DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jacob Battle
v
Macleay Options Inc
(U2020/12724)

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

[1] Mr Jacob Battle was employed by Macleay Options Inc (Macleay Options) from 7 May 2017. He was dismissed on 2 September 2020 because Macleay Options formed the view that Mr Battle had sworn at, threatened, and behaved aggressively toward other employees on that day. Mr Battle contends his dismissal was harsh, unjust and unreasonable because he was afforded no procedural fairness and did not behave in the manner alleged by Macleay Options.

[2] I heard Mr Battle’s unfair dismissal case on 18 December 2020 by video conference. Mr Battle gave evidence in support of his case. Macleay Options adduced evidence from the following witnesses (all being employees of Macleay Options):

•  Mr Stephen Smith, HR Manager;

•  Mr Jye Haydon;

•  Mr Thomas McMaugh;

•  Mr John Langford;

•  Mr Nigel Chilly; and

•  Mr Gavin Larkin.

Initial matters to be considered

[3] Section 396 of the Fair Work Act 2009 (Cth) (Act) sets out four matters which I am required to decide before I consider the merits of the Application.

[4] There is no dispute between the parties and I am satisfied on the evidence that:

(a) Mr Battle’s application for unfair dismissal was made within the period required in s 394(2) of the Act;

(b) Mr Battle was a person protected from unfair dismissal;

(c) the Small Business Fair Dismissal Code did not apply to Mr Battle’s dismissal; and

(d) Mr Battle’s dismissal was not a genuine redundancy.

Was the dismissal harsh, unjust or unreasonable?

[5] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Battle’s dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.

Valid reason (s 387(a))

General principles

[6] It is necessary to consider whether the employer had 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. 1 In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”2 and should not be “capricious, fanciful, spiteful or prejudiced.”3

[7] 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. 4 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).⁵

[8] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.⁶ It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 7

[9] The employer bears the evidentiary onus of proving that the conduct on which it relies took place. 8 In cases such as the present where allegations of serious misconduct are made, the Briginshaw standard applies so that findings that an employee engaged in the misconduct alleged are not made lightly.9

[10] In Patrick Stevedores Holdings Pty Ltd v CFMMEU, 10 Justice Lee made the following useful observations about the Briginshaw standard and its impact on fact finding and the state of satisfaction required [references omitted]:

“Fact Finding and the State of Satisfaction Required

14. It is trite that both Patricks and Qube are required to prove their case on this liability hearing to the civil standard having regard to the degree of satisfaction required by s 140 of the EA. This section requires the court, in a civil proceeding, to find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. In deciding, in a civil case, whether it is satisfied that the case has been proved, the court is to take into account: (a) the nature of the cause of action or defence; (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. Although the standard of proof remains the balance of probabilities, the degree of satisfaction varies according to the seriousness of the allegations made and the gravity of the consequences (if the allegations are found to be correct): see EA s 140.

15. Importantly, the factual allegations made by both Patricks and Qube are not only foundations for the nature of the relief dealt with at this liability hearing (that is, declarations of contraventions of the FW Act), but are also the foundations for the deferred relief, that is, the imposition of pecuniary penalties.

16. It is well-established that s 140 reflects the common law as explained seminally by Dixon J in Briginshaw v Briginshaw. As the Full Court noted in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission:

The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion.

Even though he spoke of the common law position, Dixon J’s classic discussion in Briginshaw...at 361-363 of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the [EA] now requires a court to take into account. Dixon J emphasised that when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. He pointed out that a mere mechanical comparison of probabilities independent of any belief in its reality, cannot justify the finding of a fact. But he recognised that (Briginshaw 60 CLR at 361-262):

‘No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences...

Dixon J also pointed out that the standard of persuasion, whether one is applying the relevant standard of proof on the balance of probabilities or beyond reasonable doubt, is always whether the affirmative of the allegation has been made out to the reasonable satisfaction of the tribunal. He said that the nature of the issue necessarily affected the process by which reasonable satisfaction was attained. And, so, he concluded that in a civil proceeding, when a question arose whether a crime had been committed, the standard of persuasion was the same as upon other civil issues. But he added, weight must be given to the presumption of innocence and exactness of proof must be expected (Briginshaw 60 CLR at 362-363).

17. It is also clear that so-called “Briginshaw principles” apply to civil penalty proceedings (which is a particular example of the application of s 140(1) of the EA)…”

Reasons for termination

[11] Macleay Options’ decision to terminate Mr Battle’s employment was largely based upon the following events which they say occurred on 2 September 2020:

•  Mr Battle displaying threatening behaviour toward other employees,

•  Mr Battle damaging property, and

•  Mr Battle verbally abusing other employees.

