Industrial Relations Commission of New South Wales CITATION: Transport Workers' Union of New South Wales (on behalf of Robert Manowski) and TNT Australia Pty Ltd [2006] NSWIRComm 1009 APPLICANT Transport Workers' Union of New South Wales (on behalf of Robert Manowski) PARTIES: RESPONDENT TNT Australia Pty Ltd FILE NUMBER(S): 6229 of 2004 CORAM: Macdonald C CATCHWORDS: Unfair dismissal - reinstatement sought - allegation of harassment against Applicant - alleged prior warning - reinstatement ordered LEGISLATION CITED: Industrial Relations Act 1996 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Jones v Dunkel (1959) 101 CLR 298 CASES CITED: Laws v London Chronicle (Indicator Newspapers) Limited (1959) 1 WLR 698 Outboard World Pty Ltd v Muir (1993) 51 IR 167 Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 HEARING DATES: 18/04/05, 19/04/05, 14/11/05, 17/11/05 DATE OF JUDGMENT: 03/10/2006 APPLICANT Mr Astorga, legal officer Transport Workers' Union of New South Wales LEGAL REPRESENTATIVES: RESPONDENT Ms V Leeds, corporate employee relations manager Mr S Woodbury, solicitor Blake Dawson Waldron DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MACDONALD C 10 March 2006 Matter No IRC 6229 of 2004 Transport Workers' Union of New South Wales (on behalf of Robert Manowski) and TNT Australia Pty Ltd Application by Transport Workers' Union of New South Wales on behalf of its member Robert Manowski re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1009 1 The Decision concerns an application by the Transport Workers Union of New South Wales ("the Union") on behalf of its member, Robert Manowski, with respect to unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). The Respondent in the Proceedings is TNT Australia Pty Ltd. 2 The matter came on for Conciliation and Directions on 12 November 2004 and a Report Back on 23 November 2004. On that latter occasion, the matter was programmed for a two day Hearing - 11 and 12 April 2005. 3 The matter was relisted for a Mention on 14 January 2005 for amendment of the filing program. 4 The Hearing took place on 18 and 19 April, and 14 and 17 November 2005. 5 At the Hearing, the Union was represented by Mr Astorga, legal officer and Mr Herbert, union official. The Union called the following witnesses: · Robert Manowski - dockhand (the dismissed employee) · Shane Bennett - dockhand · Daniel Wells - dockhand · Trevor Hill - dockhand · Anthony McMahon - dockhand · Wayne Griffith - union delegate · Lisa Johnstone - union official 6 The Respondent was represented by Ms V Leeds, corporate employee relations manager and Mr Adams on 18 and 19 April 2005. The Respondent was represented by Mr S Woodbury, solicitor, of Blake Dawson Waldron on 14 and 17 November 2005. The Respondent called the following witnesses: · Mr Duc Thai Hoang - dockhand · Kim Chen - medical doctor (gave evidence under summons) · Robert Mackenzie - general manager, human resources · Bernard O'Toole - bulk truck driver · Benjamin Hansen - supervisor · Stephen Lowe - shift supervisor · Gregory Johnstone - training and development manager · Jay Kent - depot operations manager, Enfield · David Charlesworth - depot general manager, Enfield and Homebush BACKGROUND 7 Mr Robert Manowski ("the Applicant") was employed as a dockhand and in that capacity, drove a forklift. 8 An incident occurred at the Homebush depot on Thursday, 7 October 2004, which eventually led to the dismissal of the Applicant. The letter of dismissal, dated 13 October 2004, refers to an investigation into the incident of 7 October, in which a fellow dockhand (Mr Thai Hoang) physically struck the Applicant, "following what can only be described as victimization, harassment and, physical and verbal abuse which you (the Applicant) played an active part in, towards Mr Hoang. You will also recall a previous incident involving yourself on 19 August 2004 during which you verbally abused another employee and admitted using the phrase, "why don't you go back up stairs and suck his cock for another half an hour, you fucking cock sucker. " You will recall my warning to you that this behaviour was totally inappropriate in the work place and would not be tolerated by TNT. " 9 The incident of 7 October, as deposed by the Applicant, was that he observed Thai Hoang run his forklift into Shane Bennett's forklift and then kept pushing his forklift into Shane Bennett's forklift. The Applicant deposed of his conversation with Thai Hoang about this forklift conduct, arising out of which he was "king hit" by Thai Hoang. The Applicant telephoned the police who arrived on site that day, and took statements. The Applicant was driven to Concord Hospital, Emergency Unit. He came back to work and clocked off around midnight. 10 The Applicant received a telephone call from David Charlesworth, general manager, the next day. The Applicant was told to stay home and there would be an investigation. The Applicant saw his doctor that day and obtained a Workers Compensation slip. 11 The Applicant was interviewed about the incident on 12 October by Bob Ryan, security manager. The Applicant deposed that on that day he was told by a daytime supervisor that he had been sacked. (The Applicant could not recall his name because he was a daytime supervisor, whereas the Applicant was not a daytime shift worker). 12 The Applicant was called to work on 13 October, for a meeting by Robert Mackenzie (general manager, human resources) and was dismissed. He was given one week's pay in lieu of notice. FINAL SUBMISSIONS For the Union 13 Mr Astorga, for the Union, made the following submissions: (a) The summary dismissal of the Applicant for the incident of 7 October was unfair. The unfairness was both substantive and procedural. (b) The substantive unfairness was that the Applicant, as union delegate, addressed Thai Hoang in an aggressive tone because the latter was not performing his forklift duties in a safe manner. The Applicant had a responsibility as union delegate to ensure safety was being practiced in the depot. Further, the aggressiveness of the Applicant was a one off incident. The Union rejected the reasons for dismissal as stated in the dismissal letter, that is, that the Applicant had engaged in victimization, harassment, physical and verbal abuse towards Thai Hoang. The Union said that the behaviour of the Applicant was condoned by the Respondent as it did not act upon similar behaviour from its employees in the depot. Further, the Respondent did not communicate or train the Applicant or other employees in its policy regarding harassment, sexual discrimination and anti-discrimination. (c) As to procedural unfairness, the Respondent had not carried out a proper investigation. (d) The summary dismissal was unfair in that the Respondent relied upon the previous incident of 19 August 2004 where the Applicant allegedly verbally abused another employee (Mr Egan). The Union said that Mr Egan did not complain about this incident, and he did not appear as a witness in these proceedings and could not be tested on the accuracy of that incident. The two witnesses, who allegedly saw the incident did not appear as