Industrial Relations Commission New South Wales Medium Neutral Citation: Higgins v Waverley Council [2024] NSWIRComm 1051 Hearing dates: 28 and 29 May 2024 Date of orders: 21 August 2024 Decision date: 21 August 2024 Jurisdiction: Industrial Relations Commission Before: Senior Commissioner Constant Decision: Application dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW - Termination – Statutory rights – Unfair dismissal – fighting in the workplace - no denial of procedural fairness - whether dismissal harsh, unreasonable or unjust Legislation Cited: Industrial Relations Act 1996, ss 84, 88 Cases Cited: Corrective Services NSW v Danwer [2013] NSWIRComm 61 Cross v Secretary of the Department of Education (No 3) [2024] NSWIRComm 1035 Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 Kumar and Valuca Pty Ltd [2001] NSWIRComm 63 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 Sheridan v Health Secretary in respect of the Illawarra Shoalhaven Local Health District [2021] NSWIRComm 1043 Starr v Commissioner of Police [2001] NSWIRComm 226 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Category: Principal judgment Parties: Lincoln Higgins (applicant) Waverley Council (respondent) Representation: Counsel: A Perigo (respondent) Solicitors/industrial organisation: T Stewart, New South Wales Local Government, Clerical, Administrative, Energy Airlines & Utilities Union (applicant) A Woods, Lander & Rogers (respondent) File Number(s): 2024/18629 Publication restriction: Nil DECISION 1. The applicant, Lincoln Higgins, was employed by Waverley Council ("Council") from November 2014 until the termination of his employment due to misconduct, but with the payment of five weeks' pay in lieu of notice, on 1 December 2023 ("Dismissal"). At the time of the termination of his employment, Mr Higgins was employed in the role of Team Member, Resource Recovery, which is also referred to as a "loader". 2. In deciding to terminate Mr Higgins's employment, the Council relied on findings of misconduct in respect of two incidents. The first finding related to an incident on 24 July 2024 involving allegations of aggressive and intimidating conduct towards another employee, Jake Havebond, while at work. The second finding related to an incident on 23 November 2023 involving allegations of violence against Mr Havebond while at work. 3. On 20 December 2023, Mr Higgins filed an Application for Relief in Relation to Unfair Dismissal pursuant to s 84 of the Industrial Relations Act 1996 ("Act") against the Council in respect of the Dismissal ("Application"). 4. Mr Higgins asserts the that the Dismissal was unjust and unreasonable for various reasons, including that he was not guilty of the alleged misconduct on which the Council relied, and that the Council did not conduct a thorough and fair investigation, nor initiate mediation between Mr Higgins and Mr Havebond, before terminating Mr Higgins's employment. Mr Higgins also asserts that the consequences of the Dismissal are harsh given his length of service and the economic effects on his family. 5. Mr Higgins initially sought an order for reinstatement, but at the arbitration of the matter Mr Higgins sought compensation only. 6. The Council denies any unfairness and asserts that the misconduct that it found Mr Higgins engaged in on 23 November 2023, which included Mr Higgins striking Mr Havebond while they were both at work, was sufficient on its own to found the termination of Mr Higgins's employment and that the investigation and disciplinary processes that it applied were fair. Material before the Commission 1. The parties filed a Statement of Agreed Facts and Disputed Facts and Issues ("SAFDFI") which set out the following: "The following facts are agreed: 1. The Applicant commenced employment with the Respondent in November 2014. 2. The Applicant was employed in the role of Team Member, Resource Recovery, which is also referred to as a loader. The Applicant worked on the 514 general waste truck. 3. Loaders are responsible for collecting garbage bins on the street, emptying them into the back of the truck, and returning the bins to the street. 4. Mr Jake Havebond was also employed by the Respondent in the role of Team Member, Resource Recovery. Mr Havebond worked on the 510 recycling truck. Mr Havebond also at times acted in the Supervisor role. 5. The Supervisor is at times required to supervise trucks on their daily bin runs, perform merits, and attend to customer complaints and requests. Events on 24 July 2023 6. On 24 July 2023, Mr Havebond was acting in the Supervisor role. 7. On this day, the Applicant was working on the 514 general waste truck. 8. On this day, Mr Havebond drove his car into a street that the 514 truck was already servicing. 9. Mr Havebond pulled in behind the 514 truck. 10. The Applicant then said words to Mr Havebond. The following facts/ issues are in dispute: 11. The Respondent asserts that: During this interaction referred to in paragraphs 6 to 10, the Applicant yelled at Mr Havebond in an aggressive and intimidating manner in breach of the Respondent's Code of Conduct. 12. The Applicant asserts that: When the events referred to in paragraphs 6 to 10 occurred, the Applicant felt bullied and harassed by Mr Havebond. The Applicant asserts that he said words to Mr Havebond on this day, but it was not in an aggressive and intimating manner. The following facts are agreed: Investigation into Applicant's grievances 13. In September 2023, the Applicant (via his union representative) raised a grievance about Mr Havebond. 14. Around this time, two other employees, Mr Brad Lentin and Mr Jordan Tonnet (via their union representatives), also raised a grievance about Mr Havebond. 15. Victor Timu, HR Partner, Assets & Operations at the Respondent investigated the grievances. As part of the investigation, Mr Timu: (a) separately met with Mr Lentin and Mr Tonnet to obtain their statements about their grievances; (b) issued a letter of allegations to Mr Havebond which comprised of six allegations; and (c) met with the Mr Havebond to obtain his response to the allegations. 16. Mr Timu concluded that each of the six allegations against Mr Havebond were unsubstantiated. Mr Timu advised Mr Havebond of the outcome of the investigation. 17. Mr Timu advised the Applicant that the investigation into his grievance was closed. Mr Timu did not advise the Applicant of the findings of the investigation. The following facts/ issues are in dispute: 18. The Applicant asserts that: Mr Victor Timu did not meet with the Applicant as part of the investigation. The following facts are agreed: Events on 23 November 2024 19. On 23 November 2024, the Applicant was working on the 514 general waste truck and Mr Havebond was working on the 510 recycling truck. 