Cahill v Big W Ltd [2000] QIRC 17 (2000) 163 QGIG 287

17 March, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 287 ######################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Steven John Cahill AND Big W Ltd (No. B1323 of 1999) COMMISSIONER SWAN 7 March 2000 Application for Reinstatement – Summary Dismissal – Misconduct – Complaint from Union Representative – Notice paid after conciliation conference – Lack of procedural fairness – Ineffectual witness evidence – Reinstatement impracticable – Compensation awarded. -- 1 of 4 -- 288 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 17 March, 2000 DECISION Mr S. Cahill was employed by Big W Ltd in Cairns as a Receipt and Dispatch Supervisor from 12 January 1998 to 3 September 1999 at which time he was summarily dismissed for misconduct. Around the time of summary dismissal, the employer had acted upon a complaint it had received from Ms J. Brumby, the Union representative for Big W, concerning the applicant. Without discussing the issue and letter of complaint from Ms Brumby with the applicant, the employer chose to dismiss him upon advice it had received from its Head Office. On the day prior to the applicant’s dismissal, the employer had compiled its counselling notice confirming that the applicant had been dismissed. By the time the applicant became aware of the complaint made to management, his summary dismissal was a fait accompli. It is small wonder that after the mandatory conciliation conference before the Commission, the applicant was paid two weeks notice. In opening comments before the Commission, the advocate for the employer stated that the applicant was dismissed as a consequence of a series of incidents which had occurred and the last incident (ie the complaint made by Ms Brumby) was the “final event” which prompted the employer to act as it did. The employer referred the Commission to its “Stores Induction Program Orientation Guide” which contains the following clause:– “TERMINATION OF EMPLOYMENT Your employment may be terminated by the company in either of two ways:– i) Instant dismissal where you are immediately terminated with no prior notice. This would only be in the case of gross misconduct, for example, drinking alcohol or taking drugs of addiction during working hours. ii) Should your performance be unsatisfactory, you may be counselled formally twice. This will have been documented and on the third instance you will be dismissed. You of course have the choice at any time to leave the company. However, if it is because you are having difficulties or are unhappy in your job, please speak to your Administration Manager before you make this decision.”. This clause does little to assist the respondent’s cause. There would always exist a requirement on an employer’s part to advise an employee of the reason for a dismissal. Upon the admitted facts before me (and primarily the evidence of the Big W Cairns Manager, Mr Wallin) the dismissal breaches the provisions of the Industrial Relations Act 1999, “the Act”, at sections 73 and 77. On that basis alone, the application should succeed. For completeness sake, however, I will briefly touch upon evidence advanced by both parties to support their respective claims. For the employer, it believed that the applicant was rude and aggressive towards other staff members. A warning dated 20 July 1999 cites Mr Cahill as being “hostile” towards Ms Rose Miller. Mr Cahill had refused to sign the warning but does not deny that the counselling session had occurred. Regrettably, when Ms Miller came to give evidence before the Commission she was unable or unwilling to answer most questions put to her by the applicant’s advocate despite the Commission’s best efforts to assist her. On 29 July 1999, Mr Cahill was required to sign another counselling notice in relation to an alleged incident concerning Mr C. Leader. Apparently, after an allegedly heated discussion with Mr Leader, Mr Cahill was heard to call him a “fuckwit” when he was walking away from him. Mr Leader is a departmental manager at the store and in a position senior to that of Mr Cahill. Mr Cahill’s comment was allegedly heard by others. The last “incident” which triggered his summary dismissal concerned an interaction held between Mr Cahill and the Union representative, Ms J. Brumby. Ms Brumby claimed in a letter addressed to management that Mr Cahill engaged in the following conversation with her on 1 September 1999:– “S.C. ‘Jonelle, I need to talk to you’– I turned to face him and replied ‘o.k.’– S.C. ‘This morning Steve (Store Manager) has been harassing me, in fact he has been harassing me badly. You need to go and see him and talk to him before it gets out of hand. In fact it’s already out of hand and I’ve had a bloody enough of this. You have to go and fix it and fix it Now. This is going to go a lot further if something isn’t done about this and there’s going to be trouble if it does. I will not tolerate this type of treatment and I will not put up with this and you need to go and tell him.’ ”. Ms Brumby further stated, inter alia:– “The mannerism in which Steve Cahill spoke to me was very aggressive and abrupt. His voice was raised and angry and he was speaking to me in a manner which I felt was threatening towards me. Throughout the conversation he was waving his hand and pointing his finger at me, and his body language towards me was of an aggressive nature. I felt very frightened by this outbreak from Steve Cahill and I felt that he may become physically violent towards me.”. Mr Cahill denied that the conversation between he and Ms Brumby was conducted in the manner described by her. In any event, at the time of making the decision to terminate Mr Cahill’s employment, he had not seen the letter or the counselling warning which was written, signed and dated before Mr Cahill was summarily dismissed. For the applicant, four employees of clients of Big W Cairns gave evidence that in the course of their frequent business interactions with Mr Cahill on the dock at Big W Cairns, they had not seen him display any aggressive tendencies either towards themselves or other employees. One witness, Mr M. Ahmat stated that:– “On Friday morning, 3 rd September, at approximately 09.00 am, I returned to Big W to make another delivery. When I arrived, the store manager was again in the back dock and he came up to me and said ‘Michael, do you know Steve no longer works here?’. I replied ‘No, so he resigned did he?’. The store manager replied ‘No, worse than that’. I said ‘I don’t want to go into that area’ and didn’t continue the conversation.”. -- 2 of 4 -- 17 March, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 289 Mr Wallin claimed not to have recalled this conversation. I accept that these words were said by the Manager – after all, they reflected the situation as it actually was – ie that the applicant had been dismissed before the issue had been discussed with him. Mr Cahill did not find out until later that day that he was to be dismissed. For the respondent, Mr Wallin, Mr Leader, Mr Ghidella, Ms Miller and Ms Brumby gave evidence. All attest, to varying degrees, to anger and aggression being displayed by Mr Cahill on various occasions. Mr Cahill agrees that on occasions he swore and that he could become assertive through the choice of words he used and raising his voice. On the other hand, it was telling that the employees whose employers are significant clients of Big W Cairns were prepared to give evidence in support of Mr Cahill. My assessment of the evidence is as follows:– Mr Cahill’s workload on the dock was usually demanding. Despite occasionally being afforded some type of assistance, generally he was required to perform his duties unaided by extra help. I accept that, as a matter of common sense and knowledge, language used on the dock would not necessarily be genteel. Whilst offensive language directed personally at another has a greater propensity to offend, in a general sense, conversationally, language which was once deemed to be inappropriate is now commonplace. Regrettably, in many areas of work, words such as “fuck” and “dickhead”, by way of example, are quite common, and previously used swearwords such as “bugger” and “bloody” are deemed to be less offensive so much so that they now have currency on television ads, for example. Those words may well continue to be offensive to many people and for those people the use of such words under any circumstances in their presence is anathema to them. However, one would not be facing reality if one thought that language such as that described above was not becoming more the norm. Notwithstanding those comments, however, abusive language personally directed at one’s work colleagues, or for that matter anyone, is always fraught with danger. I believe that general community standards would continue to deem such occurrences as inappropriate. In the case of Mr Cahill, he called Mr Leader a “fuckwit”, with his back to him and whilst walking away from him. While this is still inappropriate, it is somewhat different from openly attacking the colleague, and not an offence which should lie as a reason supporting dismissal. Certainly, from the employer’s perspective, it represented behaviour which was inappropriate and upon which comment should be made. The evidence does show that Mr Cahill could, on occasion, be aggressive and use coarse language. However, one must look at this in context. I accept that the applicant was under a great deal of pressure whilst working on the dock, and this can be seen as easily conducive to frayed tempers. Even if his language was ill-advised, this can at least be deemed as