witnesses. As the Respondent had not called any of these three witnesses, then the rule in Jones u Dunkel applied - that is, the Respondent did not call these witnesses because their evidence would not have supported the allegation made by the Respondent against the Applicant. (e) The Union submitted that colourful language and behaviour was a way of life in the Applicant's working environment. There was case law that the standard to be applied in assessing such conduct, was that of men and not angels. Mr Astorga said that the Applicant had not been given any training or counselling in relation to foul language, harassment or bullying. There was also evidence that the Respondent's own officers lacked knowledge about the policy pertaining to these matters. (f) The Respondent's investigation of the August 2004 incident was also flawed. For the Respondent 14 Mr Woodbury, for the Respondent, made the following submission: (a) The Applicant has been dismissed for his conduct arising out of the 7 October incident. The Applicant, at the time of the investigation, denied any wrongdoing. During these proceedings, the Applicant now admitted to the conduct for which he was dismissed. Accordingly, the Commission should dismiss the unfair dismissal application because the Applicant has now admitted to the conduct. (b) The Applicant's conduct towards Thai Hoang was inflammatory, abusive and humiliating. It was provocative conduct that escalated the situation. It led to Thai Hoang losing his job as well. (c) There was no right or need for the Applicant to become involved in the forklift driving incident between Thai Hoang and Shane Bennett. (d) Mr Woodbury rejected the argument that colourful language was acceptable in this instance, because of the way it was used by the Applicant, who delivered such language with personal invective - for both the August and October instances. (e) No remorse was shown by the Applicant for his conduct which led in part to the dismissal of Thai Hoang. (f) Mr Woodbury rejected the argument that the Respondent had not applied, or not properly applied its policies and procedures. The incident of August 2004 had been investigated by management. There was no need for Mr Egan to make a complaint about verbal abuse directed at him. Management had heard about the incident and acted upon the same. Arising out its enquiry, the Applicant was confronted about the incident and was contrite and apologetic. Thus, there was no dispute that the incident had occurred and no need for the Respondent to bring witnesses to these proceedings about that incident. Further, the Applicant had been warned that that sort of behaviour was not to continue or else disciplinary action would be taken. The event with Thai Hoang was of a similar nature - inappropriate, provocative and led to physical violence. (g) The dismissal of the Applicant was not a summary dismissal but one with notice. (h) The dismissal was not harsh, unjust or unreasonable. Reinstatement was opposed. As well, the working relationship between the Respondent and the Applicant had been dashed. Union in Reply 15 The Applicant was the union delegate and, as such, he had the right to intervene in the forklift incident between Thai Hoang and Shane Bennett - especially because a safety issue was involved. This responsibility was expressly provided for in the enterprise agreement existing between the parties. 16 The Applicant had been dismissed because of his colourful language but a different approach was taken by the Respondent in its dealing with Mr Wells. 17 The Union reiterates that the investigation process was flawed and that the Respondent's policies and procedures on bullying, harassment and discrimination were non-existent or not made known to the Applicant. CONSIDERATION 18 The Applicant was called to work on 13 October, for a meeting by Robert Mackenzie (general manager, human resources), and was dismissed by way of a letter provided to him by Mr Mackenzie. The letter set out two grounds of dismissal. One ground was the recent incident involving the Applicant and another forklift driver, Thai Hoang. The second ground was the 19 August 2004 incident in which the Applicant verbally abused another employee, Mr Egan. 19 The Commission will consider those two grounds of dismissal but firstly will consider the issue of onus. Onus 20 The Applicant was dismissed with notice. There was discussion during proceedings as to whether the Applicant's conduct, that led to his dismissal, warranted being classified as misconduct and hence then place the evidentiary burden on the Respondent to establish the facts the Respondent relied upon to dismiss the Applicant. As to what conduct by an employee constitutes misconduct and hence summary dismissal, the Commission relies upon the following authority per Lord Evershed MR in Laws v London Chronicle (Indicator Newspapers) Limited [1959] I WLR 698: "the question must be .... whether .... the servant .... disregarded the essential condition of the contract of service." Having considered the relevant evidence, the Commission is of the view that the Applicant's conduct did not amount to misconduct. Accordingly, the onus is on the Applicant to establish that his is a proper case for the intervention of this Commission and a decision being made in his favour: Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 at 279. GROUNDS FOR DISMISSAL Reasons for Dismissal 21 The letter of dismissal, signed by Bob Mackenzie, refers to an investigation into the incident of 7 October and states that Thai Hoang physically struck the Applicant, after the Applicant had engaged in "victimisation, harassment and, physical and verbal abuse" towards Thai Hoang. The italicised finding by Bob Mackenzie against the Applicant contains four elements: (a) victimisation; (b) harassment; (c) physical abuse; and (d) verbal abuse. 22 The Commission notes as to these four elements that no explanation (evidence) is provided in the dismissal letter in support of those four adverse elements. That is, no explanation is provided as to what aspects of the Applicant's conduct, marries up with one or more of those four elements. Denial of Natural Justice 23 There was an investigation carried out by Mr Ryan, security manager for the Chullora depot. He interviewed a number of persons about the 7 October incident and took statements from them. Mr Ryan was not called as a witness. 24 Mr Mackenzie deposed that he (along with Mr Charlesworth) reviewed the statements taken by Mr Ryan and decided (based on these statements) to terminate Mr Hoang for striking the Applicant and decided to terminate the Applicant for his provocation of Mr Hoang. (ex 25 - para 9) Subsequent to making that decision to terminate the Applicant, the Respondent called the Applicant (and the Union) into work for a meeting on 13 October and the Applicant was given notice of his dismissal at that meeting. This notice was about a decision that had already been taken by Messrs Mackenzie and Charlesworth. The Applicant was not presented with the findings of the investigation and given an opportunity to respond (in light of possible termination of his services) before his services were terminated. The Applicant, accordingly, was denied natural justice. 