Bogoja Stoeski v Onesteel Reinforcing Pty Ltd

[2014] FWC 4582

[2014] FWC 4582

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bogoja Stoeski
v
Onesteel Reinforcing Pty Ltd
(U2013/16087)

DEPUTY PRESIDENT MCCARTHY PERTH, 28 JULY 2014

Application for relief from unfair dismissal.

Background

[1] Mr Bogoja Stoeski (the Applicant) lodged an application for unfair dismissal (the application) asserting that he was unfairly dismissed from his employment with Onesteel Reinforcing Pty Ltd (the Respondent). The Applicant was a 62 year old male who had been employed by the Respondent for over 20 years. The Applicant was a Bar Shop Machine Operator. This role involves operating various machines which are used to manufacture and bend steel bars.

[2] It is asserted by the Respondent that the Applicant engaged in threatening conduct towards the Operations Supervisor, Mr Spencer Noden (Mr Noden). The Applicant disputes that the conduct occurred.

[3] The task for the Fair Work Commission (the FWC) is therefore to firstly determine whether the conduct occurred, and if it did, the circumstances surrounding its occurrence in ascertaining whether the dismissal was unfair.

Evidence

The Applicant

[4] The Applicant evidenced that on 23 October 2013 he went to meet with Mr Noden in his office. He says that he attended the office under the assumption that Mr Timothy Few (Mr Few) would also be present, however only his supervisor Mr Noden was present.

[5] The purpose of him seeing Mr Noden was that he had endeavoured to have a meeting with the Manager, Mr Few. The reason he had wanted to meet with Mr Few was that he had made complaints about the conduct of an employee that was working with him (Mr Cosmin Luca (Cosmin)) which caused him concern about his safety and welfare. The Applicant says that he believed that Mr Noden had ignored these concerns and was trying to avoid them being raised with Mr Few. He stated that he approached Mr Noden on two separate occasions asking to arrange a meeting with Regional Manager of WA, Mr Few. The purpose of wanting to meet with Mr Few was that he wanted to report Mr Noden to higher authorities for “his work behaviour”, presumably meaning he believed he had not dealt with issues the Applicant had raised properly.

[6] The discussion between the Applicant and Mr Noden occurred on 23 October 2013. The Applicant explained to Mr Noden that he wanted to see Mr Few to discuss his treatment, overtime and factory issues. He says that Mr Noden stated that if it was regarding overtime, he is the boss and it was up to him to make decisions as to which employee he could and could not give overtime to. The Applicant says that the shifting of the Applicant’s son (Mr George Stoeski) to another part of the plant, the lack of overtime shifts being provided to the Applicant and allegations of other employees being treated more preferentially in overtime allocation were raised.

[7] The Applicant says that he then reminded Mr Noden of some incident involving an assistant referred to as “Cosmin” 1. Cosmin had been allocated as an assistant and crane driver with the Applicant. He says he explained a particular incident when he had requested Cosmin to remove certain bundles of steel and “Cosmin started swearing profanities such as F***, F***, F*** and throwing off cut steel.”

[8] The Applicant claims that Cosmin had also told the Applicant that he was only to roll bars and not do anything else on the machine claiming that he was following Mr Noden’s orders. The Applicant then expanded on a number of incidents and issues that made it clear he was having trouble working with Cosmin because Cosmin was unprepared to cooperate and therefore he could not work with him.

[9] The Applicant says that the incidents had been raised with Mr Noden before, and that he was aware either from his raising them, from his past participation and firsthand knowledge of the issues. At the meeting the Applicant says that Mr Noden said he did not recall the incidents which the Applicant admits aggravated him. The Applicant says that he believed that Mr Noden had deliberately allocated Cosmin to work with him to create conflict.

[10] It was when this third issue regarding Cosmin’s conduct was raised that the controversy about what transpired arises.

[11] The Applicant stated that he responded by saying wording along the lines of “Do you think I am scared of Cosmo? I am old but I can fix him up by spraying him with a pepper spray if he hurts me, or shoot him”. The Applicant described these comments as defensive meaning that he would have to defend himself from Cosmin’s actions otherwise he could be injured. The Applicant is adamant that the comment was not directed at Mr Noden but at what he would have to do if no action was taken against Cosmin.

The Respondent

Mr Noden

[12] Mr Noden gave evidence. He stated that the Applicant was a loud and imposing man, and it was not uncommon for him to shout at people and be involved in arguments with his co-workers and Team Leaders. He stated that tension and confrontation between the Applicant and others seemed to be quite common.

[13] Mr Noden stated that the Applicant was upset regarding the amount of overtime which had been given to his son George and asked him to arrange a meeting with Mr Few. Mr Noden was aware that George had already met with Mr Few to discuss this issue. Mr Noden says he approached Mr Few and told him the Applicant requested to meet with him. Mr Noden stated that Mr Few told him that if the meeting request was regarding George and overtime then George would need to see him directly and not the Applicant.

[14] Mr Noden therefore instructed the Senior Team Leader, Mr Jim Sherriff, to bring the Applicant to his office. When the Applicant went to Mr Noden’s office he told the Applicant that “Mr Few wanted to know if the reason he requested the meeting was to discuss George, and if this was the case, that George would have to speak to Mr Few himself.”

[15] Mr Noden stated that he had arranged to meet with the Applicant as he wanted to know if the reason he wanted to see Mr Few was to discuss the Applicant’s son George. George had been moved from one area of the plant to another, apparently recently. Mr Noden says that when he met with the Applicant he raised this and at that point the Applicant began shouting and threatening by saying words to the effect of “I will get a gun and shoot you, I will get a knife, I’ll spray you with pepper spray”.

