee of a meeting on his or her day off does not appear to be contentious, it seems to have fuelled discontent in the meeting that followed.

[6] Upset by being contacted for a meeting on his day off, Boris expressed his discontent at the meeting on the 30th. Mr Torres is then said to have informed Boris that he was entitled to call him at any time to which Boris informed Mr Torres that under no circumstances was he to contact him outside of work hours for any reason whatsoever. Boris continued that should Mr Torres harass him out of work hours again then he would tell Mr Torres exactly what he thought of him and his mother. According to Ms Dyk and Mr Torres, Boris presented in an intimidating manner, standing over the table, leaning in and using a raised voice. Mr Torres took exception to the reference to his mother, and soon thereafter departed the meeting fuelled by anger and upset.

[7] While it is said that there was apparently some ‘conversational’ swearing by both Boris and Ms Dyk in the meeting, the account of Mr Torres and Ms Dyk was that Boris’ discourse was laden with expletives. In short, Boris’ and Mr Bacon’s recollection of the meeting noticeably differed to the account of Mr Torres and Ms Dyk. Having conducted what Boris purports to be a flawed workplace investigation into the matter, Metcash eventually dismissed Boris for the events on 23 and 30 November 2018.

[8] Whether the dialogues of the witnesses are founded on partial truths or truths will inevitably require consideration. Further, there are several issues that require determination, which include:

a) Was the instruction to attend a debrief meeting to discuss the results of an Associate Technique Review (ATR) assessment a lawful and reasonable instruction.

b) Did Boris’ response that he required or wanted advance written notice of the meeting to enable him to organise a representative to attend, constitute a failure to follow a lawful and reasonable instruction.

c) Was the use of a mobile phone on 23 November 2018 to film a member of management on the warehouse floor, absent that Supervisor’s consent, contrary to the Code of Conduct, other policies, a lawful and reasonable instruction, or expected standards of behaviour of Metcash.

d) Boris asserts there was a failure to counsel him for a similar incident in December 2017. Mr Torres had counselled Boris without notice or an opportunity for him to arrange support or representation, and Boris recorded Mr Torres on his mobile phone. No disciplinary action followed; the question then is:

i. should this omission be taken into consideration when considering the reasonableness of Metcash’s response to the 23 November 2018 phone recording;

ii. if Metcash omitted counselling Boris in December 2017 for the ‘first’ recording, does this therefore mean further conduct of a same kind could not thereafter be relied upon to justify disciplinary action being taken up to and including dismissal.

e) Did Boris’ swearing in the meeting of 30 November 2018 constitute ‘conversational swearing’, and given Ms Dyk is said to have sworn too, was an inconsistent approach taken regarding disciplinary action in this respect.

f) Did Boris’ remarks to Mr Torres in the meeting on 30 November 2018 warrant a warning rather than dismissal given the purported history of argument and antagonism between Boris and Mr Torres. The remarks being:

i. ‘under no circumstances are you to contact me out of work hours for any reason whatsoever’; and

ii. ‘[I]f you ever harass me out of work hours again, I will tell you exactly what I think of you and your mother’.

Procedural fairness

g) Was the second workplace investigation procedurally flawed such that findings arising from the investigations could not be relied upon, or if relied upon, would render Boris’ dismissal harsh, unjust or unreasonable.

BACKGROUND

Metcash’s Use of Electronic Devices Policy

[9] Ms Briggs, Operations Manager at Metcash’s Canning Vale site, gave evidence that the warehouse environment had the potential to be dangerous if employees moving though it were distracted by their mobile phone. 1 On 20 July 2016, Boris was provided with a copy of Metcash’s Use of Electronic Devices Policy. It is said that the requirements of the policy were explained to employees at that time.2

Issues were brewing between Boris and Mr Torres some time ago

[10] Ms Briggsstated that in November 2014, the Human Resources Manager at that time informed her that Boris had several issues with his Supervisor, Mr Torres. At that time Ms Briggs said that her and Mr Vi, the Senior Supervisor, agreed that they would deal with Boris directly so that Boris and Mr Torres could minimise their contact with each other. The arrangement, according to Ms Briggs, was an informal one that lasted all of a couple of months, if that. 3

[11] On or around 15 May 2017, Mr Torres made a complaint about Boris’ conduct. Boris was alleged to have repeatedly called Mr Torres a liar. 4 Ms Briggs said that in June 2017 she met with Boris, Mr Bacon, Boris’ support person, and Mr Tulp, Human Resources Manager at the time. At the meeting Boris agreed to show respect toward supervisors and fellow colleagues, to use appropriate language whilst interacting with other employees and to follow lawful and reasonable directions from supervisors and management.

The recording incident of December 2017

[12] Boris gave evidence that on 11 December 2017, Mr Torres counselled him about wrapping an order in aisle 56. Mr Torres apparently said that he needed to have a conversation with Boris about wrapping. Boris gave evidence that he became irritated, took his phone out, held it in his hand, started recording, and said something like ‘either I have the shop steward with us or I will record our discussion’. 5 Boris reported that Mr Torres said something such as ‘that’s illegal – we can get a shop steward if you like’.6 However, according to Boris, Mr Torres proceeded to counsel him absent a shop steward, so he continued to video. Boris expressed that no concerns were raised about his conduct in openly recording the discussion with Mr Torres.7

[13] Mr Torres’ evidence was that Boris was wrapping a pallet in a way that could result in him hurting himself. When Mr Torres attempted to counsel him on the behaviour, Boris picked up his phone and started recording Mr Torres. At the time, Mr Torres said that he told Boris that he was not allowed to use the mobile phone at work, and that he had not authorised Boris to record him. Mr Torres said that he did not raise the incident with senior management.

The ATR incident

[14] On 23 November 2018, Mr Torres was walking around the warehouse at the Canning Vale site when he noticed Mr van der Wal, Team Leader, completing an ATR with Boris.

[15] Mr Torres gave evidence that the ATR is standard practice at the Canning Vale site. 8 Toward the end of the ATR, Mr Torres said that he approached Boris to hand him his payslip and said words to the effect ‘here you go, Boris. While I’m here, I need to have a discussion with you about your ATR and your performance after you complete the ATR’.

