Aziz Music v Mackies Asia Pacific Pty Ltd

[2011] FWA 8027

[2011] FWA 8027

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Aziz Music
v
Mackies Asia Pacific Pty Ltd
(U2011/10618)

COMMISSIONER MCKENNA SYDNEY, 12 DECEMBER 2011

Application for an unfair dismissal remedy - misconduct - application dismissed.

[1] Aziz Music (“the applicant”) has made an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) for an unfair dismissal remedy concerning the termination of his employment by Mackies Asia Pacific Pty Ltd (“the respondent”). The applicant seeks the remedy of compensation.

[2] The respondent manufactures bake ware for bakeries. The applicant commenced his employment with the respondent in February 2001 and was formerly employed by the respondent as a process worker. The applicant performed his duties to a generally satisfactory standard and he received a letter of commendation on the occasion of his ten years’ service with the respondent. The applicant was dismissed as a result of the respondent’s investigations and conclusions concerning an incident involving allegedly threatening behaviour to a co-worker named Vuu Tran.

[3] By way of short background, the applicant and Mr Tran initially had a cordial working relationship. On a date that was not specified in the evidence, Mr Tran drew a picture of a turtle on a table and wrote the applicant’s name next to it. The applicant did not consider that to be a “good joke”. The applicant asked Mr Tran to wipe the picture off the table, which Mr Tran did not do when first requested. There was antipathy from that point onwards between the two employees, as described in the evidence of the applicant and other witnesses. The evidence indicated that neither the applicant nor Mr Tran acquitted themselves appropriately in their dealings with each other. Manifestations at the workplace of that mutual antipathy resulted in the respondent giving warnings to the applicant and Mr Tran in March and April 2011. It is unnecessary to detail the circumstances that gave rise to the warnings. As part of the warnings, the applicant and Mr Tran were each given a copy of the respondent’s Workplace Violence, Bullying and Harassment Policy. The employees were also required to report any further incidents. After the second warning, the applicant asked to be relocated to another department and the respondent arranged a relocation. The warnings given to the applicant and Mr Tran included advice that future infractions of the Workplace Violence, Bullying and Harassment Policy may result in dismissal.

Car park incident

[4] The following overview as to an incident on 26 July 2011 involving the applicant and Mr Tran is based on the evidence of the applicant and a third-party witness named Mose Levi. Mr Tran no longer works for the respondent and he did not give evidence in the proceedings. On 26 July 2011, the applicant and Mr Tran were in the workplace car park after the end of their shifts. It seems that the applicant spat on the car park ground as he was about to get into his car, but Mr Tran considered that the applicant had spat in his direction. Mr Tran reacted by spitting on the bonnet of the applicant’s car. The applicant opened his car window and a short discussion ensued about spitting and why Mr Tran spat on the car. The applicant was very upset. He “grabbed” a steering wheel lock (“the lock”) from his car, got out of his car and approached Mr Tran at a distance of about half a metre to one metre. The applicant’s evidence was that he held the lock at about chest height, whereas Mr Levi said the applicant was holding the lock above head height. Words were heatedly exchanged between the applicant and Mr Tran. Among other matters, the applicant said words to the effect that Mr Tran was going to be in “big trouble one day” and that he would be “very sorry”. Mr Levi heard the applicant say to Mr Tran: “You want a hit.” For his part, Mr Tran was saying words to the effect that the applicant should go ahead and hit him, while shaking his fist or fists at the applicant. Mr Levi thought it appeared that the applicant was about to hit Mr Tran and so he shouted to the applicant not to hit Mr Tran, although the applicant said he did not hear Mr Levi say those words. The applicant did not hit Mr Tran, but, by his own admission, he had approached Mr Tran with the lock with one of the purposes being to scare him and the other for self-protection. In the end, the applicant said that he decided to leave Mr Tran alone and to return to his car.

[5] The applicant and Mr Tran then went to their respective cars without further incident, save as to Mr Tran allegedly deliberately obstructing the applicant’s car from leaving the car park. The applicant shouted at Mr Tran to move his car. Another employee told the applicant to “cool off”. Mr Tran then moved his car a short time thereafter. It is unclear whether this was a deliberate obstruction by Mr Tran or obstruction resulting from other traffic.

[6] The following day, Mr Tran reported matters to management. The applicant was aware that Mr Tran had been seen going to the management offices. The applicant left work early as he was feeling unwell or because he could not concentrate. In the course of explaining why he was going home early, the applicant mentioned to his line manager, Christine Busuttil, that there had been an incident involving Mr Tran in the car park. The applicant did not elaborate the full extent of the incident to Ms Busuttil. The applicant did not otherwise formally report matters, as Mr Tran had done, despite the fact that, as part of their initial warnings, the applicant and Mr Tran had been required to report any further incidents. The applicant later received a telephone call at home to inform him that he was being suspended on pay. Mr Tran was not similarly suspended.

