Unfair dismissal; the too harsh approach

 

Sometimes an unfair dismissal case is won, not upon fine complex legal points, but basic fairness, for example that the termination of the employment of an employee is simply too harsh given all of the circumstances.

“CONSIDERATION

Comments about the evidence

[128] I am grateful for all the witnesses who gave evidence because it allowed me to gain a better understanding of the events of 28 July 2021. I also note that the evidence of Fallon Elsner which was initially provided was not relied upon.

[129] I took each of the Applicant’s witnesses to be straightforward, honest and frank men. I was troubled by their comments that in giving evidence in support of the Applicant, they felt they may be making themselves a target of the Respondent, specifically Ms Coran. I have no way of knowing whether those fears are founded or will come to fruition, however I am certain that should any one of those men find themselves the subject of proceedings like this one, the Commission will review their case with a very keen eye to ensure that is not the case.

[130] As to the Respondent’s witnesses and representatives, each maintained that safety was of paramount importance to the Respondent. While that may be the case, there seemed an unwillingness by each witness to contemplate, even for a moment, that their action had been severe in the present circumstances. Very little weight was seemingly given by anyone in management, to the gravity of the decision to terminate the Applicant’s employment and the impact that such a decision might have on an individual who had served them for more than three decades. Such contemplation would not have demonstrated a weakness in respect of their case, but rather a more thoughtful and wholistic approach to the situation in which they found themselves.

[131] As to Ms Coran, I accept that she felt her management style and integrity were in question given the nature of the allegations made against her by the Applicant and others. Undoubtedly, giving evidence in these proceedings would have been stressful and intimidating. However, she seemed reluctant, for example, to admit that she occasionally used colourful language herself and couched her concession by saying that she would never direct it at an employee. Similarly, she gave evidence with respect to matters about which she did not have firsthand experience and then became defensive with the Applicant’s counsel attempted to tease out her actual knowledge of the safety breach in question. She raised an incident in which the Applicant had been involved as being another example of his poor attitude towards safety, despite no formal action ever being taken in respect of it.

[132] Like all the Respondent’s witnesses, Mr Benstead agreed that safety was of utmost importance to the Respondent. That is no doubt the case. However, while he broadly said that years of service was considered, he had not appeared to engage with the Applicant’s particular circumstances before deciding to terminate his employment.

Was the Applicant’s unfairly dismissed?

[133] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

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

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

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

(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;

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

(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;

(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 Commission considers relevant.

[134] I am required to consider each of these criteria to the extent they are relevant to the factual circumstances before me. 3

(a) whether there was a valid reason for the dismissal

[135] The reasons given by the Respondent for the termination of the Applicant’s employment were the safety breach of parking his vehicle over the line, doing a foreigner and the language used by him in his interaction with Ms Coran. The Applicant does not dispute that he engaged in the alleged conduct. The gravamen of the Applicant’s case is that his dismissal was not for a valid reason because it was disproportionate to the gravity of his misconduct and that mitigating factors were not taken into account or given appropriate weight in the Respondent’s decision to dismiss him.

[136] As Vice President Hatcher observed in Raj Bista v Group Pty Ltd t/a Glad Commercial Cleaning, establishing a factual basis for the reason for dismissal will not of itself demonstrate the existence of a valid reason. 4 It must, as s.387(a) makes clear, be a valid reason for dismissal. To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”5 and should not be “capricious, fanciful, spiteful or prejudiced.”6 As summarised by Deputy President Asbury in Smith v Bank of Queensland Ltd a “dismissal must be a justifiable response to the relevant conduct or issue of capacity. Factually-established conduct which might, for example, justify the issue of a reprimand or a warning may not necessarily justify dismissal”.7

[137] In Bista, Hatcher VP referred to the decision of the Full Court of the Federal Court in Edwards v Giudice 8 as being authority for the proposition that the consideration of whether there is a valid reason for dismissal requires an assessment of whether the conduct was so serious as to justify termination as a sound, defensible or well-founded response.9