[16] In response, Boris said he replied ‘I’ve told you before Luis you need to put it in writing so I can organise my nominated representative’. 9 Boris then gave evidence that Mr Torres said that he would not be putting it in writing and that they would have the meeting. Boris said he replied with words to the effect of ‘I’ve already given my response’.10

[17] As Mr Torres persisted with the discussion, Boris said he took out his mobile phone and recorded himself saying ‘I wish to speak to my nominated representative and what you need to do is to put in writing what it is that you want to have a conversation about’. 11 In response, Boris said that Mr Torres explained ‘Boris firstly you are not authorised to use your phone at work’, and then ‘secondly I’m entitled to have a conversation with you about your standards anytime’.12 Boris gave evidence that he replied ‘absolutely’. The distance between him and Mr Torres, was, according to Boris about 3-4 foot.

[18] Mr Torres’ evidence was that Boris pulled out his mobile phone, and started recording half a metre away from Mr Torres’ face. Mr Torres agreed that he informed Boris he was not authorised to record him. Further, Mr Torres said that he informed Boris that there were three union delegates and Boris was to just let him know who the union delegate would be and when he was available for the meeting.

[19] Boris’ evidence was that the discussion continued:

Mr Torres: would you nominate the person that you want to be with you. 13

Boris: just as soon as you put in writing that you want to talk to me. 14

Mr Torres: you will not get that in writing and you will have a conversation. 15

Boris: I need it in writing Luis. 16

[20] Mr Torres said that Boris had insisted on having his nominated representative present when talking about his performance. However, he added that Boris was pointing his finger, and was very loud and expressive. Mr van der Wal gave evidence that Boris appeared agitated and in effect ‘went off’ at Mr Torres. Mr van der Wal said that it was not a normal conversation and he felt Boris’ demeanour was aggressive and created a tense environment.

[21] Boris gave evidence that Mr Torres then spoke to Mr van der Wal and asked him to let him know when the ATR was finished. 17 According to Boris, Mr Torres said that he would give Boris some information about using his mobile phone to record the conversation. Then Mr Torres drove away.

[22] Later in the afternoon on of 23 November 2018, Mr Torres returned with Mr van der Wal and invited Boris to meet about the ATR and his performance. 18 Boris said that he again asked Mr Torres to put the request in writing so that he could have his nominated representative with him.19 Mr Torres is said to have declined, and informed Boris that they would be having a meeting.20

Notification of meeting on 30 November 2018

[23] On 30 November 2018, Boris had a day off. He reported receiving a text message from an unknown number at 12:44pm, which read:

Hi Boris I’m Luis Torres from Metcash, letting you know I have schedule a meeting for Friday 10:00 to have a conversation about you ATR & poor performance standards, please bring your nominate representative. Regards. 21 [sic]

[24] Boris further observed that he had received a phone call from the same unknown number at 12:45pm, 12:47pm and at 4:35pm. 22 Boris stated that in the 13.5 years that he had worked at Metcash he had never received a phone call from Mr Torres or any other supervisor.23

Meeting on 30 November 2018 – the first part of the meeting

[25] On 23 November 2018, Ms Dyk, Mr Torres, Boris, and Mr Bacon, met at the warehouse offices at the Canning Vale site.

[26] On introducing herself, Ms Dyk shook hands with Mr Bacon, however, Ms Dyk’s evidence was that Boris refused to acknowledge her. 24 Boris disagreed with this account noting that Ms Dyk did not extend her hand out to him and neither did he to her, but they acknowledged each other by looking at one another.25

[27] Boris stated that once he and Mr Bacon walked into the meeting room the meeting commenced and everyone sat down except for him. 26 Boris said that no one raised a concern about him standing up.27 Mr Bacon’s evidence was that Boris stood up at the commencement of the meeting which was, according to Mr Bacon, stock standard when attending meetings with Boris. Mr Bacon continued that Boris had informed him that he stood up in meetings as a ‘control thing’ – he did not want to give them control, and he sits down when he is ready. When referring to ‘them’, one assumes Mr Bacon was referring to other attendees. Boris, in contrast, said that he just liked standing and that it had nothing to do with exerting control. He could not recall having a conversation with Mr Bacon about the ‘standing’ issue.

[28] Boris’ evidence was that Mr Torres informed him he wanted to talk about the ATR, but initially declined to provide Boris with a copy of the document. 28 Mr Torres then informed Boris that it was usual practice for employees to sit down with supervisors after an ATR.29 Boris stated that he informed Mr Torres that he did not sign ATRs, and that Mr van der Wal had not asked him the questions on the last page of the ATR for years.

[29] Boris expressed his frustration that Mr Torres would not give him a request for a meeting in writing and then sent him a text message. 30 Boris gave evidence that Mr Torres explained that he wanted to provide 24 hours’ notice of the meeting. Boris said he went on to express his frustration that on nine occasions he wanted to meet with management, but it took up to eight months for the meeting to take place;31 but when management want a meeting with him it occurs the next day.32 Boris said that he went on to explain to Mr Torres and Ms Dyk that it was not appropriate to contact him out of work hours.33 According to Boris, Mr Torres insisted several times during the meeting that he could contact Boris out of work hours.34

[30] The discussion appears to have become heated with Boris eventually stating in what he describes as a ‘firm voice’:

Under no circumstances are you to contact me out of work hours for any reason whatsoever. If you ever harass me out of work hours again, I will tell you exactly what I think of you and your mother. 35

[31] Boris recognised that Ms Dyk seemed surprised by his comment and how he said it. 36 He observed that she did not say anything to him, and that Mr Bacon stated ‘Boris’ in a tone which Boris said he understood was to calm him down.

[32] Mr Bacon’s recollection is that it was possible that Boris was pointing his finger at Mr Torres when he referred to Mr Torres’ mother, as Boris did use hand gestures when talking. Ms Dyk and Mr Torres gave evidence that Boris was leaning over the table and adopted an aggressive approach with regard to the volume of his voice and hand gestures.

[33] Ms Dyk gave evidence that Boris did not appear to understand why Mr Torres would contact him whilst he was not at work regarding notification of a meeting. Ms Dyk said that Boris was standing and challenging everything that Mr Torres was saying. She continued that

there was a lot of talking over each other, with Boris leaning over the table and speaking in a yelling manner. Ms Dyk said that when the comment was made concerning Mr Torres’ mother she thought the meeting had become out of hand, and that she was taken aback and shaking. She said that Mr Torres was bright red and shaking.

[34] Mr Torres gave evidence that following Boris’ dialogue he went into shock, like a rock hitting his stomach. He explained that he felt that something was happening to his body, and that he had to leave the room as he was shaking. Mr Torres said that he did not know if he was going to be able to control himself – as he was extremely offended and felt threatened.

