Cabey Kuzma v Better Family Trust/Better Cookies T/A Terry's Tortes and Treats

[2012] FWA 7565

[2012] FWA 7565

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cabey Kuzma
v
Better Family Trust/Better Cookies T/A Terry’s Tortes and Treats
(U2012/5716)

COMMISSIONER RYAN MELBOURNE, 9 OCTOBER 2012

Termination of employment - valid reason.

[1] Mr Cabey Kuzma (the Applicant) was employed by Terry’s Tortes and Treats (the Respondent) until his employment was terminated on 23 February 2012.

[2] The Applicant lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (the Act) alleging that he was unfairly dismissed.

[3] This matter was the subject of three days of hearing during which Mr Kuzma represented himself and Mrs Rebecca Better appeared for the Respondent.

Jurisdiction of Fair Work Australia

[4] Section 396 of the Act sets out four matters which must be decided in applications of this kind before the merits are considered. These matters are:

“(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[5] The application was made 14 days after the termination which is within the period required in subsection 394(2).

[6] There is no dispute that the Applicant is a person who was protected from unfair dismissal and I so find.

[7] Sections 396(c) and (d) have no relevance in this matter.

[8] Therefore, the applicant was protected from unfair dismissal within the meaning of s.382 of the Act.

Background

[9] The Applicant commenced employment with the Respondent in May 2009 as Sales Representative and subsequently was appointed as the Sales and Distribution Manager and as such had supervision of the drivers employed by the Respondent.

[10] The Respondent has a factory and office at 1 Lily Street, Coburg with another office situated close by at Irene Street, Coburg.

[11] In early 2011 Mr Kuzma changed from working full-time, 5 days per week to working part-time, 4 days per week, for personal reasons.

[12] Over the first two years of his employment with Terry’s Tortes and Treats Mr Kuzma was very successful in growing sales for the Respondent and was regularly rewarded with significant increases in salary. The turnover of the Respondent significantly increased during Mr Kuzma’s period of employment.

[13] In August 2011 Mr Kuzma approached Mr Terry Better, Managing Director, and Ms Grace Alessi, General Manager about his workload. During that meeting a number of concerns were raised with Mr Kuzma as to his performance and conduct.

[14] In September 2011 the Respondent hired a new sales representative, Miffy Stiles, to assist the Applicant with his workload.

[15] In December 2011 Mr Kuzma was subject to a formal performance appraisal and was granted a 5% salary increase.

The Theft

[16] In January 2012 Mr Terry Better discovered an amount of approximately $10,000 of cash had gone missing from the business. Mr Better conducted his own internal investigation and narrowed the number of suspects to 5 employees following review of CCTV footage. He offered the perpetrator of the theft the opportunity to admit the theft and return the money without any legal consequences. As nobody came forward, he referred the matter to the Police. As at the time of the hearing of this matter no person had been charged with the theft.

The Altercation

[17] On 17 February 2012 a series of events took place at the workplace between the Applicant and Mr Terry Better, Managing Director, which culminated in a confrontation between Mr Kuzma and Mr Terry Better, which was witnessed by several employees.

The termination

[18] On 23 February 2012 Mr Kuzma was issued with a letter summarily terminating his employment with the Respondent and paying him out his notice period.

[19] The Applicant filed this application on 6 March 2012 and at around the same time he lodged a worker’s compensation claim.

EVIDENCE AND SUBMISSIONS

[20] Mr Kuzma gave evidence on his own behalf. Ms Belinda Petkovski, Mr Nick Petkovski, Ms Stephanie Magri, Mr Coby Muscat and Ms Miffy Stiles gave evidence pursuant to Orders issued by the Tribunal at the request of the Applicant.

[21] Mr Terry Better and Ms Grace Alessi gave evidence on behalf of the Respondent.

The Applicant’s case

[22] Mr Kuzma’s evidence and submissions went to four main areas.

[23] Firstly, establishing that the altercation which occurred between himself and Mr Better on 17 February 2012 which led to his termination was not initiated by himself and that the type of exchange which occurred was not out of the ordinary: he and Mr Better often engaged in heated arguments at the workplace.

[24] Secondly, that Mr Better’s treatment of Mr Kuzma for some time leading up to the termination was designed to “get rid of him”. This treatment included Mr Better approaching the staff which Mr Kuzma supervised directly and giving them instructions which undermined Mr Kuzma’s authority as a Manager; and Mr Better constantly degrading and belittling him in front of staff, eg in weekly staff meetings. In cross-examination both Ms Belinda Petkovski  1 and Ms Miffy Stiles2 supported this view.

