Umit Deniz v Alvaro Transport Pty Ltd [2023] FWC 1273 (30 May 2023) was a recent case at the Fair Work Commission (FWC). It concerned a man who said he had been unfairly dismissed. His employer had dismissed him for “acts of violence, bullying, harassment or discrimination, including use of foul or abusive language”. This was the type of behaviour the employer said had breached its employment policies.

Despite this reason for dismissal, interestingly, the FWC said that the man had been unfairly dismissed.

Background

Mr Deniz was a truck driver for Alvaro Transport Pty Ltd. He had no previous complaints against him about his ability to do the job or his conduct.

An incident took place on 20 April 2022 in which it was alleged that he behaved abusively towards the employer’s customer. Mr Deniz had, at the time, immediately phoned, Mr Trombi, the Victorian state manager, who heard that Mr Deniz was distressed and crying. However, Ms Thatcher, the National HR and WHS manager, was phoned by the customer, who said that Mr Deniz had behaved abusively and aggressively, and had thrown a box at one of their staff. 

On a later date, a meeting took place regarding this incident, and the parties to the meeting perceived that there would be no further action taken, as it had seemed that Mr Deniz’s version was accepted.

However, Ms Thatcher had received a written complaint from the customer, which laid out the allegations, but omitted the box-throwing allegation. It was the behaviour that the customer described in the written complaint which Ms Thatcher believed was consistent with the type of behaviour that Mr Deniz had displayed towards her during his employment. This was considered the basis for the employer dismissing Mr Deniz.

Mr Deniz brought an application for an unfair dismissal remedy to the FWC.

Summary of the case:

The employer gave 3 reasons for dismissing Mr Deniz.

1. The 20 April 2022 incident which the employer believed was substantiated by Mr Deniz’s subsequent behaviour which resulted in a breach of the employer’s policies. This reason was considered invalid.
2. Mr Deniz’s behaviour, which made him a risk to the safety and welfare of the employer’s employees, particularly Ms Thatcher. Although this reason was considered valid, the FWC still made a finding of unfair dismissal.
3. Mr Deniz’s mental health which made him a risk to others, particularly if driving a truck. This reason was considered invalid.

What is the lesson for employers?

This case is an important lesson for employers, as it tells us that employers should:

1. Give a lucid factual account of the employee’s misconduct and the allegations that occurred. Be specific.
2. If there are allegations of the employee’s misconduct, the employer should investigate it and raise it with the employee before taking action to dismiss the employee.
3. Making vague statements about an employee’s conduct being “very aggressive, or very rude and aggressive”, or that the employee had “yelled at an employee of the customer which resulted in the customer crying” is considered vague. The employer must be specific about the words that were said, the specific language used, and the body gestures used by the employee which constituted the offensive conduct.
4. If there is an informal chat, employers need to tell the employee whether that chat constituted a disciplinary discussion.
5. If the employer is before the Fair Work Commission and makes allegations of the employee’s misconduct, there should be witnesses present to challenge the employee’s version of any incidents which occurred. In this case, the employer did not do that.
6. If the employer claims that the employee had mental health issues, the employer must provide cogent medical evidence regarding the employee’s mental health and how this could affect the employee’s ability to fulfil his or her duties. Merely saying so is insufficient.
7. The Fair Work Commission can balance any procedural deficiencies by the employer, such as a lack of notice, against the employee’s personal situation and decide that, despite a valid reason for dismissal, the situation could become an unfair dismissal case. In this case, the FWC decided that the dismissal was harsh due to the consequences it had for Mr Deniz’s personal situation, as his circumstances were that he was recovering from a workplace injury. His age was also a factor.
8. A valid reason for dismissal can turn into an unfair dismissal if the employee is not notified of the valid reason for the dismissal, and if he or she is not given any opportunity to respond to it.

Bringing the case for unfair dismissal: Initial considerations

To bring an application for a remedy for an unfair dismissal, the FWC first need to consider four different things under section 396 of the Fair Work Act (the Act):

1. Was the application made on time to the FWC?

The FWC considers whether the person made the application within the 21 days, or any extended time allowable. A time extension can only be given if there are exceptional circumstances, as provided by section 394(3) of the Act.

When considering exceptional circumstances, the FWC has regard to:

• The reason for the delay.
• Whether the person first became aware of the dismissal after it had taken effect.
• Any action (including omission) taken by the person to dispute the dismissal.
• Any prejudice to the employer (including prejudice caused by the delay).
• The merits of the application.
• Fairness as between the person and other persons in a similar position.