[35] Regarding the tone Boris adopted and the volume of his voice, Mr Bacon gave evidence that Boris’ voice was raised a little, but he was not yelling, screaming, or shouting.

[36] Boris conceded that during the first part of the meeting when Mr Torres was present, he swore a few times using the word ‘fuck’ or ‘fucking’, because he was frustrated. 37

[37] During the meeting, Boris said that he would be making a formal complaint about Mr Torres, and Ms Dyk informed Boris to forward the paperwork to her. 38 Boris’ evidence was that Mr Torres left the meeting at that point and went back to work.39

[38] There was disagreement between the witnesses for Boris and the witnesses for Metcash about how the first part of the meeting came to an end.

Meeting on 30 November 2018 – the second part of the meeting

[39] The meeting continued without Mr Torres. Before that occurred, Ms Dyk said that she informed all present of the need to take a break. Ms Dyk said that she informed Boris and Mr Bacon that she would only conduct a further meeting if it was amicable and calm, and that the behaviours that had been demonstrated would not be demonstrated again.

[40] Concerning the second meeting, Ms Dyk gave evidence that she informed Boris that she was not comfortable with the amount of swearing and that she considered it inappropriate. She said that in response Boris referred to a court case where it was noted that swearing was acceptable in a blue-collar workforce, where apparently, it was expected. When asked about Boris referring to a court case and swearing, Mr Bacon said that he had a vague recollection but was unable to confirm whether it was about swearing or the common law.

[41] Ms Dyk’s evidence was that Boris also called her a city princess. Mr Bacon gave evidence that there may have been reference to ‘city folk’, or to ‘big city people’, but he could not say that this was 100 percent the case.

[42] Mr Bacon’s evidence was that in the first or second meeting, Boris communicated that Ms Dyk should tell management that he was never to be contacted outside of work. However, Mr Bacon considered that the second meeting was productive as Boris had an audience and Ms Dyk had communicated that she would assist Boris with his complaint about Mr Torres.

[43] Boris stated that he discussed his contribution to the company’s bottom line, topics such as engineering standards and pick rates, and how he was left with more difficult orders because he followed procedure. 40 Boris’ evidence was that he explained to Ms Dyk that he had complained to Mr Torres about this to no avail and he also gave Ms Dyk examples of those employees who received preferential treatment.41 Boris said that the meeting came to an end with Ms Dyk explaining that she had to catch a plane.42

[44] Ms Dyk’s evidence was that Boris’ complaint contained insufficient content for her to initiate an investigation. She considered that Boris was not willing to participate in the right way and considered that there was no reason to continue the meeting – so she left the meeting room. Ms Dyk gave evidence that she did not say that she had to catch a flight to Sydney. After the second meeting, Ms Dyk said that she had a brief conversation with Mr Bacon who laughed and smirked regarding Boris, noting that he was notoriously difficult.

[45] Ms Dyk said that following the meeting she met with the General Manager and provided him with an update of what had occurred at the meeting.

Instruction not to attend work on full pay

[46] Later in the day on 30 November 2018, Mr Bacon informed Boris that the Logistics Operations Manager, Mr Norris, wanted to meet with him. 43 Boris presented for the meeting accompanied by Mr Bacon.44 Present at the meeting was another supervisor.45 The Manager informed Boris that a complaint had been made that Boris had sworn at Ms Dyk and Mr Torres. He said that the behaviour was unacceptable and proceeded to suspend Boris on full pay effective immediately pending an investigation.46 Boris said that he conceded he may have sworn a couple of times but not at Mr Torres or Ms Dyk.47

Show cause meeting on 3 December 2018 and letter

[47] On 3 December 2018, Boris said that he attended a further meeting with the Logistics Operations Manager, the Warehouse Manager, Mr Bacon and the SDA Organiser. Boris stated that the Logistics Operations Manager explained to him that it was a ‘show cause’ meeting for Boris to set out why his employment should not be terminated. 48 Boris was provided with a ‘show cause’ letter of 3 December 2018. The letter confirmed an investigation had been conducted, it set out the allegations against Boris and the findings.49 Boris said that he was advised by the SDA Organiser not to respond to it.

[48] Ms Briggs, gave evidence that on 5 December 2018, the SDA sent a letter to Mr Norris which called into question the investigation process and requested that an independent investigation into Boris’ conduct be arranged. 50 The letter of 5 December 2018 referred to Boris as an idiosyncratic employee with a long history of unconventional behaviour, which the company had always tolerated, and that the conduct and behaviour the company expects of Boris had always been different to that expected of other employees.

[49] In light of the letter from the SDA, Ms Briggs stated that a decision was made to appoint Ms Jackie Ho, People and Culture Advisor, to further investigate Boris’ conduct. 51 The ‘show cause’ process was therefore brought to a halt while the investigation was conducted.52 Ms Briggs gave evidence that the investigation took some time to complete due to the Christmas period, and because Boris worked only two days a week.

[50] By letter of 10 December 2018, the SDA wrote to Mr Norris asserting that Ms Ho lacked the requisite independence to conduct the workplace investigation. The SDA’s assertions being that Ms Ho was more likely concerned with ensuring the security of her employment, including by prioritising the interests of the company and its senior employees, over Boris’ interests. Further, Ms Ho was employed at the same level as Ms Dyk and therefore it was unrealistic to expect Ms Ho to press and challenge Ms Dyk on her evidence to the standard required in an objective and arms length investigation.

[51] In addition, the SDA challenged the scope of the workplace investigation, stating that it was necessary for Boris’ complaints which were made to Ms Dyk on 30 November 2018 concerning Mr Torres’ conduct on 23 November 2018, and the harassment of Boris by Mr Torres concerning repeated phone calls on 29 November 2018, to form part of the investigation.

