Industrial Relations Commission of New South Wales CITATION: Owen McMillan v Coles Myer Logistics Pty Ltd [2005] NSWIRCComm [2005] NSWIRComm 1110 APPLICANT Owen McMillan PARTIES: RESPONDENT Coles Myer Logistics Pty Ltd FILE NUMBER(S): 4907 of 2004 CORAM: Macdonald C CATCHWORDS: Unfair dismissal - Applicant's alleged threat of injury - onus - threat context - real threat - Commission declines to intervene LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Gorman v BHP Integrated Steel Division [2000] NSWIRComm 1079 HEARING DATES: 02/03/2005; 04/15/2005 DATE OF JUDGMENT: 07/08/2005 APPLICANT Ms J Hickleton, barrister LEGAL REPRESENTATIVES: RESPONDENT Mr J Forbes, barrister Ms J Fox, solicitor DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: COMMISSIONER MACDONALD 8 July 2005 Matter No IRC 4907 of 2005 OWEN McMILLAN v COLES MYER LOGISTICS PTY LTD Application by Owen McMillan re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 1110 1 This is an application by Owen McMillan ("the Applicant") for unfair dismissal against Coles Myer Logistics Pty Ltd ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 The matter was set down for Conciliation and Directions on 26 August and 27 August 2004. On the latter date, a Hearing and filing program was put in place. The matter was set down for Further Directions on 5 November and the Hearing of 8 November vacated. A new Hearing date of 3 February 2005 was set. The Hearing concluded on 15 April. 3 At the Hearing, the Applicant was represented by Ms Hickleton, barrister who called the Applicant as a witness. The Respondent was represented by Mr Forbes, barrister who was instructed by Ms Fox, solicitor. Mr Forbes called the following witnesses: · Mr Stewart Kennedy - Shift Manager · Mr Patrick Webb - Team Manager · Mr Gary Stannard - Distribution Centre Manager BACKGROUND 4 The Applicant began working for the Respondent as a casual storeman and forklift driver at its Smeaton Grange warehouse. He was not at this time an employee but working through a labour hire company. This work began October 2001. On 7 January 2002, he was employed directly by the Respondent as a casual employee. On 5 August 2002, he took up permanent employment, subject to a three month probationary period. He was dismissed on 4 August 2004. 5 During his employment, the Applicant was the subject of counsellings concerning mainly his absenteeism. It appears that there was a verbal warning issued in October 2002 but nothing in 2003. However, in the year 2004, counsellings took place on 17 February (with reviews of this counselling on 6 May and 22 June); counselling on 10 June for abusing a visitor to the site, for which he was given a final written warning; and a counselling on 3 August arising out of which he was dismissed on 4 August 2004. During his counselling meeting of 3 August, the Applicant said words to Mr Kennedy which were taken by the latter as words of a real threat. Mr Kennedy deposed the Applicant said: "If I didn't have rent to pay by myself now, I wouldn't be here, I would be over there and you would be through the window". SUBMISSIONS For the Applicant 6 Ms Hickleton, barrister, for the Applicant made the following points in her submissions: · The Applicant had been summarily dismissed. · The reason for the dismissal was not his absenteeism but the alleged words of threat. · In response to the counsellings about his absenteeism, the Applicant sought to put his family affairs in order and it was these family affairs that were the cause of his absenteeism as he was the carer for his wife and three children. He took annual leave and transferred his wife and children to Queensland so that those family affairs would no longer affect his work commitments. Ms Hickleton put the foregoing scenario as being an agreement between the Applicant and Messrs Kennedy and Webb of the Respondent. Upon his return from leave he expected words of encouragement from the Respondent but was met with another counselling session where he was to be handed a formal written warning. The Applicant reacted with disbelief and injustice and said words to Mr Kennedy that were intemperate but not intended as a threat. The words reflected the Applicant's outrage. · Mr Stannard, Distribution Centre Manager, summarily dismissed the Applicant but in doing so, was unaware of the above agreement about the Applicant putting his family affairs in order. · The words of alleged threat were directed at Mr Kennedy who had difficulty managing the Applicant as an employee and so Mr Kennedy took the opportunity to use this incident as a means to dismiss the Applicant. · The Applicant sought reinstatement. For the Respondent 7 Mr Forbes, barrister, for the Respondent made the following points in his submission: · The reasons for the Applicant's dismissal went beyond the words of threat but included his past history as an employee and past undertakings to Mr Stannard as to how he would conduct himself. · There was no evidence of an agreement between the Applicant and Messrs Kennedy and Webb as to the Applicant putting his family affairs in order so as to overcome the Applicant's absenteeism. There had been a counselling session of the Applicant and this was interrupted because the Applicant went off on annual leave. The counselling session was resumed when the Applicant returned from leave. · It was