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Introduction

This decision relates to the dismissal of a driver of a bulk cooking oil truck and his (angry) response to “being cut-off” by a car driver. A case where a spur of the moment decision can lead to big trouble.

Life-Threatening Road Rage by Truck Driver was the email heading of complaint of a car driver against the applicant. Add to this an angry and upset truck driver’s account by telephone (“F’s” and “C’s”) to his manager (who was travelling in his car with his fiancé and young child), ended in the truckie’s dismissal.

Background

The applicant was employed by the respondent as a bulk oil tanker driver from 9 May 2018 until the dismissal on 20 January 2020. The dismissal, with a payment in lieu of notice, arose against the general backdrop of a traffic-related incident on 15 January 2020, and the alleged actions of the applicant in relation to that incident; and the contents of a telephone call to a manager to report the incident.

The applicant was driving a six-tonne vehicle at the time of the incident. Aspects of what occurred in the incident were captured on dashboard camera (“dashcam”) footage from another of the respondent’s trucks being driven by one of the applicant’s colleagues, which was not far behind the vehicle driven by the applicant.

The incident

The applicant’s evidence indicated matters including that on 15 January 2020 he was travelling in a company vehicle on a road where two lanes merge into one. A vehicle (“the red car”) sped-up beside him and cut him off, forcing him to brake heavily to avoid hitting the red car or, separately, a cyclist. The applicant’s first reaction was to beep his horn. The applicant made a right-hand turn where the driver of the red car continued driving erratically, and the driver cut-off the applicant two more times. There was an oversized truck which the applicant was trying to get around. Once again, the applicant was cut-off by the red car.

After continuing down a roadway with normal traffic flow the applicant and the red car approached an intersection, and the applicant attempted to merge into the right-hand lane. As the applicant was indicating to the driver of the red car to move over, the red car “sped up in the right lane to block [the applicant] from moving over” and the driver started beeping his horn at the applicant. It became clear to the applicant the driver of the red car “wasn’t going to let [the applicant] in the right-hand lane so [he] remained in the centre lane of traffic”.

When the traffic was stopped at traffic lights, the applicant was looking in his driver’s side mirror when he saw the driver of the red car exit his vehicle with something in his hand, and, in what that applicant considered was a threatening manner, slammed his car door shut and approached the applicant’s truck. The applicant exited his truck. The applicant indicated this was because he was feeling threatened by the other driver’s actions and his body language and was ready to defend himself. On the applicant’s account, the driver of the red car proceeded to record the applicant and scream abuse at the applicant. Upon realising that the driver of the red car was not going to physically attack him, the applicant “hopped back in” his truck. Separately, the driver of the red car then proceeded to “harass” a “colleague”, who was driving the second truck, allegedly “abusing him and threatening him and taking photos of his licence plate”.

At this point, the applicant thought he should take a photograph of the red car’s number plate, which he did before getting back into his truck for a second time. The applicant and the driver of the red car then resumed driving their respective vehicles and went their separate ways without further incident.

Company policy

Under the respondent’s policies, employees are to contact the relevant supervisor/manager to report work-related incidents. The applicant promptly telephoned the Manager of the ACT/NSW Branch of the respondent’s business, to inform him about the incident. The applicant said he was “still very shaken up” and “angry”. The applicant then recounted his description of matters involving the driver of the red car to the manager. As recounted in the applicant’s own evidence-in-chief, the conversation with the manager then continued in the following way:

“[The manager] then said, “calm down mate so what else has happened?” I then said to [the manager] “I want to cut that c**t off just to spite him, the f**king c**t. I should’ve run him off the road into a tram.” He told me “you can’t do that mate, so your response to him cutting you off is to cut him off?” I replied “yes, f**k him he nearly made me hit a cyclist mate I am still shaken by it I am p**sed off that he done that and then attacked me!”

The manager then said, “so do you think running him in to a tram is the correct response?” I replied, “I don’t care, death to the c**t.” he said that “you can’t react like that, to cut someone off out of spite.” I said, “I didn’t cut him off I am just angry at the whole situation.” He responded, “you need to calm down mate go take 10 minutes have a smoke and calm down before you start making deliveries.” I then told him “he got out of his car and took photos of mine and Johns’ truck. So, you might get a phone call or a complaint, that’s why I am ringing to let you know what’s happened.” He said, “just calm down mate take a break and once you’re calm carry on with your run.” I said “no worries. Talk to you later, catch ya” And the call ended.”