25 Section 88 (b) of the Act provides relevantly: "In determining the Applicant's claim, the Commission may, if appropriate take into account: (b) ... whether the Applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour. " The Applicant was not given that opportunity. It is open to this Commission to find that this lack of procedural fairness in itself constitutes a dismissal that is harsh, unjust or unreasonable: Antonakopoulos v State Bank NSW (1999) 91 IR 385 at 389. However, the Commission declines to do so and will consider all of the circumstances of this case before determining whether the Applicant's dismissal was harsh, unjust or unreasonable. The Incident of 7 October 2004 26 The Commission will now turn to the incident of 7 October and consider the incident (and in particular the Applicant's role) in the context of Mr Woodbury's final submission for the Respondent, that the Applicant's conduct toward Thai Hoang was inflammatory, abusive and humiliating and was provocative conduct that escalated the incident and led to Thai Hoang losing his job. 27 The incident of 7 October took place in three phases: (a) Initially involving Shane Bennett and Thai Hoang - and then the Applicant's first intervention; (b) The Applicant reporting the first phase to Mr Hansen; and (c) Involving Daniel Wells and Thai Hoang and then the Applicant's second intervention. 28 The first phase of the incident involved Shane Bennett and Thai Hoang and then the Applicant's first intervention. Thai Hoang deposed that Shane Bennett drove the front of his forklift into the front left side of Mr Hoang's forklift. (ex 11 - para 22) Shane Bennett deposed that Thai Hoang ran into Mr Bennett's forklift, pushing the latter out of the way. (ex 4 para 4) Mr Wells deposed he saw this incident but said that Thai Hoang had reversed into the forklift of Shane Bennett (rather than front first as claimed by Mr Bennett). Further he said that he thought Mr Hoang had not seen Shane Bennett's forklift in so reversing into him. (ex 1 -para3) 29 Whether the incident was by design or accident, there followed (it would appear) a verbal exchange between Bennett and Hoang. Bennett deposed he said to Hoang: " Thai, you're fucking dangerous " and that Thai responded " Fuck you " (Bennett said Hoang continued on with the swearing and so Bennett drove away (ex 4 - paras 6 to 8). Wells deposed he witnessed a heated exchange between Bennett and Hoang. He could not exactly hear what was being said but thought they were swearing at each other. He saw them go their separate ways. (ex 1 para 4) Thai Hoang gives no account of this alleged heated exchange. 30 The Applicant deposed as to the first phase of the incident that he witnessed the Bennett-Hoang forklift incident. He blamed Hoang for the incident. Hoang ran into Bennett and kept pushing his forklift into Bennett's forklift . (emphasis added) None of the other three witnesses (Bennett - Hoang - Wells) gave this forgoing underlined account as evidence. The Applicant's account is otherwise consistent with Bennett's but it is not known as to whether it is at odds with Wells who said Hoang reversed into Bennett. The Applicant does not say whether Hoang's action was front on or reverse on. (ex 15 - para 2) The Applicant said he went over to speak to Hoang about the incident. He said: "Thai that is unsafe, stop it" to which Hoang replied: " Fuck you, fuck you ." (ex 15 - para 3 & 4) Mr Hoang gave a different account of the conversation: The Applicant said "You're driving unsafe. Why did you hit his forklift?". Hoang responded: "He tried to hit me. I had stopped already." (ex 11 - para 22) There is no inflammatory language in Hoang's account - as the Applicant has Mr Hoang saying. Mr Wells gives no account of this conversation. Nor does Mr Bennett. The Commission makes the following observation about this first phase of 7 October incident: Mr Hoang's own account of the contact between himself and the Applicant, does not report any inflammatory language or gestures or harassment by the Applicant against Mr Hoang. If, however, Mr Hoang reported inflammatory language and/or conduct by the Applicant, then the whole incident of 7 October (two or more phases) might then be viewed in a different light in respect of the Applicant's conduct. That is, a whole incident scenario may have raised a finding of a concerted effort (the design argument) by the Applicant against Mr Hoang. 31 The second phase to the incident was the Applicant reporting "What Hoang had done" to Mr Ben Hansen, the PM supervisor. He described Hoang's forklift driving as unsafe and reported to him a forklift accident of only a few days prior involving different drivers. He asked Ben Hansen to talk to Hoang about his unsafe driving and Hoang's "swearing his head off at anyone who speaks to him." Mr Hansen was reported to have agreed to talk to Hoang. (ex 15 - paras 6 & 8) Mr Hansen confirmed the approach of the Applicant about Hoang's unsafe driving and deliberate ramming of Bennett's forklift. The Applicant asked that Hoang be taken off the forklift. Mr Hansen said this conversation occurred around 6:00 pm. There is no reference by Hansen as to the Applicant's request that Hansen speak to Hoang. Mr Hansen goes on to say he spoke with Shane Bennett around 8:30 pm about the first phase incident. This is 2.5 hours later. He makes no reference in his statement to the third phase of 7 October. (ex 34 - paras 6 & 7) 32 The third phase began with Daniel Wells and Thai Hoang. 33 Mr Wells deposed about the first phase and said he went back to work. He then deposed to the following about the third phase: (a) That Hoang was reversing his forklift and not looking where he was going. Hoang clipped Wells' forklift. Hoang said something but could not be heard. Wells drove off. (b) He saw a pallet of freight on Hoang's forklift fall and spill on the floor. He said Hoang alighted and came toward him carrying a steel bar, some 3 to 4 feet long. Hoang stopped and threw the bar back from where he got it. (c) Hoang approached Wells who said Hoang was swearing at him: "Why did you fucking hit me." I replied "You ran into me, not me into you!" Hoang responded "Bullshit." (ex 1 - paras 3 to 6) At this point, the Applicant intervened. 34 Mr Hoang deposed about the first phase and said he then went back to work. He deposed to the following about the third phase: (a) He picked up a pallet to take to the White dock. Before he could drop off the pallet, Mr Bennett backed his forklift in front of Hoang. Mr Bennett stopped and had a smoke for about five minutes. (b) Hoang drove back to the main door to pick up another pallet. (Hoang does not say what he did with the other pallet referred to in (a) above - Macdonald C.) He picked up this other pallet but then found that Wells had backed his forklift into the back of Hoang's forklift. This caused Hoang's pallet to fall down. Wells drove off laughing. (c) A supervisor, Steve, came over. Hoang said: "Did you see what happened? He ran his fork into mine." Steve said: "Calm down, calm down. I'll give you a hand." (d) Hoang ran after Wells and said to him: "Why did you run into my fork? You come back and pick up the freight." (ex 11 - paras 23 & 24) At this point, the Applicant intervened. 