20. This was the Applicant's first day back at work after a period of leave. 21. At approximately 6.30am that morning, the 514 and 510 trucks crossed paths on Bondi Road during their bin runs. The following facts/ issues are in dispute: 22. The Respondent asserts that: As Mr Havebond drove past the Applicant on his truck, the Applicant pointed at Mr Havebond and said, "you, you're a cocksucker". 23. The Respondent asserts that: As the 510 truck continued onto the next street of its run, the Applicant (who was on break at the time) yelled things at Mr Havebond and repeatedly used the word "fuck". 24. The Respondent asserts that: Mr Havebond subsequently spoke to Mark Drummond, Supervisor. Mr Drummond agreed to follow the 510 truck in his car for the remainder of Mr Havebond's shift. The following facts are agreed: 25. At around 7.50am that morning, the 510 truck pulled into Glen Street, Bondi. The 514 was already servicing the street. The following facts/ issues are in dispute: 26. The Respondent asserts that: As Mr Havebond walked to his next lot of recycling bins to pick up, the Applicant said to Mr Havebond, "if you have something to say to me, say it to my face". 27. The Applicant asserts that: Mr Havebond walked up closely to the Applicant twice and the Applicant was threatened by Mr Havebond's unexpected and confrontational approach. 28. The Respondent asserts that: Mr Havebond attempted to ignore the Applicant and walked to his next set of bins. 29. The Respondent asserts that: As Mr Havebond walked to his next set of bins, the Applicant barged Mr Havebond with his shoulder and knocked him off balance. 30. The Applicant asserts that: The Applicant pushed Mr Havebond away in self­defence to get him out of his personal space. 31. The Respondent asserts that: Mr Havebond's arms were by his side at the time in a non-threatening manner. 32. The Respondent asserts that: The Applicant again said to Mr Havebond, "if you have something to say to me, say it to my face". 33. The Respondent asserts that: The Applicant pushed Mr Havebond on his right chest shoulder area which threw Mr Havebond's shoulder back. 34. The Respondent asserts that: The Applicant with his open hand then pushed Mr Havebond on the right side of his neck. 35. The Respondent asserts that: The Applicant then used his hand to strike Mr Havebond on the right side of his face/ jaw/ chin area. The strike knocked Mr Havebond back. 36. The Applicant asserts that: Mr Havebond pushed the Applicant back and gestured with his hands, that he was about to fight him. 37. The Respondent asserts that: Mr Brett Chapman, another loader, pulled the Applicant away from Mr Havebond. 38. The Respondent asserts that: As the Applicant walked away from Mr Havebond, he said to Mr Havebond, "you wait 'til I get you outside of work. I'll see you outside of work". 39. The Applicant asserts that: Mr Havebond had been bullying and harassing the Applicant at work. The following facts are agreed: 40. This incident at approximately 7.50am was recorded on CCTV footage which is recorded from the back of the 514 general waste truck. 41. The incident was also witnessed by Mr Drummond who was sitting in his car behind the 510 recycling truck. 42. Mr Drummond took Mr Havebond to the police station to report the incident. 43. Mr Havebond subsequently obtained an Apprehended Personal Violence Order against the Applicant. Investigation and termination of employment 44. Mr Timu and two other employees of the Respondent investigated the incidents on 24 July 2023 and 23 November 2023. The following facts/ issues are in dispute: 45. The Respondent asserts that: Mr Timu interviewed relevant witnesses to the incidents, including Mr Havebond and Mr Drummond. The following facts are agreed: 46. On 28 November 2023, the Respondent issued the Applicant with a letter of allegations in relation to the incidents on 24 July 2023 and 23 November 2023. The Respondent also provided the Applicant with a copy of the CCTV footage of the incident on 23 November 2023. 47. On 29 November 2023, the Applicant attended a meeting with Mr Timu and the two other investigators to give his response to the allegations. The Applicant brought a support person and a union representative to this meeting. 48. On 30 November 2023, the investigation into the incidents on 24 July 2023 and 23 November 2023 concluded. 49. The Applicant's employment was terminated on 1 December 2023. The Applicant was provided with a termination letter outlining the reasons for the termination. 50. The Respondent made a payment to the Applicant in lieu of his 5-week notice period." 1. In respect of the matters in dispute, Mr Higgins relied on a statement made by him and video footage from the rear camera on the 510 recycling truck. Mr Higgins did not file any evidence in reply. Mr Higgins was cross-examined. Mr Higgins also filed an outline of submissions dated 22 February 2024. 2. In respect of the matters in dispute, the Council relied on statements from Mark Drummond, Mr Havebond and Victor Timu and video footage from the rear camera on the 514 general waste truck. Each of the Council's witnesses were cross-examined. The Council filed an outline of submissions on 14 March 2024. 3. I have taken into consideration all of the written and oral evidence and submissions relied on by the parties. Legislation and Legal Principles 1. Section 84 of the Act allows for applications to be made to the Commission by employees who have been dismissed and who claim that their dismissal is "harsh, unreasonable or unjust". 2. Mr Higgins asserts that the Dismissal was unjust and unreasonable because: 1. he was not guilty of the alleged misconduct on which the Council relied; 2. the Council did not act on Mr Higgins's complaints about Mr Havebond; 3. the Council did not conduct a thorough and fair investigation before terminating Mr Higgins's employment; 4. the Council did not act or do anything to try to resolve the issues between Mr Higgins and Mr Havebond such as initiate mediation; and 5. he acted in self-defence. 1. Mr Higgins asserts that his dismissal was harsh due to his length of service with the Council and the significant economic and personal consequences the dismissal has had for him and his family. 2. While Mr Higgins asserts that the same matters make the Dismissal unreasonable and unjust, each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration. As stated by the Full Bench in Corrective Services NSW v Danwer [2013] NSWIRComm 61 ("Danwer"): "21. …It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted." 1. Section 88 of the Act sets out matters which the Commission may, in determining a claim, take into account. Relevantly, those factors include: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given--its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and … (f) such other matters as the Commission considers relevant. 