[25] Thirdly, that in relation to his performance as Sales & Distribution Manager, Mr Kuzma submitted that he had never been given any verbal or written warnings during his term of employment. His own evidence was that the level of satisfaction of the Respondent in his performance in his role was reflected in the significant pay increases he had been awarded over the years of his employment and the significant growth of the company which had occurred whilst he has been in the position of Sales & Distribution Manager.

[26] Fourthly, that he was not responsible for the theft of money and that being accused of this was inconsistent with the responsibilities that Mr Better had given him in relation to the regular handling and banking of cash

The Respondent’s case

[27] The Respondent’s evidence and submissions went to establishing a number of reasons which could be taken as valid reasons for the termination of Mr Kuzma.

[28] In the letter of termination the Respondent identified that the behaviour which Mr Kuzma exhibited during the altercation led to its decision to terminate his employment. In addition the Respondent cited numerous other reasons for the termination. The letter stated in part:

“Dear Cabey,

We refer to our altercation last Friday afternoon and are writing to inform you that we have made the decision to terminate your employment due to your insubordination, misconduct and disrespect.

We note that during the course of the day you:

• Forbade me from talking to your staff without prior permission and copied this "direction" to other staff;

• Blatantly refused to meet with me in my office when I directed you to do so before you commenced leave;

• you were aggressive to me when I came down to find you and you challenged my authority and credibility as the Owner of the company in front of fellow staff;

• Told me that when you returned from leave you “would do what you want", "would not follow my instructions if you disagreed with them" and that "I would have to change to accommodate you"; and

• Stated that if I refuse to change you would show me how good a manager you were by going to a competitor, taking our key staff and bringing our business down.

These inappropriate comments were made in front of subordinates and as such we have lost trust and confidence in you as a Senior Manager of the Company and have decided that your employment with the Company cannot continue.

We note in the past you have summarily sacked a driver who had treated you disrespectfully although they were less disrespectful to you than the way you treated me.

Further, it has come to light that you have failed to follow my direction to you regarding debt collection and restricting credit to certain customers resulting in significant blow outs of credit. Additionally, when I raised this with you and fellow staff you challenged my right to raise this issue with other staff. As the Managing Director and. Owner of this business it is my right to speak to any employee and ask legitimate questions about any work related matters.

As you are aware there has recently been a theft of a substantial amount of money from our premises. You are one of a small group of employees who had sole access to the stolen money at all the relevant times. The video footage confirms this.

Irrespective of the outcome of this investigation and whether you are ultimately charged or not, we have lost trust and confidence in you as a Senior Manager.

The reason for this includes your conduct in respect of the internal investigations into the theft in which you accused me of possibly stealing the money and making this accusation in front of other staff. It is highly inappropriate for you as a Senior Manager to make such a malicious allegation against me as the Owner of the business -especially in front of subordinate employees. It was a very strange reaction from a Manager, we would have expected care and concern when a substantial theft has occurred rather than making a malicious allegation.

In addition, you were blatantly dishonest when you-questioned the veracity of the external investigation when you stated to the group that the "police haven’t acted yet" and "maybe there was not any evidence and that I was just making it up". You made this comment despite the fact that you are aware that you are one of the key suspects and that the police had requested you contact them earlier in the week. This dishonest behaviour seriously undermines my authority and questions my integrity in front of other staff.

For these reasons your employment with my Company cannot continue.”

[29] The Respondent submitted that:

“The company did not reach the decision to terminate Mr Kuzma that day. The decision was made when the police advised Mr Better that they had left messages on his telephone and have left a note at his home and had not heard back from him. This final factor simply confirmed that he could not trust Mr Kuzma anymore and that he would not be able to work with somebody who treated the owner of the business like that.

The letter of termination clearly identifies the reasons for termination and there is nothing in the evidence provided in the proceedings (sic) which undermines the validity of these reasons for making the decision”  3

[30] In relation to the issue of performance, the Respondent submitted that it had raised with Mr Kuzma concerns as to his performance and conduct for some months leading up to his termination. However, during the first day of proceedings the Respondent conceded that the Applicant’s performance was not in question but rather it was Mr Kuzma’s conduct “as a manager and a manager of other people within the company”. 4 Once that concession was made by Mrs Better, I ruled that issues relating to Mr Kuzma’s performance as a sales representative were not going to be relevant to the determination of the application.