rejected that Mr Kennedy used the incident to dismiss the difficult to manage at work Applicant. · It was correct that Mr Webb knew that the Applicant had moved his family to Queensland to address the Applicant's absenteeism but that knowledge does not excuse the Applicant's conduct. And at the meeting in question, Mr Webb told the Applicant and others present, that if anybody needed any time out from the meeting, then that should occur. · The Applicant's employment history is not to be forgotten in assessing the convening of the counselling meeting that started on 13 July and was reconvened on 3 August, following the Applicant's leave. · The Applicant had had some 17 weeks off from work, over and above annual leave, sick leave and other types of leave - over a period of about 12 months. Some absences were without notification to the Respondent and without medical certificates. Even though the Applicant had taken steps to address his absenteeism, this did not prevent the Respondent from counselling the Applicant. · Mr Forbes questioned whether there was a summary dismissal given that the Applicant was dismissed with notice. · The Applicant's behaviour at the 3 August meeting breached the Respondent's Employee Behaviour Standards Policy. This Policy had been brought to his attention on 10 June after his chair kicking incident. · The Applicant's interpretation of the relevant industrial instrument that he could take as much time off as he liked to look after his wife was rejected. · Mr Forbes summarised the various counsellings held with the Respondent and submitted that the Respondent had acted fairly during those meetings. As to the meeting of 3 August, he rejected that there had been any provocation by the Respondent against the Applicant. · In considering the evidence, the Commission should not take into account, the personal circumstances of the Applicant and his family. · Reinstatement was rejected as a remedy, as was compensation. Applicant in Reply 8 Ms Hickleton asked the Commission not to draw a Jones v Dunkel inference as to the union delegates not giving evidence in these proceedings as they were still employees of the Respondent. She also reiterated that the intemperate language of the Applicant was the result of circumstances engendered by the Respondent. CONSIDERATION Onus 9 The Applicant was dismissed with notice. The reason for dismissal was the Respondent's claim that the Applicant had used words of threat to do a physical injury against Mr Kennedy, the shift manager. Despite the payment of notice, the Commission takes the view that dismissal by any employer on that type of ground, comes under the heading of misconduct. As such, the Respondent carries the onus of proving that the threat was indeed made by the Applicant. This entails proving firstly, that the words attributed to the Applicant were said by him; and secondly, proving that the alleged words constituted a threat - given that the Applicant denies that a threat was made. In considering this second criterion that is to be satisfied by the Respondent, the Commission will have regard to the context in which the alleged threat was made. The evidence for the context comes from the Applicant and two witnesses for the Respondent - Messrs Kennedy and Webb. The Alleged Threat and Context 10 The alleged threat arises out of a meeting held on 3 August 2004. The Applicant had been on annual leave and the day of 3 August was his second day back from that leave. Whilst on leave, the Applicant had driven his wife and children to Queensland and left them there to reside with his mother. The purpose in doing so, was to free up the Applicant from his carer's responsibility. His wife needed care as she had three discs gone in her back. The end result of this caring responsibility is that the Applicant had a very significant number of absences from work. He was counselled about this absenteeism on more than one occasion. 11 On 3 August, the Respondent called the Applicant to a meeting in order to resume a counselling session that had taken place in mid July 2004. The Applicant was advised by his union delegate that the Respondent had called a meeting but the Applicant said he was not aware he was going to a meeting that was a resumption of a counselling meeting from mid July. 12 In attendance at the 3 August meeting were the Applicant and two union delegates; Mr Webb (team manager) and Mr Kennedy (shift manager). The Applicant and two delegates sat on one side of the table and the two company representatives on the other side - with their backs to the windows of the meeting room. The room was on the first floor. 