Industrial Relations Commission New South Wales Medium Neutral Citation: Morris and Boral Cement Limited [2013] NSWIRComm 1014 Hearing dates: 07 & 08 May 2012; 28 & 29 May 2012; 25 & 26 June 2012; Submissions - 15 August 2012 Decision date: 26 April 2013 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM Decision: Claim dismissed Catchwords: Unfair dismissal; Legislation Cited: Industrial Relations Act 1996 Blue Circle Southern Cement Ltd (NSW) Enterprise Agreement 2010 Cases Cited: Blythe Chemical Limited v Bushnell (1933) 49 CLR 66; Gorman & BHP Integrated Steel Division [2000] NSWIRComm 1079 Category: Principal judgment Parties: Applicant: Australian Workers' Union, Port Kembla, South Coast and Southern Highlands Branch Respondent: Boral Cement Limited Representation: Mr C Nikolovski (Applicant) Mr N Chadwick (Respondent) File Number(s): IRC 1876 of 2011 DECISION 1Mr Clint Morris, 36, was employed by Boral Cement Limited ("Boral") at its Marulan South plant. He commenced his employment as a Lime Plant Bagger on a full time basis in August 2004. Prior to that time he had been employed as a casual from about June 2003. 2On 9 December 2011, Boral terminated Mr Morris' employment with a payment to Mr Morris of four weeks' pay in lieu of notice. The letter of termination relevantly stated: The decision to terminate your employment has been made as a result of an incident involving your supervisor, Robert Young, on Wednesday 7 December 2011 in which your actions and behaviour were deemed to be abusive, threatening and intimidating. In arriving at the decision to terminate your employment, the Company has taken into account your employment history, which includes several warnings for inappropriate conduct and behaviour and a final written warning given to you on 15 September 2011. 3Mr Morris, with the assistance of his union, the Australian Workers Union Port Kembla, South Coast and Southern Highlands Branch (the AWU), challenged his dismissal as being "harsh, unreasonable or unjust" and filed an application for relief in relation to unfair dismissal on 14 December 2011. Evidence 4In relation to the Applicant, statements were filed and oral evidence given by the applicant himself, Mr David Hancock, an official of the AWU, Mr Scott Thomson, AWU co-delegate at the plant, Mr Grant Thomson, AWU delegate at the plant and Mr Mark Smith, AWU member and Conduct Officer otherwise known as the Harassment and Bullying Officer. 5For the Respondent, statements were filed and oral evidence was given by the following persons: Mr Tony Cole, who was the Lime Plant Superintendent for Boral between December 2007 and October 2011; Mr Dara O'Sullivan, Human Resources Manager, NSW for Boral; Mr James Collings, Operations Manager at the plant; Mr Paul Parlett a Control Room Operator at the plant; Mr Robert Young, the Lime Plant Coordinator at the plant; Mr Jared Beattie, a labourer employed by Skilled Engineering, who was engaged to work at the Boral plant on a labour hire basis; and Mr Josh Daniel, a maintenance fitter employed by Boral at the plant. 6A summary of the background, drawn from the evidence, will assist in placing the issues in context. For a few years prior to his dismissal Mr Morris had worked twelve-hour shifts relieving other employees on leave. At a meeting involving Mr Morris, Mr Scott Thomson, and representatives of management (Mr James Collings, Mr Nigel Simms, Lime Superintendent and Mr James Collins, Laboratory Superintendent) on 1 December 2011, it was put to Mr Morris that when he was not working as a relief on shift he would be required to work on day shift. The evidence was that Mr Morris would continue undertaking relief work (and therefore work 12 hour shifts) for approximately 11 months of the year and for the remainder of the time he would revert to day work, although this might alter from time to time depending on whether shift workers he was relieving took their annual leave during the year it fell due. Mr Morris was also required to provide relief on occasions when shift workers took sick and other leave. 7Mr Morris opposed such a move, citing the impact on his income, change to his lifestyle and referring to an agreement he said existed that he would not be "dropped back down to a day worker". After some discussion it was ultimately agreed that Boral would present a plan to the AWU prior to Mr Morris going onto day work. In the interim, Mr Morris would remain on shift work. 8At the time of Mr Morris' dismissal, Mr Young had been the Coordinator for about 12 months, although he had been employed by Boral for 24 years. On 7 December 2011, Mr Young decided to take the opportunity to talk to Mr Morris in relation to the shift that he would be working upon his return from annual leave. Over the previous few days Mr Young had indicated to Mr Morris that he needed to speak with him about his shift arrangements. On 7 December 2011, as Mr Young approached, Mr Beattie was working alongside Mr Morris. Working nearby was Mr Daniel who had come to speak to Mr Young about a matter. 9Mr Young proceeded to advise Mr Morris that upon the latter's return from holidays, he would be required to work "8 hour shifts on Monday, Tuesday, Wednesday and Thursday". (It appears that the plant was closed down on Friday, 23 December 2011.) 