[12] Macleay Options contends that in the context of Mr Battle having been issued an earlier verbal warning regarding his conduct at work and working in a business alongside supported employees, the above matters provided a valid reason to terminate Mr Battle’s employment.

[13] It follows from the principles set out above that for Macleay Options to succeed in relation to its allegations against Mr Battle I am required to reach a state of satisfaction or an actual persuasion that Macleay Options has proved that Mr Battle conducted himself in the way alleged, while taking into account the seriousness of the allegation and the gravity of the consequences that could follow if the allegation were to be accepted. 11

Relevant facts – valid reason

[14] Mr Battle gave the following evidence in relation to the events of 2 September 2020:

•  he was picked up from home and taken to work by his supervisor. During the morning he worked by himself and was in a fine mood;

•  at around 10am on his morning break he borrowed a teaspoon off Mr Langford and when he returned it he placed it beside Mr Langford. Mr Langford then said if he was going to be a “rude cunt” do not ask for his things again. Mr Battle replied that he wasn’t trying to be rude and not to call him names, and Mr Langford said to watch his mouth or he’d punch him in the head. Mr Battle ignored the comments and finished his food;

•  Mr Battle then continued to work until the lunchtime break;

•  at around 12.30pm while he was throwing his water bottle up and down in the air, he misjudged catching it and it landed at Mr Holten’s feet. Mr Holten then stood up and yelled in Mr Battle’s face, called Mr Battle names, and threatened to punch his head in. Mr Battle tried to explain that it was an accident and walked away. Mr Holten followed him and got in his face again, continued to yell, abuse and threaten Mr Battle as Mr Battle walked away. Because Mr Holten continued to walk toward Mr Battle aggressively, Mr Battle stood up for himself and raised his voice saying get out of my face and get away from me. At this point everyone could hear what was happening and Mr Shaun Carmody, supervisor, intervened by standing in between the men and told Mr Battle to leave it alone and walk away. As he walked away Mr Battle said to those nearby that they were a bunch of idiots, he was going to make sure the bosses found out about what happened and that he’d witnessed drug use and exchange between Mr Holten, Mr Langford and Mr Carmody. Mr Carmody followed him and talked to him as if the incident was Mr Battle’s fault. Mr Battle then called a manager and requested another employee take him home. He was then taken home by another employee.

[15] Mr Haydon gave the following evidence in relation to the events of 2 September 2020:

•  he was nearby when Mr Battle and Mr Langford had a “tiny” argument in the morning and during the argument he did not hear any threats made;

•  in relation to the event between Mr Battle and Mr Holten, from about 15 meters away Mr Haydon heard Mr Holten yelling at Mr Battle, although he did not witness the initial 10 seconds of the interaction. He saw Mr Holten getting in Mr Battle’s face and vice versa. Mr Haydon then moved closer to the men. Mr Battle proceeded to attempt to rip his shirt open from the buttons but failed to do so, then pulled his shirt off and said to Mr Holten “let’s have a go” and “let’s go”. Mr Battle threw a chair which was next to him toward the press machine and picked up a blower and threw it on the ground in front of himself. Mr Carmody had approached the altercation just as Mr Battle picked up the blower and took Mr Battle away. Mr Haydon then saw Mr Battle walking down from the shed back toward the work area with a screwdriver in his hand and Mr Carmody stopped him coming toward the area. During the events Mr Battle said to everyone around him that they were smart arses, cunts and dogs to which Mr McMaugh replied “we haven’t even spoke to you today”; and

•  Mr Haydon also gave evidence that he had worked with Mr Battle for a couple of weeks prior to 2 September 2020 and had witnessed him angrily throwing tables at work and throwing blades over the fence if they did not work.

[16] Mr McMaugh gave the following evidence in relation to the events of 2 September 2020:

•  during the morning of 2 September 2020 Mr Battle was walking around swearing and talking to himself and threw springs which Mr McMaugh picked up;

•  in relation to the event between Mr Battle and Mr Holten, Mr McMaugh was outside (about 20 meters away from the two men) when Mr Battle’s bottle hit the roof of the work area twice, he then saw Mr Battle’s bottle nearly hit Mr Holten. Mr Holten and Mr Battle were then in each other’s faces. He did not hear either man make any threats at this time. He saw Mr Battle remove his shirt while standing about one to two meters from Mr Holten and Mr Battle was calling those around the area “dogs and cunts”. Mr Battle then said “I’ll smash all you cunts” towards Mr McMaugh, Mr Haydon and Mr Holten to which Mr McMaugh responded “leave Jye alone he is only a kid”. Mr Battle then walked off and got a screwdriver, kicked a chair and picked up a blower, went to throw it and then put it down before being walked away by Mr Carmody; and

•  Mr McMaugh also said that Mr Battle made him feel threatened, upset and uncomfortable and that he did not want to work with him again.