13 The first issue for consideration is: What words did the Applicant utter? The Applicant deposed he said: " If I didn't have to pay the rent I would be over there and you would be out the window. " (exhibit 1 - paragraph 22) These words are not identical to that recorded by Mr Kennedy (paragraph 5, above), but the difference is irrelevant. The Commission however notes that the words recorded by Mr Kennedy are word perfect to that deposed by Mr Webb. (exhibit 6 - paragraph 16) The Commission will have something to say about this verbatim evidence later in this decision. The Applicant deposed that the conversation continued as follows: ""Kennedy: " Are you threatening me? " Myself: " No it's not a threat. I'm just saying if things were different you'd be out of the window. "" (exhibit 1 - paragraph 22) Mr Webb deposed that this further utterance was put more aggressively and loudly, and with the Applicant leaning forward and pointing his finger at Mr Kennedy. Mr Webb deposed the Applicant said: " It's not a threat, I would be over there and you would be through the window! " (exhibit 6 - paragraph 16) The difference between the two versions quoted above is that the Applicant's account (his threat of physical force) is put on a conditional basis: "... if things were different ... " Mr Webb's account lacks the conditional element and can then be construed as being more direct in its threat. However, given the prior utterance of the Applicant was conditional, the Commission accepts the Applicant's account that his second utterance was also conditional. 14 The second issue for consideration then is: Did the utterances of the Applicant constitute a threat? To answer that question, the Commission needs to consider the context of the utterances. 15 The Applicant deposed he had lost his temper but that it was not a "real" threat. (exhibit 1 - paragraph 23) Mr Kennedy was the recipient of the utterances and Mr Kennedy deposed he felt threatened. What then of Mr Webb's reaction? Mr Webb under cross-examination said that the incident came across as a threat to him. (Tr 15 April - pp 7 and 8) His witness statement deposed that the Applicant leant forward and pointed his finger at Mr Kennedy and then made the second utterance " even more aggressively and loudly ." (exhibit 6 - paragraph 16) 16 The Commission will now consider those conditional utterances in the context of the dynamics of the meeting, itself. 17 As previously stated, the meeting was called by the Respondent but without prior notice to the Applicant, who was informed by a union delegate that the Respondent had called a meeting. The meeting was on the Applicant's second day back from annual leave. He was not advised of the purpose of the meeting. 18 The Applicant deposed an abbreviated account of the meeting. It is important to record a fuller account. The Commission relies upon the account deposed by Mr Webb, who was not the recipient of the threatening conditional utterances and whom the Commission found to be a witness who gave straight-forward testimony. The Commission will also supplement Mr Webb's account with evidence from the proceedings. 19 Mr Webb deposed (exhibit 6 - paragraphs 9 to 19) that the meeting of 3 August 2004, occurred as follows: - (a) At the beginning of the meeting, Mr Webb said words to the effect: " Just a reminder that you are on a Final Written Warning on your Behaviour Standards. " (b) Mr Webb read through the Applicant's warning and discussed the content of the warning. Arising out of that discussion, one of the Applicant's verbal warnings was withdrawn following an objection by the Applicant. (c) The discussion moved onto a letter regarding his wife's medical circumstances which he said was handed to a manager no longer employed on site, and which was not on file. Mr Webb deposed he had told the Applicant earlier in the year to provide him with a copy of the letter but the Applicant had not done so. (d) Mr Webb deposed that the Applicant became agitated at this point, his voice became louder and louder and his face went red. (e) Mr Webb informed the Applicant that this warning that was to be issued against him, was a first written warning for absenteeism. The Applicant replied, " Fuck Off ." (The Commission notes that the Applicant concurred, under cross-examination that he gave the foregoing response. (Tr 03/02/05 - p 58)) The Applicant then stated he firmly believed that employees were entitled to two verbal warnings before they could be issued with a written warning. Mr Webb explained that this was not the case. (f) The Applicant argued with his union delegate, Geoff Copping, about the disciplinary process. ( The Commission notes that the Applicant said under evidence-in-chief that " Jeff Copping told me to shut me mouth ". (Tr 03/02/05 - p 11)) (The Commission notes that neither union delegate gave evidence in the proceedings.) (g) Mr Kennedy interrupted to explain that an employee is given a verbal warning, a written warning, a final warning and then the employee is dismissed. (h) The Applicant responded with his first conditional threat against Mr Kennedy. He had leant forward and pointed his finger at Mr Kennedy whilst making that utterance. (The Commission notes that Mr Webb was not cross-examined on his finger-pointing allegation and Mr Kennedy was challenged on his finger pointing account of the Applicant's conduct but maintained that the Applicant had done so. (Tr 03/02/05 - p 93)) In consideration of the foregoing, the Commission finds that the Applicant did indeed point his finger at Mr Kennedy when uttering his conditional threat. (i) Mr Kennedy responded with words to the effect: " Owen (the Applicant), I'll take that as a threat. " (j) The Applicant then made his second (and the Commission has found) conditional threat. Mr Webb deposed that this was said even more aggressively and loudly. (The Commission notes that the Applicant said in evidence-in-chief that he lost his temper at this meeting. (Tr 03/02/05 - p 10) Under cross-examination, Mr Webb advised that the Applicant had been upset at