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Introduction

Full decision here.

A series of misconduct incidents leads to the a VERY unfavourable decision for the applicant in this matter. And not one that the applicant would wish to use a work “reference”!

The applicant in this matter was a NSW bus driver who had worked in the industry for some 25 years (five with the respondent). During these five years he had racked-up numerous formal warnings (of which the applicant testified were of a “minor nature”. The nature of the warnings were:

  • “Final written warning” for smoking a cigarette inside the bus.
  • “Formal written warning” for non-compliance of the company uniform policy (he was wearing a plain white shirt). He was ordered to return to the depot. Despite being ordered back to the depot, he continued on for some of his route “to drop off passengers”.
  • Received a warning for his behaviour at an afterhours work function in which he accused a work colleague of keeping money that was meant to be a “tip” for the wait staff at the function. The applicant also followed-up with sending text messages to the work colleague which contained some “choice words” and “may” have made the work colleague feel “threatened”.
  • A “formal re-issued written warning” regarding the defacing of company property. The Applicant drew a picture of a dartboard (with a number of knives hanging out of it) on the back of a fluorescent coloured vest supplied and owned by the Respondent. The Applicant also drew a picture of two pistols on the front of the vest.
  • A “final written warning” regarding an incident in which he was almost hit by a bus leaving the depot. The bus was being driven by the same work colleague that he had accused of taking of the “tip” money. The Applicant reported the incident to Respondent. However, CCVT footage showed that he had deliberately walked in front of the bus.
  • Was made aware of a complaint made about the Applicant by a member of the public, stating that her son had been bullied on the bus by other students and the applicant had taken no action to protect her son. The Applicant denies having any knowledge that such bullying occurred. The Applicant was directed by the Respondent to complete an incident report regarding the Bullying Complaint. In completing that incident report, the Applicant only wrote “f**k off I know nothing” The Applicant says that the timing of his receipt of the Bullying Complaint was made worse by the fact his brother passed away some days prior. The applicant’s excuse:

“[He] only wrote the words “**ck off” because his ‘writing is very bad’ and his ‘reading and writing is not up to scratch’. When asked why he did not go and see a manager and discuss the Bullying Complaint with him/her, the Applicant said he did not do so because he is a “simple guy”. Tellingly, the Applicant made the following statement:

“I thought that when it was handed in, the manager of the operations would receive it and hand it back to me and get me to redo it. That’s what I honestly thought”.

Final warning letter

The final warning letter that the Applicant received regarding the Near Miss Incident states that his employment would be terminated if there were any further reported incidents between himself and the work colleague. He denies that the letter stated he would be terminated for “any” breach of company policy.

The Deputy President’s commentary

In dismissing the application, the DP found:

“…the Respondent’s complaint’s handling process is a critical process to the Respondent’s business. The Respondent is obliged to treat complaints seriously (in accordance with the NSW Government’s expectations on same). Failure to meet those obligations could very well jeopardise the Respondent’s contractual relationship with the NSW Government (which is an all-important relationship to the Respondent).

“I do not accept that the Applicant’s behaviour in regard to the Swearing Incident amounted to “serious misconduct” at law, (that is, behaviour not in keeping with the continuation of the Applicant’s employment [per Randall v Aristocrat Leisure Ltd [2004] NSWSC 411]). As critical as the complaint reporting process is to the Respondent’s business, the Applicant’s written response did not go so far as to suggest that the Applicant had evinced an intention not to continue in his employment. However, it was certainly conduct that ‘breached’ the express and implied terms of the Applicant’s employment agreement (contract) with the Respondent, thus amounting to misconduct. However, in and of itself, I do not consider it to be misconduct justifying dismissal without notice.

“However, there is more to this story than just the Swearing Incident. Indeed, [the respondent], in making his decision to dismiss the Applicant, relied upon various other incidents of misconduct committed by the Applicant during his employment. Having considered the evidence in relation to those other incidents of misconduct, I have concluded that they are all sustained, but for the Cigarette Incident (upon which I do not consider there to be sufficient evidence to make a finding that the Applicant was caught smoking in the bus, as opposed to outside the bus), and the Conflict Incident (which occurred outside of work)…

“Specifically, in relation to the Near Miss Incident, the Respondent submits that the Applicant intentionally walked out in front of [the work colleague’s] vehicle, and that the Applicant did so to antagonise [the work colleague]. Having reviewed the CCTV footage myself at hearing, I consider it reasonable to conclude that the Applicant intentionally moved (wandered) in front of the moving bus being driven by [the work colleague]. This incident resulted in a final warning being issued to the Applicant (within six months of the Applicant’s dismissal). It may well be that this final warning concerned the Applicant’s behaviour in relation to the Near Miss Incident, but it can equally be said (on any reasonable view) to be a final warning in relation to bad attitude and poor conduct. Walking in front of a moving bus as a ‘gag’, or to intentionally antagonise another driver, is nothing less.