Unfortunately (for the applicant), when the applicant rang his manager, the manager was driving and had his finance and young child in the vehicle with him.

Swearing is workplace culture?

[13] As to what the applicant said, and considered in the context of the applicant’s evidence that swearing was part of the workplace culture, the manager’s evidence was:

“… I acknowledge that from time to time people do swear in the workplace. However, the odd swear word is one thing, but swearing profusely with nearly every second word being either “F” or “C’ in a completely other situation [sic]. I do not agree that the odd swear word is then allowing for open slather swearing when the person on the other end of the phone tells you that his family is present and to moderate your language. However, it was not only the swearing that was of concern. The vehemence of [the applicant’s] threat to the other driver was quite frightening.”

The “red car” version

At around 9.00 am on the same day the manager received a telephone call from the driver of the red car and listened to that person’s account of matters. The manager then escalated matters by contacting senior managers and HR personnel for advice and/or instruction. In consequence, the applicant was placed on paid suspension pending an investigation. As part of that investigation, the manager asked the driver of the red car to send his allegations in writing. Mr Rowland also viewed the dashcam footage from the second truck. (After viewing the dashcam footage, manager spoke with the second driver) about the footage that showed him interacting with the driver of the red car and showing potentially aggressive behaviour to the driver; the manager cautioned the second driver about this).

The driver of the red car and by then a complainant set out in writing his characterisation of what had occurred in an email with a subject line which read “Life-Threatening Road Rage By [respondent] Driver”. The complainant did not give evidence in the proceedings, and his name was redacted in an email which was in evidence (following upon his earlier request to the respondent concerning confidentiality). Given the complainant did not give evidence in the proceedings, what is said in his email was evaluated and “weighed accordingly”. The Commissioner explaining:

“The complaint is recounted in this decision because its contents form part of the fabric against which the decision was made to dismiss the applicant”.

Shortly stated, the complainant recounted in his email his account and perceptions of what had occurred on 15 January 2020. Relevantly, the complainant “sensed” that the applicant was trying to follow him for about 3 km and then engaged in driving which he considered to be frightening and life-threatening – in that the applicant, upon levelling with his car, (allegedly) deliberately and very noticeably swung his truck into the complainant’s lane almost forcing him to crash. Immediately thereafter, the traffic stopped due to red lights at an intersection and the complainant “jumped out of the car” to take photographs with his telephone. As recounted by the complainant, the applicant immediately got out of his car and started to approach him until he saw the camera. According to the complainant, the applicant “then quickly covered his face and turned around and gave me the f**k finger signal and got back in the truck.” The complainant also took photographs of the number plate of the second truck and the face of the driver and while doing so noticed a dashcam in the second truck. The complainant recounted how the driver of the second truck had immediately revved his engine and the truck jumped forward slightly, whereupon the complainant “threw [his] hands in the air in astonishment and asked the driver if he was going to run me down on the highway”. The driver of the second truck responded by saying “Yes I Will!”. Upon returning to his car, the complainant was informed by his wife that the applicant had approached the red car; his wife, the email continued, “who was already in a state of shock, said she felt very intimidated and fearful.” The complainant also recounted that he turned off the highway soon after and immediately contacted the Police and, later, the manager (whom he spoke of in favourable terms in relation to his handling of the initial telephone complaint).

Subsequent developments

Later that same day of 15 January 2020, the applicant was stood down pending a meeting about the incident.

Meeting and support person

Matters were put in motion to arrange a meeting with the applicant. The meeting initially was scheduled for 17 January 2020 but was rescheduled to 20 January 2020. Although the applicant wished to have the second driver attend the meeting as his witness/support person, the respondent did not consider this was appropriate given the second driver’s own involvement in matters and because the second driver may be subject personally to disciplinary action. In consequence, another work colleague was enlisted for the purpose of being a witness/support person for the applicant. A meeting was conducted on 20 January 2020 involving the applicant, his support person and managerial employees – and (via Zoom) the respondent’s Human Resources Manager.

The dashcam footage

Matters were outlined to the applicant by the respondent’s management relevant to the complaint by the driver of the red car, the dashcam footage and the statement prepared by the manager’s fiancé as to what she heard unfold in the applicant’s telephone conversation with the manager. The applicant was advised that the footage showed his truck swerving into the right-hand lane on two occasions; the applicant explained, in such respects, he was just trying to merge into the right-hand lane. When asked about his comments to kill and run the other driver off the road, the applicant responded: “Well I was angry because he just kept stopping me from getting into the lane”.