1. The onus is on Mr Higgins to prove that his dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273. However, as Mr Higgins's dismissal was justified on the basis of allegations of misconduct, it is for the Council to establish that the alleged misconduct in fact occurred: Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 464; Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 at 83-84; Starr v Commissioner of Police [2001] NSWIRComm 226 at [153]. 2. It is therefore for the Council to establish first, on the balance of probabilities having regard to the seriousness of the allegations, the matters alleged against Mr Higgins that it found substantiated: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, at 2. 3. The Council asserts that during the incident on 24 July 2023 Mr Higgins yelled at Mr Havebond in an aggressive and intimidating manner, and that during the incident on 23 November 2023, amongst other actions, Mr Higgins engaged in a physical altercation with Mr Havebond. 4. Deputy President Sams in Kumar and Valuca Pty Ltd [2001] NSWIRComm 63 ("Kumar"), which was cited favourably by Commissioner Sloan in Sheridan v Health Secretary in respect of the Illawarra Shoalhaven Local Health District [2021] NSWIRComm 1043 ("Sheridan") at [107], considered a number of authorities, including AWU-FIME Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385 and Fearnley v Tenix Defence Systems (unreported) AIRC Print S3557, which involved dismissals as a consequence of, or involving, employees engaging in fighting or physical alterations in the workplace. The Deputy President, at [32], made some general observations about the principles arising from these authorities which are relevant to these proceedings: "32 From these citations, it seems to me that some general observations may be made: 1) Fighting in the workplace would, in the absence of extenuating circumstances, be grounds for dismissal. 2) The outcome in a particular case will depend very much on the relevant circumstances. 3) In investigating the circumstances, an employer should look behind the incident and examine its causes. 4) Merely participating in a fight will usually be insufficient to justify summary dismissal. 5) An employer should seek to establish whether an employee was provoked, or was acting in self defence. 6) A 'no fighting' policy should be applied fairly and consistently and be designed to ensure a safe working environment for all employees. 7) An employer should take into account an employee's period of service, work record and whether the employee was in a supervisory position." 1. Mr Higgins asserts that there are matters arising from the application of the principles identified by the Deputy President which will satisfy the Commission that the Dismissal was unfair. The Council denies this and submits that all of the relevant circumstances justify dismissal. Consideration Reasons for the dismissal 1. The Commission may consider, pursuant to s 88, the reasons given for the dismissal. 2. The letter from Tara Nguyen to Mr Higgins dated 1 December 2023 ("Termination Letter") set out the substantiated allegations and findings in respect of the incidents on 24 July 2023 and 24 November 2023 which were the reasons for the termination of Mr Higgins's employment stating: "The specifics of the behaviour and conduct concerns are that: • On 23 November 2023 at approximately 7:50am, it is alleged that you purposely and maliciously breached the Council Code of Conduct through an unprovoked display of physical and verbal violence. More specifically, it is alleged that whilst Jake Havebond was attempting to conduct his regular work responsibilities, that without apparent reason or cause, you aggressively and inappropriately made physical advancements towards Jake Havebond (Jake) which culminated in you dropping your shoulder into him. It is alleged that you then proceeded to forcibly strike Jake on three occasions to his right shoulder region and also to the right side of his neck, jaw and cheek bone region. It is alleged that whilst this physical assault occurred, you also verbally assaulted Jake by threatening him with further physical violence taunts outside of the work environment**. Considerations: although you conceded to placing your hands on Jake in an attempt to defend yourself, the reality is that you placed your hands on another employee. You conceded that although you do not necessarily remember the exact location with which you struck Jake, that you do not remember striking Jake's neck, jaw or cheekbone region; however, your strike may have slipped up. Given the video evidence (which was provided and available) it is of the Council view that you struck Jake inappropriately. You claimed that Jake walked up to you in the first instance; however, later in the discussion you conceded that Jake was in fact 'standing out' bins from the same location with which you were 'standing out' bins. You also later conceded that you in fact approached Jake and said "I know what you have been up to. Why don't you say it to my face"? You conceded that you returned to work too early and that you let things get to you. You conceded that you have other sensitivities which may be impairing your ability to self-regulate in some situations. You also conceded that the incident should not have happened. Outcome: SUBSTANTIATED. • On 24 July 2023 at approximately 6:20am, it is alleged that you purposely breached the Council Code of Conduct by the manner with which you chose to communicate with another employee. On this date at this approximate time, Jake was in the same area that you were, conducting his mandatory patrols and merits for customer requests. At this time, Jake happened to roll-up on the rear of the rubbish truck with which you were working. As it was unsafe to overtake the rubbish truck, Jake made the decision to hold back in his vehicle until the road was clear to proceed. Whilst Jake was waiting, it is alleged that you started to verbally abuse Jake in an aggressive and intimidating manner. More specifically, it is alleged that you started yelling at Jake, telling him to "Stop following us and go away. You are not welcome here, so go around us and go away". Considerations: although your truck was more than 10-metres away from the vehicle with which Jake was sitting in, you conceded that you in fact approached Jake's vehicle and told him to "stop harassing me, stop following me, stop intimidating me and leave me alone". Outcome: SUBSTANTIATED. Although the