35 "Steve, the supervisor" was identified by a Trevor Hill as being Steve Renwick. Mr Renwick did not give evidence. The Commission is unaware if he was interviewed by the security manager, Mr Ryan, who interviewed a number of employees about the 7 October incident. 36 Trevor Hill is employed as a forklift driver. He deposed to the third phase as follows: (a) Around 6:45 pm, he observed Wells and Hoang driving their forklifts in reverse. Hoang's pallet fell off and spilled on the floor. Hoang ripped the hand brake on. (The Commission notes that there is no reference to any forklift interference by one driver against the other.) (b) Hoang jumped from his forklift and sprinted after Wells who was still reversing his forklift. (The Commission notes that no explanation is given to explain Hoang's sprint after Wells.) (c) Hill and Steve Renwick walked over to the spill to pick up the freight. Hill commented to Renwick about Hoang sprinting after Wells. (d) He noticed that Hoang had left his forklift in gear with the handbrake on. He drew this unsafe act to the attention of Renwick who reportedly said he would talk to Hoang about that act. (e) He said that he and Renwick were upset that Hoang had not come back to help clean up the pallet mess. (f) He heard from Wells about 20 minutes later (approximately 7:05 pm based on earlier reference to 6:45 pm - Macdonald C), that there had been a fight between Hoang and the Applicant. (ex 6 - paras 3 to 10) 37 The Commission notes that Hill's evidence is that he saw Hoang sprint after Wells following the pallet spill, but makes no reference to Hoang carrying towards Wells, a steel bar of 3 to 4 feet in length - as claimed by Wells. It seems, as well, that a steel bar of that length (including the act of Hoang picking it up as claimed by Wells), would have been noticed and reported by Hill. 38 So far, the Commission has recorded the interaction between Wells and Hoang during the third phase - up to the point that the Applicant intervened. The Commission will now consider the interaction between Hoang and the Applicant for which both were dismissed. 39 As to that interaction, there is no dispute that Hoang hit the Applicant and for that conduct, he was dismissed. The issue for the Commission is the Respondent's decision to dismiss the Applicant because of his conduct towards Hoang. 40 The Commission will now reconstruct, as best as can be, that interaction. Apart from the evidence of Hoang (ex 11, 13 & 30) and the Applicant (ex 15, 16 & 31) there were three other witnesses who gave evidence about that interaction: · Daniel Wells (ex 1, 2, & 26) - a witness called by the Union. · Bernard O'Toole (ex 29 & 33) - witness called by the Respondent. · Stephen Lowe (ex 31 & 35) - a witness called by the Respondent. 41 From the evidence of those five witnesses, the Commission reconstructed that interaction along the line of pre-hit, the hit and post hit. The hit is Hoang's striking the Applicant on the Applicant's face. The post-hit included the Applicant calling in the police and being taken to hospital. 42 In the pre-hit time frame, there was a conversation between the Applicant and Hoang: · Hoang could not recall the words of the conversation but said the Applicant was screaming and swearing at Hoang. · The Applicant in effect, describes the conversation as a non-confrontational observation on his part to Hoang about Hoang's unsafe forklift driving - only to be met by: "Fuck you, fuck you" from Hoang. · Wells described the pre-hit conversation in the same manner as the Applicant. · O'Toole deposed that the Applicant said to Hoang: "you're fucking unsafe" a few times. O'Toole does not say if he heard whether Hoang had said anything. · Lowe heard nothing of the conversation because of the noise in the depot and his distance from Hoang and the Applicant. The Commission finds that even if the version of the conversation given by O'Toole is accepted, then that conversation is nothing more than a colourful (" fucking unsafe ") description by the Applicant of Hoang's driving. It is not conversation of a harassment or victimising kind. It is opportune to record that several witnesses gave evidence about swearing in the yard. Mr McMahon aptly said on the point: " It's a depot - it's a transport yard, there's a lot of swearing in the yard ." (Tr 18/4/05 - p62, lines 15-19) 43 The next event in this pre-hit time frame, is the Applicant's alleged groin gesture towards Hoang. Thus: · Hoang said the Applicant grabbed his groin with his hands, grabbed his pants at the front of his groin and shook it and trust it towards Hoang. · The Applicant was interviewed by the Security Manager on 11 October. The Applicant could not recall grabbing his groin and genitals area with both hands and gesturing towards Hoang. The Applicant's witness statement however did record the following - Hoang said to the Applicant ""Fuck you, fuck you". The Applicant replied "No, don't fuck me, if you want to fuck anything fuck this." as I grabbed up my pants."" (ex 15 - paras 11 & 12) Hoang denied this conversation took place. (Tr. 19/4/05 - p35, line 26 to 40) · Wells said he saw the Applicant make a hand gesture, pointing to the Applicant's groin area. Wells does not record any conversation surrounding this groin incident. He does not say that the Applicant even grabbed his groin area or made a thrusting gesture. (ex 1 - para 12) · O'Toole records that the Applicant used both of his hands to grab his groin area on the outside of his trousers. He appeared to be grabbing his genitals and gesturing towards Hoang. (ex 29 - para 5) · Lowe said that the Applicant used both of his hands to grab at his groin area. The Applicant gave the impression that he was holding his genitals with his hands and thrust his hips in the direction of Hoang. (ex 32 - para 3) 44 In assessing the foregoing accounts, the Commission has the Applicant's version where he says he responded to Hoang's: "Fuck you, fuck you." On this account, the Applicant is responding (rather than initiating) to Hoang's provocative expression. It would be provocative, given the evidence from phase one which shows that Hoang was upset at his treatment from Wells. This was confirmed by Hoang that he hit out at the Applicant because of "everything that has happened to me." (The Commission comments below on this expression). On this account, it seems to the Commission that the Applicant is setting up the defence that he responded to a provocative expression. Hoang denied saying the above expression. None of the witnesses were close enough on the day to hear any of the conversation between Hoang and the Applicant. The evidence came down to one person's word against another. 