[17] Mr Langford gave the following evidence in relation to the events of 2 September 2020:

•  although he detailed certain aspects of the events between Mr Holten and Mr Battle and Mr Larkin and Mr Battle in his witness statement, during his oral evidence he freely admitted that he did not actually witness either event;

•  during the morning Mr Battle was walking around swearing to himself and behaved like this often; and

•  in the course of the morning break Mr Battle borrowed his spoon and when he returned it he threw it on the ground next to him. Mr Langford then “chipped him for his behaviour” and said words to the effect that if he can’t pass the spoon to me he shouldn’t borrow it.

[18] Mr Chilly gave the following evidence in relation to the events of 2 September 2020:

•  he heard Mr Holten “going off his head” at Mr Battle. The men were face to face and speaking angrily to one another. Mr Battle looked as if he wanted to fight, as did Mr Holten. Mr Battle then pulled his shirt off. Mr Chilly could not recall what was said by either man. Mr Battle then picked a chair up and threw it away from Mr Holten toward Mr Larkin. Mr Carmody came in as Mr Battle picked up a blower and threw it (at nobody in particular). Mr Carmody subsequently took Mr Battle away from the area and Mr Chilly saw Mr Battle punch a downpipe. He did not see Mr Battle holding a screwdriver;

•  he also gave evidence that Mr Battle would always throw mattresses and leave them in walkways for others to clear away.

[19] Mr Larkin, a supported employee of Macleay Options, gave the following evidence in relation to the events of 2 September 2020:

•  during the morning Mr Battle was in a “foul mood” and at about 10am said to him “where were you, you lazy cunt?”;

•  in relation to the event between Mr Battle and Mr Holten, the two men had a disagreement about Mr Battle throwing a bottle at Mr Holten, during which Mr Battle threw a chair near Mr Larkin;

•  in his witness statement Mr Larkin said that Mr Battle took his shirt off during the incident, but gave oral evidence at the hearing that although Mr Battle was trying to remove his shirt, he could not do so; and

•  Mr Larkin also gave evidence that Mr Battle made him feel threatened, uneasy and picked on because “he always swears at me” and that he cannot work with Mr Battle. Further, he gave evidence, which I accept, that he is seeing a psychologist in relation to issues related to working with Mr Battle.

[20] Finally, Mr Smith gave evidence that he prepared a document titled “Macleay Options Inc. Progressive Discipline Discussion” dated 13 August 2020 which purports to document a verbal warning given by him to Mr Battle in relation to Mr Battle’s attendance at work, telling the operations manager he “can suck his dick”, and inappropriate behaviour toward other employees. During the hearing, Mr Battle accepted that the disciplinary discussion took place, but said that it related only to his attendance. However, he then said that he did remember talking to Mr Smith about the inappropriate comments but said that the comments were misheard and taken to management without understanding what was being discussed.

Factual findings – valid reason

[21] On the balance of probabilities, and taking into account the Briginshaw principles detailed above, I make the following findings.

[22] I accept that Mr Battle was in a foul mood at work during the morning of 2 September 2020. First, because it was the evidence of Mr Larkin, who I found to be a convincing witness. Second, it accords with the evidence of Mr Chilly and Mr Haydon, who were both credible witnesses, regarding Mr Battle’s demeanour at work prior to 2 September 2020. Third, because although I have not accepted other aspects of Mr McMaugh’s and Mr Langford’s evidence with regard to Mr Battle’s conduct, I found their evidence that Mr Battle was walking around swearing to himself during the morning convincing. Finally, because Mr Battle’s denial of this evidence was not compelling.