excusable. As stated previously, Ms Miller’s evidence did little to help the respondent’s cause. However, attention must also be drawn now to the effectiveness of several of the respondent’s other witnesses, namely Ms J. Brumby, Mr P. Ghidella, Mr S. Prentice, and Mr Wallin. Ms Brumby was Mr Cahill’s Union representative at Big W. Ms Brumby is a young woman who visibly shook and cried during most of her evidence. Much of these actions I viewed as an over-reaction to the situation. During the course of her evidence, Ms Brumby alleged that the applicant had called her, during their altercation, “a dumb, fat, stupid bitch”. This allegation had not been put to the applicant whilst giving his evidence, as it did not form part of Ms Brumby’s affidavit, and the applicant was permitted to rebut the allegation. I am unable to accept Ms Brumby’s evidence on this point, believing it to have been added on the day merely for effect. Had events occurred as she later described them, then I believe that they would have been included in her letter of complaint to her employer, written almost immediately after that incident, or at least in her affidavit. Her timidity as a witness leads one to believe that she may not have been very well suited to the position of Union representative, and this may well have led to the confrontation, aggressiveness notwithstanding, that she had with Mr Cahill. Mr Ghidella also presented as a nervous, timid employee. Neither he nor Ms Brumby gave the impression that they would cope adequately with a lively or robust situation, the type of which one might expect on a dock. Both appeared as if any argument, debate or unpleasantness would have unduly frightened or worried them. Mr Prentice, the employee who eventually obtained Mr Cahill’s position, expressed concerns regarding what he viewed to have been Mr Cahill’s tardiness at commencing work on time, but was adamant that Mr Cahill had never shown any aggression towards him. Mr Wallin, as manager of the store since 21 June 1999, claimed to have had occasion to speak to Mr Cahill about toning down his words and behaviour. The incidents to which he refers are the ones cited in the counselling reports. One incident which is not specifically cited related to an event which occurred on 1 September 1999 when Mr Wallin observed the applicant going to the toilet with a newspaper in his hand. An angry altercation occurred between the two around this incident. What more can be said about this? Quite frankly, if this practice is not condoned by the employer, then a clear notice should be placed on all toilet doors and then no confusion would exist. In all, this has been a very unusual and hurtful case for those involved. I have previously stated that the manner of dismissal undertaken by the employer of the applicant breaches the legislation. The application must succeed. Beyond that, Mr Cahill should have learned to control his outbursts of anger, the employer should have done more to assist Mr Cahill on the dock to ease the workload and the employer should have been more explicit in terms of what it did and did not permit at the workplace. Having considered all of the submissions made and the evidence given in this case, I am not persuaded to reinstate Mr Cahill to his formerly held position. I would consider that the reinstatement of Mr Cahill would be “impracticable” (see s.78.(3) of the Act). The environment on the dock would, I believe, be destabilised by Mr Cahill’s return. In accordance with s.79 of the Act, I propose to award Mr Cahill compensation. I am aware that Mr Cahill received payment for two weeks notice at the dismissal conference and that he has received certain monies since his termination of employment. These amounts are to be deducted from the amount awarded. I award to Mr Cahill compensation equivalent to four months pay. -- 3 of 4 -- 290 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 17 March, 2000 In making this decision I have been influenced by the unfair manner in which Mr Cahill was treated by the employer. He was afforded no opportunity to be heard on his dismissal. The employer chose to hear the complaint of one employee and act upon it, to Mr Cahill’s detriment. Mr Cahill suffered the indignity of a summary dismissal and now must attempt to rehabilitate himself within in the workforce. He also suffers the misfortune of having his case ventilated in the local press. The amount awarded, less other payments previously cited, is to be paid to Mr Cahill within three weeks of the release of this decision. Order accordingly. D.A. SWAN, Commissioner. Released: 7 March 2000 Appearances:– Ms T. Lane, of The Australian Workers’ Union of Employees, Queensland for the Applicant. Mr M. Smith of the Retailers’ Association of Queensland Limited, Union of Employers for the Respondent. -- 4 of 4 --