45 The Applicant's account also had him saying: "I grabbed up my pants." As to this account, Well's evidence does not even have the Applicant touching his pants. Hoang, O'Toole and Lowe have the Applicant grabbing his pants in the groin area and thrusting his hips in the direction of Hoang. In deciding on these competing accounts, about the groin incident, the Commission holds that the Applicant grabbed at his groin area on the outside of his trousers. He did so with both hands. Two witnesses (O'Toole and Lowe) talked of an impression that the Applicant was holding onto his genitals. These two witnesses talk of an impression as they were not close enough to hear the conversation between Hoang and the Applicant. As their impression is the result of a distance factor, the Commission will hold no more than that the Applicant grabbed at his groin area. The Commission also holds that the Applicant thrust his hips in the direction of Hoang. The Commission now turns to the information that the Respondent acted upon in deciding to dismiss the Applicant, that is, that the Applicant has engaged in " victimisation, harassment and, physical and verbal abuse ... towards Mr Hoang. " (Ex 25 - Annex E) 46 The Commission notes that when the Respondent took the decision to dismiss the Applicant, it did so without the Applicant's version of the groin affair. That is, the Applicant had been interviewed by security but said he could not remember grabbing at his groin and/or genitals and gesturing towards Hoang. The Respondent could only have relied upon the evidence of the other four witnesses: Hoang, Wells, O'Toole and Lowe. The Commission discounts Wells' evidence as being relied upon by the Respondent because he merely said that he saw the Applicant pointing at his groin - and nothing about grabbing at his groin and /or genitals. The Respondent then had only three witnesses to rely upon for what transpired: Hoang, O'Toole and Lowe. Further, the evidence of these three witnesses, upon which the Respondent relied, is contained in statements made to the Security Manager. 47 Apart from describing the interaction between Hoang and the Applicant, two of the three witnesses make a personal opinion about this interaction. Thus: · Hoang said: "I am very upset with everything that has happened to me and everything happen very fast, I think I push him but I don't know where." (ex 13, para 9) The Commission observes that Hoang's opinion is of a general nature and there is no specific opinion by him about the Applicant's conduct towards him at that particular instant. As Hoang states that he is upset at " everything that has happened to me " (emphasis added), it would seem that his hitting of the Applicant was a reaction to conduct by the Applicant that might appropriately be described as the straw that broke the camel's back. That is, Hoang's reference to the term "everything", shows that his reaction was not just based on the Applicant's conduct, but all things that had happened in the past. Mr Hoang deposed to other events in the past. He said he was constantly harassed by Trevor Hill and Shane Bennett for not joining the Union. He was called names including "cunt", "dog" and "cocksucker." (ex 11, para 6) He said these harassments happened almost every week from around 2001. (Tr. 18/4/05 - p75, lines 38 to 56) His harassment concerns also included other employees stopping their forklifts in front of his path so as to prevent him from doing his work. (Tr 18/4/05 - p76, lines 18 to 57) There was also the matters under discussion in this Decision as to the reported conflict between Hoang and Wells in the lead up to Hoang's and the Applicant's dismissal. · O'Toole's statement to the Security Manager makes this personal observation about the Applicant's conduct: "I remember thinking at the time that this gesture was meant to be provocative and insulting to Thai (Mr Hoang). My interpretation of this gesture is that it is insulting, demeaning and was meant to indicate that Thai was a 'fucking wanker'." (ex 29, para 5) · Lowe's statement to the Security Manger makes no personal observation about the Applicant's conduct. 48 In summary of the evidence so far, the Commission has noted that (a) the Respondent's decision to dismiss the Applicant could only have been based on the evidence of three witnesses, as to the Applicant's conduct. The fourth witness is the Applicant himself and it can only be the case that whatever he said about the incident, in his interview with the security manager, was rejected by the Respondent. (b) the Respondent did not put any of its adverse findings about the Applicant, to the Applicant himself, before dismissing him. The Applicant, in that regard, was denied natural justice (see paragraphs 23 to 25 inclusive above). (c) The Applicant's interview by the security manager (Ex 31) is formatted around questions and answers only. At no stage in that interview, is the Applicant challenged about the answers he gives. The Applicant has brought to his attention that TNT/McPhee has policies and procedures (these are identified in the interview) and the Applicant acknowledges in the affirmative. It is not put to him (if this was the intent of the questioning) that the Applicant was in breach of any or all of these policies and procedures. And finally, there is no reference to the Respondent's: Harassment (Including Sexual) and Discrimination Policy ("the H&D Policy"), in this interview - let alone in what way the Applicant's conduct breached this H&D Policy. (d) the Respondent (Messrs Mackenzie and Charlesworth), at the dismissal meeting, did not explain how the Applicant's conduct breached the H&D Policy. (e) Mr Hoang, the recipient of the Applicant's conduct (either the Applicant's version or Hoang's version of that conduct), did not make any statement of being offended by the Applicant's conduct. The only opinion he expressed in his interview with the security manager was that he was "very upset with everything that has happened to me..." (ex 30 - para 9) As already canvassed above, the general (non-specific) comment by Hoang is couched in the past tense and refers to all things in the past. At best, the Applicant's conduct is the straw that broke the camel's back and caused Hoang to hit the Applicant. The Applicant's conduct is but an aspect of everything that has happened to Hoang. As at the time of the security interview, Hoang never said he was personally offended by the Applicant's conduct. (f) Mr Hoang, the recipient of the Applicant's conduct, did not say in his witness statement (dated 18 February 2005) that he was personally offended by that conduct. (ex 11) 49 The Respondent's H&D Policy (ex 21) defines harassment and gives examples of harassment. It defines harassment as an unwelcome advance, or unwelcome request or unwelcome conduct, "in circumstances in which a reasonable person would be offended, humiliated or intimidated." There was no direct evidence from Hoang that he was offended, humiliated or intimidated by the Applicant's conduct. There was nothing directly on that point in his statement to the security manager, (ex 3), and which is dated 11 October 2004 - four days after the event. There was nothing directly on that point in his witness statement (ex 11) which is dated 18 February 2005 - even some four months after the event. 