[23] In relation to the incident at morning tea between Mr Langford and Mr Battle regarding Mr Langford’s spoon, I find that Mr Battle did not act in an inappropriate manner. Even on Mr Langford’s version of events, the high point of Mr Battle’s conduct was throwing Mr Lanford’s spoon on the ground, rather than passing it to Mr Langford. I prefer Mr Battle’s evidence that he placed the spoon next to Mr Langford. If Mr Battle had thrown the spoon next to Mr Langford, I consider it likely that Mr Langford would have reacted in a stronger manner than by “chipping” him for his behaviour. Further, there were aspects of Mr Langford’s evidence which were unimpressive. He responded dismissively to questions asked of him and did not appear to answer questions carefully. For example, when I asked him to clarify what he meant by Mr Battle having an attitude he responded, curtly, that “I just told ya, I can’t explain what it was, he just had an attitude”.

[24] I accept Mr Larkin’s evidence that Mr Battle said to him “where were you, you lazy cunt?”, primarily because Mr Larkin’s evidence was persuasive and Mr Battle’s denial of the incident was not. Additionally, Mr Larkin’s recount of the incident sits more comfortably with the evidence which I have accepted that Mr Battle was in a foul mood that morning. I also accept Mr Larkin’s evidence that he felt threatened, picked on and uneasy when working with Mr Battle and is seeing a psychologist in relation to Mr Battle’s conduct toward him, including Mr Battle’s conduct on 2 September 2020: Mr Larkin’s evidence in relation to those matters was particularly compelling.

[25] In relation to the incident between Mr Battle and Mr Holten, I find that at around 12:30pm on 2 September 2020, while Mr Battle was throwing his water bottle up and down it landed at Mr Holten’s feet, Mr Holten then approached Mr Battle in an aggressive manner and both men proceeded to get in each other’s faces. During the incident Mr Battle removed his shirt and said words to the effect of “let’s have a go” to Mr Holten and called the other men nearby (Mr Chilly, Mr Larkin, Mr Haydon and Mr McMaugh) smart arses, cunts and dogs. Mr Battle then picked up a chair and threw it away from Mr Holten, towards Mr Larkin, and then picked up a blower and threw it on the ground without directing it at anybody in particular. Mr Carmody then inserted himself between Mr Battle and Mr Holten and walked Mr Battle away from the area. A short time later while still with Mr Carmody, Mr Battle punched a downpipe. At no stage was Mr Battle carrying a screwdriver. Mr Battle was then driven home by an employee of Macleay Options. In relation to this altercation, I have largely preferred the evidence of Mr Haydon, Mr Chilly and Mr Larkin over that of Mr Battle and Mr McMaugh for the following reasons:

•  First, Mr Haydon was a credible witness. He answered questions directly and made free and sensible concessions about his evidence. For example, he conceded that he did not witness Mr Battle punching the down pipe and could not recall the words said by Mr Holten during the altercation.

•  Second, Mr Chilly was a very compelling witness. He gave clear and concise answers to the questions asked of him and gave evidence only about that which he recalled seeing or hearing. For example, he said that he could not particularly remember what was said between Mr Battle and Mr Holten during the incident.

•  Third, except in relation to the screwdriver, Mr Haydon’s and Mr Chilly’s evidence was largely consistent and their oral evidence was largely consistent with their witness statements. In relation to the screwdriver, I have preferred Mr Chilly’s evidence over Mr Haydon’s because Mr Chilly’s evidence was more compelling and he gave persuasive evidence that he saw Mr Battle punch the downpipe but did not see him carrying a screwdriver at that time.

•  Fourth, I found Mr Larkin to be a believable and candid witness. He gave clear and concise answers to the questions asked during the hearing. Nevertheless, I have not accepted Mr Larkin’s oral evidence that Mr Battle attempted to but could not remove his shirt, first because it is inconsistent with his earlier witness statement produced much closer in time to the actual events, and second because it is inconsistent with the evidence of Mr Chilly and Mr Haydon, which I found convincing.

•  Fifth, although the evidence of Mr Haydon, Mr Chilly and Mr Larkin closely aligned, it was not so closely aligned so as to suggest that they had intentionally changed their stories to support Macleay Options’ case.

•  Sixth, I did not find Mr McMaugh’s evidence to be persuasive in a number of respects. He came across as overtly hostile toward Mr Battle and gave evidence which was inconsistent with witnesses who I found compelling. For example, when questioned about whether Mr Battle threw a chair, he said that Mr Battle kicked the chair which is inconsistent with the evidence of Messrs Haydon, Chilly and Larkin. Further, he gave evidence that Mr Battle left the site of the incident involving Mr Holten and returned to the area with a screwdriver prior to Mr Carmody intervening, which is contradicted by the evidence of each of the other witnesses present at the time.