10Mr Morris reacted angrily and admittedly so and, according to Mr Young, Mr Morris' demeanour was such that Mr Young said he thought Mr Morris was going to hit him. Mr Young said he remained calm in the face of Mr Morris' aggression in order to avoid provoking Mr Morris. Mr Young said Mr Morris was within millimetres of his face and was pointing his finger in Mr Young's face. 11Mr Beattie generally confirmed Mr Young's version of what occurred and it is apparent from the evidence that Mr Beattie was in a position to observe the exchange between Mr Young and Mr Morris. Mr Beattie thought at one stage he might need to intervene if Mr Morris attempted to hit Mr Young. Mr Beattie said Mr Young was not aggressive. 12Mr Daniel's evidence also supported that of Mr Young and he too thought he might need to intervene. Mr Daniel said it was "a very volatile situation" and that Mr Morris was "staring at Mr Young" and "finger pointing" and was "very agitated". 13Mr Morris said he was upset about what Mr Young put to him, that he raised his voice, but that he was neither aggressive nor abusive. He said he felt Mr Young had harassed and intimidated him and had laughed at him. Mr Morris said he was upset that, contrary to the understanding that had earlier been reached with management, "Robert's arbitrary decision would result in a significant pay reduction that would affect my ability to provide for my family and myself". 14Mr Morris' version of what he said to Mr Young was to the following effect: There was an agreement with the company. Until then I am supposed to remain on shift. You have instigated the whole thing. This is all your doing dropping me to a day worker [to which Mr Morris said Mr Young replied "yes"]. You are fucking with my job, my money, my lifestyle and my family. How would you like it if it was on the other foot. You have a missus and kids? [to which Mr Morris said Mr Young replied "yes"] How would you like it if your job was messed with? You are supposed to provide me and the Union with a layout of how my yearly roster will look and who I will cover. That was agreed in the last meeting [to which Mr Morris said Mr Young laughed and said "You've been told. That's the way it is. I don't know anything about the agreement".] You started this, how could you forget? You have pulled out the big guns now it's time for me to pull out the big guns [to which Mr Morris said that Mr Young replied "Bring it on".] 15Mr Young's version of what was said by Mr Morris was not substantially different to that of Mr Morris except that Mr Young stated that Mr Morris said "I have stuff up my sleeve that could get you sacked." Mr Young denied laughing at Mr Morris. The versions of Mr Beattie and Mr Daniel of what was said between Mr Young and Mr Morris were not significantly different to the version of Mr Morris. Mr Daniel said Mr Young was composed during the argument and kept on stating, "You do what you have to do." Mr Young reported the incident to Mr Simms later that same day and also advised Mr O'Sullivan of what had occurred. 16Mr Young met with Mr Collings, Mr Simms and Mr O'Sullivan at about 8.00 am on 8 December 2011 and recounted what had occurred the previous day. 17Mr O'Sullivan interviewed Mr Beattie with Mr Simms and Mr Young in attendance. That was followed by an interview with Mr Daniel. Following that meeting a further meeting took place involving Messrs Collings, Simms, O'Sullivan and Young with Mr Morris, Mr Grant Thomson, and Mr Smith. Mr Smith was, however, excluded from the meeting on the basis it did not involve allegations of harassment or bullying. 18Versions of events were exchanged at the meeting. As a result of those meetings, Mr Morris was advised that the Respondent viewed his conduct as serious. He was advised that he was suspended on full pay pending further discussions the following morning. In the meantime, Mr Morris' employment history was reviewed by Boral management. 19The meeting reconvened on 9 December 2011. Present representing Boral were Messrs Collings, O'Sullivan and Young. Also present were Mr Hancock, Ms Laura McCrohon, an officer of the AWU, Mr Grant Thomson, Mr Scott Thomson, Mr Smith and Mr Morris. An argument ensued about the events of 7 December as to whose version was to be believed. The AWU insisted that whilst Mr Morris may have raised his voice he denied being aggressive and felt he was being targeted by Mr Young. The AWU complained of the fact that Mr Young was allowed to be present during the interviews with Messrs Beattie and Daniel. The AWU also complained that Mr Morris was denied representation by Mr Smith on the previous day after explicitly requesting such representation because he felt he was being harassed. The evidence indicated that Mr Morris had not received any training in Boral's harassment policy. 