Brendan Parsons v Houma Holdings Pty Ltd T/A Brian Hilton Toyota Aka Brian Hilton Motor Group

[2013] FWC 9685

[2013] FWC 9685

FAIR WORK COMMISSION

DECISION

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

Brendan Parsons
v
Houma Holdings Pty Ltd T/A Brian Hilton Toyota AKA Brian Hilton Motor Group
(U2013/11166)

COMMISSIONER MCKENNA SYDNEY, 10 DECEMBER 2013

Application for unfair dismissal remedy.

[1] Brendan Parsons (“the applicant”) has lodged an application, made pursuant to s.394 of the Fair Work Act 2009 (“the Act”), seeking an unfair dismissal remedy concerning his dismissal by Houma Holdings Pty Ltd T/A Brian Hilton Toyota AKA Brian Hilton Motor Group (“the respondent”).

[2] The applicant was employed by the respondent as a car salesperson from October 2011 until his dismissal on 15 June 2013. It is common ground the applicant was a well-regarded salesperson. The dismissal arose against the background of discrete, conduct-related circumstances. Those circumstances turned on the nature of an interaction on 14 June 2013 between the applicant and the applicant’s manager, Hans Leek. What occurred in that interaction was the subject of dispute on the evidence adduced in the proceedings.

[3] The events preceding the dismissal relevantly commenced with a complaint by a customer of the respondent, although it was not the customer’s complaint which gave rise to the dismissal. Rather, it was an ensuing interaction between the applicant and Mr Leek about how that complaint had been addressed which was relied on by the respondent for effecting the dismissal.

[4] It was common ground there was an exchange between the applicant and Mr Leek about matters relating to the customer’s complaint.

[5] For his part, the applicant’s evidence was that he was concerned, among other matters, Mr Leek did not seem to him to believe his account of his dealings with the customer or that Mr Leek was not listening to him, or both. The applicant conceded he engaged in finger-pointing at Mr Leek and had, for example, “waved his hands in the air in disgust”, but, in short, he denied anything of any greater significance than that had occurred.

[6] The evidence in the respondent’s case suggested the applicant had engaged in conduct of a higher order, involving more threatening and abusive behaviour. The evidence in this regard was given by Mr Leek and Grace Pearson, who is employed by the respondent as a receptionist. I have considered the evidence as to the words alleged in the respondent’s case to have been said by the applicant; it is unnecessary to publicly recount them in this decision.

[7] Mr Leek gave evidence as to what he said had occurred in the interaction with the applicant and as to the applicant’s words and actions. Ms Pearson’s desk is located near Mr Leek’s desk. Ms Pearson deposed she heard Mr Leek asking to speak to the applicant and then heard the applicant shouting in an angry tone words to the effect of those described in Mr Leek’s evidence; and that she observed the applicant leaning over Mr Leek’s desk and repeatedly pointing his finger in very close proximity to Mr Leek’s face.

[8] The evidence adduced in the case for the applicant and the respondent described matters that then unfolded after the brief exchange. For his part, the applicant went back about his duties. The evidence of Mr Leek and Ms Pearson outlined their concerns about what they deposed had happened. Mr Leek did not have the power to “hire and fire”, but he determined to recommend to the General Manger, Tim Jenkins, on the following Monday the applicant be dismissed. Matters moved more quickly than that because, that same day, Ms Pearson reported matters to the respondent’s Dealer Principal, Joshua Hilton. In this regard, the evidence of Mr Leek and Ms Pearson described the telephone and texted communications that ensued with more senior management after the events of 14 June 2013.

[9] Mr Jenkins said to Mr Leek words to the effect that the applicant’s conduct had been unacceptable and instructed Mr Leek to dismiss the applicant.