[138] In Smith v Bank of Queensland Ltd, Deputy President Asbury continued to consider Hatcher VP’s decision in Bista in the following terms:

“[125] Vice President Hatcher went on to observe that it is well established that a dismissal for misconduct may be found to be harsh on the basis that the sanction of dismissal is a disproportionate penalty to the gravity of the misconduct, and that the issue of proportionality is usually considered having regard to all relevant circumstances of the dismissed employee and his or her conduct. His Honour also noted that there is divergence in the authorities in relation to whether the gravity of the misconduct is considered separately from the factors subjective to the particular employee with the former consideration arising under s. 387(a) and the latter under s. 387(h). His Honour observed that proportionality of dismissal as discussed by Moore J in Edwards v Giudice, was not concerned with proportionality of dismissal in the sense where the gravity of the misconduct is weighed against a range of other potentially mitigating factors. Rather it was concerned with whether the conduct in question, considered in isolation, was intrinsically capable of constituting a valid reason for dismissal if it only involved a minor misdemeanour.

[126] I do not understand that there is a rule that the gravity of the misconduct must be considered under s. 387(a) devoid of any mitigating factors a dismissed employee may raise. While the gravity of the conduct must be considered and assessed, in my view, there are some mitigating factors which may also go directly to the validity of a reason for dismissal by mitigating the seriousness of the conduct for which a person was dismissed. Examples of some of these factors may be lack of training or the dismissed employee being placed under undue pressure by some failure on the part of the employer, which contributed to the conduct for which the employee was dismissed. Those matters may go to the reasonableness of the dismissal on the basis that they mitigate the gravity of the employee’s conduct. There are other mitigating factors which relate to personal circumstances of the dismissed employee and which may render the dismissal harsh, notwithstanding that the gravity of the employee’s conduct justifies dismissal. The first category of mitigating factors falls for consideration under s. 387(a) of the Act and the second category under s. 387(h).”    (citations omitted) 10

[139] All that said, it is not the role of the Commission 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 court.” 11 However, the Commission must consider the entire factual matrix in determining whether an employee’s termination is for a valid reason.12

[140] I am not satisfied that doing a foreigner – that is filling his tyres with air while on a break – was a valid reason for dismissal. That is particularly so given that the evidence demonstrated that it was not an uncommon practice for employees at the site. Even if that established practice was not in existence, I would not be satisfied that the Applicant’s conduct in that regard warranted dismissal.

[141] As to the coarse language used by the Applicant, I acknowledge that there were at least two prior instances in which he had been reprimanded for similar language. However, one must consider the context of the Applicant’s employment. He has been working on a train line for the last 33 years. I am reminded of Commissioner Riordan’s comments in Gosek v Illawarra Coal Holdings Pty Limited T/A South32, that the Applicant there worked “in a coalmine – not a convent. The use of inappropriate language in this workplace is commonplace and has been condoned by [the Respondent]”. 13 Some rough language in the context of the Applicant’s work environment hardly seems surprising or problematic. Indeed, the language referred to in the final warning document – that he had said “piss off” – seems to be at the milder end of any spectrum of coarse language.

[142] As to the language used by the Applicant when Ms Coran spoke to him about the safety incident – namely, “I’ve had enough of this shit” – while not polite, it is hardly particularly offensive. That is especially so given the nature of the workplace and the fact that swearing was hardly uncommon onsite. Even Ms Coran admitted to occasionally swearing, while others suggested her use of such language may have even been frequent. Whether that is true is immaterial. Ms Coran’s evidence was that while she sometimes will swear, it was not towards at any of her direct reports. In the same way, the Applicant’s comments were not directed at her but at the situation in which they found themselves. There is no evidence before me that the Applicant’s expletives were uttered with aggression; more likely, based on the evidence before me, it was simply an expression of his frustration.