performance concerns have been unsubstantiated, there are major concerns surrounding the nature of the behaviour and conduct concerns. In isolation, the nature of the behaviour and conduct concern which occurred on 24 July 2023 would be a breach of the Council Code of Conduct which would constitute misconduct. Subsequently and in isolation, the nature of the behaviour and conduct concern which occurred on 23 November 2023 would also be a breach of the Council Code of Conduct which would constitute serious misconduct. The Council has given careful consideration to your response and the information made available as part of the process. This pattern of poor behaviour and unacceptable conduct is unable to be accepted and managed as there has been a loss of faith and trust in an ongoing working relationship. The behaviour and conduct standards that you find acceptable may not be acceptable to the Council. The Council believes that you have acted in a manner which is contrary to the terms of your employment agreement and that you have breached the intent of the Council Code of Conduct - the behaviour and conduct allegations have been substantiated. As a result, and in accordance with Clause 3. General Conduct Obligations of the Council Code of Conduct and Clause 38. Disciplinary Procedures of the Local Government State Award 2023, the Council has made the decision to terminate your employment effective immediately, 1 December 2023. As specified under the Local Government State Award 2023, the Council may terminate your employment by providing you with five weeks' notice. This period of notice will be paid in lieu to you. You will also be paid any untaken accrued entitlements." (Emphasis in original) 1. The parties identified the key facts and issues in dispute in respect of the events of 24 July 2023 and 24 November 2023, and the investigation of these events, in the SAFDFI. 2. In considering whether the misconduct, which was found to be substantiated by the Council and which underpins the reasons for the termination, can be established, it is appropriate that the Commission determine whether: 1. the facts and issues asserted by the Council set out at par 11 of the SAFDFI in relation to the events of 24 July 2024 and the related findings; and 2. the facts and issues asserted by the Council at pars 22-24, 26, 28, 29, 31-35, 37 and 38 of the SAFDFI and the related findings including those set out at pars 29, 33-35, and 38 of the SAFDFI in relation to the events of 23 November 2023 are established. 1. Mr Higgins submitted that the contest in the purported facts as disclosed in the SAFDFI should be resolved in his favour. This would result in a finding that there were relevant extenuating circumstances around Mr Higgins's conduct and that he acted in self-defence, and consequently, the Dismissal was unfair for the reasons set out at [12] and [13]. 2. In order to determine whether the Council can establish the matters referred to in [22] and whether the conduct established is properly characterised as misconduct and/or how the principles set out in Kumar and extracted at [19] are engaged, the Commission must consider, in particular, the matters asserted by Mr Higgins at par 12 of the SAFDFI in relation to the incident which took place on 24 July 2023 and, pars 27, 30 and 36 of the SAFDFI in relation to the incident which took place on 24 November 2023 and par 39 of the SAFDFI in relation to Mr Higgins's broader assertion of bullying by Mr Havebond. Incident on 24 July 2023 1. The Council asserts that during the interaction on 24 July 2023 which is referred to in paragraphs 6 to 10 of the SAFDFI, Mr Higgins yelled at Mr Havebond in an aggressive and intimidating manner in breach of the Respondent's Code of Conduct. Mr Higgins admits much of the detail asserted by the Council in respect of this incident but denies speaking to Mr Havebond in an aggressive and intimating manner and says that he felt bullied and harassed by Mr Havebond. The matters not admitted by Mr Havebond are relevant to whether his conduct is misconduct. 2. I have considered the written evidence and the oral evidence given in the cross-examination and re-examination of Messrs Higgins, Timu, Drummond, and Havebond and observed their demeanour during cross-examination. 3. Mr Higgins did not prepare his written evidence, nor the written notes at annexure 7 to his statement. Mr Higgins was unable to attest that his statement was complete. Mr Higgins said during cross-examination that he was aware of the statements of Messrs Havebond, Drummond and Timu in the proceedings but did not file any evidence in reply to these statements. He said this was because he "didn't see the point" of Mr Timu's statement as he "wasn't there" and because the "the other two were the same as … what he had received from the police": Tcpt 28 May 2024 p15 at 3-28. 4. In cross-examination, Mr Havebond gave clear evidence which was largely consistent with his statement and the video evidence. However, in his statement Mr Havebond neglected to mention shoving back and raising his fists at Mr Higgins during the incident on 23 November 2023, simply saying at par 35 that "I put my hands up to protect myself and ducked and weaved". The shoving back was also not mentioned in cross-examination. Mr Havebond also described Mr Higgins throwing a "right hook punch" when, in my view, and noting my limited knowledge of boxing terms and the lack of consideration by the parties of the distinction between these actions, there was no "right hook punch", but rather a very aggressive shove by Mr Higgins. 5. Despite the omission from his evidence in respect of the incident on 23 November 2023 and the description of the violence as a punch and not a shove referred to above in [30], for reasons which become clear below I accept the evidence set out in Mr Havebond's statement at par 16 in relation to the incident on 24 July 2023: "16 On this particular occasion in July 2023, I pulled into street that the 514 truck (Mr Higgins' truck) was on as I had a job to attend to at the end of the street. An elderly man had complained that his bins were not being put back to where he had asked them to be put, so I planned to go to his address to ensure that loaders had put this man's bins back correctly. I was not expecting the 514 truck to be in the street at the time. I pulled in behind the 514 truck and waited for them to finish the bins on the street, as the space next to the truck was too narrow for me to overtake. I was on the phone on loudspeaker to another supervisor, Andrew McMah, at the time when I saw Mr Higgins about 30 metres away from me looking at me with a scowl on his face. As the 514 truck moved forward through the bins on the