[10] On Saturday, 15 June 2013, Mr Leek, in the company of the respondent’s Wholesale Car Manager, called the applicant to a meeting to advise he had received instructions from Mr Jenkins to dismiss him because of what had happened on the previous day. The evidence from both parties indicated the applicant said words to the effect that he had appointments to attend to that day and indicated he wished to continue working, but was told nonetheless he was to leave immediately. Some further discussion then ensued about matters relevant to employment separation certificates and the like. The applicant then returned his company car keys and, in those circumstances, was offered a lift home. The applicant also adduced evidence from his partner, as to matters following the incident and the dismissal.

[11] Although the evidence in the respective cases was more detailed about the circumstances concerning the exchange between the applicant and Mr Leek, and the events following, the case most relevantly turns on the disputed accounts of what occurred in the exchange itself.

Submissions

[12] The applicant was emphatic in denying the extent of the conduct attributed to him in the evidence in the respondent’s case and submissions. The applicant submitted the Commission should find the dismissal was harsh, unjust and unreasonable, and he should have an order for compensation, because:

• He had not received any written or verbal warnings indicating that his behaviour will lead to dismissal.



• He had no private meetings or counselling regarding behaviour.



• He had not received anything from the respondent concerning unsatisfactory performance.



• All performance reviews during his employment with the respondent had been at or above industry standards, and he had also received a national sales award.



• There are no grounds to support the view he had engaged in misconduct; this appeared to have been an “afterthought”.

[13] The respondent’s representative made submissions which outlined the matters of evidence on which the respondent relied. The submissions highlighted the evidence as to what was described as the applicant verbally abusing Mr Leek in a threatening manner and of Mr Leek’s concerns about that conduct, including feeling intimidated, threatened and concerned the applicant would assault him. Similarly, Ms Pearson, who was in close proximity to the incident, was upset by what she had observed. Ms Pearson advised Mr Hilton of the incident she had witnessed which, after the communications described in the respondent’s case, apparently led to Mr Jenkins forming the view the applicant’s conduct was unacceptable and the applicant should be dismissed for serious and wilful misconduct.

[14] The respondent submitted the applicant’s actions repudiated the contract of employment. The applicant’s employment contract and the respondent’s Code of Conduct explicitly dealt with matters of conduct of the type in which, it was submitted, the applicant had engaged. The respondent submitted that on becoming aware of the applicant’s abusive and threatening conduct, the respondent (in the person of Mr Jenkins), immediately considered this an act of serious and wilful misconduct (albeit there was no evidence from Mr Jenkins himself), and made the decision to dismiss on this basis. The respondent’s submissions also referred to a number of authorities, particularly concerning repudiation. The respondent’s submissions contended the applicant’s belligerence, and threatening gestures and words directed towards his manager entitled the respondent to elect to terminate the employment relationship and, therefore, it was submitted, the termination was not at the initiative of the employer.

[15] The respondent’s submissions noted that no formal warnings had been previously given to the applicant concerning performance or attitude. After describing the evidence in the respondent’s case as to what had occurred, the respondent submitted there was a clear and valid reason to dismiss the applicant, which occurred at the first opportunity. It was submitted the conduct was not of a type such as to be a matter for a formal warning. The respondent submitted the words and actions of the applicant were threatening acts of violence; a repudiation of the employment contract; a direct challenge to Mr Leek’s authority; and also raised occupational health and safety considerations. The respondent submitted the applicant’s behaviour should be regarded as serious and wilful misconduct that gave rise to a valid reason for dismissal and the applicant should not have an unfair dismissal remedy.

Consideration

[16] Before considering the merits of the application, I note the application was made within time; it is common ground the applicant was protected from unfair dismissal; the Small Business Fair Dismissal Code does not arise; and the dismissal did not involve any issues concerning a genuine redundancy. I should say also that, despite the respondent’s submissions about repudiation and there being no dismissal at the initiative of the respondent, I consider the case involved a dismissal simpliciter, which was effected as a summary dismissal.

[17] I turn now to consider the matters in s.387 of the Act in considering whether the dismissal was harsh, unjust or unreasonable.