20At one point during the meeting, Mr Morris became agitated and stated in response to Boral's view of what had occurred between himself and Mr Young as "all lies and bullshit". He said he could not listen to it any longer and left the meeting for a short time. 21It was submitted by the union representatives that the whole situation would not have arisen if Boral had met its commitment to present a plan as agreed at the meeting on 1 December. Boral's response was that the preparation of the plan was twofold - firstly, for the purposes of demonstrating why Boral had come to the decision it had rather than for the purposes of considering what decision it would make and, secondly, for Mr Young to provide Mr Morris with suitable notice of a shift change. It was accepted by both parties that Boral was entitled, pursuant to the relevant industrial instrument, to effect a change from shift work to day work by the giving of 48 hours' notice. 22The meeting on 9 December adjourned to allow Boral to consider its position. Mr Collings said he met with Mr Young and Mr O'Sullivan and considered the veracity of Mr Morris' version of events. Mr Collings stated: We also discussed that in light of Mr Morris's history of employment at Marulan, that is, him having behaved poorly and in a manner which was not consistent with Boral's values and what Boral aspires for in order to ensure it is building a sustainable future, the fact that he treats authority with a significant lack of respect and that he has clearly demonstrated a lack of respect for policy and procedure, that it was appropriate in the circumstances that his employment should be terminated. 23The meeting reconvened and Mr Morris and the union representatives were advised of Boral's decision to terminate Mr Morris' employment. Mr Morris was handed the letter of termination referred to earlier. 24The evidence of Mr Parlett demonstrated that he did not have a high opinion of Mr Morris, regarding him as lazy and unpunctual. He said that at about 2.30 am on 20 December 2011 he was awakened by a telephone call from Mr Morris. Mr Parlett stated Mr Morris was highly abusive and threatening towards him. For instance, at one stage Mr Parlett said Mr Morris stated: I fucking know where you live, you come out here to gumnut crescent, I'll string you up you pussy cunt, your head's coming off, you're fucking dead you fucking dirty cunt. 25Mr Parlett said Mr Morris rang again at about 2.45 am and 2.50 am making further vulgar threats. Mr Parlett reported what had occurred to Messrs Young and Grant Thomson. Mr Parlett also advised a meeting of about 40 workers of what had occurred. Mr Parlett said: The Goulburn Police attempted to obtain an Apprehended Violence Order ("AVO") against Mr Morris. The proceedings took place on 19 January 2012. The magistrate refused to grant the AVO on the basis that I had sworn back at Mr Morris during the three telephone conversations on 20 December 2011 and on the basis of my martial arts background. During the proceedings Mr Morris was directed by the magistrate to give an undertaking in court that he would not approach or contact me. Mr Morris gave the undertaking in court. 26Mr Tony Cole gave evidence describing Mr Morris as a skilled and versatile worker when he was working in the kiln control room in a relief capacity but otherwise found that "his work conduct and attitude to be of a poor standard" and "unreliable". 27In giving his evidence, Mr O'Sullivan referred to Mr Morris' employment history, which included the following: (1) a final written warning issued on 15 September 2011 and suspension from duty following an investigation into Mr Morris' failure to clock off appropriately and the subsequent failure to accurately record the hours worked on his shift on 28 August 2011. The evidence was that Mr Morris was not on site for the working of the whole of his shift on that day. Mr Morris acknowledged the final warning; (2) counselling on 2 December 2011 regarding his late arrival for work and early departures in the week commencing 28 November 2011 in circumstances where arrangements had been put in place to accommodate Mr Morris' personal needs regarding his daughter. That is to say, it had been agreed at Mr Morris' request that he be allowed to change from shift work to day work for two weeks so he could drop off and pick up his daughter from school, but he nevertheless abused the accommodation; (3) counselling regarding swearing and raising his voice at a supervisor on 29 April 2005; (4) a formal written warning issued 14 June 2005 in regards to an incident whereby Mr Morris wrote on a meal room whiteboard "Clean the frypan you cunts, fullstop"; (5) counselling for raising his voice and swearing at a supervisor on 17 June 2005; (6) counselling on 27 July 2005 regarding an incident during which Mr Morris rang the control room operator and informed him that he (Mr Morris) was taking a three day holiday in circumstances where Mr Morris had not sought approval for the leave; (7) counselling on 3 August 2005 regarding Mr Morris being found in the crib room 15 minutes after the crib break had ended and when asked why he was not working stormed out of the crib room while directing verbal abuse at the supervisor; (8) final written warning for misconduct on 21 December 2009 in relation to an incident when Mr Morris made a phone call to Tony Cole at about 11.40 pm. Mr Cole reported that Mr Morris was in "a drunken state" and was "slurring his words". That conversation had ended with Mr Morris saying to Mr Cole to "shove