The dashcam footage showed the truck swerving into the right-hand lane on two occasions, in what looked to the managers “to be quite aggressive action by the applicant towards the driver of the red car.

Tit for tat

One of the managers said in the meeting it seemed the applicant was using the truck to intimidate and potentially run the other driver off the road. The applicant replied:

“Well he wouldn’t let me in and had pushed in front which nearly caused an accident earlier” – to which a manager indicated that the applicant’s actions were more likely to have caused a severe accident. The applicant agreed he had continued to swear in his telephone conversation with the manager, notwithstanding that the manager asked him to stop several times. According to the evidence in the respondent’s case, the applicant “acknowledged that he had said that he wanted to smash the other drivers face and kill him. He tried to justify his actions by saying that he was upset.”

The HR Manager said of the meeting:

“It was my observation of [the driver] during the interview, that he felt he was justified in being aggressive and trying to intimidate the other driver. He did not appear to show any remorse for his actions. His attitude was it was the other driver’s fault and he deserved to be run off the road. I was somewhat shocked at this attitude and glad I wasn’t sharing the same roads as he, as I felt there was a good chance he could do the same to someone else, in similar circumstances where he felt slighted by another driver.”

Decision to dismiss

The managers discussed the complaint by the driver of the red car and found it to be a credible account, especially as it tallied with what was shown in the dashcam footage. A number of matters were also discussed between the managers, including concern for the wife of the driver of the red car given her close proximity to the company vehicle as it swerved right. Further matters that were discussed included that there was company badging on the vehicle (as it would have, for example, reflected badly on the company if an accident occurred) and the telephone discussion in which the applicant reported matters to his manager. Discussion also ensued about the lack of any previous disciplinary matters involving the applicant and his length of service.

The manager described the outcome of the managers’ consideration of matters as follows:

“We were satisfied on the information before us that [the applicant] had deliberately driven in a dangerous manner out of anger at another driver. We were not satisfied that he had any credible excuse for doing so. We determined that this was in itself gross misconduct that could have caused a serious and possibly fatal road incident involving a [respondent] vehicle.

“We were also satisfied that [the applicant] in his phone conversation with me while I was in the car with [my fiancé] had acted inappropriately in threatening the life of another driver and continuing a swearing tirade after being asked to stop several times. We determined that this was further misconduct.

“On the basis of our discussions we were satisfied that it was appropriate to terminate [the applicant’s] employment for gross misconduct. The company could not condone nor risk this action happening again.

“We decided to pay him in lieu of two weeks’ notice, given it was just after Christmas.

“After about a 30-minute break for our discussions both [the applicant] and [his support person] were called back to the office. [The HR Manager] advised [the applicant] that his employment was being terminated for gross misconduct. I gave [the applicant] a termination letter.”

The Commissioner deciding

In deciding that there was a valid reason for dismissing the applicant, the Commissioner stated:

“Having regard to the evidence (including the dashcam footage, at the places described in transcript) and submissions, I am satisfied the respondent had valid conduct-related reasons for the dismissal directly related to wilful and deliberate gross misconduct. While there were differences in the evidence, there is enough even from the applicant’s own evidence to lead me to conclude that the applicant was indeed very angry at the driver of the red car and conducted himself inappropriately in the course of his driving duties in his employment with the respondent.

“The applicant’s own evidence was that he had been cut-off by the driver of the red car and this, in turn, resulted in a cyclist potentially being endangered by the applicant. There is nothing to contradict the applicant’s evidence in such respects and I accept it. Moreover, there was evidence of [the second truck driver], in which he described the driver of the red car as having cut-off the applicant and other drivers, and having been involved in “maniacal driving”; [the second truck driver] was resolute in his cross-examination that, on the basis of what he observed, the driver of the red car was a “crazed driver”. That the driver of the red car cut-off the applicant with the result he may have hit a cyclist did not mean that the applicant’s own responses were appropriate in his employment, let alone “proportionate”. “As the respondent submitted, and I accept on the balance of probabilities occurred:

‘Following this claimed cut off, the Applicant drove his vehicle to catch up with the other car and twice he deliberately verged his truck into that car’s lane, forcing the other driver to take evasive action’ and this was ‘deliberate and wilful unsafe action by the Applicant’…the applicant himself recounted to them a very short time after the incident. Even on the applicant’s own account, he was then still angry and had stated he had wanted to run the driver of the red car off the road – which is, it cannot go unremarked, effectively what the driver of the red car alleged the applicant had done in his driving/swerving”.

