Industrial umpire upholds Patrick’s decision to give a truck driver his marching orders for swearing at a manager
By Brad Gardner | September 20, 2012
A truck driver’s attempt to dismiss his foul language directed at a manager as acceptable has failed to sway the industrial relations umpire, which says his employer Patrick Port Logistics was right to sack him.
Fair Work Australia Deputy President Peter Sams upheld Patrick’s decision to give Phillip Slater his marching orders for calling an allocator, Donavon Hawke, “a piece of sh*t” during an argument about the allocation of work.
Slater raised his voice at Hawke, swore and pointed at him. He claimed it was within the boundaries of robust and heated debate between a manager and a Transport Workers Union (TWU) delegate, which Slater was. Patrick argued Slater’s actions amounted to inappropriate and intimidating behaviour.
“I do not accept that the exchanges between the applicant and Mr Hawke were in the ordinary course of robust, heated and forceful dialogue between a union delegate and a manager. Nor was it just workplace banter,” Sams says.
He threw out Slater’s unfair dismissal claim, saying his antics coupled with previous warnings for similar behaviour justified his termination. Slater received six written warnings relating to conduct since starting at Patrick in August 2006.
“In short, the observation that the applicant was the architect of his own demise is particularly apposite to this case,” Sams says.
Slater denied Patrick’s allegation he acted inappropriately and bullied Hawke. He accused Hawke of belittling and bullying him, but two witnesses corroborated Hawke’s version of events while Slater did not provide evidence to support his claim.
Slater tried to excuse his actions by saying he has a loud voice and uses his hands when talking. He also relied on fellow TWU member and truck driver Robert Sterling to back him up, but Sterling was not present when the incident with Hawke occurred.
“I believe the applicant improperly sought to use Mr Sterling as a ‘cover’ to minimise the seriousness of his own behaviour. This finding gives me reasonable cause to doubt much of his other evidence, particularly where it conflicts with that of the respondents’ witnesses,” Sams says.
Indeed, Sams dished out heavy criticism to Slater, labeling his evidence “disingenuous” and “untrue”. Conversely, he says the two witnesses to the event gave “unshakeable evidence”.
FWA was told Slater altered his account of events each time Patrick approached him with new evidence during its investigation into the incident.
“The applicant was given three opportunities to come clean as more evidence was found to contradict his version of events. When something new was raised, he changed or added to his earlier responses to fit with the new evidence,” Sams says.
“In the end, the applicant’s collection of explanations became a farrago of implausible and unlikely responses to a sound and defensible case validating his dismissal.”
Sams says Slater displayed contempt for management and would not accept formal warnings on the basis he believed they were unfair and unwarranted.
“He was contemptible of authority and challenged anyone who did not do as he wanted,” Sams says.
“What particularly troubles me is that the applicant displayed not a jot of contrition, let alone an acknowledgement that his behaviour was slightly inappropriate.”
The unfair dismissal hearing touched on a workplace dispute regarding the allocation of overtime work at Patrick’s operations at Port Botany, where Slater was based. The TWU believes overtime work should go to permanents before casuals and sub-contractors, despite the fact there is no policy stating permanents have an entitlement to it.