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)

[18] The evidence in the proceedings as to what transpired in the exchange between the applicant and Mr Leek regrettably cannot be reconciled. Having considered the matters advanced in this case, it seems likely, however, that something of significance occurred on 14 June 2013 beyond what has otherwise been acknowledged by the applicant as to what he said and did. On balance, I incline to the view that the evidence adduced in the respondent’s case as to the conduct alleged is to be preferred. In coming to the view I have reached in this regard, I note it was Ms Pearson who initiated the reporting of the incident. There was no evidence of any pre-existing antipathy between the applicant and either Mr Leek or Ms Pearson. I note also the applicant was a well-regarded salesperson who had not been the subject of any prior disciplinary attention of any description. It seems unlikely Ms Pearson would have initiated the reporting of matters unless there was some cause to do so based on what she described as having observed. It is unclear, but it may be the case that there was a very brief overreaction by the applicant - but an overreaction that may be considered as unacceptable conduct in the workplace. I accept the respondent had a valid reason for the dismissal based on the applicant’s conduct in relation to Mr Leek, being conduct which also had direct effect or likely effect on the safety and welfare of Mr Leek and, potentially, also on Ms Pearson (who described the situation she observed as “frightening”).

Whether the person was notified of that reason

[19] The applicant was informed of the reason for the dismissal by Mr Leek.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person/Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[20] The applicant was not given an opportunity to respond to the reason for the dismissal. In effect, a senior manager instructed Mr Leek to dismiss the applicant once the matter had been reported by Ms Pearson (and relevantly discussed only with Ms Pearson and Mr Leek). There were no discussions with the applicant relating to the dismissal once the matter came to the attention of senior management. I think it may be accepted the applicant was not afforded procedural fairness in that the decision-maker, Mr Jenkins, determined to instruct Mr Leek to effect the dismissal without himself speaking to the applicant or otherwise giving the applicant an opportunity to raise any matters in relation to that decision. This dismissal was summary in nature.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[21] The dismissal did not involve any issues concerning unsatisfactory performance; it is common ground the applicant performed to a high standard as a salesperson.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal/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

[22] Although it was not contended the respondent is a small business within the meaning of the Act, there was no evidence as to the actual size of the respondent’s enterprise or as to whether it had dedicated human resource management specialists or expertise. The decision to effect the dismissal appears to have been made directly by Mr Jenkins almost immediately upon becoming aware of matters and without reference to anyone with skills in human resource management.

Any other relevant matters

[23] I have considered the fact the applicant had not been the subject of prior disciplinary attention of any description and he was a high-achieving salesperson, being matters relied on by the applicant in making this application for an unfair dismissal remedy. The respondent’s submissions put that management made the decision the applicant’s conduct could only have been regarded as grounds for dismissal rather than a matter for a formal warning. In this context, the respondent’s submissions continued, consultation “would have been academic in nature and would not have changed the inevitable outcome.” I have considered the respondent’s submissions the applicant’s conduct was considered as not being amenable to a warning. While it appears the applicant’s conduct was out of character, I accept it was reasonably open to the respondent to form that view concerning warning in proceeding to take the course it did.

Conclusion

[24] While the dismissal was effected without affording the applicant reasonably-expected procedural fairness, such as the opportunity to put his version of events to the decision-maker as to what had occurred, I am not, considering my preference for the evidence adduced in the respondent’s case as to the salient matter of what occurred in the interaction between the applicant and Mr Leek, satisfied the applicant has established a case for an unfair dismissal remedy in his favour. That absence of procedural fairness by Mr Jenkins is not, considering all the circumstances, such as would lead me, in the exercise of discretion, to make an order for an unfair dismissal remedy.

[25] An order dismissing the applicant’s application for an unfair dismissal remedy has been issued in conjunction with these reasons.

COMMISSIONER

Appearances:

B. Parsons in person.

D. Berlusconi, of the Motor Traders Association NSW, for the respondent.

Hearing details:

2013:

Sydney:

November 8.

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