“The Applicant’s evidence that during his employment he was not subject to any “major poor performance issues is untenable. In my view, on the evidence, it is unquestionable that the Applicant wilfully engaged in the conduct described in the Non-Compliance, Defacing Vest, Near Miss, and Swearing Incidents. The fact that the Applicant seeks to explain away, or otherwise downplay, the significance of these incidents (to the Respondent, and in these proceedings) cannot alter the fact that this conduct occurred. Nor can it alter the fact that such conduct, in my view, amounts to repeated instances of misconduct to which the Applicant received written warnings (including two “final written warnings”), and had his employment terminated for (Swearing Incident).

“The hostile relationship the Applicant has with his colleague…as well as his wilful disregard for the words he wrote in the complaint report (whether he knew it was being provided to [name redacted] or not), demonstrates that the Applicant’s attitude towards his colleagues, and the expectations of him in that regard, are not of the same importance in his mind as they are for the Respondent.

“In his evidence, the Applicant asserts that his working relationship with [the work colleague] has returned to “normal”. I take that evidence with a grain of salt. The Applicant did not call [the work colleague] as a witness to support this positive assertion in his evidence. I am therefore unable to verify if the Applicant’s evidence as to normalcy in the working relationship is true. Given the length and intensity of the animosity between the two, I do not accept that I can make a positive finding that the Applicant and [the work colleague] have made amends. Indeed, on the current state of the evidence, it would be more appropriate to infer that their relationship more likely remains acrimonious to this day.

“…the Applicant’s repeated incidents of misconduct (including his repeated disregard of the Respondent’s policies and procedures), amount to a valid reason for his dismissal. Absent a single incident of serious misconduct, the Respondent has nevertheless recourse to a defensible reason for termination, being that the Applicant has repeatedly engaged in misconduct, and continually snubbed expectations. The Respondent does not need to tolerate such behaviour indefinitely, especially when that behaviour makes other employees’ jobs all-the-more difficult for them to perform. I say this putting aside the warnings issued in relation to the Cigarette and Conflict Incidents.

“I also conclude that it is unreasonable for other employees to have to tolerate the Applicant’s repeated behaviours indefinitely. Contrary to the parties submissions in relation to various cases concerning swearing in the workplace, [I was referred to the following cases in this regard: Slater v Patrick Port Logistics Pty Ltd [2012] FWA 7204; Seychelles v Linfox Distribution Group (unreported decision of Wednesday, 31 July, 1996, in Matter No.IRC 511 of 1996); Nathan Hill v Cobham Aviation Services Pty Ltd [2019] FWC 7875]. in my view, the key issue in these proceedings is not the fact that the Applicant swore, but that his response hampered [name redacted] Ms Sherry in the performance of her duties (which, incidentally, are business critical duties for the Respondent). The question must be asked, why should an employer have to continue the employment of an employee who intentionally and repeatedly engages in misconduct, making their business operations more difficult to run, and the workplace more uncomfortable for other staff to work at? The simple answer is that the employer does not and (as a general proposition) would be able to rely on such a reason as being a “valid” one in and of itself.

“In view of the foregoing, I find that there was a valid reason for the dismissal of the Applicant by the Respondent. This leans away from a finding that the dismissal was harsh, unjust and/or unreasonable.

“I do not accept that the decision to dismiss the Applicant was disproportionate in the circumstances. Despite the Applicant’s length of tenure, his record of misconduct is hardly spotless. Further, this record of misconduct is compounded by the fact that the Applicant’s conduct in regard to the Swearing Incident (if left unattended or unaddressed) may have adversely affected the Respondent’s reputation and standing with the NSW Government, and underscores the significance of the unacceptable nature of the misconduct engaged in by the Applicant. All in all, in my view, the Applicant’s dismissal was a proportionate and appropriate response in the circumstances. Of course, the Applicant could have received another warning or final warning, but the Respondent had clearly formed the view that its dismissal of the Applicant was the most appropriate decision for it to make in the circumstances. On the facts and circumstances of this case, it is not for me to take a contrary view.

“As to the Applicant’s age, the Respondent submits that the Applicant’s age is near the industry average, and would otherwise not (and has not) prevented the Applicant from securing alternative (albeit casual) employment in the industry. I accept the Respondent’s submissions in this regard. I consider that the Applicant’s age is a neutral consideration in these circumstances.

“On the issue of the passing of the Applicant’s late brother at or about the time of his dismissal, I accept that this issue would likely have been weighing heavily on the Applicant’s mindset at the time. However, I do not consider, on the evidence, that it can be elevated to the point that the Applicant’s dismissal becomes harsh, unjust and/or unreasonable. Equally, the fact that the Applicant has a mortgage (or rent) to pay, beyond that fact alone, does not, in my view, create a situation in which the Applicant’s dismissal can be said to be harsh, unjust and/or unreasonable.

“Finally, I do not consider the absence of notice of termination, or payment in lieu of same, a matter that I need take into account in these proceedings. That is an issue as to an entitlement to notice under an employment contract and/or s.117 of the Act. This is not the forum to consider this issue from the perspective of unfair dismissal, or otherwise”.