his job up my arse"; (9) Report by Mr Cole dated 16 January 2010 involving counselling of Mr Morris regarding being at work under the influence of alcohol. Mr Cole reported, "A number of fellow employees had pointed out to us that they were very concerned that Clint seems to be at work under the influence and are concerned about his safety and that of others around him." Submissions The Applicant 28The Applicant helpfully summarised his case as follows: a) The actions of the Applicant on 7 December 2011 were not abusive and did not amount to harassment or intimidation of a supervisor. b) Even if the actions of the Applicant were abusive, it did not constitute serious misconduct. c) The Respondent failed to consider the events leading to the incident on 7 December 2011 in that the supervisor was not aware of the agreement which had been reached between the Applicant and the Respondent's manager, Mr Collings, beforehand which ultimately lead (sic) to the incident on 7 December 2011. d) The conduct alleged on 7 December 2011 was not as portrayed by the Respondent and that the Respondent has failed to provide sufficient evidence of the course of conduct alleged or evidence of a (sic) conduct that would justify termination. e) Alternatively, the conduct of the Applicant was not so serious as to go to the heart of the employment contract and did not justify termination. f) In the investigation of the incident on 7 December 2011, the Respondent failed to discharge its duties to ensure that the incident was properly investigated and that the Applicant was afforded procedural fairness. g) The Respondent failed to take heed of any of the complaints lodged by the Applicant himself against Mr Young tainting the outcome and in turn failing to discharge the Respondent's obligations. h) That the Applicant was not afforded procedural fairness and given an opportunity to meet the allegations made against him in a proper manner. Furthermore, a failure to provide the Applicant with an opportunity to respond to allegations made in relation to earlier incidences (sic) of alleged performance and/or conduct issues and/or failure by the respondent to attach proper weight to these matters in dealing with the incident on 7 December 2011. i) The weight and or (sic) strength of the evidence in respect of the events were insufficient and/or with sufficient contradictions as to put doubt in the Respondent's mind. j) The Respondent has failed to discharge its onus of proof. k) The Respondent and its managers and supervisors failed to be trained in conflict resolution and other related matters in accordance with their position of seniority and could have better managed the incident. l) The Applicant was never, throughout his period of employment, provided with any formal training or training of any type in relation to harassment, bullying and other grievances (sic) procedures other than a cursory reference to BEAP program all of which would have assisted the Applicant in managing the kind of incident that occurred on 7 December 2011. m) That the penalty in the form of summary dismissal was disproportionate to the conduct in any event. 29The Applicant identified what he contended were the circumstances the Commission should have regard to, namely: i. The Applicant understood that he was party to an agreement in relation to a shift change that had not been communicated to his supervisor. ii. The Applicant's response in the circumstances was reasonable. iii. At no time did the Applicant's response on 7 December 2011 lead to violence or refusal of duties. iv. No alternative disciplinary action such as counselling was provided to the Applicant. v. The Applicant's length of service and work record, including his seniority. vi. The absence of any history of aggression or violence other than some relatively minor matters in 2005 and 2009 which involved, at best, offensive language. vii. The Applicant was never trained in terms of harassment, aggression and/or bullying in the workplace nor was there any formal training of note or in some general non-specific nature in respect of the supervisors including and extending to the Human Resources Manager. viii. The Applicant was not informed of the substance of the case or the findings against him such as access to statements of the supervisor or witnesses and that no statements or notes purporting to be records of interview were produced during the investigation or provided to the Applicant. ix. The Applicant was not provided with a reasonable opportunity prior to the decision to terminate to respond to allegations of earlier matters relating to work performance and the weight given to these matters and disproportionate to the matter at hand. x. That the investigation and all interviews were carried out with the supervisor present. xi. That a complaint by the Applicant about his supervisor was not investigated as the Human Resources Manager did not want to "contaminate" his investigation. xii. The Applicant has lost significant earnings and the termination has caused him grave hardship in that he was out of any employment for a period of approximately five months and thereafter obtained some casual employment at a significantly lesser rate than the earning whilst in the employ of the Respondent. xiii. The Applicant seeks reinstatement and compensation. 