[Subtitle: much discussion about that “f” word]

Ms Susan Coughlin v Greyhound Australia Pty Ltd. (U2014/11994) [2015] FWC 2631. CLOGHAN, C.1 JULY 2015

  • Ms Coughlin commenced employment on 11 October 2013.
  • Ms Coughlin’s letter of appointment as a bus driver states that, while working for the Employer, she is required to comply with all company policies and procedures. The Employer’s Code of Conduct which sets out the standard of behaviour expected of Greyhound employees was highlighted in Ms Coughlin’s letter of appointment. Ms Coughlin was required to familiarise herself with the Employer’s policies and procedures and invited her, if she had any problems complying with the policies and procedures, to speak to her manager.
  • The Employer’s policies and procedures relevant to this application are the Code of Conduct; EEO and Inappropriate Behaviours and The Team Member and Behavioural Explanation.
  • Ms Coughlin’s husband also worked as a bus driver on the Wheatstone Project. Mr Coughlin was present during an incident on 8 July 2014 which led eventually to his and the Applicant’s dismissal.

The crux of this matter is that:

  • Both husband and wife worked at the same workplace, and were both in the crib room when the husband went to breathalyse himself (it was the company’s rule that this must be done in the presence of a supervisor). When politely reminded by another employee, the response was either:
    • “why don’t you mind your own business” in an aggressive manner; or
    • “why don’t you mind your own f***ing business” in an aggressive manner; and

The wife (ie the applicant), after another employee intervened the husband began verbally and physically confronting the intervening employee in an aggressive manner.

The Commissioner finding that the wife: “…encouraged [her husband’s] inappropriate behaviour by saying words to the effect of “go on, tell him, get up him”, thereby inflaming a situation you initiated.”

Ms Coughlin was demobilised from the Wheatstone Project for the duration of the Employer’s investigation.

Following completion of the investigation, there were as number of meetings and correspondence (including a “show cause” letter), with the employer dismissing both the applicant’s denials and her employment.

The Commissioner found:

“While this situation gives context, as does the correct procedure for alcohol testing, it does not go to the core of what the Commission has to determine and that is whether the Employer had a “sound, defensible or well-founded reason” to dismiss Ms Coughlin.

“Workplace “incidents” occur every day in Australia.

“This incident was over in approximately three (3) to four (4) minutes.

“I am satisfied, on the totality of the evidence, that there was a heated argument between Mr Coughlin and Mr Lewis. Who started the incident is not relevant. However, the incident appears to have been short, sharp and brutish. The two main protagonists, Mr Coughlin and Mr Lewis’ exchange views in a fairly robust way. Simply put, it was a heated argument.

“Whether Mr Coughlin was defending his wife or Mr Lewis was defending Ms Dawson, both Mr Coughlin and Mr Lewis stood their ground.

“In view of the situation, I am satisfied, on the balance of probabilities that Ms Coughlin did swear at Mr Lewis on the one occasion. However, on the evidence, I feel it would be unsafe to conclude that she inflamed the situation. I suspect Ms Coughlin was not a mute bystander. Zsa Zsa Gabor once said, “Husbands are like fires – they go out when unattended”. In the circumstances, I am inclined to the view that Mr Coughlin was sufficiently inflamed and he did not need the wife’s attention, to keep his heated argument with Mr Lewis going. [My emphases].

“…To be candid, the only sensible people in the crib room were those drivers who brought the incident to an end. Irrespective of the differences in evidence provided to the Commission, I have to find whether Ms Coughlin’s conduct was sufficient to justify her dismissal.

Misconduct justifying dismissal is conduct that is so serious that it goes to the heart of the contract of employment. I am satisfied that Ms Coughlin’s conduct, while unsatisfactory and probably uncalled for, was not sufficiently serious to warrant dismissal. [My emphasis].

“In my view, consistent with Byrne v Australian Airlines Ltd (1995) 185 CLR 410, the Employer’s response was harsh because it was disproportionate to the gravity of Ms Coughlin’s conduct.

“…Ms Coughlin’s conduct, on balance, was not consistent with the Employer’s various policies. However, while her behaviour was, on balance, inconsistent with the policies, I am certain it was not, of itself, sufficient to warrant the maximum sanction – dismissal. In reaching this determination, Ms Coughlin should not think that the Employer was wrong to investigate the matter – it was not.

It is difficult to conclude that an employee telling another employee to “mind their own f***ing business” is respectful or not insulting. However, the Wheatstone Project Information Handbook takes, in my view, a reasonable and practicable view when it states, “Proven repeated and/or multiple violations may constitute misconduct…” This view relates to acceptable employee behaviour in the community. Mr Ferguson submits that the incident took place “not in the local community, nor was it the local catholic girl’s picnic – it was in a crib room – in the North West of Western Australia”. [My emphasis]

“ The use of the word ‘f***ing’ by one employee to another in the workplace (or elsewhere) may be unpleasant and unwelcome, however, as Mr Ferguson states, it is unfortunately common language in workplaces. While not condoning the use of the word “f***ing” in the workplace, in accordance with Selvachandran, the legislative provisions must be applied in a practical common sense way to

Shortly put, it would be unfair, unreasonable and unjust for the “sins” of Mr Coughlin to be visited upon his wife. Ms Coughlin must and had to be treated as an employee in her own right and not as the wife of another employee. On the evidence, I am not satisfied that the Employer had a valid reason to terminate the employment of Ms Coughlin.

The Commissioner then gave the parties 14 days to settle the matter.

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
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Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.