[52] Boris gave evidence that on or about 13 December 2018, with the assistance of the SDA, he signed a witness statement that gave his version of events of 23 November to 30 November 2018 for the purpose of the workplace investigation. 53

[53] Ms Briggs gave evidence that the investigation concluded that Boris had engaged in unacceptable conduct by:

a) failing to follow a reasonable request from Luis to attend an ATR debrief on Friday, 23 November 2018;

b) inappropriately using his mobile phone to video record Luis without his agreement on Friday, 23 November 2018; and

c) behaving aggressively and in a threatening and inappropriate way at a meeting with Luis and Nicole on Friday, 30 November 2018. 54

Show cause meeting on 1 February 2019

[54] A further ‘show cause’ meeting was held on 1 February 2019. Boris said the Logistics Operations Manager, the Warehouse Manager, Mr Bacon and the SDA Organiser were present at the meeting. Ms Briggs said that Boris was provided with the letter of 1 February 2019 outlining the investigation findings and asking Boris to show cause why his employment should not be terminated. 55

[55] On 6 February 2019, the SDA sent a letter to Mr Norris setting out why Boris should not be dismissed. 56 However, Ms Briggs gave evidence that based on the information available, including the investigation findings, Boris’ responses, and the matters set out in the SDA’s letter, a decision was made to dismiss Boris. Ms Briggs said that the decision to dismiss Boris sat with both her and Mr Norris. When asked to explain the reasons for Boris’ dismissal, Ms Briggs expressed that it was because of Boris’ aggressive and threatening behaviour, failing to follow a directive by a leader, and use of a mobile phone.

Boris’ submissions

[56] Boris submitted that he did not fail to follow a lawful and reasonable request of his Supervisor to attend a debrief meeting to discuss the results of the ATR assessment. He stated that he had advised Mr Torres that he wanted advanced written notice of such a meeting and to have the opportunity to organise his representative to attend the meeting with him.

[57] While Boris admitted to using his mobile phone to record Mr Torres, he stated that he had done so in substantially the same circumstances as those in December 2017. Metcash had not sought to formally counsel him, or impose disciplinary action, for the behaviour on that occasion. According to Counsel for Boris, Metcash had essentially condoned the use of the mobile phone previously, and this must be considered when assessing the reasonableness of Metcash’s response on this occasion. According to Boris, should this conduct give reason for his dismissal, the reason was not sound, defensible or well founded, or justifiable on an objective analysis of the relevant facts.

[58] Boris admitted to ‘conversational swearing’ in the meeting of the 30^th and to having made an inappropriate reference to Mr Torres’ mother, however, Counsel for Boris submitted that a distribution centre was a robust work environment where people use intemperate language and tensions. While Boris did swear, he did not swear at Mr Torres or at Ms Dyk; rather, he swore in conversation.

[59] Further, Counsel submitted that Boris’ ‘mother’ comment was contributed to by his frustrated state of mind arising from Mr Torres’ own conduct and treatment of him the week prior. Further, Boris submitted that Metcash knew there was a history between him and Mr Torres and it had previously arranged for Boris to report to managers other than Mr Torres.

[60] In effect, Boris submitted that Metcash had a lot to answer for regarding its contribution to the events that led to Boris being dismissed. It had acted in a manner inconsistent with its own mobile phone policy and was aware of the interactions between Boris and Mr Torres. Those interactions were such that there was a history of argument and antagonism, which had been dealt with for a period by Mr Torres not supervising or dealing with Boris when Ms Briggs took sole responsibility for dealing with Boris. However, that practice was not in place in December 2018 when the events occurred that led to Boris’ dismissal.

[61] Boris conceded that the inappropriate comment, and to a lesser extent, the conversational swearing, warranted censure and some form of disciplinary action. He advanced, however, that his conduct must be viewed within the context of Metcash’s own failures and contributions. It followed that Boris’ conduct on 30 November 2018, did not constitute a reason which was sound, defensible or well founded on an objective analysis of the facts.

[62] Counsel for Boris submitted that Mr Torres had been employed with Metcash for some 31 years and Boris some 13.5 years. Both men were said to be in their sixties. Counsel observed that it was perfectly legitimate that the two employees did not get along. It was submitted that both are stubborn; Mr Torres wanted to do what he wanted to do, to deal with performance management and in the main that was perfectly acceptable. But Boris wanted written notice of the debrief, and Mr Torres was not going to make an exception for Boris. The question was according to Counsel, how far does an employer have to go to accommodate the idiosyncrasies of its employees. Counsel contended that Metcash dealt with this in a reactive way and needed to take some responsibility too.

[63] Finally, Boris submitted that the workplace investigation and disciplinary process was unfair, biased, one-sided and prejudicial. Reference was made to the exclusion of Ms Dyk’s evidence of the second part of the meeting on 30 November 2018. It was acknowledged by Boris that Ms Dyk’s evidence in the second meeting had not been relied upon with regard to substantiating allegations made concerning the second part of the meeting on 30 November 2018. Nevertheless, Counsel said this informed the Commission of the reliability of Ms Dyk’s evidence with regard to the first part of the meeting on 30 November 2018.

[64] Further, Ms Ho was not an independent investigator, as she was a colleague of Ms Dyk. When interviewed by Ms Ho, Ms Dyk was in the presence of colleagues. Ms Ho was not flown to Perth to interview Mr Bacon, and no interviews were conducted regarding Mr Torres and Boris. When the interview with Mr Bacon was conducted, there were, according to Counsel for Boris, two senior management personnel of Metcash present. It was the case, according to Boris, that contextual evidence was excluded, and Boris was denied procedural fairness.

Metcash’s submissions

[65] In a nutshell, Metcash submitted that Boris should have lost his job for his conduct from 23 November to 30 November 2018. Metcash viewed Boris’ conduct during this period as gross insubordination, and that the decision to terminate the Boris’ employment should not be interfered with by the Commission.

[66] Metcash stated that there were two occasions on 23 November 2018 where in effect, Boris, refused to participate or agree to participate in an ATR debrief with Mr Torres. Mr Torres’ request was routine, uncontroversial, and reasonable. Yet the response of Boris was

aggressive and intimidating, and included pointing his finger at Mr Torres’ face, using a raised voice, and very aggressive tone.

[67] However, on that date Boris’ conduct did not stop there – it continued when he pulled out his mobile phone and video recorded the exchange between him and Mr Torres absent Mr Torres’ consent. This, said Metcash, constituted a breach of Metcash’s Use of Electronic Devices Policy.

[68] At the first meeting on 30 November 2018, which Counsel for Metcash referred to as ‘your mother meeting’, Boris’ conduct was aggressive, threatening and intimidating. He used a raised voice, at times yelled, refused to sit down, leant across the table, pointed his finger in Mr Torres’ face and made the inappropriate ‘mother’ comment. Metcash submitted that it did not rely on the second meeting on 30 November 2018 where only Boris, Mr Bacon, and Ms Dyk were present for the termination of Boris’ employment, as the investigation finding regarding inappropriate conduct was inconclusive.