[7] The respondent then undertook an investigation, including a meeting with the applicant. The nature and results of the investigation were compendiously outlined in the letter confirming the termination of employment dated 3 August 2011, which relevantly read:

“This letter is to confirm our meeting on 2/08/2011 that your employment has been terminated with immediate effect for misconduct.

As was discussed with you, Mackies investigated the alleged threatening behaviour between yourself and Vuu Tran which occurred in the company car park last Tuesday 26th July 2011 at approximately 2:30pm.

An investigation meeting was held with you on Friday 29th July commencing at 12:45pm. You were given the opportunity to have a support person, which you accepted.

You were first provided with the statement of Vuu Tran. You were given the opportunity to respond to the allegations. The allegations were as follows (taken from Vuu’s interview):

• Vuu was walking towards his car in the company car park when he walked past you. Vuu stated that you spat in his general direction.



• Vuu stated that he looked at you, shook his head and continued to walk to his car. He then saw that you had grabbed your steering wheel lock from your car.



• You then approached Vuu with the steering wheel club lock raised above your head in a threatening manner.



• Vuu was scared. He said. “Why you want to hit me?” Vuu then stated that you said something however he could not understand what you said. You then walked off.




Your response to the allegation was as follows:

• You did spit on the ground before you got to your car, however once you spat you noticed Vuu was approximately 2 metres away. You stated then Vuu walked up to your car and spat on your car. You asked Vuu “why did you spit on my car?” You stated that Vuu asked you why did you spit on me, and you responded “I didn’t spit on you”.



• You then stated that you became angry.



• You said that you got out of your car and grabbed your steering wheel lock and walked up to Vuu and stated “You’re going to be in big trouble one day. You will be very sorry.” You stated that Vuu said “Come on, hit me”.



• You then walked away and got into your car and left. You also said that Vuu stopped his car in front of you and you yelled at him to move and then you both left the car park.




Mackies has carefully evaluated and considered the material presented during the investigation, the witness statements and your response. We have also investigated other information that you raised.

After considering all the material and your response, Mackies finds that you:

• picked up your steering wheel lock from your vehicle;



• approached Vuu with your steering wheel lock;



• held your steering wheel lock above your head in a threatening manner; and



• physically and verbally threatened Vuu including with your steering wheel lock.




Mackies does not tolerate any form of violence towards any of its employees, especially when using an item which could potentially be used as a weapon to physically hurt a fellow employee.

Mackies has taken into account the available information, including your responses.

Mackies has also considered your pervious Verbal and Written Warnings received earlier this year (25th March and 4th April) for similar issues. During this period of warnings as a business we had also made the decision to move you from the manufacturing area of the factory to the warehouse area so that you are not working within the same team as Vuu.

Your conduct constitutes a serious breach of our Workplace Violence, Bullying and Harassment Policy which you have sighted and signed.

We met with you on August 2, 2011 to notify you of the outcome of our investigation, and to provide you with the opportunity to put forward any reasons why Mackies should not terminate your employment.

Accordingly, Mackies now considers that your actions constitute serious misconduct warranting the termination of your contract of employment. While your actions are sufficiently serious to terminate your employment without notice, Mackies will make a payment to you for notice, this will be paid directly via electronic funds transfer into your bank account.

Attached is a statement of your entitlements on termination, which will also be paid directly via electronic funds transfer into your bank account. As well as a photocopy of your statement, a signed copy of your warnings and a signed copy of the Workplace Violence, Bullying and Harassment Policy.”

[8] There are matters which came to light following the dismissal as to certain comments the applicant allegedly made to two employees about Mr Tran. Those comments were not contemporaneously reported to senior management. A co-worker named Emad Khodr said the applicant stated to him that he was going to “take someone out” before his retirement and later stated that it would be Mr Tran. The applicant also showed Mr Khodr hand-made knives he had crafted from scrap metal and “stashed” around the workplace. The applicant used the knives in performing his duties; and, the applicant intimated, the knives could be used on anyone who “messed” with him, including or especially Mr Tran. A photograph of one of the hand-made knives was tendered in evidence and I incline to the view that Mr Khodr’s evidence should be accepted as to such comments having been made by the applicant. Further, the applicant commented to Ms Busuttil that he could forgive the people who killed his brothers and cousins in the war (the applicant migrated to Australia from Bosnia), but that he could not forgive Mr Tran; and that he wanted to kill Mr Tran. The applicant acknowledged he had made the first limb of the comment, but denied he had also said he wanted to kill Mr Tran. I preferred the evidence of Ms Busuttil as to the comment having been made.