Events of 17 February 2012

[31] Mr Kuzma sent the following email to Mr Better at 10.06 am on 17 February 2012 and copied the email to Grace Alessi, Belinda Petkovski, Rebecca Better and Miffy Stiles:

"Thank you very much for your many emails. Maybe it would be better, instead of sending me so many lovely emails, if you brought these up at our weekly Monday meetings. I cannot make somebody pay there (sic) account, so wheather (sic) it has been six months or six years, I cannot force them to pay. So as I recall, you are the owner of the company and have the final decision on who gets put on credit hold and how we treat outstanding accounts. Also, I am not the person that let Alta Vita get to the large debt. Also, can you please NOT contact staff that I directly manage without speaking to me first, as this is what an owner of a company should do!!! These staff do (sic) feel comfortable talking to you direct as you are not their manager!!!".

[32] The Respondent submitted that this email was “sarcastic, mocking, disrespectful and insubordinate” 5.

[33] Mr Kuzma gave evidence that he normally copies any emails he sends Mr Better to other employees:

“Can I ask you why you forwarded it to those other staff members?---Because it involved them. Miffy Stiles was - I was her direct boss and she wasn't happy that Terry was going directly to her. She came to me with this. Belinda runs after the office and also looks after the debts. Grace is the general manager of the company. So most emails we would send would always have all of us and yourself involved in them.

Did you not think that this kind of email and its tone, to the owner of the business and your direct boss, was not undermining him in front of his subordinates as you have talked about here?---Again, I state the reason it went to Grace is she's the general manager, Belinda looks after the debts because she's in the office, Miffy - I'm her direct manager, and, Rebecca, you're the owner of the company. I also state the owner of the company, Terry, has made it always very clear that every email is to have you, Grace, Belinda and Miffy in it. So if you look through all the emails I've probably sent, they would usually be attached.”  6

[34] During a phone call to Mr Kuzma at approximately 3.20 pm on 17 February 2012 Mr Better requested that Mr Kuzma come back to the Lily Street office to meet with him before Mr Kuzma went off on annual leave. The request was made several times during that phone conversation and Mr Kuzma repeatedly refused to abide by the direction.

[35] Ms Alessi, who was sitting next to Mr Better during the phone conversation, described Mr Kuzma’s tone as being argumentative and Mr Better’s tone at the end of the conversation as matter of fact, saying, "Well, if you don't want to come back, then you don't have a job to come back to."  7

[36] In cross examination Mr Kuzma gave the following explanation as to why he refused to meet with Mr Better:

“Did you refuse to go and meet him because you were concerned that your email had gone over the line?---Not at all. I still don't think my email was over the line. I refused to meet with him as he called me two or three minutes before I was leaving for annual leave and I was in a meeting.”

[37] Following the phone conversation with Mr Kuzma, Mr Better, deciding that he wanted to go and see Mr Kuzma, so he “grabbed” Ms Alessi and they commenced to walk around to Irene Street to see Mr Kuzma. On their way they “bumped” into Nick Petkovski and then all three of them stopped for some minutes to observe an argument which was taking place between people at a panel beating shop. Whilst they were stopped in the street Nick Petkovski mentioned that Mr Kuzma had already gone from Irene Street just after finishing on the phone with Mr Better. So Mr Better and Ms Alessi decided to walk back to the Lily Street premises.  8

[38] At approximately 3.30pm around the same time as Mr Better and Ms Alessi were walking around to Irene Street, Mr Kuzma was driving from the Irene Street office to the Lily Street premises for the purpose of collecting some things before going on leave.

[39] The Respondent argued that Mr Kuzma drove a different route to the Lily Street premises that he normally would have taken and that this was a deliberate act in order to avoid the possibility of meeting up with Mr Better.

[40] The Applicant denied this:

“Can I put it to you that that was a deliberate act, knowing that if Terry was going to come and see you as you had directed the owner to do, that he would - that you were aware and that you would know that he would be walking down Lily Street and up Irene Street to come and see you?---No, I wouldn't. If I didn't want to see Terry I would've just gone home.  9

[41] On returning to the Irene Street premises Mr Better sighted Miffy Stiles and Belinda Petkovski standing at the bottom of the driveway and Mr Kuzma’s car was parked at the top of the driveway just near the roller door and Mr Kuzma seemed to be just running in to the office to get something.