[143] The Applicant’s response must also be viewed in light of the fact that he thought he was being unfairly targeted by Ms Coran. He points to the fact that other more serious safety breaches had occurred on the site under her view, control and management which were not met with the same severity of consequences as the Applicant’s technical safety breach, even though in his circumstances, the risk of actual (or potential) harm to him or anyone else was negligible. When she approached him, he felt like she was deliberately confrontational, and this provoked his reaction. While I accept the Respondent’s submission that the Applicant is a grown man and therefore responsible for his own behaviour, I also acknowledge that in the circumstances as he viewed them, tempers were running particularly high.

[144] Consequently, I am not satisfied that either filling his tyres with air on a break or using the word “shit” (despite having been warned for such language previously) constituted a valid reason to terminate the Applicant’s employment.

[145] I turn now to consider whether the Applicant’s conduct in parking his car over the live line was a valid reason for his dismissal.

[146] It is uncontroversial that where the employee’s conduct affects the safety and welfare of other employees, the Commission may find that this is a valid reason for the dismissal. 14 In determining whether there has been a safety breach, the Commission may take into account the seriousness of the breach or incident, company policies setting out safety procedures and consequences for breaches, relevant training provided by the employer, whether the incident or breach was isolated or recurring in nature and whether or not the employee concerned was a supervisor and expected to set an example.15 While a substantial and wilful breach of a policy may constitute a valid reason for dismissal,16 it does not follow that a finding that an employee has failed to comply with policies and procedures immediately means that a dismissal is not harsh, unjust or unreasonable. Every case turns on its own facts.17 If widespread policy breaches occur without response from the employer, this weighs against a decision that the dismissal was justified and not harsh, unjust or unreasonable.18

[147] Contrary to the Respondent’s assertions, I am not satisfied that the Applicant’s conduct was a reckless breach of safety procedures. He did not set out to endanger the health and safety of himself or anyone else. The Applicant’s long career with the Respondent, unblemished by any other significant safety breaches, does not demonstrate any propensity for such conduct. Nevertheless, he did decide to park his car across the live line. Though this technically constituted a safety breach, the actual risk was negligible. He was armed with a two-way radio, so would be informed immediately of any movement of trains or shunts, which would mean he would have an opportunity to remove himself and his vehicle from danger. He was also aware that no train was expected to arrive for approximately another 45 minutes. Consequently, he did not perceive there to be any danger.

[148] There is no doubt that the incident involved the Applicant doing something in breach of safety procedures; the Applicant admits as much. I accept that in ordinary circumstances employee’s cannot be left to determine which safety procedures they comply with based on the danger as assessed by themselves. Safety procedures are in place to keep employees and those around them safe.

[149] I accept that a safety breach of this kind must be met with consequences from the Respondent. It is not my role to stand in the shoes of the employer. Therefore, while another cooler head may not have terminated the Applicant’s employment for the technical – negligible – safety breach, I am satisfied that the Respondent did have a valid reason to terminate the Applicant’s employment.

[150] However, that finding alone is not determinative of the ultimate question before me of whether the Applicant was unfairly dismissed. It is but one matter to which I must have regard in determining whether the termination of the Applicant’s employment was harsh, unjust or unreasonable.

(b) and (c) whether the person was notified of that reason and had an opportunity to respond

[151] I am satisfied that the Applicant was notified of the reason for his dismissal and had an opportunity to respond to the allegations. His representatives provided a fulsome response on his behalf on 8 October 2021. He may not have had an opportunity to challenge the Respondent’s ultimate decision to terminate him by making specific submissions regarding the mitigating factors, but he was warned that termination might be contemplated in the show cause letter and therefore had an opportunity to address it if he wished. Further, given the Respondent’s position it is unlikely that any such submission would have had an impact on the ultimate decision.

(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

[152] The Applicant was not unreasonably refused a support person.

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

[153] This factor is irrelevant to the present case.

(f) and (g) the degree to which the size of the employer’s enterprise and the absence of dedicated human resource management expertise would be likely to impact on the procedures followed

[154] The Respondent is a large employer with a well-resourced human resources department. The Respondent seemingly followed its own procedures with respect to the information gathering process. The decision to terminate his employment was then made by the appropriate individuals. Whether they properly exercised their discretion is a matter considered in respect of other factors.