previous discussions between them and had a history of losing his temper. Further, because of the Applicant's known personality to become upset, it was known for the union delegates to take him out of a meeting so as to allow him to calm down. (Tr 15/04/05 - pp 4 to 7) Mr Kennedy said under cross-examination that the Applicant had become upset during the meeting and yelled at him when uttering his second conditional threat. (Tr 03/02/05 - p 87) In considering the foregoing, the Commission notes that the Applicant did lose his temper (which he conceded) and to the extent that his delegate (Jeff Copping) told him to shut his mouth (which the Applicant conceded). The Commission further finds that the Applicant's foregoing behaviour is consistent with the views of Messrs Webb and Kennedy that the threats made by the Applicant were a real threat.) (k) Mr Kennedy stood up and said words to the effect: " This interview is now over, Owen (the Applicant) you can now go home, you are on suspended pay. You will have to be available for either myself or Gary to give you a call ." (l) The Applicant continued to argue about the counselling process with the stewards. Summary of 3 August Counselling 20 The Commission has set out the version of the 3 August counselling as deposed by Mr Webb and interweaved transcript extracts in order to assess the Respondent's decision to dismiss the Applicant on the ground of a threat of harm by the Applicant against Mr Kennedy. Pointedly, should the Commission conclude that the threat (twice uttered) was a real threat given the context of the threat? 21 Firstly, the Commission deals with the threat being put on a conditional basis, that is,: "If I didn't have to pay rent, ..." The Commission finds that a conditional threat is not transformed into a non threat simply by the use of a condition attached. The Respondent dealt with this point by reference to a decision of Connor C of this Commission: Gorman v BHP Integrated Steel Division [2000] NSWIRComm 1079 at 44 - In that case, Connor C expressed the view that a conditional threat may constitute an assault. Thus: "... the statement "your money or your life ..." would constitute a threat from a bandit. So too would the threat to stab police officers "if they came any closer ..."" 22 The Commission then considered the evidence as to whether the threat should be found to be a real threat. In assessing that issue, the Commission notes that the recipient of the threat was Mr Kennedy. He took the threat as a real threat. He said that in response to the Applicant's first threat. When the Applicant uttered the threat again, then Mr Kennedy immediately suspended the counselling meeting. That conduct of suspending the meeting is consistent with the intent of the threat being such, as to bring the meeting to a close. There was nothing in the demeanour of Mr Kennedy, as a witness, to cause the Commission to doubt his evidence as to the seriousness of the threat. The Commission has considered the evidence and demeanour of Mr Webb in assessing the seriousness of the threat and finds that the threat was real. The Commission particularly relies upon the demeanour of Mr Webb, as a witness, in making that finding and in reconstructing the context of the threat, that is the events and atmosphere of that counselling meeting. Mr Webb presented himself as a witness of honesty. As to the atmosphere of that counselling meeting, the Commission notes that the Applicant lost his temper (as he himself conceded) and he told his union delegate to keep his mouth shut. This evidence supports the finding that Mr Kennedy took the threat as a real threat. The Applicant's Defence 23 The Applicant denied he threatened Mr Kennedy. The Commission has found otherwise. 24 The Applicant also defended his conduct by stating that he and Mr Kennedy did not get on well together on the job. The Commission took that view into account and hence focussed upon the witness statement, oral evidence and demeanour of Mr Webb in assessing the dismissal of the Applicant. 25 The Applicant stated during proceedings he was upset at his treatment at the hands of the Respondent, because the Applicant had just taken a course of action designed to overcome the Respondent's concerns about his absenteeism. The Applicant had had 26 days absence from work since 17 February 2004 till the day of the counselling meeting - 3 August. (Tr 03/02/05 - p 27) The Applicant had had 17 weeks off in the last year. (Tr 03/02/05 - p 28) The Applicant's absenteeism was due (it would appear in large part) to his being the carer for his wife who had three discs gone in her back. The Applicant took action to overcome this reason for his excessive absenteeism by removing his wife and family to Queensland to stay with his mother. The Applicant took annual leave for this purpose and was only two days back on the job when the counselling session took place on 3 August. The Applicant then stated in proceedings that he was incensed at being given a final written warning after going out of his way to overcome the absenteeism problem and had only just returned from Queensland by car and that he had expressed the foregoing at the counselling meeting. Under cross-examination, Mr Kennedy denied that the Applicant had expressed this type of response during the meeting. He said that the Applicant's response