[42] Mr Better describes his mood at this point as being “very, very calm”.  10

[43] Mr Better described what happened next as follows:

“.... I called him over and said, "Cab, I asked you to come back and talk to me. Why didn't you come back?" I can't remember entirely the first words that I said to him but I called him over and that's when the altercation began...  11

[44] Ms Alessi described what happened next as follows:

“Mr Better approached Mr Kuzma and said, "If I ask you to come back to the office, I expect you to come back to the office." At that point Mr Kuzma exploded at Mr Better and started yelling at him.”  12

[45] Mr Kuzma argued that Mr Better refused to keep the altercation out of earshot of other employees.

“Mr Better was actually asked to go upstairs, from another staff member, and he refused and said that he'd like to have that here.”  13

[46] Whereas the Respondent argued that Mr Kuzma actually called other employees in to join in the altercation. The cross-examination of Mr Kuzma illustrates this:

“The conversation - were they directly standing with you at the time of the beginning of the altercation?---They were probably from myself to you away from the conversation, if not closer.

And Mr Nick Petkovski, where was he when the conversation was on?---He was outside, and then he came inside, but he initially was outside with Miffy and Belinda.

Sorry, and then you said he went inside, and then did he come back outside due to you bellowing to - or yelling to get - for him to join the conversation?---No. I went inside and grabbed him. I didn't yell out to get him. I actually went inside and asked him to come out.

So you did bring in the subordinates, being Mr Nick Petkovski, Belinda and Miffy into the conversation that you were having with Mr Better and Ms Grace Alessi?

---Yet again, I'll say no. They were there. The only person that was not there was Nick, and then Nick came outside because I asked him to.

Did you call them over?---They were there.

Well, no, you're saying that they were this distance apart?---They were there.

Did you call them over into the conversation?---I think they could have heard the conversation. Mr Better and myself - - -

Did you call them over to be part of the conversation?---Yes.”  14

[47] Mr Nick Petkovski also supported this in cross-examination:

“During the altercation did Mr Kuzma yell for you when you were inside the offices?---During the altercation?

During the altercation had you gone inside into the offices within the site of 3 Lily Street?---Yes.

Did Mr Kuzma yell for you to come out and answer some questions?---Yes, he did.”  15

[48] The evidence discloses that the language used by Mr Kuzma in the altercation was quite terse and strong.

Previous Arguments

[49] Mr Kuzma contended that the altercation between him and Mr Better on 17 February was not out of the ordinary. His own evidence was that :

“ ... that altercation was exactly the same as a minimum of 50 or 60 altercations we would have had over the period of time that I was employed.” 16

[50] Ms Magri’s evidence supported this:

“Have you witnessed any altercations between Mr Better and myself?---There was - - -

I mean verbal, not physical?---Yes. There was always - you know, in regards to different matters within the business there was always verbal altercations between most people within the office, whether it be yourself and Terry, my fiance Cody, you know, yourself, there was always, you know, arguments going on.

Did Mr Better at any stage get animated in these meetings?---Yes, as - yes, everyone - you know, if a discussion had to be made and a point needed to be gotten across, then, you know, the discussions would get verbal.

Have you witnessed Mr Better and myself have animated conversations?---Yes.

If you were to have a guesstimate over the period of time that you were employed, how many times would you say Mr Better and myself had heated confrontations?

---It would be frequent, to the respect - - -

Once a month, once a day, once a year?---Yes, I'd say monthly. I'd say probably monthly, if not more. I don't know. Depending on obviously what was happening at the time within - you know, within the business, I guess.” 17

[51] Mr Cody Muscat’s evidence supported this also:

“As part of the management team, have you witnessed any altercations between other members of the management team?---Definitely, yes.

Have you been involved in any yourself?---Yes.

Have any of them been heated?---Yes.

Have myself and Mr Better been involved in those disagreements?---Yes.

The disagreements that myself and Mr Better were involved in, were they heated?---Definitely, yes.

How would you classify them?---As the way they were described as, "Terry and Gab were in a punch-on, they were having a punch-on, were," you know, "stay away from the office because people are yelling and things are getting sorted out."

So how many times would you say that Mr Better and myself would have punch-ons?---At least on a fortnightly occasion.