30The Applicant, in his written outline of submissions, canvassed general principles relating to unfair dismissal, although it is noted there was a heavy reliance on authorities other than the more relevant authorities of this jurisdiction. The Applicant then addressed the relevant evidence that, it was contended, supported the matters identified by the Applicant in the two preceding paragraphs; dealt with onus of proof; contended that there was doubt as to what occurred on 7 December 2011 and that the Applicant should be given the benefit of that doubt; and made submissions as to why the investigation was flawed and the Applicant had not been afforded procedural fairness. 31The Applicant sought reinstatement and made submissions as to why that was not impracticable, but in the alternative, sought compensation. 32The Applicant filed submissions in reply to the respondent's written submissions and those submissions have also been considered in arriving at a determination of this matter. The Respondent 33The Respondent submitted that the termination of the Applicant's employment was neither harsh, unjust nor unreasonable and that the application should be dismissed. 34It was submitted that Mr Morris' employment was terminated because he intimidated, threatened and abused his supervisor Mr Young and that Mr Morris' conduct was "entirely and grossly disproportionate" to the comments made to him by Mr Young. 35Reference was made to what was described as Mr Morris' "history of abusive and disrespectful conduct and behaviour at Boral, particularly towards persons in authority." It was submitted that Mr Morris had been given "numerous opportunities to rectify his conduct and behaviour" but failed to do so. 36The Respondent contended that it had gone to great lengths to assist Mr Morris during his employment and there was no evidence that Mr Morris was either targeted, victimised, unfairly treated or harshly dealt with. Examples of such assistance were referred to in the proceedings. 37In relation to the incident on 7 December 2011, the effect of the Respondent's submissions was that the weight of the evidence was overwhelming in favour of Mr Young's version of events and that Mr Morris should not be believed. 38The Respondent identified the series of incidents referred to earlier that had resulted in counselling and written warnings to Mr Morris regarding his unacceptable conduct. 39The Respondent addressed the evidence of the Applicant's witnesses noting that: Mr Hancock's involvement was very limited and, therefore, his evidence was of little value; that Scott Thomson's evidence was limited in its relevance and was unreliable in relation to the investigation of the incident; that Mr Grant Thomson's evidence was "completely unreliable" because he was evasive and biased in favour of the Applicant; and, finally, that Mr Smith was conflicted because of his various roles and in any event he was "clearly biased towards Mr Morris' case"; 40The Respondent submitted that, in relation to its own witnesses, they were all truthful and reliable and much of the evidence of Messrs Beattie, Daniel and Parlett was uncontested. 41The Respondent addressed the authorities on which it relied as supportive of its case - Blythe Chemical Limited v Bushnell (1933) 49 CLR 66 and Gorman & BHP Integrated Steel Division [2000] NSWIRComm 1079. 42The Respondent submitted that: [T]he evidence against Mr Morris is overwhelming. The incident giving rise to the decision to terminate Mr Morris' employment was typical of numerous incidents involving Mr Morris over the course of his employment at Boral. Mr Morris was an employee with blatant disregard for the treatment he served upon his supervisors and work colleagues. Consideration 43The Applicant's case may be distilled to the following propositions, namely that: (1) the actions of the Applicant on 7 December 2011 were not abusive and did not amount to harassment or intimidation of a supervisor. Even if those actions were abusive, it did not constitute serious misconduct warranting termination of employment; (2) the Respondent failed to consider the events leading to the incident on 7 December 2011; (3) the investigation into the incident was flawed and the Applicant was not afforded procedural fairness including that he was not informed of the substance of the case, or the findings, against him such as access to statements of the supervisor or witnesses and that no statements or notes purporting to be records of interview were produced during the investigation or provided to the applicant; . (4) the Respondent failed to discharge its onus of proof of proving there was a valid reason for the summary dismissal of the Applicant; (5) the Applicant was not provided with training in relation to harassment, bullying and grievance procedures; (6) the Respondent failed to have regard to the Applicant's length of service and work record, including his seniority; (7) the Respondent failed to have regard to the absence of any history of aggression or violence other than some relatively minor matters in 2005 and 2009, which involved at best offensive