2. Was the person who was dismissed protected from unfair dismissal?

This consideration is pursuant to section 382 of the Act. Firstly, the type of employment and notice required is considered. Secondly, the nature of the person’s employment and income is considered.

Type of employment:

Employer was not a small business : Employee must have had 6 months of employment ending at the earlier of either the time when the person was given notice of the dismissal, or immediately before the dismissal.

Employer was a small business : Employer must have been working for 1 year ending at that time before the dismissal.

Nature of the person’s employment:

• Employee covered by a modern award, or
• Employee covered by an enterprise agreement, or
• Annual rate of employee’s earnings was less than the high-income threshold (s 333). [Note: this amount can be viewed on the Fair Work Commission’s website. The figure is adjusted annually, and it is currently $162,000.]

If the person seeking the remedy for unfair dismissal meets the criteria in this second consideration, then they must still meet the next two criteria.

3. Was the dismissal consistent with the Small Business Fair Dismissal Code?

Section 388 of the Act provides for, by legislative instrument, a code that small businesses must abide by for their employees. Section 388 provides that the person’s dismissal was consistent with the Small Business Fair Dismissal Code if immediately before the person was given notice, the employer was a small business employer, and the employer complied with the Code in relation to the dismissal.

If the employer was not a small business, then this will not be a matter for consideration.

4. Was the dismissal a case of genuine redundancy?

Sometimes a person thinks that they are dismissed unfairly, but it is actually a redundancy which is genuine in the circumstances. Section 389(1) provides clarification on how to work out whether the dismissal was a genuine case of redundancy:

1. If the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
2. The employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

However, it is not a genuine case of redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise, or the enterprise of an associated entity of the employer. This is provided by section 389(2).

What did the FWC say about the initial findings concerning Mr Deniz?

The FWC was satisfied that:

• Mr Deniz had made the application within 21 days.
• He was a protected person.
• He did not work for a small business.
• Mr Deniz’s dismissal did not arise from a redundancy, and so his dismissal was not considered a genuine case of redundancy.

The employer’s reasons for dismissal

Next, the FWC was tasked with determining the reasons why Mr Deniz was dismissed. Sometimes the reasons for dismissal are not given at the time the person is dismissed, but they are given later. This does not mean that the dismissal will be considered invalid.

The FWC determined in three different modes of inquiry the sources for Mr Deniz’s dismissal. They were:

• His termination letter.
• The submissions his employer made to the FWC.
• A verbal exchange that the Deputy President of the FWC had with Ms Thatcher at the hearing.

Consequently, the FWC found three different reasons for Mr Dinez’s dismissal:

1. The 20 April 2022 incident which the employer believed was substantiated by Mr Deniz’s subsequent behaviour which resulted in a breach of the employer’s policies.
2.  Mr Deniz’s behaviour, which made him a risk to the safety and welfare of the employer’s employees, particularly Ms Thatcher.
3. Mr Deniz’s mental health which made him a risk to others, particularly if driving a truck.

Whether the dismissal was considered harsh, unjust or unreasonable

The FWC must have regard to the following to consider whether the dismissal was harsh, unjust or unreasonable, pursuant to section 387 of the Act:

1. whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
2. whether the person was notified of that reason; and
3. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
4. any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
5. if the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal; and
6. the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
7. the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
8. any other matters that the FWC considers relevant.

To make findings for the above criteria, the Commission must consider each of the reasons for dismissal as the next step in the long process.

Section 387(a) – Whether there was a valid reason for the dismissal related to Mr Deniz’s capacity or conduct (including its effect on the safety and welfare of other employees)

Reason 1: 20 April 2022 incident.

The FWC said that it was not satisfied that the evidence presented proved that Mr Deniz’s conduct breached the employer’s policy in the manner that the employer described in the termination letter as well as in the evidence and the proceedings.

There was a wealth of evidence which was considered in turn:

1. The employer did not provide a “lucid factual account of what it says occurred”. The FWC connected this to the employer not investigating it, and to not raising the written complaint with Mr Deniz or taking any further action when the written complaint was received.
2. The employer relied on Mr Deniz’s conduct on that date, referring to the written complaint, which said Mr Deniz was “very aggressive, or very rude and aggressive” and that he had “yelled at an employee of the customer which resulted in the customer crying”.
3. There was an informal chat following the incident, which ensured Mr Deniz safely returned to work, as he was distressed. The chat was not considered a disciplinary discussion.
4. Mr Deniz had denied the allegations that he had acted rude and aggressively.
5. The employer did not provide any witness to challenge Mr Deniz’s evidence of the incident, which is consistent with Mr Trombi’s evidence of the phone call he received that same day of Mr Deniz being distressed and crying.
6. The employer did not establish with evidence an account of the specific language, body language or gestures Mr Deniz used to support any contention that he was aggressive. As such, the generic statement that Mr Deniz had been “aggressive”, “rude”, or “yelling” could not be meaningfully assessed and was rejected by the FWC.
7. The customer’s allegations were not sufficiently specific to characterise Mr Deniz’s conduct as constituting a breach as identifiable by the specific wording of his employment policy. It used general terms that he was rude or aggressive and yelling, so the FWC could not find that Mr Deniz was violent, or that his conduct had amounted to bulling, harassment or discrimination, or that he had indeed used foul or abusive language (as per the wording of the employment policy).

The FWC concluded that the 20 April 2022 incident did not constitute a valid reason for dismissal.

Reason 2: Mr Deniz’s behaviour, which made him a risk to the safety and welfare of the employer’s employees, particularly Ms Thatcher.

This reason was considered the only valid reason out of the three.

The employer had referred to Mr Deniz’s ongoing aggressive, foul, abusive or threatening language, but had only provided direct evidence of this in the statements he had made to Ms Thatcher. The FWC was satisfied that Mr Deniz had made some statements to Ms Thatcher:

9. “just wait until he sees me in Melbourne next”
10. “told me he was going to come to Sydney to find me”
11. “I’ll deal with Mel later”

The FWC accepted Ms Thatcher’s evidence that these statements constituted threats which caused her to fear for her safety.

However, the FWC rejected the employer’s submissions and evidence which had only referred to Mr Deniz’s ongoing, repeated behaviour vaguely, as there was no evidence of his conduct otherwise than in that which was expressed by Ms Thatcher.

Despite this, the FWC found that the statements Mr Deniz had made to Ms Thatcher constituted conduct which gave rise to a “sound, well-founded and defensible reason for his dismissal”.


Reason 3: Mr Deniz’s mental health which made him a risk to others, particularly if driving a truck.

This reason was the employer’s view that Mr Deniz was a risk to others, especially as he was responsible for driving a truck. This directly related to his capacity, not his ability to do the job (Crozier v Australian Industrial Relations Commission [2001] FCA 1031). His capacity to safely operate a truck was a requirement inherent in his position as a truck driver for the employer.

Crucially, the employer provided no “cogent medical evidence” regarding Mr Deniz’s mental health and how this could affect his ability to fulfil his duties. There had only been evidence that he had been a competent truck driver up until he suffered a workplace injury on 2 May 2022.

This reason was not considered a valid reason for dismissal.


Section 387(b) – Whether Mr Deniz was notified of the valid reason.

This aspect is what is referred to as a “procedural fairness” aspect. Procedural fairness is the idea that fairness should be involved in the processes involving the resolution of disputes. This not only occurs in an employment situation, but can also be found in other areas of law, such as administrative law.

The legal requirement is that Mr Deniz must have been notified of the reason which the FWC found to be valid under s 387(a) of the FWA. The employee must be given notification of a valid reason for termination before the decision to terminate their employment is made: Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137. The reason must be made in explicit terms, and in plain and clear terms: Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

The reason Mr Deniz should have been notified about was the reason for the concerns about his conduct; that is, the specific statements he made to Ms Thatcher which had the effect on Ms Thatcher’s feelings for her safety. The FWC found that the termination letter had only contained the words, “as discussed”, and not anything specifically about the valid reason for dismissal. Although Ms Thatcher had once told Mr Deniz to stop communicating with her in a manner that was threatening, abusive or disrespectful, he had not been put on notice that such conduct may give rise to his termination, which is the requirement of section 387(b).

Thus, Mr Deniz was not notified of the valid reason for dismissal before any decision to dismiss him was made.

Section 387(c) – Whether Mr Deniz was given an opportunity to respond.

Mr Deniz must have been given, in substance, an opportunity to respond to the reasons for his dismissal: Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1.

Such an opportunity to respond must be given to the employee before the decision to terminate the employee’s employment is taken: Bartlett v Ingleburn Bus Services Pty Ltd t/as Interline Bus Services [2020] FWCFB 6429.

One further principle the FWC considered was that, as a matter of logic, unless an employee was notified of the reason for dismissal, it is difficult to envisage that a finding could be made that the employee was afforded an opportunity to respond to that reason: Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429.

The FWC said that based on the evidence, it could not find that Mr Deniz had been given an opportunity to respond to the valid reason for termination.