So basically through the period of your employment, being that on once a fortnight, you would basically say that you've probably witnessed myself and Mr Better in 50 to 60 punch-ons?---Yes, yes.

Have other staff members been involved on times in these?---I'd - yes, yes.

So you've witnessed some first-hand? You've been in the room or - - -?---Yes, I've been in the room when things got heated.

And would Mr Better raise his voice?---It would come to that, yes.

Would Mr Better raise his voice at myself?---Yes.”  18

The Theft

[52] It was the Respondent’s submission that Mr Better had determined, on the balance of probabilities, that it was Mr Kuzma who stole the money and that this position was supported by the fact that he was the only suspect arrested and interviewed by Police out of a list of 5 suspects.

[53] The Respondent argued that Mr Kuzma had a gambling problem and that this provided both a strong motivation to Mr Kuzma to steal the money, and, a reasonable basis for the Respondent to suspect Mr Kuzma as being the thief:

“MS BETTER: No, the relevance, Commissioner, that we're trying to bring here is that somebody with a gambling problem who makes 300 phone calls to a betting agency in three days and is known to have a gambling problem and lies about it to WorkCover is a motive for theft.”  19

[54] Mr Kuzma was arrested and interviewed by the Police but no charges had been laid. I note and accept the evidence of Mr Kuzma in describing his arrest and interview by the police in response to my questioning:

“Let me ask you a question about the arrest. Was the arrest outside the police station or at the police station?---I went to the police station. At the police station. I went there. I was - I actually offered to go there. I offered them to come to our house - - -

Were you formally arrested when you arrived at the police station?---No, I was - he asked me if I wanted to go in a room and talk and I said, "More than happy to do that".

Was it a recorded interview?---Yes, it was.

Okay. Were you cautioned?---As in if I wanted a lawyer?

Yes?---I believe so. I'm not exact, but I believe I would have been.

Were you at any stage told that you were formally under arrest?---I'm not sure. They said that the matter could take four months or five months to be complete. I was interviewed. They did take down all the details. They took down everything that I said and all my statements and everything that I did, but that was the second to last time that I spoke to him.

The first time that you went to the police station, was that when you were interviewed?---Yes. I was told from the owner of the company that the police were looking for me and that they had left a letter in my letterbox. I checked my letterbox and I spoke to my wife. There was no letter and there was no voicemails, so I then contacted them. I'm not sure if he was there that day. Then I got - spoke to him the following day. He said whenever I get a chance to. I asked him if he was going to be there then, in the next half an hour, I would leave home. He said, "Yes," he would be. I said, "All right, I'll leave home and come straight down. I want to sort this matter out."  20

[55] Mr Kuzma introduced into evidence a letter which was sent to him from Victoria Police which said as follows:

“10 July 2012

Mr Cabey Kuzma

On the 21st of March 2012, you were arrested and interviewed at the Fawkner Police

Station in relation to the theft reported by Terry's Tortes and Treats in Coburg North.

I'm writing to inform you that the investigation is now complete and there will be no further police involvement in relation to the matter and you will not be charged as there is not sufficient evidence to proceed with a criminal prosecution.

If you have any questions in relation to the investigation please feel free to contact me at the Moreland Crime Investigation Unit on phone number 9355 6052.”

[56] It is clear that whilst Mr Kuzma was arrested he was not charged.

[57] Mr Kuzma argued that the Respondent used the theft of money as a further reason to terminate him. He said:

“Basically my point is to bring across that it felt to myself that the respondent was trying to terminate my employment leading into the weeks before then, and I believe that the theft that occurred at the premises was basically a reason that he was trying to use, and through the termination letter it basically states that the theft was part of it.”  21

CONCLUSIONS

[58] Section 385 of the Act provides that a person has been unfairly dismissed if Fair Work Australia 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.”

[59] In this matter, s.385(a) has been met and s.385(c) and (d) have no relevance. Therefore, what remains to be determined is whether or not Mr Kuzma’s summary dismissal was harsh, unjust or unreasonable (s.385(b)).

Was the dismissal harsh, unjust or unreasonable?

[60] In order to determine whether Mr Kuzma’s dismissal was harsh, unjust or unreasonable, Fair Work Australia is required to take into account the factors set out in s.387 of the Act. Those factors are as follows:

“Section 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.”