language. (8) the investigation and all interviews were carried out with the supervisor present; (9) the termination of the Applicant's employment caused him great hardship; (10) the penalty in the form of summary dismissal was disproportionate to the conduct in any event. I will deal with each of these propositions. Applicant's actions were not abusive and did not amount to harassment or intimidation of a supervisor 44The evidence in this respect is overwhelmingly in favour of a finding that Mr Morris was abusive and aggressive in responding to Mr Young's advice about the change to Mr Morris' working hours. The evidence of Messrs Young, Daniel and Beattie, who were close enough to witness clearly the exchange between the two men, was that each of them had a concern Mr Morris might hit Mr Young. That, in itself, might be evidence of an assault at common law. 45There was no reliable evidence that Mr Young provoked Mr Morris in any way or that he or the Respondent had victimised Mr Morris. Mr Morris' employment record was a poor one - he had received two final written warnings and was counselled on a number of occasions, yet survived in his employment notwithstanding an attitude towards supervision that may be described as belligerent. Moreover, at the time the incident occurred, Mr Morris was given permission to change his working hours arrangements for a two week period in order to accommodate his need to drop off and pick up his young daughter from school. That concession hardly reflects any vindictiveness on the part of the employer. 46Whilst it may be arguable that based solely on the incident on 7 December 2011 Mr Morris should have been given a second chance, his poor attitude, evidenced by counselling and written warnings on nine occasions, undermined any favourable consideration being shown to him. The Respondent failed to consider the events leading to the incident on 7 December 2011 47It is true that as at 1 December 2011 no final decision about the change in Mr Morris' working hours arrangements had been finalised and the Respondent was to respond later with a specific plan about what the change would involve. Nevertheless, Mr Morris' reaction to Mr Young's advice about the change on 7 December was entirely out of proportion. A reasonable person would have explained to Mr Young about the meeting on 1 December and would have requested Mr Young to check with Messrs Collings and Simms. Even if Mr Young's advice had caused a degree of frustration for Mr Morris, there was no basis for him to react in such a way that his demeanour would cause three persons to be concerned that he might physically attack Mr Young. 48It was not as though Mr Morris' earnings were going to be "cut in half" as he contended at one stage. Whilst there may have been a small number of weeks during the year that his income would reduce, for the greater part of the year Mr Morris would continue to be the relief operator on shift work and his income would be maintained. Furthermore, the AWU was a party to an enterprise agreement at the plant that provided the employer with the right to direct an employee to change from shift work to day work on the provision of 48 hours' notice. The investigation into the incident was flawed and the Applicant was not afforded procedural fairness 49I am unable to accept this submission. Mr Morris was interviewed in the company of Mr Grant Thomson on 8 December and met with Boral representatives in the company of AWU officials, Messrs Grant Thomson, Scott Thomson and Mark Smith on 9 December 2011. 50After Boral heard the versions of events from Messrs Young, Beattie and Daniel, Mr Morris was interviewed on 8 December 2011. Having heard his version of events, Mr O'Sullivan advised Mr Morris that his version was different to the others that he had heard and that Boral was taking the matter very seriously. The meeting on 8 December was adjourned to the following day. 51Boral's representatives reviewed Mr Morris' employment history and met again with Mr Morris and his representatives on 9 December. The events of 7 December 2011 were re-canvassed, but it is apparent that Boral management was not inclined to accept Mr Morris' version of events in the face of what they had heard from Messrs Young, Beattie and Daniel. 52Having regard to their assessment of the competing versions and having considered Mr Morris' work record, a decision was taken by the Respondent to terminate Mr Morris' employment. I am satisfied that the Respondent was entitled to make the choice it did about what occurred between Mr Morris and Mr Young. There was nothing unfair in the process leading to the decision to terminate; the allegation regarding his conduct was squarely put to Mr Morris by Mr O'Sullivan and it is evident that Mr Morris understood the allegation, as he responded with his version of events. The evidence indicates that Mr Morris was given every opportunity to provide his version of events and had the support of experienced union officials and delegates to advocate his case. The Respondent failed to discharge its onus of proof 53The Applicant was not summarily dismissed. There was no onus on the Respondent to prove that it had a valid reason to terminate Mr Morris for cause. The onus fell on the Applicant to prove, on the balance of probabilities, that the dismissal was unfair within the meaning of the Industrial Relations Act 1996. The Applicant has failed to discharge that onus. The Applicant was not provided with training in relation to harassment, bullying and grievance procedures 54Whether this was so or not, and it appears to be so, the absence or lack of any training for an employee in relation to an employer's policies regarding workplace bullying or harassment does not automatically result in any dismissal that relies on bullying or harassment being unfair. 