(h) any other matters that the FWC considers relevant

[155] I have regard to the fact that the Applicant had worked for the Respondent for 33 years, during which time there had been no other issues with his performance in respect of safety. The Applicant is a man of senior years, trained as a carpenter, in an area with limited employment opportunities for someone of his age and skill set. The termination of his employment has had a significant impact on him and his family.

[156] His conduct was a deliberate act but not a wilful breach of safety procedures or one which recklessly disregarded the safety of himself or others. It was argued further on the Applicant’s behalf that the decision to terminate the Applicant’s employment was harsh and disproportionate to the gravity of his conduct. The Respondent could have elected to impose a lesser sanction upon the Applicant but did not do so. The Respondent’s view was that the Applicant’s departure from the prescribed procedures was so great that it could no longer reasonably risk the Applicant’s continued employment. It was repeatedly stated on the Respondent’s behalf that it takes safety very seriously – always – and has a zero-tolerance policy towards safety breaches given the high-risk nature of the environment.

[157] However, there was a tendency by the Respondent – at first instance by Ms Coran when she arrived on 28 July 2021 and then subsequently by each person called as a witness and in its submissions – to inflate the gravity and seriousness of the Applicant’s conduct. That is particularly so given that the evidence suggests that it was commonplace for others to conduct foreigners on their vehicles. The Applicant said he did not know whether these have been performed across the line or next to it. That said, it was clear from the evidence that there had developed a practice of people pumping their tyres in the general vicinity of the train line. One would have thought that this would have warranted some further investigation. Had there been evidence of such a practice arising from the investigation, one might pause before terminating the Applicant for such conduct. There seems to have been little investigation by the Respondent into this before a decision was made to terminate the Applicant.

[158] There was some troubling evidence from a number of witnesses who had formed the view that this particular incident was not properly and realistically evaluated based on the gravity and seriousness of the breach, or indeed the common practices at the workplace, but rather an opportunistic attempt by management to remove the Applicant from the workplace. The evidence given by the three workers suggested that there had been other, arguably more serious, incidents which had not been met with the same zero-tolerance approach to safety. I accept there was not any independent evidence of these incidents during these proceedings, but I was satisfied that each of the Applicant’s witnesses were credible and honest and therefore see no reason not to accept their testimony. In respect of one such incident, Ms Coran said it had never been directly reported to her. However, Mr Richardson’s evidence was that it need not have been reported because it was blatantly obvious to anyone on site that day, including Ms Coran.

[159] A balanced, objective and realistic evaluation of all the evidence relating to the incident and the Applicant’s long, largely unblemished history, does not support the Respondent’s conclusion that the Applicant’s safety breach was of such gravity and significance so as to justify his dismissal. In making the decision to terminate the Applicant’s employment, particularly given his personal circumstances, the Respondent acted disproportionately to the gravity of the Applicant’s breach thus rendering the dismissal harsh, unjust and unreasonable.

[160] Therefore, for the reasons given above, I am satisfied that the Applicant has been unfairly dismissed. I turn now to remedy.

Remedy

[161] Given that I have found that the Applicant’s dismissal was unfair, it is necessary to consider the question of remedy. The Applicant has made an application under s. 394 of the Act and in my view the Applicant should have a remedy for his unfair dismissal.

[162] Section 390 of the Act provides that:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[163] As to reinstatement, s.391 of the Act goes on to say:

“Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

[164] Section 392 sets out the considerations for awarding compensation:

“Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled; (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

Applicant’s submissions

[165] The Applicant seeks that the Commission make orders for his reinstatement. It is respectfully submitted given the Applicant’s long service to the Respondent, his age, the likelihood of obtaining alternative employment, his particular skillset and the size of the Respondent’s organisation to absorb the Applicant back into its operations, including in an alternative role if required, that reinstatement is a proper and appropriate outcome in this case.

[166] The Applicant seeks further orders for compensation for lost wages and entitlements (superannuation and leave) from the date of termination (2 November 2021) until the date of reinstatement.