Valid reason – s.387(a)

[61] The Respondent cited numerous reasons for terminating Mr Kuzma. His behaviour before and during the altercation was conduct which was clearly designed to undermine the employer. The Applicant’s refusal to meet with Mr Better, his direct supervisor, amounted to misconduct and insubordination. The entire tenor and context of the altercation was that of insubordination.

[62] The difference between the altercation and other exchanges between Mr Kuzma and Mr Better is that the altercation took place in front of other employees. In cross examination Mr Better said:

“Would you say that as a manager I should follow your lead?---I would say as a manager you would follow my lead. If you - behind closed doors, because it's me and it's one on one, you can tell me anything you want and I won't hold a grudge. In public - and I've told you many times, in public you will follow my lead and you will do exactly what I say and you will not challenge my credibility in front of subordinates.”  22

[63] In response to Mr Kuzma accusing Mr Better of refusing to take the altercation to a private area of the office, away from the earshot of other staff, Mr Better responded:

“As a manager and owner of the company that I should follow your lead, take your example of how good and what you do as a manager and an owner, do you think it was inappropriate for you to refuse to take the meeting in a private forum upstairs?---After you had told me that I was a useless manager and you had criticised me in front of staff of being a useless manager I thought at that point it would make no difference whether we were upstairs or downstairs.”  23

[64] Mr Better gave repeated instructions to Mr Kuzma to come and meet with him. Those instructions were both reasonable and directly relevant to Mr Kuzma’s obligations. As Mr Kuzma was going on a short period of annual leave as from the time he finished work on 17 February 2012 it was necessary for Mr Kuzma to ensure a proper handover of his duties to others and to engage with Mr Better in relation to this handover. Mr Kuzma refused to follow a directive of his employer. This amounts to insubordination.

[65] Mr Kuzma argues that he was going on leave and that Mr Better had other opportunities during the morning of 17 February 2012 to speak with him if he wanted. This is of no consequence. The fact is that Mr Kuzma’s employer gave a directive to his employee and it was refused and it was refused several times. Further the evidence makes clear that whislt Mr Kuzma had a telephone conversation with Mr Better at about 3.20 pm when he refused to attend Mr Better’s office less than 500 metre away he nevertheless went to the same building in which Mr Better was located in order to pick up some items before he went home. It would appear that the handover conversation could have occurred in the same time frame that the altercation took place in.

[66] I find that the Applicant’s refusal to meet with his direct supervisor and employer was a failure to follow a lawful directive of Mr Better in a manner which was clearly an act of insubordination. The Applicant’s conduct in engaging in the heated argument with Mr Better in front of other employees amounted to an act of significant insubordination

[67] I am satisfied that the reason for dismissing the Applicant on the basis of the Applicant’s conduct on 17 February 2012 was sound, defensible and well founded. 24

Notification of the reason – s.387(b)

[68] The Applicant was notified of the reason for termination in the letter of termination.

Opportunity to respond – s.387(c)

[69] The applicant was not given an opportunity to respond to the reason for the termination before the termination took effect.

Support person – s.387(d)

[70] There was no unreasonable refusal by the employer to allow the Applicant to have a support person present for discussions simply because no such discussions took place.

Previous warnings regarding the unsatisfactory performance – s.387(e)

[71] The Respondent submitted that Mr Kuzma had been given 4 warnings regarding his performance. One related to his decision to dismiss Dominic Tarquino, one related to his gambling during working hours in his work uniform and one related to Mr Kuzma having received a restraining order against him by Mr Tarquino. I accept that the Applicant was spoken to about these matters but I am not convinced that any of the communications amounted to a warning regarding unsatisfactory performance

Impact of the size of the business/absence of dedicated human resources – s.387(f) and s.387(g)

[72] No submissions were made by the parties about the impact of the size of the business on the procedures followed in effecting the dismissal. However as a small family run business it is clear that there are no dedicated human resource specialists to assit Mr and Mrs Better in relation o the process adopted in dealing with the Applicant up to the point of the altercation. However it is clear that the decision to terminate the Applicant only occurred after Mr Better had taken legal advice.

Any other matters – s.387(h)

[73] In the material the Applicant produced to the Tribunal there were some extracts from several statements made by several employees to the WorkCover investigator regarding this claim. The Respondent objected to any reliance of those statements by the Applicant. I consider that the material produced in relation to the WorkCover investigation is extraneous material which wasn’t going to be helpful in determining whether or not Mr Kuzma’s dismissal was unfair.