55There is no doubt that in contemporary workplaces such training should be provided. However, it is unlikely to be a complete defence for an employee to contend that because he or she did not receive such training and, therefore, was unaware he or she had engaged in harassment or bullying, that the employee should be immune from censure or even dismissal. 56On any objective assessment Mr Morris' conduct amounted to intimidatory and abusive behaviour. Mr Young felt under threat of being physically assaulted. The eyewitnesses, Messrs Daniel and Beattie, confirmed this to be the case. An employee does not require training to understand that such behaviour is completely inconsistent with their obligations to their employer and fellow employees under their contract of employment and that it is an affront to expectations of reasonable conduct in the workplace. Applicant's length of service and work record 57The Applicant had been employed full time for a period of about six years. He was regarded as skilful and adaptive. However, he was also regarded as lazy, unreliable and aggressive and hostile in his attitude towards supervision. He had misconducted himself on numerous occasions during his term of employment with Boral, even in the face of written final warnings regarding his conduct. Such conduct cannot be excused on the basis of 'tough men working in a tough environment' as Mr Morris seemed to think. His conduct during his employment exceeded the bounds of what was reasonably acceptable. 58Moreover, it seems Mr Morris learned nothing from his dismissal. In December 2011, when efforts were being made by his Union to have him reinstated, he telephoned Mr Parlett on three occasions in the early hours of the morning conveying threats and vulgar abuse to such an extent Mr Parlett felt it necessary to seek an AVO against him. The investigation and all interviews were carried out with the supervisor present 59This refers to the fact that Mr Young was present when Messrs Beattie and Daniel were interviewed by Mr O'Sullivan on 8 December 2011. 60It would have been preferable had Mr Young not been present considering he was the complainant. However, I note from Mr O'Sullivan's evidence, which was not contradicted, that Messrs Daniel and Beattie were asked whether they required a support person while they were being interviewed and whether they objected to Mr Young's presence during the interview. Both men replied "no" to both questions. 61There was no evidence that either Mr Daniel or Mr Beattie were intimidated or felt uncomfortable with Mr Young being present during the interview or that his presence had any effect on the truthfulness of their answers to Mr O'Sullivan's questions. The termination of the Applicant's employment caused him great hardship 62It may be accepted that the termination of Mr Morris' employment with the Respondent caused him hardship as a consequence of the loss of income and the difficulty in finding alternative employment in the area in which he lived. However, in light of his conduct on 7 December 2011 and his poor work record, the hardship Mr Morris has experienced since the termination of his employment is not a sufficient basis upon which to conclude his dismissal was harsh. Nor could it be concluded the Applicant's dismissal was unreasonable or unjust. The penalty in the form of summary dismissal was disproportionate to the conduct 63An employee who is summarily dismissed has no entitlement to payment upon dismissal and dismissal takes effect "immediately". The evidence indicates that Mr Morris was not summarily dismissed. Rather, he was paid four weeks' pay in lieu of notice in accordance with cl 4.4 of the Blue Circle Southern Cement Ltd (NSW) Enterprise Agreement 2010. 64As to whether the termination of Mr Morris' employment was disproportionate to his conduct, I have come to the view that it was not. Mr Morris' conduct, when considered against the backdrop of his poor work record, was incompatible with his obligations to his employer. Moreover, employees, regardless of whether they are fellow workers, supervisors or managers, are entitled to a workplace that is free of intimidation and abuse. Conclusion 65I find that the Respondent's decision to dismiss the Applicant was not harsh, unjust or unreasonable. 66Matter No. IRC 1876 of 2011 is hereby dismissed. I Tabbaa AM Commissioner Amendments 27 August 2013 - The date of decision was 26 April 2013, but mistakenly assigned a 2012 citation (ie [2012] NSWIRComm 1028). Amended paragraphs: Coversheet/Citation 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: 27 August 2013