street, so did I. After about 30 seconds, Mr Higgins walked towards my car with an angry expression on his face and yelled something along the lines of, "Are you following me? Why are you following me? Fuck off'. As I could not hear Mr Higgins clearly (my window was only slightly rolled down), I rolled down my window further and told him that I could not quite hear what he was saying. Mr Higgins then raised his voice and again said something along the lines of, "stop following me, fuck off' and shooed me away with his hand. I told Mr Higgins that I had a job to attend to at the end of the street. Mr McMah could hear the interaction with Mr Higgins on the phone and said to me that it sounded very aggressive. I eventually passed the 514 truck and attended my job at the end of the street. Later that day, I reported the incident to Shane Smith, one of the managers. I was not following Mr Higgins to start an altercation. I was just doing my job." 1. Mr Higgins alleged that Mr Havebond was "following him" on 24 July 2024 and prior to this date saying at pars 10 and 19 of his statement: "10 A couple of days prior to Monday, 23 July 2023, when Jake was with another relief supervisor, Mr Andrew McMann, he drove past us to check on what our truck and in particular, what I was doing. … 19 This was not the first time that Jake had appeared and followed me around when he was a supervisor. Since I put the grievance in about Jake, this seemed to have started happening to me." 1. Mr Higgins's statement refers to, and annexes, an email he sent to Kerrie Pryke on 19 July 2023. This email said: "Good morning Kerrie I haven't heard anything in weeks in regards to this bullying and this morning I've had Andrew macmah and Jake havebond check up on me during work 4 times with in an hour. In my nearly 10 years at the council I've never seen a supervisor more than once in a morning. Now after this bullying has started Jake is there 4 times in one morning. He shouldn't be acting up supervisor to start with. Now checking up . I'm not dealing with this bullying very well. My wife is saying I'm getting more angry at home. My wife is asking if I should get a legal person to deal with this. Can you please let me know what is happening in regards with all of this please. Thanks Lincoln" 1. In cross-examination Mr Higgins was asked about the email to Ms Pryke set out above at [33]. The exchange included the following: "Q. Can you have a look …your email that you've sent to Ms Kerrie Pryke. Who was Ms Pryke? Sorry, Mr Higgins. I'll wait till you find it. … A. Kerrie Pryke was the HR Manager, I'm guessing, the lady that used to look after the whole of HR. Q. Now, that's your email to her? Back in July, I think it is, 2023. A. Yes. Q. And you'll see halfway through that first paragraph it says, "I've never seen a supervisor more than once in a morning." A. Correct. Q. So you have seen supervisors? A. Yeah, because-- Q. Out in the local government area. A. Yes. So they, they'd radio to see where you are, to see, to come and see the truck. They would just turn, radio the driver. The driver would stop. Supervisor would turn up and then they'd ask you the questions or say, "Go and pick this bin up," or "Where have you been? Where's your doctor certificate?" A number of reasons. But not follow you. Q. Mr Higgins, a supervisor's role is to make sure you're doing the job that you've been allocated to do. That's right, isn't it? A. Well, I couldn't tell you 'cause I'm not a supervisor." (Tcpt p 21 at 45 – p 22 at 24) 1. Despite asserting that Mr Havebond had followed him prior to 24 July 2023, Mr Higgins gave no specific dates or details in the evidence before the Commission of Mr Havebond having followed him prior to 24 July 2024. Other than the email to Ms Pryke and the incident on 24 July 2024, Mr Higgins gave no other details in the evidence before the Commission of Mr Havebond taking any action against Mr Higgins that could be characterised as bullying and/or intimidation. 2. On 24 July 2024, Mr Havebond was working as a relief supervisor. Mr Havebond and Mr Drummond gave evidence of the tasks that a relief supervisor performs, including travelling within the local government area and ensuring that employees are performing their work. Mr Drummond says at par 3 of his statement: 3. "When I go out to supervise the trucks, I usually stay in my car and drive around to see what is happening." 1. Mr Drummond was not cross-examined on that evidence. 2. In cross-examination Mr Havebond was asked about the incident of 24 July 2023. Mr Havebond said he had a "merits" job near where Mr Higgins was working on his truck. Mr Havebond said that a supervisor's role was to deal with complaints about things like "missed bins". He called these complaints "merits": Tcpt 28 May 2024, p 65 at 25-45. 3. Mr Havebond was asked in cross-examination whether it was his job to follow Mr Higgins, and Mr Havebond said: "As a supervisor, there's no specific reason to follow any truck." His evidence in cross-examination was "We just go into the local government area and go about business. We have to make sure employees are doing the right thing. It's a basic check. No reason I should follow any truck." (Tcpt 28 May 2024, p 66 at 20-25.) 1. Mr Havebond said in cross-examination that, on 24 July 2023, he had six or seven merits jobs to do in the area and he came across Mr Higgins: Tcpt 28 May 2024 p 65 at 40-45. He said he did not expect Mr Higgins to be in that place. He knew that Mr Higgins's truck would be in those streets where he was driving but he did not know the exact time. It was Mr Havebond's evidence that it was simply a coincidence that he happened to be in the same spot as Mr Higgins. 2. Mr Havebond set out the detail of the interaction with Mr Higgins at par 16 of his statement extracted at [31] above. Mr Havebond's evidence is that he was sitting in the car behind Mr Higgins's truck talking to another supervisor. Because he knew that the truck was going to turn off that road, he chose to sit behind it rather than overtake it, which would make it easier for him to continue on his journey. Mr Havebond's version was not disturbed in cross-examination. 3. In cross-examination, Mr Higgins said that Mr Havebond was in a car following at a distance of two car-lengths: Tcpt 28 May 2024 p 25 at 5. Mr Havebond's car did not go past the truck when Mr Higgins waved it through. Mr Higgins agreed that he approached Mr Havebond's car, he said because "he wouldn't go round. He just sat behind us and then […] just sat there, watching what we were doing": Tcpt 28 May 2024 p 25 at 10. He knew that Mr Havebond was in the car at that time: Tcpt 28 May 2024 p 25 at 25. He agreed that he said: "Why are you following me?" and he agreed that on the second time he made that comment, he also said: "f@*k" as he was walking back to his truck: Tcpt 28 May 2024 p 25 at 30-35. 