50 It seems to the Commission that all that can be said about the affect of the Applicant's conduct on Hoang, is that it was the straw that broke the camel's back and caused Hoang to hit the Applicant on the face. The Commission draws this inference from Hoang's claim in his security interview that he was "very upset with everything that has happened to me ..." This quote refers to the past because it is put in the past tense. Accordingly, the Applicant's conduct becomes an aspect of everything that has happened to Hoang, rather than the Applicant's conduct being the direct and present cause of his being very upset. That is, the Applicant's conduct is not the direct and present cause of Hoang's being very upset. 51 Before concluding the Commission's consideration on the Respondent's reason for dismissing the Applicant, the Commission needs to consider another issue raised by Hoang and which allegedly took place at the same time as the Applicant's conduct. 52 In his security interview (ex 30), he claimed that the Applicant came towards him, with both hands up and with closed fist. (Subsequently, Hoang said the Applicant grabbed his groin area). Hoang's witness statement (ex 11) reports the above, but reverses the order of the events, so that the raised hands and closed fist comes after the groin grabbing incident. The next incident reported by Hoang, in both statements, is that he hit the Applicant. 53 The Applicant denied he closed his fist to Hoang. (ex 16, para 9) Wells denied that the Applicant raised his fists or arms at Hoang. (ex 2, para 6) There were two other witnesses to the incident, both of whom were called by the Respondent: O'Toole (ex 33) and Lowe (ex 35). Neither of these witnesses reported the Applicant having raised his hands and/or having closed fists. The Commission finds on the weight of the evidence that the Applicant did not raise his hands, with closed fists, towards Hoang. Summary of 7 October Incident 54 The Respondent dismissed the Applicant at a meeting held on 13 October 2004. The Commission held that the Respondent had decided beforehand to dismiss the Applicant. He was presented with a letter of dismissal at that meeting. The Commission held that the Applicant was denied natural justice. He was not presented with the Respondent's findings and given an opportunity to respond. Despite that finding by the Commission, the reasons for dismissal were still considered by the Commission. 55 The letter of dismissal said that the Applicant had engaged in victimisation, harassment and physical and verbal abuse towards Mr Hoang. The letter of dismissal did not provide any explanation as to what aspects of the Applicant's conduct married up with one or more of the four above descriptors. No explanation was provided at the dismissal meeting. 56 The Applicant was interviewed by the security manager as to the incidents of 7 October. That interview had the format only of questions and answers. The witness was not challenged as to his answers. Some questions asked if the Applicant had knowledge of certain policies and procedures. He answered in the affirmative. If, in answering in the affirmative, this meant he was then in breach of those certain policies and procedures, then that was not explained to him - then or later. There was no reference to the Respondent's Harassment (Including Sexual) and Discrimination Policy at this meeting (or at the dismissal meeting). 57 There were competing versions as to what constituted the Applicant's conduct. On the weight of the evidence, the Commission found that the Applicant grabbed at his groin area on the outside of his trousers and thrust his hips in the direction of Hoang. 58 As to the Applicant's conduct, Mr Hoang never said he was personally offended by that conduct. 59 The Respondent (Messrs Mackenzie and Charlesworth), at his dismissal meeting, did not explain how the Applicant's conduct breached the H&D Policy. 60 The Commission considered the events of that 7 October over three phases. The reason for doing so, was to consider the Applicant's role across those three phases in order to ascertain if the Application's conduct in the third phase (and for which he was dismissed), could be seen as part of a concerted effort by him to generally harass Mr Hoang. The Commission finds that there was no evidence to support such a finding. 61 There was evidence of swearing on site amongst the workers. During the interaction between the Applicant and Hoang, the former said to Hoang: "You're fucking unsafe." The Commission held that this was nothing more than colourful language. To the extent that this comment by the Applicant was relied upon by the Respondent to support the Applicant's dismissal, it is rejected by the Commission as so supporting the dismissal. 62 There was another alleged conversational interchange between Hoang and the Applicant who claimed that Hoang said: "Fuck you, fuck you" and to which the Applicant claimed he responded: "No, don't fuck me, if you want to fuck anything fuck this." Hoang denied under cross-examination that this conversation took place. There were no witnesses to this alleged conversation. The witness only observed the interaction between the Applicant and Hoang. They did not hear this alleged conversation. The Commission is unable to make a finding as to whether this alleged conversation took place. 63 In considering the evidence as a whole about this 7 October incident, the Commission finds that the dismissal of the Applicant was harsh. The Commission is not certain as to what was the conduct relied upon by the Respondent to dismiss the Applicant. It was never explained to the Applicant in the dismissal letter, nor at the dismissal meeting as to what conduct of the Applicant, married up with the Respondent's allegation of " victimisation, harassment and, physical and verbal abuse " towards Mr Hoang. Not only was there no explanation but there was also in consequence a denial of natural justice. The only other person at the centre of the incident was Mr Hoang. He never said he was personally offended by the Applicant's conduct. Given these specific comments above, the Commission finds that the dismissal of the Applicant was harsh. The Incident of 19 August 2004 64 The second ground of dismissal concerned an incident on 19 August 2004, between the Applicant and Mr Trent Egan, the occupational health and safety representative, (the OH&S representative). 65 The Applicant had questioned whether a Queensland trailer was safely loaded and by his admission, he had stopped the loading on safety grounds - his concern being that the load could shift during transit. The Applicant was questioned by Mr Egan and Mr Gregory Johnstone (NSW Training Manager) about his decision to stop the loading. The Applicant said that the loading procedure was different to the procedure recently shown to employees in a training session. (ex 16 - para 18) 66 Messrs Johnstone and Egan left the trailer loading area and headed for the upstairs office to consult the TNT National Loading Procedure and the Training Presentation that Gregory Johnstone had given to all dockhands. Gregory Johnstone made out a statement on 23 August 2004, setting out the foregoing and stated that Trent Egan (the OH&S representative) concurred that the correct loading procedure was being used. They returned to talk to the Applicant about their concurrence. The Applicant disputed their reading of the correct loading procedure. (Appendix C to witness statement of Bob Mackenzie (ex 25)). 