[69] Counsel for Metcash submitted that Boris’ conduct on 23 and 30 November 2018 should be considered together and not as separate and isolated incidents. He submitted that Boris was seeking to compartmentalise the conduct by stating that a warning was appropriate disciplinary action for each occurrence. According to Metcash, the Commission should view the sequence of meetings and conduct together. Including the escalating nature of the conduct which can be classified as out of control, demonstrating contempt for management, and adversely impacting on the well-being of employees.

[70] It was said that Boris’ conduct also amounted to a breach of the Code of Conduct. Counsel for Boris had raised issues around context, circumstances, regret and contrition, and Metcash advanced that while Boris was to proffer an apology in the hearing, it was ultimately a lot of white noise. The apology, said Counsel, should be seen for what it is; a distraction from what should be the focus of the Commission. It should not cloud the gravity of Boris’ conduct. None of the contextual circumstances, asserted Counsel for Metcash, excused the conduct.

[71] To conclude, Metcash submitted that reinstatement was not appropriate given the severity of Boris’ conduct and the impact on the relationship and well-being of his fellow employees, particularly, Mr Torres. Counsel submitted that Boris’ contempt for management had not abated, and reinstatement would be a recipe for disaster.

Consideration

Protection from unfair dismissal

[72] There is no jurisdictional barrier to this unfair dismissal application being considered and determined by the Commission. It was not controversial that Boris was a person protected from unfair dismissal and was dismissed within the meaning of s 386 of the Act.

Was the dismissal harsh, unjust or unreasonable?

[73] The conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd by McHugh and Gummow JJ 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. 57

Matters to consider

[74] Section 387 requires that the Commission consider certain criteria when determining whether an applicant’s dismissal was ‘harsh, unjust or unreasonable’. They include:

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.

[75] Regarding ss 387(b)-(d), I am satisfied on the evidence that Boris was notified of the reasons relied upon by Metcash for his termination and given the opportunity to respond to the allegations during the investigation.

[76] Counsel for Boris submitted that the investigative process was procedurally flawed. The evidence of Ms Briggs was that following a show cause meeting on 3 December 2018, Mr Norris received a letter from SDA of 5 December 2018. The letter was signed by Mr Harris, the Assistant Branch Secretary of the SDA, and set out that Boris was an idiosyncratic employee with a long history of unconventional behaviour. It continued:

Regretfully, even if Mr Boris’ unique procedural fairness entitlements are left to one side, it appears Mr Boris has in any event been subjected to a serious and fundamental denial of procedural fairness because he had not been given a proper opportunity to defend himself against any allegations, by reason of the Company’s failure to engage in an objective and balanced process of inquiry and investigation: see for example, Farmer v KDR Victoria Pty Ltd T/A Yarra Trams [2014] FWC 6539 at [56] to [58] and [79].

[77] In Farmer v KDR Victoria Pty Ltd T/A Yarra Trams the Commissioner found on the evidence before him that a more objective process of inquiry and investigation, coupled with a more considered process of allowing the relevant employee to put forward his version of events, together with an objective consideration of what he had to say, would have led the company not to dismiss him from employment. 58

[78] It was apparent that by the time the letter was provided to Boris on 3 December 2018 the SDA considered that there were shortcomings with Metcash’s investigative process. The concern appeared to be solidly grounded. While Metcash raised with Boris the allegations in the meeting of 3 December 2018, the SDA considered that the process did not constitute a full and fair investigation into the matter.

[79] Counsel for Boris’ jeremiad included that neither Boris nor Mr Bacon were interviewed or provided with the opportunity to provide a written statement. Albeit it in the meeting of 3 December 2018, the SDA purported that reference was made to statements being taken from Ms Dyk, Mr Torres and Mr Van Der Wal, and that the show cause letter of 3 December 2018, attributed statements to Mr Bacon without having first interviewed Mr Bacon. The SDA remarked, among other comments made, that the failure to interview Mr Bacon, and the likely absence of other witnesses being pressed about their evidence, the absence of reference to Boris’ complaints about Mr Torres and Mr Torres’ conduct, amounted to serious flaws which undermined the premise of the show cause letter of 3 December 2018.

[80] However, cognisant of such shortcomings, and receptive to the feedback of the SDA, arrangements were put in place for an investigation to be conducted by Ms Ho.

[81] In response, the SDA, again remonstrated asserting that Ms Ho lacked the requisite independence to conduct the workplace investigation. In its view, Ms Ho was more likely concerned with ensuring the security of her employment, including by prioritising the interests of the company and its senior employees, over Boris. Further, Ms Ho was employed at the same level as Ms Dyk and it was therefore unrealistic to expect Ms Ho to press and challenge Ms Dyk on her evidence to the standard required in an objective and arm’s length investigation.

[82] The SDA’s assertions impugned the integrity of Ms Ho absent any cogent evidence to support what was said. Such assertions are given no weight.

[83] In addition, the SDA challenged the scope of the workplace investigation on the basis that Mr Torres’ harassment of Boris by making repeated calls on 29 November 2018, and his conduct toward Boris on 23 November 2018, should have formed part of the investigation.

[84] Having considered the evidence, and adopting a tempered approach, I can only but conclude that these challenges to the integrity of the investigation are absurd. I find that Mr Torres’ conduct in attempting to contact Boris to notify him of a meeting, notwithstanding it was on Boris’ day off, in no way constituted harassment, or unreasonable conduct. Boris worked in a part-time capacity therefore necessitating contact outside of work hours to give him due notification of the meeting on 30 November 2018. The action, entirely reasonable. Mr Torres left a text message, and thereafter made three calls with no voicemail being left. There is no evidence before me to characterise such conduct as harassment. A suggestion that the investigation in part was flawed because of a failure to investigate such conduct, is farfetched.

[85] Having listened to Boris’ evidence, irrespective of that of the other witnesses, I find that there is no foundation on which to base a complaint regarding Mr Torres’ conduct on 23 November 2018. In circumstances where Boris adopted an unreasoned approach regarding his request for written notification for the debriefing post the ATR, and thereafter video recorded Mr Torres absent his consent, and persevered in doing so irrespective of an instruction to the contrary, there is no foundation on which to premise a complaint. Therefore, the absence of Boris’ complaint about Mr Torres’ conduct on 23 November 2018 from the investigation scope, does not, in my view, detract from the procedural fairness afforded to Boris.