4. I accept the version of events provided by Mr Havebond as the more accurate evidence as to what transpired between Mr Higgins and Mr Havebond on 24 July 2024. 5. The Council has met its onus of establishing on the balance of probabilities having regard to the seriousness of the allegation that on 24 July 2023 Mr Higgins yelled at Mr Havebond in an aggressive and intimidating manner in breach of the Council's Code of Conduct: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, at 2. 6. Mr Higgins's representative referred to Mr Havebond checking up on Mr Higgins "four times that day": Tcpt 28 May 2024 p 3 at 50 and that he had complained to Council as a "cry for help: Tcpt 28 May 2024 p 4 at 5. This was not in Mr Higgins's statement, and the email to Ms Pryke which pre-dated the 24 July 2023 incident there is no date identified. Nor was this allegation put to Mr Havebond in cross-examination. 7. Without details of the matters underpinning the assertions in the email to Ms Pryke, such as the allegation that Mr Havebond checked up on Mr Higgins four times in one day, or other evidence of bullying behaviour by Mr Havebond I cannot make a finding that he bullied Mr Higgins such that Mr Higgins's conduct could be excused or was mitigated. The evidence is no higher that a relief supervisor, Mr Havebond, attended a place where Mr Higgins was working to check on the truck and the workers. This does not give rise to extenuating circumstances. Incident on 23 November 2023 1. In relation to the incident on 23 November 2023, I considered the written and oral evidence. This includes the oral evidence of Messrs Drummond, Higgins, Timu and Havebond given under cross-examination and the video footage of trucks 510 and 514. 2. Mr Drummond impressed me as a forthright witness who gave the best evidence he could in the circumstances, including that he had a personal as well as professional relationship with Mr Higgins: at par 4 of his statement, and that he had known Mr Havebond's family outside of work since he was a child: at par 5 of his statement. 3. The videos and Mr Drummond's evidence substantially support the evidence of Mr Havebond, and where relevant, Mr Timu. Consequently, I agree, for the most part, with the findings of the Council in respect of the matters that occurred on the morning of 23 November 2023 for reasons which are expanded upon below. 4. In the investigation interviews in respect of the 23 November 2023 incident, Mr Higgins made an allegation that Mr Havebond called him a "dog c*&t" during the incident. This does not appear in Mr Higgins's written evidence and was only mentioned once by Mr Higgins during the hearing, when he was asked about having made the allegation to Mr Timu: Tcpt 28 May 2024 p 32 at 45. Mr Higgins was not asked whether the allegation was true or not in cross-examination. This allegation was not put to Mr Havebond in cross-examination. 5. In the context of the submissions on the issue of whether Mr Havebond called Mr Higgins the term set out in [73] the Council said of Mr Higgins's evidence given to Mr Timu and also to the Commission regarding the 23 November 2023 incident: "…. He is being asked about 23 November. He's asked if he has anything else. "I'm not sure. It was a black, blurry memory." And he said that in the witness box. He doesn't remember everything. But, in any event, it's not in his statement. He had the statements of the respondent. He had the opportunity to dispute what they said and put on evidence. He chose not to. " (Tcpt 29 May 2024, p 93, at 45-50) 1. I agree with this submission. I cannot make a finding that Mr Havebond called Mr Higgins a "dog c*&t" on the basis of the material before the Commission. 2. It is clear from the video from Truck 514, and consistent with the evidence of Mr Drummond, that Mr Havebond pushed Mr Higgins back and gestured with his hands after being pushed aggressively a couple of times by Mr Higgins. I do not accept that Mr Havebond was about to fight Mr Higgins such that Mr Higgins was acting in self-defence at that point in the interaction. The push back by Mr Havebond was less aggressive than the pushing by Mr Higgins and was responsive to Mr Higgins's provocation. 3. I accept Mr Drummond's evidence that Brett Chapman, another loader, pulled Mr Higgins away from Mr Havebond. After the intervention of Mr Chapman, Mr Havebond became more active and aggressive. However, it is clear that Mr Higgins was the initiator of the pushing. Mr Higgins admitted as much, saying to Mr Havebond: "if you have something to say to me, say it to my face" twice: Tcpt 28 May 2024, p 26 at 12 and 22 – 24. I do not accept that Mr Higgins acted in self-defence in order to get Mr Havebond out of his personal space. 4. Mr Havebond gave evidence that Mr Higgins had said to Mr Havebond: "you wait 'til I get you outside of work. I'll see you outside of work": Mr Havebond's Statement at par 30. Mr Higgins denies he said these words. Mr Havebond was not cross-examined on this matter. Mr Higgins was cross-examined on it and denied it. 5. Mr Chapman was present for the incident and he has not been called to give evidence. In these circumstances, the Council has asked me to infer that if Mr Chapman had been called by Mr Higgins that his evidence would not assist Mr Higgins. 6. Mr Higgins's representative submitted that Mr Chapman was not called because "[h]e has a lot of personal issues and [Mr Higgins] didn't want to put him under any more pressure by calling him as a witness, as a courtesy to him. Obviously that would have assisted us but we didn't want to put Mr Chapman under that pressure": Tcpt 29 May 2024 p 97 at 8 – 11. However, no evidence was provided to the Commission to support this submission. 7. Either party could have called Mr Chapman to give evidence. Consequently, I draw no inference against Mr Higgins for not calling Mr Chapman. For the reasons outlined above, I have made findings based on other evidence before the Commission about Mr Higgins's conduct not being in self-defence and that I prefer generally the evidence of Mr Havebond over that of Mr Higgins. However, in a "he said / I did not say" contest about a serious threat of future violence, I am not satisfied to the requisite standard that Mr Higgins said the words set out in [52]. 8. The Council asserts at par 22 of the SAFDFI that Mr Higgins called Mr Havebond a "c*cksucker". This was set out in Mr Havebond's evidence at par 36 and denied by Mr Higgins. The Council did not rely on this in its reasons for termination of employment and I have made no findings on this allegation. 