Toll Holdings Limited t/a Toll Transport and Toll Transport Pty Ltd t/a Toll Priority v Joseph Johnpulle.  FWCFB 108 (C2015/4453). HATCHER, VP, KOVACIC, DP, BISSETT. 11 JANUARY 2016.
Toll appealed against a decision of Commissioner Riordan. Commissioner Riordan ordered, among other things, the reinstatement of Mr Joseph Johnpulle to his employment with Toll. Mr Johnpulle had been dismissed by Toll for serious misconduct on 9 February 2015.
Mr Johnpulle’s dismissal arose out of an exchange which occurred between him and a fellow Toll employee, where Mr Johnpulle had said to him words to the effect of “Does Islam say to kill?”, “Younas, are you from the Taliban?”, “I enjoy seeing people having their heads cut off, do you enjoy it too?” and (after Mr Karzi remonstrated with him about these topics of conversation) “No, I am just asking, because people think everyone from Afghanistan is a Talib”. Mr Johnpulle’s version of events was radically different. He said that Mr Karzi had a history of expressing his personal and religious beliefs at work, and in the course of a conversation between them on 7 January 2015 had asserted that the American Army was killing innocent people in Arab countries and had actually perpetrated the much publicised ISIS beheadings, and said words to the effect of:
“See what’s happening in my country, in Afghanistan. The Americans have gone in there was some stupid Afghanis have joined the Americans and they are raping the mothers, daughters, and sisters of Afghanistan … Joe, if someone raped your mother, or sister, or daughter, what would you do? You would have to defend her, right?”
Mr Karzi complained to the management of Toll about the incident, an investigation occurred. “As often happens, this investigation went beyond the complaint” it and examined other matters, namely earlier incidents between Mr Johnpulle and Mr Karzi. Ultimately Mr Johnpulle was required to respond to four allegations in total, including he had said to Mr Karzi words to the effect of “Younas, what the Taliban did in America was very good. I enjoyed when the building was coming down. Did you like it or not?” The third “Younas, it’s good what the Taliban did to America. Look what they are doing to the Afghan people.” The fourth “Oh Younas, last night I watched a video. The Taliban was killing someone.”
It was further alleged that the second and third of these incidents had been the subject of earlier complaints by Mr Karzi to his Team Leader, Mr Mostafa Fath, that after the second incident Mr Fath had told Mr Johnpulle to cease conversing with Mr Karzi about such matters and that Mr Johnpulle had agreed to do so.
Mr Johnpulle denied all these allegations, including that Mr Fath had spoken to him as alleged. However Toll’s management found that all the allegations were substantiated and were set out in a letter stating that Mr Johnpulle’s “inappropriate and offensive comments to Younas Karzi indicate a pattern of unacceptable behaviour, particularly when you were asked by Younas and team leader Mostafa Fath to cease and particularly because you indicated you would”. The letter concluded by informing Mr Johnpulle that he was dismissed with immediate effect, and would be paid one month’s wages in lieu of notice and any accrued entitlements.
The hearing before the Commissioner ran for three days and involved a large number of witnesses who gave conflicting evidence about the conduct of Mr Johnpulle and Mr Karzi. It is sufficient to say that while a number of witnesses gave evidence which supported Toll’s conclusion concerning the allegations against Mr Johnpulle, other witnesses gave evidence supportive of Mr Johnpulle’s assertion that it was Mr Karzi who had a history of making inflammatory religious and political remarks in the workplace.
The Commissioner found:
“I find that Mr Johnpulle made comments to Mr Karzi…which caused him distress and anxiety. I have no reason not to believe the evidence of Mr Karzi in relation to the comments that he attributes to Mr Johnpulle on that day. As such, I find that there was a valid reason for the termination of Mr Johnpull.”
However, the Commissioner also found that:
“…Mr Johnpulle was not given a formal warning. In relation to any form of a disciplinary process, Mr Johnpulle had been spoken to on two occasions by his leading hand Mr Fath, a leading hand who has no direct control, in a disciplinary sense, over Mr Johnpulle. It is a quantum leap from an informal verbal warning for conduct which may be bordering on inappropriate, to being terminated for serious misconduct [my emphasis]…”
- That the investigation process was flawed.