[9] I should make it plain that these comments specifically about Mr Tran did not arise in relation to the respondent’s decision to dismiss the applicant, as they had not then been relayed by Mr Khodr and Ms Busuttil to those involved in the decision to dismiss the applicant. While Mr Khodr informed management about the existence of the hand-made knives after the car park incident and before the dismissal, the existence of the knives did not form part of the decision of the respondent to dismiss the applicant.

Consideration

[10] The provisions of the Act relevant to this application include the following:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

...

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) 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

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) 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

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) 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

(g) 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

(h) any other matters that FWA considers relevant.”

[11] There are no preliminary matters arising for determination in relation to this application, only the question of whether the dismissal was harsh, unjust or unreasonable. As to that, I am satisfied there was a valid reason for the applicant’s dismissal related to his conduct on 26 July 2011. That is, the applicant angrily approached a co-worker with a steering wheel lock with the intent of scaring him and shouted threatening words. While I accepted Mr Levi’s description of the height at which the applicant was holding the lock, the exact manner in which the applicant held the lock is, really, beside the point; the purpose of the lock was to scare Mr Tran, irrespective of which way it was held. I do not accept the applicant was holding the lock for self-protection, because it was the applicant who left his car with the lock to approach Mr Tran after Mr Tran had offensively spat on the applicant’s car. If the lock was to be used for some form of anticipatory self-protection, it could only have been because the applicant was spoiling for a fight in approaching Mr Tran.

[12] The evidence leads me to the view that, considered overall, the respondent adopted appropriate procedural steps in connection with the dismissal despite the process-related criticisms in the applicant’s submissions. However, I would conclude, contrary to the view the respondent appeared to reach, that Mr Tran did spit on the applicant’s car in the prelude to the applicant menacing him with the lock. I should note, in this respect, the respondent considered, appropriately enough, that even if Mr Tran spat on the car then the applicant’s reaction in threatening Mr Tran with the lock was neither proportionate nor acceptable. My acceptance of the applicant’s uncontroverted evidence that Mr Tran spat on the car does not lead me to any different conclusion as to the finding there was a valid, misconduct-related reason for the dismissal. I note also that, somewhat rather leniently in my assessment, the respondent did not take any form of disciplinary action against Mr Tran.

[13] There are no broader performance-related issues that substantively arise for consideration in this application, as the dismissal turned on misconduct. Preceding the dismissal, the applicant was given the opportunity to address matters as to what occurred in the car park and he had a support person present with him during those discussions. The respondent employs about 58 employees and has an in-house human resources manager who was involved in the processes related to the dismissal. The applicant was notified of the reason for the dismissal, and advice thereto was formally articulated in the letter confirming the termination of employment.

[14] A consideration of the evidence and submissions does not lead me to conclude that the applicant was unfairly dismissed by reason of the dismissal being harsh, unreasonable or unjust. In so concluding, I accept the proposition advanced in the respondent’s submission that, in and of itself, the applicant’s conduct on 26 July 2011 constituted misconduct justifying dismissal.

[15] More broadly, I have considered matters such as the prior warnings that the respondent gave to the applicant about matters not dissimilar to those which led to the dismissal. While I note there was contest about the bases for the earlier warnings and I have not dealt with those matters in the decision, it is relevantly clear that the applicant was squarely on notice as to the standards of conduct reasonably expected by the respondent of its employees as a result of those warnings and the provision of the Workplace Violence, Bullying and Harassment Policy. The conduct in which the applicant engaged on 26 July 2011 was an escalation of the type of conduct in relation to which the applicant and Mr Tran had already been twice warned.

[16] I have considered the applicant’s expressions of contrition in the proceedings about his conduct. I also observed and considered the applicant’s demeanour as to this evidence and other matters of evidence, including when the applicant stood from his witness box chair and made stabbing gestures to his abdominal area in the course of disturbingly explaining that he would not have to use hand-made knives if he wanted to injure anyone at work. In an agitated manner, the applicant explained there were many things at the workplace that could otherwise be used to inflict harm, including Stanley knives and items in the respondent’s product brochure.

[17] I have also considered the fact that the applicant was employed by the respondent for more than a decade and performed his duties to a generally satisfactory standard, although I note that, as to conduct, a recent staff appraisal commented that the applicant needed to be less aggressive. Lastly, I have considered the evidence as to the applicant’s age (62 years), health status and his continued unemployment, apart from a carer’s payment, in the period since the dismissal despite his endeavours to find another job.

Conclusion

[18] The applicant has not established a case that would attract the intervention by Fair Work Australia in the respondent’s decision to dismiss. As such, an order [PR517794] dismissing the application has been issued in conjunction with the publication of this decision.

COMMISSIONER

Appearances:

J Kennedy for the applicant.

S Forster for the respondent.

Hearing details:

2011.
Sydney.
9 November.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR517012>