9. This was not included in the Council's substantiated findings or reasons for the Dismissal. 10. I find the following facts are made out on the balance of probabilities having regard to the seriousness of the allegation: Neat Holdings at 2: 1. While truck 510 was following 514, Mr Havebond walked to the next group of recycling bins to take to truck 510. Mr Higgins said to Mr Havebond, "if you have something to say to me, say it to my face"; 2. Mr Higgins barged Mr Havebond with his shoulder, which knocked Mr Havebond backwards; 3. Mr Higgins pushed Mr Havebond on his right chest shoulder area which threw Mr Havebond's shoulder back; 4. Mr Higgins hit Mr Havebond with his open hand, and then pushed Mr Havebond on the right side of his neck; 5. Mr Higgins then used his hand to strike Mr Havebond on the lower right side of his face. The strike knocked Mr Havebond back; and 6. Mr Higgins pushed Mr Havebond away. Mr Havebond held his arms outward at his side in a questioning but non-threatening manner and pushed back at least once. 1. The Council has not satisfied me to the requisite standard that Mr Higgins threatened Mr Havebond with further violence outside the workplace. 2. The Council has established to the relevant standard the allegations in respect of Mr Higgins's engaging in violent conduct towards Mr Havebond on 23 November 2023 that it found substantiated. The established conduct is misconduct. Violence in the workplace is a serious matter. Was the Dismissal unfair? 1. In Kumar at [32], the Deputy President made some general observations about the principles arising from authorities which dealt with allegations of fighting at work which are extracted above at [19]. 2. Considering these observations in relation to whether the Dismissal was fair, I turn first to the extenuating circumstances asserted by Mr Higgins, in particular the asserted harassment and intimidation. 3. As I noted above at [35], there is no evidence of Mr Higgins making specific allegations of harassment and intimidation other than the email to Ms Pryke sent on 13 July 2023. The grievances against Mr Havebond which were made in that email were included in the letter of allegations sent to Mr Havebond on 16 October 2023, which is annexure JH1 to Mr Havebond's statement. 4. Mr Timu said he found it very difficult to get any information from Mr Higgins about his grievances, because Mr Higgins would not give names and other details. However, the Council submits that these grievance matters were addressed appropriately and were found to be unsubstantiated as set out in the letter from Mr Timu to Mr Havebond dated 3 November 2023: Mr Timu's statement, attachment "VT-3" pp 24-25. 5. The first allegation in the letter is about Mr Havebond allegedly sending an unapproved text message to a group of employees in an attempt to force them to work in a way which was not required. Mr Higgins gave no evidence in the Commission that this was his grievance or a matter that he raised. This allegation is therefore irrelevant to the Application. 6. The second allegation in the letter is that Mr Havebond was rostering himself for overtime shifts. Mr Higgins agreed in cross-examination that overtime was allocated alphabetically, which is what Mr Havebond says in his response. 7. The third allegation in the letter is about obtaining interview questions for a job vacancy. The Council investigated the third allegation on the basis that it was about Mr Higgins and found the allegation to be unsubstantiated. In cross-examination, Mr Higgins was asked about that allegation and said that it was not about Mr Havebond. The Council submits that whether the allegation came from Mr Higgins or not is unclear as there were three employees who made allegations and then Mr Timu put together the letter of allegations. However, page 2 of a letter from the Union to the Council dated 15 June 2023, which is annexure 3 to Mr Higgins's statement, states: "Mr Higgins also has concerns around a potential conflict of interest on the basis that that the successful applicant's brother may have had access to the interview questions prior to the interview being conducted." 1. The letter does not name Mr Havebond, but as he was the successful applicant's brother it is the obvious inference. In any event, as Mr Higgins has not pressed this as an allegation against Mr Havebond in the Commission it is not relevant to my ultimate determination of the Application. 2. The other allegations in the letter deal with matters that were not raised in Mr Higgins's evidence. These included allegations about a training course, and about obtaining a licence. These matters were investigated by the Council and were found to be unsubstantiated. These allegations are not relevant to the Application. 3. Mr Higgins stated that in his meeting on 21 June 2023 he raised complaints about derogatory text messages Mr Havebond sent to a colleague about him: Mr Higgins's statement at par 9(b). However, Mr Higgins did not give evidence in his statement or orally in these proceedings that he was bullied or harassed other than in respect of the incidents on 24 July 2023 and 24 November 2023. Mr Higgins relied on the letter from his union and the email to Ms Pryke and effectively said in respect of the alleged earlier bullying: "I made these complaints". 4. The Council says, and Mr Timu gave evidence, that Mr Higgins's complaints were looked at, investigated thoroughly and resolved, and Mr Higgins was told these complaints were resolved. Mr Timu was not challenged on this in cross-examination. There was no evidence from Mr Higgins that he went to management, or to Human Resources, to challenge the outcome of the investigation, or that he talked with his supervisor or contacted the employee assistance program. I acknowledge that around the time of the completion of the investigation Mr Higgins's father passed away and Mr Higgins took bereavement leave, and that this may have impacted when Mr Higgins would have contacted his supervisor or the employee assistance program. However, it does not explain why Mr Higgins did not take one of these steps at a later time. 5. Mr Higgins has not established that the Council's investigation was not thorough or fair. I accept that the Council's handling of the grievances against Mr Havebond was appropriate. Mediation may have been useful given Mr Higgins's clear animosity towards Mr Havebond. However, given there were no substantiated findings against Mr Havebond, I do not accept that there was an obligation on the Council to provide mediation, or that the failure to offer Mr Higgins mediation with Mr Havebond or anyone else made the Dismissal unjust or unreasonable. 