[86] The context is important. It was accepted that the meeting proposed was not a performance management meeting, and there was no evidence to suggest that Boris was on a performance management plan. The request was simply for a debrief regarding performance following an ATR. There was no express obligation under a relevant industrial instrument or employment contract to provide written notification of the meeting, or otherwise to permit the attendance of a SDA Delegate.

[87] When considering the evidence of other witnesses, it showed that Mr Torres was open to a support person attending and setting the meeting at a time where such a support person could attend. He was however not open to providing written notification of the meeting.

[88] Mr van der Wal gave evidence that Boris appeared agitated and in effect ‘went off’ at Mr Torres. Mr van der Wal said that it was not a normal conversation and he felt Boris’ demeanour was aggressive and created a tense environment. I find that Mr van der Wal was both measured in his account and unemotive. I found no reason to disbelieve that which he said.

[89] Boris’ evidence was that on or about 13 December 2018, with the assistance of the SDA, he signed a witness statement that gave his version of events of 23 November to 30 November 2018 for the purpose of the workplace investigation. 59 On 1 February 2019, a further show cause meeting was held to allow Boris to explain why his employment should not be terminated. On 6 February 2019, the SDA sent a letter to Mr Norris, which Ms Briggs said was shared with her, outlining why Boris’ employment should not be terminated.

[90] It has been observed previously in both Mr Ian Law v Groote Eylandt Mining Company Pty Ltd T/A GEMCO (Mr Ian Law), 60 and Rogers v Millennium Inorganic Chemicals Limited & Anor that there is no obligation on an employer to conduct a perfect workplace investigation.61 What is required is for the employer to conduct an investigation into the alleged misconduct which establishes the allegations on the balance of probabilities. As observed in Mr Ian Law, and employer is not required to investigate to the standard that would be expected of a police investigation. The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.62 While Boris was not interviewed as part of the investigative process, I do not find that this in turn meant that Boris was not accorded an opportunity to respond to any reason related to his conduct, or that otherwise there was a reason to doubt that procedural fairness had been provided.

[91] Moving on, at no time was Boris unreasonably refused a support person in the discussions relating to the dismissal.

[92] As to s 387(e), Boris’ termination of employment involved misconduct, not unsatisfactory performance. Therefore, it is not in dispute in this case.

[93] In relation to s 387(f), Metcash appears to be a national organisation with dedicated human resource expertise. I do not consider that its size would be likely to impact on the procedures followed in effecting Boris’ dismissal.

[94] As to s 387(g) of the Act, Metcash employed human resources advisors at the time of Boris’ dismissal, so this consideration is not relevant.

[95] Attention therefore initially turns to s 387(a) and whether there was a valid reason for the dismissal related to Boris’ conduct.

Whether there was a valid reason for the dismissal – s 387(a) of the Act

[96] When determining if a dismissal is unfair, the Commission must take into account whether there was a valid reason for dismissal relating to the employee’s capacity or conduct. 63

[97] Where the reason for termination of employment relates to an employee’s capacity or conduct, it is not the Commission’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the Commission. It is rather for the Commission to assess whether the employer had a valid reason connected with the employee’s capacity or conduct. 64

[98] The reasons considered are the employer’s ‘reason(s)’. 65 The Full Bench in B, C, and D v Australia Postal Corporation t/as Australia Post (Australian Postal Corporation) stated:

[34]... In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1).

[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal. 66

[99] Therefore, 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 the employee was guilty of the conduct which resulted in termination. 67

[100] The valid reason need not be the reason given to the employee at the time of the dismissal, 68 and the reason should not be ‘capricious, fanciful, spiteful or prejudiced’.69 The provisions must be applied in a practical, common sense way to ensure that the employer and employee are treated fairly.70

[101] I find that the instruction to attend the debrief meeting to discuss the results of the ATR was a lawful and reasonable instruction. Boris’ response, that he required or wanted advance written notice of the meeting to enable him to organise a representative to attend, constituted a failure to follow a lawful and reasonable instruction. Boris did not expressly say he would not attend such meeting. However, the inference was that he would not attend such meeting until written notice was provided. That was abundantly evident. In the circumstances Boris’ request for written notice was unreasonable. There was no obligation on Metcash to provide written notice, and Metcash did not seek to deny Boris the attendance of a support person. I observe that there did not appear to be an express obligation upon Metcash to facilitate the attendance of a support person at a debriefing following an ATR.

[102] The use of the mobile phone by Boris on 23 November 2018 was antagonistic and disrespectful conduct. The initial conduct of commencing the recording was intrusive. The continuation by Boris of the recording in the face of Mr Torres not consenting to the same, was contrary to the expected behaviours outlined in the Code of Conduct. 71 That is to treat others with dignity, courtesy and respect. Boris did not display such behaviours. His conduct was inappropriate and unreasonable. And while it was purported that such recording was undertaken to preserve Boris’ interests, I find such a proposition preposterous in these circumstances.

[103] Boris contended that Metcash’s overlooking of the previous mobile phone recording must be taken into account when assessing the reasonableness of Metcash’s response to the 23 November 2018 mobile phone recording. Ms Briggs gave evidence that it was not until this application was on foot that she was aware that such a circumstance had arisen. The evidence was that Mr Torres had not communicated the incident to upper management. Therefore, the lack of sanction was not indicative that the upper management of Metcash condoned such behaviour. Further, Mr Torres made it clear when giving his evidence that he had informed Boris at the time of the previous recording that he was not allowed to use his mobile phone at work, and that he did not authorise Boris to record him.

[104] It was also evident that Boris’ conduct was in breach of the commitment he had made in June 2017 to Ms Briggs and Mr Tulp regarding how he would conduct himself toward supervisors. At the hearing Boris gave evidence that video-taping a person is not treating them with respect. Boris conceded that he had reached that conclusion half an hour before giving such evidence.

[105] Having heard the evidence of Mr Torres, Ms Dyk, Mr Bacon and Boris about the meeting on 30 November 2018, I formed the view that Boris was at times evasive when providing answers. It seemed to be that he suffered, on occasion, with an inability to recall that which was put to him and would, at times, concede the possibility of something having been said, but perhaps not all that was contended. Boris would say ‘I can’t recall’ or ‘I might have done’. Mr Bacon also prefaced what he said on occasion by comment such as ‘a vague recollection’. Further, when it came to some of the explanations proffered, they seemed overly elaborate, or the initial response was later tailored when a further response was provided to qualify that which was said initially to address the inconsistency.