[16] Mr Noden considered this to be a direct and serious threat.He said that when the Applicant was making the threat he was clearly angry and was leaning forward toward him pointing his finger at him. He considered it was a threatening posture that went with the threatening words. He says that the Applicant was jabbing his finger at him.Mr Noden stated that the Applicant had been relatively calm before the outburst he went from being totally calm to the outburst almost instantaneously. Mr Noden says he then stopped the conversation and requested the Applicant go and sit in the canteen.

[17] Mr Noden stated that he remained calm himself. He ended the discussion, told the Applicant that he would not be threatened by him and to go to the canteen.

[18] Mr Noden says that he “was scared by the threat and feared for my safety” He stated that “[t]he threats Mr Stoeski made against my life were credible and I believe them to be true.”

Mr Bellaart

[19] It is not in dispute that Mr Simon Bellaart (Mr Bellaart), a contract maintenance worker was just outside the office performing some painting maintenance and associated work when the incident occurred. He could hear what was being said, although if the voices were at normal volume then he could not clearly hear all of what was said. Mr Bellaart however did hear Mr Noden ask why the Applicant wished to see Mr Few.

[20] Importantly, Mr Bellaart heard the Applicant yell at Mr Noden and say words to the effect of “I can get you with a knife, I can get you with a gun, I can get you with pepper spray, I know where to find you, I will kill you.” Mr Bellaart says that he clearly heard the Applicant make that statement as his voice was raised and he was shouting.

[21] Mr Bellaart says that Mr Noden remained calm and stated to the Applicant “you don’t need to threaten me.” He also believed the threat to be “credible and serious”.

Consideration

[22] I accept that there was some inconsistencies between Mr Noden’s evidence and Mr Bellaart’s. I also note that it is likely that other matters were raised during the meeting. However, inconsistencies in the evidence do not detract from the veracity of Mr Noden’s account nor of Mr Bellaart’s account of the critical issue in the incident, namely the Applicant threatening Mr Noden. It is unsurprising given the nature of the threat that Mr Noden’s account of the incident was solely about the threat. His failure to recall the other matters raised does not detract from his credibility. I therefore find that the main thrust of the incident, of what transpired, and the actual threat made, was accurately and reliably recalled by Mr Noden. Mr Noden’s evidence was convincing and credible. Mr Bellaart’s evidence was also consistent with Mr Noden’s evidence on the critical issue.

[23] The Applicant’s version of the conversation and the threatening words being directed at what his options were to protect himself from Cosmin’s conduct are unconvincing. At its best the interpretation and intent of the Applicant was that because management was refusing to take action against his fellow employee then the only way he could get their attention was by a ridiculous exaggeration of what he could be forced to do. The assertions the Applicant made that the evidence of Mr Noden and Mr Bellaart was contrived and appeared to me to be a conspiracy theory without any reasonable foundation. Indeed some of the issues that were the catalyst for the Applicant’s behaviour (such as the relocation of his son and alleged differential treatment for allocation of overtime) appeared to me to be little more than tenuous suspicions.

[24] The seriousness with which Mr Noden viewed the statement as a threat is evidenced by his attendance at the Police Station to lodge an Apprehended Violence Restraining Order (AVO). Mr Noden did not pursue lodgement of the application for an AVO and I make no adverse inference from that decision. It is clear from his attendance at the Police Station that he genuinely considered making an AVO application. I do make the inference from that consideration that Mr Noden did genuinely believe he had been seriously threatened and he was concerned about his welfare. I also find he had reasonable grounds to form his belief that he was threatened and it was a serious threat.

[25] I find that Mr Noden had sound reasons for having concerns about his safety. The conduct of the Applicant in the meeting in itself gave rise to those concerns. Furthermore, Mr Noden was aware from comments by other employees to him that the Applicant was angry and made comments about actions he was threatening to take against Mr Noden. Whilst those comments were not made directly to Mr Noden they compounded Mr Noden’s concerns and the genuineness of his fears.

[26] The evidence establishes, and in my view clearly, that the Applicant made serious threats to Mr Noden and that the threats created genuinely and soundly based beliefs by Mr Noden regarding his safety and welfare. The Applicant neither acknowledges that he could have stated what is alleged, or that he did not intend to say the words alleged. Rather he has embarked on a course of total denial and conspiracy dismissing any hint of any wrongdoing on his part.

[27] I find that these circumstances give rise to a valid reason for dismissal. Accordingly, I find that there was a valid reason for dismissal.

[28] I accept the evidence of Ms Deborah Ruthenberg and find from it that it establishes clearly that:

● the Applicant was notified of the reason for his dismissal;
● the Applicant was given the opportunity to respond;
● there was no refusal by the Respondent to allow the Applicant to have a support person present;
● the procedures followed were what one would hope were applied by employers the size of the Respondent; and
● the Respondent did have dedicated and experienced human resource specialist and that resource was used and advice followed.

[29] Mr Few, the General Manager, gave evidence of other considerations in making the decision to dismiss the Applicant, including his age, his length of service and the impact it would have on the Applicant. I find that Mr Few ultimately appropriately took these matters into account and his conclusion when weighed up against the nature of the conduct was reasonable and fair.

[30] I find that the dismissal was not harsh, unjust or unreasonable, and was therefore not unfair. The application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Stoeski on his own behalf.

Mr Longland and Mr Witton of Herbert Smith Freehills for the Respondent.

Hearing details:

2014.

Perth:

June 17.

 1   Mr Cosmin Luca is referred to as “Cosmo” in the Transcript and the Applicant’s statement of facts.

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