67 Michael Jones, Acting PM Senior Supervisor, also made out a statement of the 19 August incident. (Appendix A to ex 25). He supervised the loading of the Queensland trailer in question. He reported, inter alia, the incident for which the Applicant was allegedly given an official warning by Bob Mackenzie. Mr Jones said that (after Johnstone and Egan had returned to speak to the Applicant from the upstairs office), the Applicant reportedly stated to Trent Egan: " " Isn't this a different loading procedure to what we were trained in?" Trent said, "I can't be sure." Robert (the Applicant) said, "Why don't you go back upstairs then and suck his cock for another half an hour, you fucking cock sucker." Trent left this area ...." " 68 Malcolm Camplin, Assistant PM Operations Manager, also made out a statement about the Queensland trailer incident, and relevantly stated: " " Robert (the Applicant) said to Trent, "Why don't you go back upstairs with Greg (Johnstone) and suck his cock for another half hour and write up another load of procedure to suit yourselves, you fucking cock sucker ." " (Appendix B to ex 25) 69 For the record, the Commission records that Gregory Johnstone had walked away prior to the conversation between Egan and the Applicant recorded above, and did not hear that exchange. Also, Trent Egan, Michael Jones and Malcolm Camplin were not called as witnesses. 70 The foregoing incident was the subject of investigations by the Security Manager, Mr Ryan. Statements were taken from four persons: Jones, Camplin, Johnstone and Colin Skinner (PM Operations Manager). No statement was taken from the Applicant. 71 Bob Mackenzie deposed he was made aware of the incident and had a meeting with the Applicant to discuss the incident. Also present were Lisa Johnstone (TWU Official) and two TWU site delegates. He deposed he "formally warned" the Applicant that his behaviour was aggressive and abusive and would not be tolerated. The Applicant was also advised that any repeat offence would lead to discipline. (ex 25, paras 6 & 7) The significance of the foregoing account by Mr Mackenzie, is that it was relied upon by the Respondent to support the dismissal of the Applicant. That is, the Applicant had been formally warned and put on notice. This is confirmed by the dismissal letter of 13 October 2004. " You will also recall a previous incident involving yourself on 19 August 2004 during which you verbally abused another employee and admitted using the phrase, "why don't you go back upstairs and such (sic., suck) his cock for another half an hour, you fucking cock sucker." You will recall my warning to you that this behaviour was totally inappropriate in the work place and would not be tolerated by TNT. " (underlining emphasised) (ex 15, Appendix A) 72 The foregoing account by Mr Mackenzie was put in dispute during proceedings by the Union. 73 As to that meeting in which Mr Mackenzie stated he gave a formal warning and notice, it appears that the other persons in attendance were: Mr Jay Kent (Operations Manager, Enfield), Linda Johnstone (then a TWU official) and Anthony McMahon (Union co-delegate). 74 Jay Kent deposed that he discussed the Applicant - Egan issue with Mackenzie who decided not to issue a formal letter of warning because to do so might result in industrial action. Mr Kent deposed that the Applicant was very apologetic and began making concessions - at the meeting. Mr Kent said that Mackenzie gave the Applicant a verbal warning for his conduct towards Mr Egan: " Your behaviour is unacceptable. This is your final chance. If you behave like this again we will have no choice but to take formal action ." (ex 37) Under cross-examination, Mr Kent conceded that Mackenzie had not said (in their private talks) that a written letter would not be issued because of anticipated industrial action in consequence of so issuing that letter. Rather, it was Mr Kent's own assessment of the situation. (Tr 17/11/05 - p29, lines 43-50) It was put to Mr Kent that no verbal warning was issued by Mackenzie to the Applicant but this was rejected by Kent. He agreed that it was custom and practice to put such a verbal warning on an employee's file but in the case of the Applicant, this had been overlooked. (Tr 17/11/05 - p30, lines 26-54) 75 As to that meeting with Mr Mackenzie, the Applicant denied he was given a warning. (Tr 19/4/05 - p98, lines 1-2) The Applicant denied he was put on notice. (Tr 19/4/05 - p94, lines 44-45) 76 Lisa Johnstone attended the meeting. At that time, she was a TWU Official but is now with a different Union. She deposed that Mackenzie sternly told the Applicant that his attitude needed to change and that his behaviour was unacceptable arising out of the incident between him and Egan. She could not recall the comment being made in a formal fashion and she rejected Kent's claim (quoted words above) of a formal verbal warning. She recalled Mackenzie's words as given informally as advice, rather than as a warning. (ex 40) Under cross-examination, Lisa Johnstone gave as her recollection that the Applicant was apologetic about his behaviour in dealing with Egan and the whole incident but that the Applicant had not agreed at that meeting that he had said those abusive words attributed to him (that is, the alleged cock sucker commentary). Lisa Johnstone rejected the claim of Jay Kent that the Applicant was shown copies of witness statements in which the alleged abusive words appeared and were attributed to the Applicant. She said that if those statements had of been produced at the meeting, she would have sought a copy of them as they went to disciplinary matters. She recalled that the alleged abusive words were put to the Applicant but he did not agree that he had used those words. (Tr 17/11/05 - pp50-53) 77 Anthony McMahon, a Union co-delegate, gave evidence about this meeting. His witness statement rejects that a formal warning was given by Mackenzie to the Applicant. He recalled that the Applicant agreed at this meeting that his behaviour was probably not acceptable and that he had not followed proper procedures. (ex 10) Under cross-examination, McMahon said he could not recall any witness statements (containing the alleged abusive words) being shown to the Applicant. He recalled that Mackenzie had told the Applicant that his attitude was unacceptable to TNT. (Tr 17/11/05 - pp 47-49) Summary of 19 August Incident 78 In considering the evidence as to the incident of 19 August 2004, the Commission has documentary and oral evidence to ponder - in the context of the Respondent's assertion that the Applicant has uttered certain abusive words towards Trent Egan, the OH&S representative. 