Section 387(d) – Whether there any unreasonable refusal by the employer to allow Mr Deniz to have a support person present to assist at any discissions related to the dismissal.

As Mr Deniz was not put on notice for the valid dismissal, there was no request made for a support person to be present with him.

Section 387(e) – If the dismissal related to unsatisfactory performance, whether Mr Deniz was warned about that unsatisfactory performance before the dismissal.

This factor was considered irrelevant because it did not concern any unsatisfactory performance.

Section 387(f) and s 387(g) – Whether the degree to which the size of the employer’s enterprise, and the absence of dedicated human resource management specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal.

The FWC considered the principle that employers of substantial size with human resources personnel and access to legal advice will likely have no reason not to follow fair procedures: Jetstar v Meetson-Lemkes [2013] FWCFB 9075.

The Commission noted that the employer had 90 employees and a human resources department when Mr Deniz was dismissed.

The FWC had regard to the employer’s submissions, which were:

12. Mr Deniz’s behaviour led to the employer deciding not to meet with him before dismissing him.
13. The employer dismissed Mr Deniz to ensure the safety and wellbeing of its employees.
14. Mr Deniz had been given many opportunities to seek professional help for his mental health.
15. The employer had an obligation to observe a “chain of responsibility.”

The Commission concluded that the employer did not relevantly address the criteria in section 387(f). The size of the employer’s enterprise did not impact the procedures followed in effecting the dismissal. There were also no matters to have regard to when considering the procedures that the employer followed in effecting the dismissal, for the purposes of section 387(g).

Section 387(h) – Any other matters that the Commission considers relevant

The Commission noted that it has broad scope to consider anything relevant to the proceedings. It stated it should consider all the circumstances and weigh the gravity of Mr Deniz’s conduct against anything that supported the contention that his dismissal was harsh, unjust, or unreasonable: B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191; 238 IR 1.

Conclusion: whether the dismissal was harsh, unjust or unreasonable

The Commission must give due weight to each of the findings, in relation to the matters set out in section 387, as a fundamental element in determining whether the termination was harsh, unjust or unreasonable: ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357.

The commission made the following comments:

• There was a valid reason for the dismissal, which was the threatening statements Mr Deniz made to Ms Thatcher.
• The employer did not notify Mr Deniz of this valid reason for dismissing him before deciding to dismiss him.
• The employer did not give Mr Deniz the opportunity to respond to the valid reason for the dismissal.
• Mr Deniz was in a vulnerable position because he was recovering from a substantial workplace injury. As such, it would be difficult for him to obtain suitable alternative employment due to the dismissal.
• Although the employer did not notify Mr Deniz of the valid reason and give him an opportunity to respond before it decided to dismiss him does not mean that the dismissal is regarded as harsh, unjust or unreasonable: Etienne v FMG Personnel Services [2017] FWCFB 3864.
• Although ss 387(b) and 387(c) are concerned with the observance of fair decision-making procedures, the FWC considered that it is not the case that a denial of procedural fairness is significant only if it is firmly established that it could have made no difference to the outcome: Bartlett, Mark v Ingleburn Bus Services Pty Ltd T/A Interline Bus Services [2020] FWCFB 6429.
• While the statements Mr Deniz made to Ms Thatcher were considered threatening, Mr Deniz was denied procedural fairness as he was not on notice that these statements were being relied on to dismiss him. Even if having an opportunity to respond would not have changed the outcome, it could have been the case that Mr Deniz could have shed light on his conduct considering his personal circumstances, and this could have meant that his employer may not have decided to dismiss him.
• The statements Mr Deniz made to Ms Thatcher, being the reason for dismissal, should be measured against his personal situation. The effects of the dismissal on him were considered as significant.
  

On balance of the above, the Commission considered that the procedural deficiencies as balanced against Mr Deniz’s personal situation were quite significant. The FWC decided that the dismissal was harsh due to the consequences it had for Mr Deniz’s personal situation, as his circumstances were that he was recovering from a workplace injury. The Commission found that his age had factored into that as well.

The Commission also found that Mr Deniz’s dismissal was unreasonable because he was not notified of the valid reason for the dismissal and was not given any opportunity to respond to it, as this may have changed the outcome.

Pannu Lawyers extensively practices in Family Law, Criminal Law and regularly appear at the Federal Circuit and Family Court of Australia, which has court locations in Parramatta (NSW) and Dandenong (VIC). We are conveniently located within a walking distance from the Blacktown train station and can accommodate after hour appointment to suit you. Call our office on 02 9920 1787 or 1300 VAKEEL to discuss your matter in a confidential manner.