•  Seventh, Mr Battle’s evidence was not convincing. Throughout the hearing Mr Battle sought to minimise his conduct. For example, he denied acting at all inappropriately despite accepting during his oral evidence that he had behaved angrily and aggressively during the incident with Mr Holten. Further, he refused to admit to swearing during the incident with Mr Holten which I find to be highly unlikely given his acceptance that he was angry and aggressive at the time. In addition, Mr Battle initially denied that he had received a verbal warning from Mr Smith in relation to inappropriate conduct on 13 August 2020 (discussed below) before changing that evidence and accepting that he recalled parts of the conversation. Finally, much of Mr Battle’s evidence was contradicted by the evidence of Messrs Haydon, Chilly and Larkin, all of whom I found to be credible witnesses.

•  Eighth, Mr Battle’s evidence that Mr Carmody stood between Mr Battle and Mr Holten, walked Mr Battle (as opposed to Mr Holten) away from the altercation, and spoke to Mr Battle as though Mr Battle was at fault is consistent with Messrs Haydon and Chilly’s evidence that Mr Battle had removed his shirt, was swearing at the other employees nearby, and appeared as though he wanted to fight Mr Holten.

[26] Lastly, I accept Mr Smith’s evidence that he gave Mr Battle a verbal warning on 13 August 2020 in relation to telling the operations manager that he “can suck his dick” and other inappropriate behaviour toward other employees. I accept that evidence because it is documented in a contemporaneous record and Mr Battle’s partial denial of the warning was not convincing. I note that I have not made any finding as to whether the conduct the subject of the warning occurred.

Consideration – valid reason

[27] There are four main aspects to Macleay Options’ reasons for Mr Battle’s dismissal. First, the spoon incident between Mr Langford and Mr Battle. Second, Mr Battle calling Mr Larkin a “lazy cunt”. Third, Mr Battle’s conduct related to the altercation with Mr Holten on 2 September 2020. And finally, a repeat of the conduct the subject of the verbal warning given to Mr Battle on 13 August 2020. I deal with each below.

[28] For the reasons given above, I am not convinced that the spoon incident provides a valid reason for the termination of Mr Battle’s employment. Mr Battle’s role in that interaction was, in my view, minor, inconsequential, and not inappropriate.

[29] In relation to the remainder of Mr Battle’s conduct on 2 September 2020, I am comfortably satisfied that Macleay Options has established that it had a valid reason to terminate Mr Battle’s employment. First, Mr Battle’s conduct in calling Mr Larkin, a supported employee of Macleay Options, a “lazy cunt” was utterly inappropriate and continues to negatively affect Mr Larkin. This is not a case of simply swearing at work; Mr Battle’s words were directed at Mr Larkin and harshly denigrated him. Second, although I accept Mr Battle’s evidence that Mr Holten played a significant part in the altercation, especially in regard to its commencement and Mr Holten’s aggressive behaviour, that did not excuse Mr Battle’s conduct. Mr Battle demonstrated by removing his shirt, saying to Mr Holten “let’s have a go”, and throwing a chair and a blower, that he wanted the altercation to escalate into a physical fight. That conduct is not appropriate in any workplace. Third, the other aspects of Mr Battle’s conduct on 2 September 2020 (calling the other employees cunts, dogs and smart arses and punching the downpipe) were inappropriate, disrespectful and threatening towards the other employees. Finally, having been warned about inappropriate conduct and swearing at work less than a month prior to the incidents, Mr Battle was well aware that his conduct on 2 September 2020 was inappropriate and would not be tolerated by Macleay Options.

Notification of reason & opportunity to respond (s 387(b) & (c))

[30] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 12 and in explicit and plain and clear terms.13 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[31] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 14

[32] The evidence given by Mr Battle and Mr Smith regarding the investigation into the incidents on 2 September 2020 and Mr Battle’s subsequent termination was largely uncontested:

•  Mr Smith arrived at the site at about 12:45pm on 2 September 2020 to conduct an investigation;

•  Mr Smith spoke with each of the witnesses one on one at the side of the building;

•  Mr Smith then called Macleay Options’ CEO to discuss the events and they decided to terminate Mr Battle’s employment;

•  Mr Smith then called Mr Battle, but Mr Battle did not pick up the phone;

•  at about 2pm, Mr Smith sent Mr Battle a text and an email in much the same terms terminating his employment and outlining the reasons for his dismissal; and

•  at about 3pm, Mr Battle called Mr Smith and denied the accusations to which Mr Smith responded with words to the effect that he preferred the evidence of the other employees. Mr Battle also asked Mr Smith to check the CCTV footage and Mr Smith explained that he could not do so because the cameras were not recording.