[106] Boris gave evidence that Mr Bacon said ‘Boris’ after he had made the ‘mother’ comment, and that Boris said that he understood that was said to calm him down. When asked about whether he had to calm Boris down, Mr Bacon initially replied ‘no’. Further, he gave evidence to the effect that all depends on what one defines as a level of anger and animosity – two guys having a bit of a head to head. Mr Bacon then recalled that he turned to Boris to say that he was sure ‘Luis is not going to contact you further’.

[107] Elaborate detail was provided by Mr Bacon concerning the implausibility of the contention that Boris had leant over the table when conversing with Ms Dyk and Mr Torres. Measurements of the table were given, and it was noted that Boris would have had to be on the table to lean over it in the way that was suggested. I could not help but form the view that the witnesses for the Applicant on this point doth protest too much.

[108] It was not contentious that Boris did not sit in the first part of the meeting on 30 November 2018. As observed, Mr Bacon had noted why Boris did this. However, Boris gave evidence that he stood up in the meeting because he likes standing and his work entails picking for a whole ten-hour shift, so he is comfortable standing. Boris could not recall having informed Mr Bacon about his preference for standing. I found Boris’ reason why he stood in the meeting on 30 November 2018, unpersuasive.

[109] Both Mr Bacon and Boris said that Boris did not raise his voice or act in an intimidatory manner in the meeting of 30 November 2018. Mr Bacon said that Boris’ voice at the meeting was louder than usual conversation. When providing their evidence at hearing both Mr Bacon and Boris modulated the volume of their voices to what one could consider a speaking volume. There were no emotive outbursts or displays of dissatisfaction, incredulity, or antagonism.

[110] In contrast, Mr Torres was emotive when giving his evidence and appeared at times unbridled. In the meeting on 30 November 2018, having heard the comment regarding his mother, Mr Torres’ evidence was that he went into shock, like a rock hit his stomach. He explained that something was happening to his body and he had to leave the room. Mr Torres explained that he did not know if he was going to control himself before the meeting ended. He said that he was extremely offended and felt threatened.

[111] Ms Dyk’s evidence was that Mr Torres was bright red, upset and angry before he departed the meeting on 30 November 2018. Ms Dyk gave evidence that Boris was leaning over the table yelling. When providing her evidence Ms Dyk was at times emotive but not to the level of that displayed by Mr Torrres. Although she did note to the effect that the events were, in effect, burnt into her brain. Ms Dyk explained that with regard to the meeting, she was taken aback, and found it overwhelming at the point the comment was made about Mr Torres’ mother. She considered that it was the first time the meeting had become out of hand and she informed all that they needed to take a break. Ms Dyk said that Mr Torres collected items and left.

[112] Mr Bacon’s evidence concerning Mr Torres’ exit from the meeting differed. He recounted that Mr Torres congratulated Boris for receiving ‘109%’ for some assessment.

[113] When Mr Torres was informed at hearing that Boris wanted to offer him an apology, Mr Torres was unapologetic when stated he would never accept Boris’ apology and that, in his view, Boris deserved nothing. He appeared rigid in that view. Mr Torres’ response seemed somewhat remarkable in circumstances where it was suggested that contrition was to be displayed. His words did not convey reasonableness of character and in some circumstances may have been of disservice to him. Yet, his account of what had occurred, how he felt, and his response to the apology to be proffered, appeared strikingly honest. I was persuaded that the evidence that Mr Torres provided to the Commission was uncensored.

[114] Similarly, while Ms Dyk’s recollection of the words said by Boris regarding Mr Torres’ mother differ to those of the other witnesses in the meeting on 30 November 2018, I am satisfied that Ms Dyk was not evasive and there are no inconsistencies in her evidence that would suggest her evidence was not credible.

[115] I have concluded that on balance, where there has been a conflict between the evidence of Boris and Mr Bacon, with that of Mr Torres and Ms Dyke, regarding the meeting on 30 November 2018, I am inclined to favour the evidence of the witnesses for Metcash.

[116] During hearing I was introduced to, what for me, was a new concept not previously broached in the context of a formal meeting in the workplace milieu - conversational swearing.  Boris submitted to the effect that he swore in a conversational manner at the meeting which took place on 30 November 2018. Boris gave evidence that he could have said ‘this is fucking bullshit’ and ‘Carol never fucking helps’.

[117] Apparently, ‘conversational swearing’ appears to be dialogue punctuated by the occasional or perhaps often cited profanity. For example, ‘fuck’. I assume that the reference to ‘conversational’ is because the offensive words are buffered by a tone and voice volume that would otherwise be considered ‘conversational’. Hence, to speculate, such profanities become accepted part of the meeting vernacular because they are couched in such a way.

[118] While Metcash did not rely on the evidence concerning the second part of the meeting on 30 November 2018 as a basis for dismissal, I find on the evidence before me that Boris did swear in the meetings on 30 November 2018, that he attempted to justify such swearing by reference to working in a blue collar environment and ‘case law’ said to support his contention. I am satisfied that Ms Dyk did ask Boris to stop swearing. Further, I observe that I do not accept that ‘conversational swearing’, such as that which was engaged in by Boris, is acceptable conduct in a meeting where conduct issues are being discussed, or allegations are being traversed, or a person has been asked to show cause. Whether that person is the employee against whom allegations are made, or the person facilitating or running the meeting, makes no difference.

[119] Ms Dyk admitted that she swore once in the meeting on 30 November 2018, when she said words to the effect ‘been through a lot of shit but I am here to help and to listen’. I do not consider that such swearing is comparable to that of Boris. And, while not necessarily relevant to whether there is a valid reason for dismissal, I observe that the evidence does not give rise to any inconsistency in treatment in a disciplinary aspect.

[120] While there was a history of antagonism between Boris and Mr Torres, I am unpersuaded that Metcash was required or obliged to take steps to cater for an employee who according to the SDA was idiosyncratic with a long history of unconventional behaviour. While there had, for the briefest of periods, been a time where Boris had reported directly to Ms Briggs – there was no indication that this was an arrangement that required permanency or re-introduction. There was no necessity to implement unique procedures for Boris. Boris had stipulated that he never wanted to be contacted by Metcash in his own time. This requirement is unreasonable within the context in which Boris works, the circumstances of his employment and management of the same.