79 The documentary evidence were two statements made out via the Security Manager's investigation. The authors of the two statements (Jones and Camplin) were not called as witnesses by the Respondent to give first hand evidence as to what they attributed to the Applicant. 80 Trent Egan, the recipient of the alleged abusive words, was not called by the Respondent as a witness. 81 The significance in not calling the authors referred to above and/or Trent Egan, was that the Applicant did not agree that he had uttered those alleged abusive words. 82 This incident of 19 August was the subject of discussion at a meeting held on 23 August at which the following attended: Mackenzie and Kent for the company; the Applicant, Lisa Johnstone and McMahon for the Union. The Applicant's evidence is that he denied saying at this meeting that he had used those words. This denial was supported by Johnstone and McMahon. There was even disagreement as to whether the two statements had been shown to the Applicant at this meeting. Kent said this had been done but Johnstone rejected this and put the reasonable explanation that had the statements been produced, she would have sought copies of them because the statements would then have been raised in a disciplinary context - and hence her need to have a copy. 83 There was disagreement as to whether a formal warning and putting the Applicant on notice about such future conduct, was put to the Applicant. The Applicant, Johnstone and McMahon rejected that the foregoing were given by Mackenzie. Their evidence was that Mackenzie was stern in his demeanour to the Applicant but no formal warning was provided to the Applicant. On this point, the Respondent said it was normal custom and practice to put a file note on an employee's record about such warnings, but no file note could be produced on this occasion. The Respondent said this was an oversight. 84 In considering the evidence, the Commission takes the view that the Respondent asserts that the Applicant uttered those alleged abusive words and so the Respondent carries the onus to prove that assertion. This the Respondent failed to do. The Applicant denied so uttering and the three key witnesses against him were not called. The Respondent per Mackenzie and Kent asserted it had given a formal warning to the Applicant but this was denied by him, Johnstone and McMahon. The traditional file note about such formal warnings was not produced in court. On the weight of evidence, the Commission finds that the Respondent has not proved that the Applicant uttered the words attributed to him and has not proven that a formal verbal warning and notice about such future conduct, was given to the Applicant at the meeting of 23 August 2004. CONCLUSION 85 The Applicant was dismissed by letter of 13 October 2004 provided in person to the Applicant at a meeting on 13 October 2004. That letter set out two reasons for the Applicant's dismissal. One reason went to an incident between the Applicant and Mr Hoang, a fellow forklift driver. This incident occurred on 7 October 2004. The second reason was a warning to the Applicant about his verbal abuse of another employee. 86 As to the incident between the Applicant and Mr Hoang, the Commission made a key finding that Mr Hoang had not made any complaint about being offended by the Applicant's conduct. The Commission considered other matters surrounding this issue, but essentially there was no complaint by Hoang of being personally offended. 87 As to the second reason for dismissal (alleged verbal abuse of another employee), the Commission found on the weight of the evidence that this allegation had not been made out by the Respondent. Further, the Commission held, on the weight of the evidence, that no formal warning had been issued to the Applicant about his alleged verbal abuse of another employee. The Commission also notes that it is not being held had the alleged verbal abuse never took place. The Commission is only finding that the Respondent never proved, on the weight of the evidence, that that verbal abuse had taken place. 88 The dismissal letter relies upon both incidents to support the dismissal. On one view of that, a failure by the Respondent to prove that one of the two incidents took place, means that the Respondent's case to support the dismissal, fails. The Commission has not taken that view of the matter, and has considered whether the first reason for dismissal (the Applicant's conduct towards Hoang), constituted, in itself, a ground for dismissal. The Commission has found that this is not so. 89 Despite finding that the first reason for dismissal was not made out by the Respondent, for the key reason that Hoang gave no complaint of being offended by the Applicant's conduct, the Commission has still taken the view that the conduct of the Applicant was inappropriate. Given that the Applicant was also the union delegate and in recognition of the responsibility that goes with that role, then the Applicant's conduct becomes the more inappropriate. 90 Having considered all of the evidence, the Commission finds that the dismissal of the Applicant was harsh: Outboard World Pty Ltd v Muir (1993) 51 IR 167 The Commission rejected the Applicant's version as to his conduct towards Hoang and accepted the latter's version which was supported by two other witnesses. That conduct was said by the Respondent to breach its H&D Policy. The letter of dismissal said the Applicant's conduct was harassment, intimidation and physical and verbal abuse of Hoang. But Hoang never made any complaint about such conduct. He never said he was offended by that conduct but gave evidence of being offended by past conduct by employees against him. The Commission does, however, find that the Applicant's conduct was at least inappropriate and all the more so given his responsibility as a union delegate. But the conduct did not warrant dismissal. The ultimate penalty of dismissal was not appropriate for the conduct engaged in by the Applicant. Had Hoang given evidence directly on the Applicant's conduct, then a different finding by the Commission would be up for consideration. 91 The Commission has decided to make the appropriate orders as to the reinstatement of the Applicant into his former position. As to the order for payment of all lost wages, the Commission declines to make such an order. In coming to that decision, the Commission has taken on board that the Applicant's conduct was inappropriate and all the more so given his responsibility as a union delegate. The Commission was advised that the gross weekly remuneration of the Applicant was $680. ORDERS 92 The Commission hereby makes the following orders: (a) The Applicant (Mr Manowski) is to be reinstated by the Respondent (TNT Australia Pty Ltd) into his former position. (b) The employment of the Applicant is to be taken not to have been broken by his dismissal. (c) The Applicant is to be paid for lost remuneration calculated at $680 gross per week for the period of time from 1 September 2005 to the date of reinstatement: s89(3) of the Act (d) The orders of the Commission shall take effect within twenty-one days from the date of this Decision. 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.