[GR: the DP is tacitly saying that the applicant should pursue this with the FWO].

The DP Concluding

“During the course of his employment with the Respondent, the Applicant repeatedly engaged in misconduct. Taken individually, each of those incidents of misconduct alone may not give rise to a valid reason to dismiss the Applicant. However, collectively, the Applicant repeatedly demonstrated that he was resistant to following the Respondent’s directions and expectations. The Applicant flouted workplace policies, soured workplace relationships, and made the work of his colleagues all the more difficult to perform. He knew he was not meant to engage in such conduct, but did so anyway. The consequences of those decisions have ultimately resulted in his dismissal by the Respondent”.

My commentary

The “Swearing” cases referenced by the DP in the above matter emphasised that the swearing was aggressive and intimidatory. These cases concluded as follows:

Slater v Patrick Port Logistics Pty Ltd [2012] FWA 7204

“[161] Turning then to the specific requirements of s 387 of the Act, I make the following findings.

  1. there were valid reasons for the applicant’s dismissal being his aggressive, intimidatory and abusive conduct on the 17th February 2012, which was contrary to the respondent’s ‘cardinal rules’. The applicant was well aware of the respondent’s policies and chose to ignore them.

  1. e) while not accepting the warnings he received, the applicant acknowledges that he had had three earlier warnings. I earlier found it was actually five. The three warnings, but most particularly the last, on 5 March 2011 was for conduct, remarkably similar to the incident on 17 February 2012. It could not be seriously doubted that the applicant was clearly ‘on notice’ that a repeat of the behaviour would lead to disciplinary action, including dismissal. Ridiculing the training he received on December 2011, on the respondent’s ‘cardinal rules’ does him little credit. In any event, one does not need training to have known the kind of conduct he displayed was unacceptable in any environment; let alone the workplace.

  1. g) the other matters I consider relevant to this application have been extensively canvassed in this decision. Nevertheless, I reemphasize the applicant’s poor employment record, the fact that the reasons for the applicant’s ultimate dismissal are entirely consistent with other incidents recorded in the applicant’s employment history, his lack of contrition and his shifting of unsubstantiated allegations towards Mr Hawke and Mr Thorne. In short, the observation that the applicant was ‘the architect of his own demise’ is particularly apposite to this case.

Nathan Hill v Cobham Aviation Services Pty Ltd [2019] FWC 7875]

“[176] I have found that there were valid reasons for Mr Hill’s dismissal based on breaches of duty and in particular Mr Hill’s misconduct in the workplace on 13 May 2019 when he abused, threatened and intimidated Ms Kuchel.

“[177] Despite his length of service and generally good work record, dismissal was a proportionate response given the prior warnings and counselling.

“[178] Individually and collectively, the misconduct in the face of repeated warnings and counselling established a well-founded loss by the employer of trust and confidence in Mr Hill’s capacity to work in a manner that complied with Cobham’s Code of Business Conduct.

“[181] I have considered whether the dismissal was harsh in three contexts: harsh because Mr Hill had earlier suggested he could apologise; harsh because of Mr Hill’s health and depression; and harsh because of personal impacts on Mr Hill.

“[182] The sanction imposed was the most severe available to the employer: dismissal. It chose not to give further warnings or refer Mr Hill to training or coaching. Relevantly, it did not summarily dismiss Mr Hill but dismissed on the payment of four weeks’ notice in lieu.

“[183] A dismissal is not rendered harsh simply because a lesser sanction is an option open to an employer. It is not uncommon that a number of reasonable disciplinary courses may be available to an employer on a given set of facts. The test under the FW Act is not whether the Commission would have dismissed in the circumstances that the employer did or whether the employer could have or should have been more lenient or taken different steps to make the sanction fairer. It is not the Commission’s role to stand in the shoes of an employer to determine which of those courses it may or should choose.

“[184] The statutory object of the FW Act is one of ‘a fair go all round’ having regard to the decision that was made and all relevant circumstances. What is required to be determined is whether, in all those circumstances, the dismissal was, in objective terms, harsh, unjust or unreasonable.

“[185] I have concluded that the combined effect of the incident of 13 May 2019, Mr Hill’s disrespectful conduct during the disciplinary meetings and his lack of remorse coupled with the warnings and counselling over the previous two years led to a well-founded loss by Cobham of trust and confidence in Mr Hill’s capacity to work in a manner that complied with the Code.

“[186] I have also concluded that personal factors do not materially explain the misconduct and, whilst real, are not unique or sufficiently weighty in the context of the misconduct to render the dismissal harsh.

“[187] Whilst the employer did not decide a lesser sanction, it cannot be objectively said that the dismissal was harsh, unjust or unreasonable. Mr Hill ultimately lost a job that he had performed for a long time and which was important to him as a result of his failure over a reasonable period to accept accountability for and remedy Cobham’s justified concerns with the sporadic but not infrequent occasions he communicated with staff and managers in a disrespectful manner.

[188] Whilst believing that he was treated unfairly, he was not denied a fair go.