- That there was a hostile work environment at the relevant site in which some employees had engaged in intimidation, vilification and harassment.
- That Mr Karzi was not fearful or concerned about working alongside Mr Johnpulle after the incident.
- That Mr Johnpulle had not been given any formal warning about his earlier conduct prior to dismissal.
- That Mr Johnpulle had behaved inappropriately by professing to have no recollection of the incident when first asked about it.
- That it was grossly unfair to Mr Johnpulle that the involvement of the Transport Workers’ Union (TWU) delegates on his behalf was treated by Toll as a “key component” of the decision to dismiss him.
- That Mr Karzi had behaved towards another employee (Mr Tony Monda) in a manner that was equally offensive and inappropriate but this had not been dealt with consistently compared with Mr Johnpulle and had not even been investigated.
The Commissioner concluded that because of the above points “He was not afforded a fair go” and ordered that Mr Johnpulle be reinstated, with no loss of continuity of service, and back payment of seven weeks’ ordinary pay, less the amount paid to him in lieu of notice, and also that he “be issued with a final warning … to remain on his file for a period of 12 months”. [My emphasis].
The Commissioner also stated:
“Mr Johnpulle’s conduct cannot be condoned in 2015. It is highly offensive and inappropriate to insinuate or assert that one’s religion or culture can be generalised in the manner in which occurred in January. I also believe that Mr Karzi should be issued with a formal warning. Making comments about other religions, or comments in relation to the supremacy of his religion, in the workplace, are also inappropriate and a breach of the policies of Toll. I so order.”
Toll appealed and the decision was set aside pending a further hearing.
The Full Bench found that it was flawed in three ways:
- The Commissioner erred in not taking into account as a significant consideration:
- That Mr Johnpulle had engaged in the earlier instances of conduct as alleged;
- Had been told not to engage in that conduct again and had agreed he would not do so.
- On each occasion it was essentially the same conduct as that which the Commissioner found occurred on 7 January 2015 and constituted a valid reason for dismissal.
- In those circumstances that earlier conduct could not fail to be a relevant matter.
- Mr Karzi and had persisted in that behaviour notwithstanding that he had been told by the Team Leader to cease such behaviour and he had agreed to do so.
- That was necessarily a highly material consideration which, while not necessarily being determinative, was adverse to the conclusion that the dismissal was harsh, unjust or unreasonable. It was also relevant to the issue of reinstatement, since it went to the degree of risk that Mr Johnpulle might repeat such behaviour in future if reinstated.
- Did not have regard to the fact that Mr Johnpulle’s misconduct was not isolated but was part of a “pattern of unacceptable behaviour”. That was an error in the exercise of his discretion of the type described in House v The King as a failure to “take into account some material consideration”.
- The second error was that the Commissioner gave no reasons for his determination to order the remedy of reinstatement:
- Toll opposed reinstatement, and called evidence and made written and oral submissions in that connection, the Commissioner was obliged to give reasons for his decision to order the remedy of reinstatement. The obligation to give reasons was described by the Full Bench in Barach v University of New South Wales:
“The duty to give adequate reasons for decision has been considered on many occasions. Important public policy considerations underlie this duty. In particular, the reasons for decision must be sufficient to allow the parties to exercise such rights of appeal as may be available and to enable an appeal bench to determine whether or not error has occurred in relation to a decision. Consequently the reasons given must articulate the essential grounds for reaching the decision and must address material questions of fact and law in a manner which discloses the steps which lead to a particular result. However the reasons for decision of a tribunal member need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings.”
- Acted beyond power in ordering that written warnings be issued to Mr Johnpulle and Mr Karzi:
- Did not identify the source of power to make such orders.
“It may not be inappropriate in certain circumstances for…the Commission to express an obiter view in an unfair dismissal decision that a person who is to be reinstated should be issued with a warning, but it is quite a different thing to purport to order this”.
There was no basis for Mr Karzi to be the subject of any substantive order in proceedings to which he was not a party, and the purported order directed to him necessarily involved a denial of procedural fairness. The Decision was therefore attended by jurisdictional error.
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