Respondent’s submissions

[167] The Respondent submits that reinstatement is not appropriate on the basis that there is a loss of trust and confidence in the Applicant because he failed to work safely and “in doing so jeopardised the right of Queensland Rail workers….to be free from risk.” In other words, the Respondent cannot take the risk of the Applicant who has shown reckless complacency toward safety in the workplace. Nor can it tolerate employees who continue making poor behavioural choices without disciplinary action being taken.

[168] Additionally, the Respondent asserts that a decision to reinstate would have a profound impact on the remainder of the workforce. Despite the Respondent’s efforts to maintain privacy in all disciplinary matters, the depot at which the Applicant works is relatively small, and it would set a dangerous precedent with regard to the Respondent’s safety culture and tolerance for poor behaviour. The Respondent submits the harmony of the workforce would be affected through if the Applicant were to be reinstated. It could very well give rise to a situation where employees believe they are immune from dismissal and can disregard safety procedures and treat each other discourteously and disrespectfully.

[169] Finally, the Respondent submits that reinstatement is untenable given the way the Applicant has sought to discredit Ms Coran, with no evidence to prove the allegations, relying only on unfounded accounts of a small number of disgruntled employees. The Respondent maintains that there is a loss of trust and confidence in the Applicant, that the employment relationship has deteriorated significantly and reinstatement would be entirely inappropriate.

Consideration

[170] In the present case I am satisfied that reinstatement is an appropriate remedy, for the following reasons. Firstly, the Act provides that it is the primary remedy for unfair dismissal. 19 Secondly, the Applicant conceded that his conduct amounted to a safety breach and that he could have found different words to express himself towards Ms Coran. He expressed regret and remorse for his conduct. Given how these proceedings unfolded I have confidence that the Applicant will ensure that he does not park across a live track should he ever pump his tyres at work again.

[171] Thirdly, I do not accept that there is a reasonable basis for the Respondent to assert a loss of trust and confidence in the Applicant. He has been a dedicated and safe employee for 33 years. One incident of the kind that occurred on 28 July 2021, cannot reasonably displace the level of trust and confidence accumulated over that period. That is particularly so give the Applicant’s conduct on that day was not wilful or reckless. The Applicant thought he had the situation under control and, indeed, there was no harm caused to any person or property by his conduct. With an appropriate warning, I think any risk posed by the Applicant’s casual approach to filling his tyres could be eliminated. If he fails to follow safety protocol on another occasion, termination may then be reasonable.

[172] Fourthly, I do not consider that the Applicant’s reinstatement would set a dangerous precedent for the Respondent’s safety culture and tolerance for poor behaviour. The Respondent could issue the Applicant with a formal warning for the conduct to ensure that all involved are aware of the seriousness placed upon safety by the Respondent.

[173] Finally, an order for reinstatement places the Applicant in the same position that he would have been in had he not been dismissed. Given the Applicant’s age and specialised skill set, this outcome is more just than any reasonable order of compensation could hope to be.

[174] Accordingly, I have concluded that pursuant to s.391(1) of the Act it is appropriate for the Applicant to be reinstated to his former position.

[175] I am also satisfied, pursuant to s.391(2) of the Act, that it is appropriate for an order in respect of continuity of the Applicant’s employment and his period of continuous service be made, particularly given the Applicant has been unfairly dismissed after some 33 years of service with the Respondent.

[176] I also consider it appropriate, pursuant to s.391(3) of the Act to make an order that the Respondent pay the Applicant an amount for the remuneration lost on account of the dismissal. I will make a deduction of two months’ pay from the amount awarded for lost remuneration, on the basis that it was the Applicant’s admitted safety breach which was the catalyst for his termination.

[177] I order that the Applicant be reinstated to his former position.

[178] I order that the continuity of the Applicant’s employment be recognised.

[179] I order that the Respondent pay to the Applicant the amount of remuneration lost on account of the dismissal.”

Rainbow v Queensland Rail T/A Queensland Rail  [2022] FWC 589 delivered 16 March 2022 per Lake DP