was directed to his belief he should be given a second verbal warning rather than a formal written warning. (Tr 03/02/05 - p 86) Mr Webb was not cross-examined on this defence by the Applicant. He agreed he had knowledge of the Applicant's personal circumstances but it was not put to him that the Applicant had expressed his incensed attitude to those present at the counselling meeting - in response to being advised that he was to be given a final written warning. The crucial point for the Commission in considering the Applicant's defence is whether he expressed himself as being upset because he was being given a final written warning or he was upset because it was unfair to be given a final written warning when he had just transferred his wife and family to Queensland to overcome his absenteeism problem. The conclusion that the Commission has drawn, based on the evidence of those attending the meeting, is that the Applicant became upset over what he saw was an unfair (and he argued wrong) application of the disciplinary procedure process. He was upset because he firmly believed he should only be given a second verbal warning. Mr Kennedy then corrected the Applicant about his understanding of the disciplinary process and became the subject of the first and then second conditional threats. Accordingly, the Commission finds that this "incensed attitude defence" was not one expressed by the Applicant at the counselling meeting and cannot be relied upon to defend his real threats against Mr Kennedy. 26 The Applicant also used the defence of provocation. He said during evidence-in-chief that Mr Kennedy was, in effect, nagging the Applicant with references to the Applicant not following company procedures. Consequently, the Applicant said he told Mr Kennedy to "shut up." (Tr 03/02/05 - p 10) Shortly thereafter the Applicant made his threats and, by inference, because he was provoked by Mr Kennedy. Mr Kennedy denied under cross-examination that the Applicant said: " shut up " during the meeting. (Tr 03/02/05 - p 87) Mr Webb was not across-examined on the point. The Commission finds that the Applicant's allegation as to the above conversation has not been made out. Even if it had, then the Commission would still find that the threat made by the Applicant was a real threat. Verbatim Evidence 27 During the proceedings, the Commission questioned Mr Kennedy on the verbatim nature of parts of his witness statement, with that of Mr Webb. Mr Webb was questioned on the same issue by the Applicant's barrister. Mr Webb advised that his witness statement reflected the report he made about the 3 August counselling meeting and that the report had been made on the same day. It would appear that Mr Kennedy has had access to that report and it formed the basis for some parts of his witness statement and hence the verbatim nature of parts of Mr Kennedy's statement with that of Mr Webb. The Commission is satisfied that there was no collusion between these two witnesses. But as Mr Webb's statement was based on his own report, the Commission has focussed more on the evidence of Mr Webb when assessing the evidence in this case. Suffice to say, a witness statement is to reflect the evidence of the maker of that statement and their actual observations and conversations. CONCLUSION 28 The Applicant has filed an unfair dismissal application and seeks reinstatement as his primary remedy. 29 The Applicant was dismissed on the ground of making a threat (twice) of physical harm to Mr Kennedy. The Commission has held that dismissal on that ground is misconduct and the Respondent carries the onus of proving that the threats by the Applicant were made and constituted a real threat to Mr Kennedy. Having considered the evidence, the Commission holds, despite the threats being couched on a conditional basis, that the threats were a real threat. That is the Commission has found that the Respondent has satisfied its onus. 30 The Commission then considered the various defences put by the Applicant in response to the Respondent's allegation of misconduct. The Commission found and finds that none of those defences (singularly or collectively) are such as to warrant the Commission intervening in the decision of the Respondent to so dismiss the Applicant. Accordingly the Applicant's application for reinstatement has been unsuccessful. 31 The Commission had considered the unfortunate personal circumstances surrounding the Applicant and his family in deciding not to reinstate the Applicant. The Respondent was aware of the sympathy that can be attached to the Applicant's circumstances and provided the Commission with case law to the effect of not being persuaded by the sympathetic factor. It is regrettable that the Applicant found himself dismissed when the evidence showed that had he not lost his temper and had not told his union delegate (who it appears was trying to calm the Applicant) to keep his mouth shut, then the Applicant would have been given a final written warning and still have been in the employ of the Respondent. The Commission notes, once again, that the two union delegates who attended that counselling meeting did not give evidence in the proceedings. 32 The Commission declines to intervene in the decision of the Respondent to dismiss the Applicant. A Macdonald 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.