[33] Mr Battle was notified of the reasons for his dismissal in the same communication that terminated his employment. In effect, Mr Battle had no opportunity to respond to the reasons Macleay Options relied upon to terminate his employment before the decision to dismiss was made and the dismissal took effect. During Mr Smith’s oral evidence regarding communicating Macleay Options’ decision to terminate Mr Battle’s employment, Mr Smith gave evidence that he did not want to “get into a conversation over it” with Mr Battle because he was told Mr Battle was very angry that day and that based on previous experiences “knew it would not go smoothly”. That is not an acceptable reason for failing to notify and provide an employee with an opportunity to respond to serious allegations such as those made in this case prior to the termination of their employment. I find that Macleay Options did not notify Mr Battle of the reasons for his dismissal and did not give him an opportunity to respond to those reasons before the decision was made to terminate his employment. These factors weigh in support of Mr Battle’s contention that his dismissal was unfair.

Unreasonable refusal to allow a support person (s 387(d))

[34] Mr Battle did not request, and Macleay Options did not refuse to allow Mr Battle to have, a support person to assist at any discussions in relation to his dismissal. This is a neutral consideration.

Warnings of unsatisfactory performance (s 387(e))

[35] Mr Battle was not dismissed for unsatisfactory performance. This is a neutral consideration.

Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g))

[36] Macleay Options is a medium sized enterprise, employing approximately 170 staff. It has a dedicated human resources manager. In all the circumstances, I am satisfied that neither the size of Macleay Options’ enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in effecting Mr Battle’s dismissal. This is a neutral consideration.

Other relevant matters

[37] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant. Mr Battle contends that there was no proper investigation because he was not spoken to and CCTV footage which he says should have been accessed, was not reviewed.

[38] Mr Smith gave evidence, which I accept, that after he was notified of the conduct alleged he attended the work site and spoke with each of the employees on site that day individually at the side of the work building. He then discussed the events with the CEO and a decision was made to terminate Mr Battle’s employment. Further, he gave unchallenged evidence, which I accept, that no CCTV footage was available, despite there being CCTV cameras in the relevant areas.

[39] The process undertaken by Macleay Options on 2 September 2020 in relation to terminating Mr Battle’s employment was rushed and inept. Although it is sensible for an employer to act promptly when faced with serious allegations such as those in this case, it was not appropriate for Macleay Options to accept and act on the evidence of the other employees without notifying Mr Battle and providing him an opportunity to respond. For Mr Smith to neglect to even speak with Mr Battle prior to deciding to accept the evidence of the other employees and making a decision to terminate Mr Battle’s employment was unreasonable. The most basic application of procedural fairness would have required Macleay Options to allow Mr Battle an opportunity to consider the allegations put against him and to reply. That opportunity was never afforded to him. Nonetheless, having found that Mr Battle did in fact commit much of the conduct alleged and that the conduct justified Macleay Options’ decision to terminate Mr Battle’s employment, I am satisfied that these deficiencies in the process followed by Macleay Options would not have made any difference to the ultimate outcome in this case. Hence, although the termination of Mr Battle’s employment was bereft of procedural fairness, the weight to be attributed to that matter is less than would have been the case had the procedural unfairness given rise to a real likelihood of a different outcome.

Conclusion – harsh, unjust or unreasonable

[40] Having considered and taken into account each of the matters specified in section 387 of the Act, my evaluative judgment is that Macleay Options’ dismissal of Mr Battle on 2 September 2020 was not harsh, unjust or unreasonable. Mr Battle was well aware from at least 13 August 2020 that conduct such as that in which he was engaged on 2 September 2020 was unacceptable and would not be tolerated by Macleay Options. Mr Battle’s verbal abuse of Mr Larkin, goading and taking his shirt off in preparation to fight Mr Holten, swearing at the other employees near to the altercation and treating property owned by others with disregard outweigh the shortcomings in the process undertaken by Macleay Options in investigating the incident and making the decision to terminate his employment. The application for unfair dismissal is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Battle on behalf of himself
Mr Smith on behalf of the Respondent

Hearing details:

2020.
Newcastle (by video conference):
18 December.

Printed by authority of the Commonwealth Government Printer

<PR726251>

 1   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8

 2   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

 3   Ibid

 4   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685

5 Ibid

6 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]

 7   Ibid

 8   Ibid

 9   Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J

 10   [2019] FCA 451

 11   Ibid at [18]

 12   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

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

 14   RMIT v Asher (2010) 194 IR 1 at 14-15