6. As set out at above, I do not accept Mr Higgins's assertions that he was bullied and provoked by Mr Havebond such that he needed to act in the manner that he did on 24 July 2023 nor do I accept that he acted in self-defence on 23 November 2023. Mr Higgins approached Mr Havebond on the relevant occasions. 7. There are no extenuating circumstances in relation to the workplace violence engaged in by Mr Higgins which make the Dismissal unfair. Mr Higgins was the aggressor in the two allegations that were substantiated and relied on by the Council in order to dismiss Mr Higgins. I have determined that save for the threats of further violence made at the end of the 23 November incident, the Council's reasons for the Dismissal had a basis in fact and Mr Higgins had an appropriate opportunity to make out a defence and to give an explanation for his behaviour. The Council did not accept the defence and explanation, and nor do I. 8. The Council looked "behind the incident and examin[ed] the causes" and found that Mr Higgins's shoving of Mr Havebond was unprovoked and not an act of self-defence. I have done the same. I agree with the Council that violence, particularly in the workplace, is serious misconduct and without adequate extenuating circumstances, grounds for termination of employment. 9. The last point that Sams DP makes in Kumar is that an employer should take into account the period of service, a factor Mr Higgins relies on in arguing the Dismissal was harsh. The Council submitted that Commissioner Sloan, at [114] in Sheridan, recognised that the applicant in that case had worked for his employer for eight years and his length of service was a factor that has a mixed effect because the length of service suggests the applicant should have been aware of what was expected of him. 10. In Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 McColl JA observed: "156. I have already referred to the tripartite test posed by s 84 of the IR Act as to whether an employee's dismissal was 'harsh, unreasonable or unjust' as explained in Byrne. In addition to the matters there identified, in considering the possibility that dismissal might be 'harsh', (although not unjust or unreasonable), it is necessary not only to identify any misconduct on the employee's part said to have justified the termination, but also to 'weigh in the balance any "mitigating circumstances"…including length of prior employment, the employment record and favourable character considerations'." 1. In Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 the Full Bench remarked: "Bearing in mind the foregoing discussion of principles, we will consider the severity of the penalty inflicted on the respondent for his misconduct having regard to relevant mitigating circumstances. In other words, it is necessary to consider whether the dismissal was disproportionate to the gravity of the misconduct both in itself and when examined in the light of mitigating circumstances including the personal and economic circumstances of the respondent." 1. The Council submits that in this case, Mr Higgins was aware of what was expected of him, because he understood the Code of Conduct and he understood that it applied to him. 2. Mr Higgins gave evidence that he had seen the Code of Conduct previously but had not read through it: Tcpt 28 May pg 16 line 40-45. 3. Mr Timu said in his statement at par 9: Mr Higgins completed training on the Code of Conduct on 1 September 2015 (as part on his corporate induction program), 9 December 2019, 2 May 2022, and most recently on 28 June 2023 which was delivered face-to-face. A copy of an email from Nina Kang setting out Mr Higgins' training history is annexed and marked "VT-2". 1. I accept that Mr Higgins received the Code of Conduct and received face-to-face training on it. I also accept the Council's argument that Mr Higgins's period of service means he should have known that violence in the workplace could lead to dismissal. Mr Higgins's length of service does not lead me to conclude that the Dismissal was disproportionate or harsh when considered in the context of the established misconduct. 2. Mr Higgins submitted that his dismissal was also harsh due to the significant economic and personal consequences the Dismissal has had for him and his family. 3. Mr Higgins set out in his statement at par 49 that he "cannot pay the bills and now my wife and I have had to sell our home. We have missed mortgage payments." Mr Higgins gave no further information about these matters and was not cross-examined on this. 4. Commissioner Sloan said in Cross v Secretary of the Department of Education (No 3) [2024] NSWIRComm 1035 at [275]: "… [A financial loss] is likely to be the result of many dismissals. A financial loss does not, of itself, support a finding that a dismissal was harsh." 1. The economic and personal circumstances for Mr Higgins are very significant. I have taken these circumstances into account and weighed these against the misconduct bearing in mind that any dismissal will likely cause financial difficulties. I have also borne in mind that the Council provided Mr Higgins with a notice payment of five weeks' pay. 2. Given that the misconduct involved the instigation of violence in the workplace, even these very significant economic consequences for Mr Higgins do not lead me to conclude that the Dismissal was harsh. Mr Higgins has not put forward sufficient evidence of "mitigating circumstances" that would support a finding that his dismissal was "disproportionate to the gravity" of his misconduct. I accept the submissions advanced by the Council in respect of his length of service and that he should have known what was expected of him. The economic consequences for Mr Higgins are not sufficient to overcome the finding of misconduct such that the Dismissal is harsh. 3. Mr Higgins submitted that his dismissal was unjust and unreasonable as: he acted in self-defence during the incident of 23 November 2023; the Council's conduct of the investigation was deficient and unfair; and the Council did not attempt to resolve the issues between Messrs Higgins and Havebond such as by mediation. I have made findings about each of these matters in favour of the Council. 4. The Council followed a proper process and gave Mr Higgins an opportunity to be heard on both the findings and the penalty. There was no denial of procedural fairness. 5. I have concluded that the dismissal was not unjust or unreasonable. The Dismissal was not unfair in accordance with the Act. 6. In light of my findings, the only appropriate order is that the Application be dismissed. Order 1. I order that the Application by Lincoln Higgins is dismissed. NJ Constant Senior Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 August 2024