Despite minority objection in one case, FWC rules policies on antisocial behaviour and safety fail to preclude unfairness defence
Company policies relating to employee work practices and interpersonal relations are coming adrift in the Fair Work Commission (FWC), with cases involving transport and logistics giant Toll to the fore.
Toll has been ordered to reinstate two workers sacked for contravening anti-social and safety regulations, with the FWC full bench making a distinction on the weight it puts on workplace racist talk in a separate but linked ruling involving a BHP Billiton subsidiary’s case on Friday.
BHP-owned Mt Arthur Coal was ordered to reinstate a dump-truck driver, with his racist and homophobic remarks on a mine’s open radio deemed less offensive because they were general than those of a Toll worker who had harassed specifically a fellow worker of Afghan origin.
As it happened, both men gained reinstatement orders but for different reasons.
In the case Joseph Johnpulle v Toll Holdings Ltd, the FWC had found the Toll warehouse worker was being treated harshly because, though his “conduct was characterised as intended to ‘harass, vilify and victimise’, and was found to constitute a valid reason for dismissal”, it was considered harsh “because of the personal consequences of the dismissal and the severity of the punishment given the absence of any sanctions for the earlier instances of his conduct”, the Mt Arthur Coal finding reads.
In that appeal case, a Toll request that it be heard by the full bench having been rejected, Commissioner Michelle Bissett appeared to put the onus on the company to deal with workers’ antisocial attitudes and actions and to do it in a consistent way.
“It is my strong view that appropriate formal disciplinary action should have been taken against Mr Johnpulle in the past so that he was fully aware that his conduct, should it persist, would not be tolerated,” Bissett’s March ruling reads.
“But, by its actions, Toll has not provided such an indication. While its Code may be clear on what is tolerable, this is undermined if such behaviour continues to be tolerated by inaction or mild rebuke.
“Cultural and ethnic awareness however are not things that happen by the writing of policies, that ruling reads.
“It is through training and raising and discussion of issues that knowledge is gained, understanding is reached and tolerance found.”
In Mt Arthur Coal v Jodie Goodall, which is likely cause workplace lawyers’ comment, not least due it being a majority rather than unanimous finding, vice-president Adam Hatcher and deputy president Nicole Wells agreed that the severity of the racist comments can be graded, just as comments over a few minutes can be viewed in relation to five years of service.
They also agreed on the principal of company policy fails to outweigh dismissal process, saying: “That Mt Arthur Coal had introduced a policy prohibiting the type of conduct in which Mr Goodall engaged could not by itself preclude the conclusion that Mr Goodall’s dismissal was unfair.”
They quoted the full bench majority in B, C and D v Australian Postal Corporation, which ruled that while “a substantial and wilful breach of a policy will often, if not usually, constitute a ‘valid reason’ for dismissal”, nevertheless “[a]ny notion that a clear and knowing breach of policy will always provide a valid reason for a dismissal that will not be harsh, unjust or unreasonable, no matter the employee’s length of service and other circumstances, is inconsistent with basic principle. Every case must be assessed by reference to its particular circumstances”.
Commissioner Leigh Johns diverged on dismissing the appeal over the “known adverse impact of discrimination in the workplace”, the lack of gravity the majority accorded to it and the reasons for having a Code of Business Conduct.
“In implementing the policy, promulgating it and conducting training for its employees (including Mr Goodall) with the aim of eliminating discrimination in the workplace, Mt Arthur was fulfilling its obligations as an employer under Federal and State legislation to ensure that its workplaces are free of discrimination and harassment,” his dissenting position reads.
“In the face of a substantial and wilful breach of that policy, Mt Arthur took the matter seriously, and ultimately concluded that it was a valid reason for termination that was not otherwise harsh, unjust or unreasonable.
“Requiring Mt Arthur to reinstate Mr Goodall in this context is plainly unjust. Mt Arthur took decisive action to eliminate Islamophobia and homophobia in its workplace.
“It should have been commended for its action, not punished by being required to take Mr Goodall back.”
More recently, Toll was forced to reinstate a truck driver and a forklift driver after managers were found to have exaggerated the severity of their contravention of safety rules.
In Otto Pirko and Nono Bintoro v Toll Holdings Ltd T/A Toll Priority, forklift tines had been used to lift a satchel cage with the driver inside so he could fix a dislodged curtain roller wheels.
Commissioner Ian Cambridge noted that Toll had correctly provided the workers with notification of the reason for their dismissals, an opportunity to respond to the allegations, and that the applicants were not unreasonably refused the assistance of a support person
Against that, unblemished employment records of about 16 and 20 years respectively were not given appropriate recognition, previous safety shortfalls and managers’ “significant factual mistakes” were faulted.
“The evidence has established that the use of forklifts for the lifting of people is a practice that occurs occasionally and in some instances at the direction of management,” Cambridge found.
“This revelation would logically invalidate the fundamental reason for the dismissals of the applicants.
“The prospect that in other circumstances, the conduct for which the applicants were dismissed was performed at the direction of management would constitute such significant inconsistent treatment as to confirm that the reason for dismissal was not a sound, proper, defensible, valid reason for dismissal.”
ATN has sought comment from Toll.