Stevedoring company DP World Sydney failed to act against a supervisor who was a known workplace bully and then unfairly dismissed a clerk he "set up" to fight him on the job, FWA has found.
In finding unfair the dismissal of the long-serving clerical employee, FWA Deputy President Peter Sams said "as incredible and unbelievable as it may seem", he was prepared to believe that the supervisor, who was also dismissed as a result of the fight, had 'set up' the fight and arranged for it to be captured on the company’s CCTV cameras.
"The most significant evidence was the extraordinary CCTV footage.
"There is no doubt it was manually manipulated by an unknown person who followed the altercation and zoomed in at relevant times which would seem to indicate that someone had been enlisted to ensure clear coverage of the incident."
The physical altercation occurred at about 10:30pm on June 5 last year, in the carpark of DP World Sydney’s Port Botany Terminal.
The company subsequently dismissed both employees for serious misconduct in contravention of the company’s policy of zero tolerance to verbal and physical altercations in the workplace.
Both workers filed unfair dismissal claims. However, DP World and the supervisor reached a confidential settlement and he withdrew his application.
The clerk had worked for DP World and its predecessor entity, Container Terminals Australia, since 1981.
He told Deputy President Sams at the hearing in December last year that over the 30 years he had never had an altercation with any other employee and had never had any serious disagreements with anyone except the supervisor, who, he claimed, "went out of his way to make things difficult", including re-arranging his tasks and giving him difficult or boring jobs for no reason.
The former worker also said that the supervisor had "taunted" other employees to fight him at, and away from, work and described him as a "standover man".
On the night of the fight, several witnesses gave evidence that the supervisor had challenged the worker to meet him outside and had then berated the worker to fight him. The worker said that he had gone outside with his son, a fellow worker, to talk to the foreman but had then felt he had no choice but to fight him.
During the hearing, company representatives - HR manager Violet Taylor and Port Botany terminal general manager Mark Bellears – gave evidence that the clerk's behaviour was completely out of character and conceded that they had not investigated claims that he had reacted after being "pushed beyond all limits of tolerance" by the supervisor's bullying.
Taylor said that "subsequent inquiries tend to corroborate his claims" and that "she now accepts that [the supervisor] had acted with impunity for years".
Both company representatives, however, said that the company's policy of zero tolerance for workplace violence meant that the only appropriate action was to dismiss both employees.
Deputy President Sams, however, criticised the company for its response, saying it "appears to have taken the easy way out by dismissing both of them".
"However, it did so without properly weighing up (or at all) [the supervisor's] motive, provocation, past history and in the [clerk's] favour, his long and relatively unblemished service, honesty during the investigation and his remorse and contrition."
Deputy President Sams ruled that the worker should be reinstated because of the "unprecedented and extraordinary – almost beyond belief" circumstances and his finding that the dismissal had been "manifestly unjust".
He said further factors supporting reinstatement included the fact that the supervisor was no longer employed by DP World, evidence by witnesses that the clerk would be welcomed back and evidence from Taylor and Bellears that the clerk's conduct had been out of character and unlikely to be repeated.
However, Deputy President Sams said that full compensation for the loss of seven months' wages and entitlements was not appropriate.
"The [clerk's] conduct was a breach of [DP World's] policy.
"It was wrong.
"He knows it was wrong and he is very sorry for his actions.
"Nevertheless, in my view, there should be a significant discount. . . to recognise the [clerk's] misconduct and to send a clear message to the workforce that he had suffered a significant financial penalty for his actions and such conduct was unacceptable."
Mr Steven Lambley v DP World Sydney [2012] FWA 1250 (21 March 2012)