Commentary

Whilst the Commissioner found there was no premeditation in relation to the dismissal (ie the respondent has already made up its mind to sack him prior to the meeting), I disagree. The termination letter was handed to the applicant, which given the circumstances and timing was a little too convenient.

Better to send on such a letter later that day or the next day.

Also, the aspects of driver training were not explored. Such (induction) training should clearly set out how professional drivers should respond in such situations. I say this because I take into consideration it being two weeks before Christmas and nerves can become frazzled, additional traffic on the road, etc.

Overall, I think a first and final warning would not have been sufficient to protect the respondent’s brand, and whilst the process could have been avoided (a big “maybe”) a short toll-box meeting on driver behaviour overall and especially during the “silly season” may have avoided the behaviour. As I said “maybe”.

The swearing and (idle?) threats were, whilst being unfortunate, should have been given more sympathy given the circumstances?

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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.

 

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My business grows by referrals. I would appreciate it if you would pass my details on to your colleagues, clients or associates who could benefit from my skill set. Defending/Preventing unfair dismissals, policies and procedures, contracts of employment, codes of conduct and more…

Introduction

Full decision here.

What happens when a truckie at a mine site wants an apology a supervisor using the “f-word”, and finishes his shift early, goes on five weeks’ leave and does not turn up for work because of no apology?

Background

The Applicant commenced employment with the Respondent as an Operator Truck Driver on 1 February 2018 at a Western Australian gold mine.

Nearing the end of his shift (and about to go on 5 weeks’ leave), the supervisor asks via two-way radio for how many loads the truckie had completed for the shift. In this request he used some “fruity language” as part of the request.

The applicant was upset by this use of language towards him, resulting in his parking the truck, having a shower, filling out a report of the incident (at management’s request) and going on leave.

During the period of leave, the respondent attempted to contact the applicant to see if he was okay. The, applicant not responding to these attempts, led to the respondent investigating the matter without the applicant’s input.

The investigation concluded that the applicant had concluded his shift early without proper authority and issued the applicant with a “show cause” letter. With a meeting set up for the date of his scheduled return from leave.

However, despite the respondent’s attempts to contact the applicant, the applicant failed to return to work. The respondent then invoked their enterprise agreement and leave policy requirements relating to abandonment of employment; and after a number of further attempts to contact the applicant, the applicant was dismissed due to abandonment of employment.

The Commissioner’s findings

The Commissioner’s opinion was:

“Whilst the Applicant was entitled to be upset about what was said to him over the radio on 26 December 2019 his reaction that morning was out of proportion with what had occurred. What occurred was quite a brief conversation on the radio.

“The Applicant’s evidence was very clear that at no time on that morning was he scared, there was not any physical altercation, and nobody threatened him.

“The Applicant complains about the swearing of others, but the evidence is he swore himself that morning a number of times.

“The Applicant’s swearing at [redacted], his stopping work before his shift had finished and leaving his truck in an unacceptable condition was not acceptable behaviour.

“The Applicant explained during the hearing that all he was asking for was an apology which would have gone a long way to sorting things out for him.

“Separately the Applicant’s opinion that it was a minor matter for him, after five weeks of annual leave, to not attend site for work as rostered and to make no effort to contact his employer before his rostered shift started to tell them he would not be attending and to then ignore their attempts to communicate with him and finally only contact them a number of days after he was due to return demonstrates a total disregard for his obligations as an employee to his employer.

“In addition, his repeated refusal to come to site, as directed by his employer, where all of the issues could have been dealt with in the normal manner, was unreasonable in all of the circumstances.

“The Applicant’s unsatisfactory behaviour himself on the morning of 26 December 2019, his failure to resume work as rostered after his annual leave, his failure to comply with the Leave Policy and to provide any reason for his non-attendance and his refusal to attend onsite to allow the disciplinary processes to be undertaken were valid reasons for his dismissal related to his conduct”.

Other matters

In dismissing the application, the Commissioner also stating that:

“It is correct as the Respondent has submitted that the Applicant demonstrated no insight in to his own poor conduct throughout this matter in particular he was unconcerned about his deliberate failure to resume work after his annual leave, his failure to notify his employer before this occurred and that he deliberately ignored his employer’s attempts to contact him for a further three days”.