[121] Having considered the obligations in the Code of Conduct and Metcash’s Use of Electronic Devices Policy, I accept that Boris was in breach of both regarding his conduct on 23 November 2018 and in the meeting on 30 November 2018. Further, I find that Boris failed to follow a lawful and reasonable instruction regarding attendance at the ATR briefing meeting, and the cessation of recording Mr Torres with his mobile phone.

[122] The severity of these breaches constitutes a complete violation of the Metcash’s trust in Boris, and as Ms Briggs’ termed it, a decline in his attitude toward management. Regrettably, Boris actions irrefutably demonstrated a lack of respect for both his Supervisor, attendees in the meeting on 30 November 2018, and perhaps more importantly, himself. I find that there was a valid reason for Boris’ dismissal.

Any other matters considered relevant - s 387(h) of the Act

[123] Whether the Applicant’s conduct justified summary dismissal is a factor relevant for consideration under s 387(h) of the Act. 72

[124] 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. 73 In Owen Sharp v BCS Infrastructure Support Pty Limited,74 the Full Bench referred to the decision in Rankin v Marine Power International Pty Ltd 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’,75 and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship.76

[125] I am satisfied that Boris misconduct was manifestly serious and in clear breach of the obligations he had under the Code of Conduct, Metcash’s Use of Electronic Devices Policy, and the instructions that had been provided to him by Mr Torres. The fundamental issue plaguing Boris was that his conduct manifested a complete lack of respect for Mr Torres and Ms Dyk.

[126] It was entirely open to Metcash to conclude that in culmination Boris’ actions and what he said on 23 November 2018, and similarly in the first part of the meeting of 30 November 2018, was misconduct that went to the very core of the behaviours Metcash expected of its employees. It was disrespectful, inappropriate and unreasoned. For reasons already cited, I favour the evidence provided by Mr Torres concerning that which occurred on 23 November and 30 November 2018, in addition to the account of Ms Dyk; the strength of their evidence is compelling when one considers Boris was summarily dismissed. I find that Boris acted in a manner that was both confronting and intimidating. It was not the case, as suggested by Counsel for Boris, that the conduct on 23 November and thereafter on 30 November 2018, warranted a written warning. Such behaviour cannot be minimised or excused by reference to it being idiosyncratic. It was misconduct of a grave kind.

[127] It was quite right that Boris acknowledged his wrong-doing and wanted to offer an apology. And, while he admitted that the proffering of an apology was at the suggestion of the SDA, his willingness to offer it nevertheless demonstrated that perhaps now Boris would take accountability for the way in which he had conducted himself. However, it remains the case that Boris’ conduct was repugnant to the employment relationship and was sufficiently grave to justify summary dismissal.

[128] Whether the dismissal of Boris was harsh, unjust or unreasonable must be decided on the facts of the case before me.

[129] Boris engaged in conduct that gave rise to there being a valid reason for his dismissal. The seriousness of his misconduct was such that a summary dismissal was justified in the circumstances.

[130] While I have traversed that there were initial issues with the workplace investigation, I am unpersuaded that the decision to terminate Boris’ employment for serious misconduct was unjust or unreasonable. Further, the gravity of Boris’ conduct was such that the there is no issue regarding disproportionality.

[131] I have taken in consideration Boris’ length of service and have in addition observed that in 2017 the issue of respect had been raised, and Boris had committed to demonstrating it to his supervisors. While Boris worked in a part-time capacity, I am left with no doubt that that the loss of a regular income and access to other entitlements that come with part-time work will inevitably have an impact on Boris. Notwithstanding, I am unable to conclude that his dismissal was harsh.

Conclusion

[132] I have taken into account all of the matters that I am required to in accordance with s 387. After weighing all the evidence and for reasons set out above, I have concluded that Boris’ dismissal was not harsh, unjust or unreasonable. On that basis the application is dismissed. An Order to that effect is published concurrently with this decision. 77

DEPUTY PRESIDENT

Appearances:

D Rafferty for the Applicant

M Sant for the Respondent

Hearing details:

Perth, 11, 12 June 2019.

Printed by authority of the Commonwealth Government Printer

<PR709170>

 1   Witness Statement of Carol Briggs (Briggs Statement) [23].

 2   Ibid [24].

 3   Ibid [13].

 4   Ibid [14].

 5   Witness Statement of Boris (Boris Statement) [12].

 6   Ibid [6].

 7   Ibid [8].

 8   Witness Statement of Luis Torres (Torres Statement) [4].

 9   Witness Statement of Boris (Boris Statement) [12].

 10   Ibid [14].

 11   Ibid [15].

 12   Ibid [16] – [17].

 13   Ibid [19].

 14   Ibid [20].

 15   Ibid [21].

 16   Ibid [22].

 17   Ibid [23].

 18   Ibid [27].

 19   Ibid [28].

 20   Ibid [29].

 21   Ibid [36].

 22   Ibid [37] – [39].

 23   Ibid [41].

 24   Witness Statement of Nicole Dyk (Dyk Statement) [10].

 25   Boris Statement [51].

 26   Ibid [55].

 27   Ibid [56].

 28   Ibid [61].

 29   Ibid [62].

 30   Ibid [66].

 31   Ibid [68].

 32   Ibid.

 33   Ibid [70].

 34   Ibid [74].

 35   Ibid [77].

 36   Ibid.

 37   Ibid.

 38   Ibid [82] – [83].

 39   Ibid [85].

 40   Ibid [96].

 41   Ibid [101].

 42   Ibid [102].

 43   Ibid [109].

 44   Ibid [110].

 45   Ibid.

 46   Ibid [113].

 47   Ibid [111].

 48   Ibid [117].

 49   Ibid [120].

 50   Briggs Statement [29]; Exhibit A18.

 51   Ibid [30].

 52   Ibid [32].

 53   Boris Statement [124].

 54   Briggs Statement [34] – [37].

 55   Ibid [39].

 56   Ibid [40].

 57   (1995) 185 CLR 411, 463.

 58   [2014] FWC 6539 [79].

 59   Boris Statement [124].

 60   [2018] FWC 1824 [144].

 61   [2009] FMCA 1 [127].

 62   Nash Wong v Taitung Australia Pty Ltd [2017] FWCFB 990.

 63   Fair Work Act 2009 (Cth) s 387(a).

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

 65   Owen Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 [25].

 66   [2013] FWCFB 6191 .

 67   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].

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

 69   Ibid.

 70   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].

 71   Exhibit R5.

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

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

 74   [2015] FWCFB 1033 [34].

 75   (2001) 7 IR 117.

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

 77   PR710964.