[74] Whilst the issues of Mr Kuzma’s gambling habits and the theft of money from the Respondent were both relied on by the Respondent in contending that its actions were reasonable I do not consider that either issue is relevant in determining the fairness or unfairness of the dismissal. Whilst the Respondent asserted that Mr Kuzma had “gambling problem” I am not satisfied that such an assertion can or has been made out. The Respondent raised Mr Kuzma’s alleged “gambling problem” as reason for concluding that Mr Kuzma was the most likely person to have stolen the money from the Respondent.

[75] The Respondent attacked Mr Kuzma for having raised the possibility that Mr Better could have been the thief. I note that the approach adopted by Mr Kuzma in raising the possibility of Mr Better being the thief was appropriate in the circumstances. Mr Better accused one of 5 persons of being the thief when Mr Better had the same access to the money as the other 5. Just as any of the 5 employees could have been the thief then so could have Mr Better. In his final submissions Mr Kuzma put this into perspective as follows:

“Mr Better states that he was upset that I put him in the list of suspects. I made it clear to Mr Better - which he agrees to the fact - that I said that every single staff member should be a suspect as we had staff coming in and out of the office all day every day, and we could never be sure where the money was at what time. So I made it clear that every single person in the company should be a suspect, and I still will sit on that saying. I'm not going to be taking that information back. I believe to narrow it down to five people, for whatever reason - maybe Mr Better should've been a police officer. But I believe that to isolate four or five people with the information he had was completely inadequate.”  25

[76] It is clear that the Respondent had in mind both the alleged “gambling problem” of Mr Kuzma and the certainty that Mr Kuzma was the prime suspect for the theft when the Respondent dismissed Mr Kuzma. However I consider both issues to be irrelevant to the determination as to whether the dismissal was fair or unfair.

[77] Mr Kuzma also placed great reliance in both his evidence and submissions on his exemplary sales skills whilst working with the Respondent. This is also an irrelevant matter.

[78] I have considered each of the criteria specified in s.387 and I have given due weight to each of them. 26 I conclude that the dismissal was fair. The application in this matter is dismissed.

Observations of the Applicant

[79] I think Mr Kuzma became enamoured with his own position within Terry’s Tortes and Treats and his effectiveness as the Sales and Distribution and this clouded his perception of the way in which he was interacting with Mr Better.

[80] He lost sight of the fact that Mr Better was the Managing Director of the company and his boss.

[81] The significant pay rises helped Mr Kuzma maintain this view of the world. Mr Kuzma truly believed that his behaviour was not inappropriate and that the fact that he often engaged in heated verbal exchanges seemingly without consequence perpetuated this belief.

[82] But that doesn’t justify his behaviour. Just because Mr Kuzma was described by Mr Muscat as having regular ‘punch ons’ with Mr Better does not mean that his behaviour on the day of the altercation was appropriate for a senior manager or acceptable to the Respondent. In fact the specific evidence of Mr Better was that whilst he accepted such behaviour from the Applicant behind closed doors he did not accept that the Applicant should ever engage in such conduct in public.

[83] The main difference between the altercation and other heated exchanges is that the altercation took place in front of subordinates and thus undermined Mr Better as the boss. The altercation was an example of Mr Kuzma crossing the line between acceptable and unacceptable behaviour but not by merely stepping over the line but by jumping over the line two feet first and landing a long way on the wrong side.

[84] The Applicant’s conduct during proceedings presented problems to the Tribunal. Mr Kuzma appears to have a naturally aggressive style of expression and conduct. Whilst the Tribunal was able to manage the Applicant it showed to the Tribunal how Mr Kuzma could and would deal with issues. Mr Kuzma’s own conduct before the Tribunal confirmed much of his own evidence and the evidence in relation to the altercation.

COMMISSIONER

Appearances:

C. Kuzma on his own behalf

R. Better together with A. Maher for the respondent

Hearing details:

2012:

Melbourne

August 6, 7 and 16

 1   Transcript PN1518 - PN1519

 2   Ibid PN2136

 3   Respondent’s Additional Submissions at paras 40-41

 4   Transcript PN560

 5   Additional written submissions of the Respondent at para 34

 6   Transcript PN877 - PN878

 7   Ibid PN4343

 8   Ibid PN2932

 9   Ibid PN1007

 10   Ibid PN3606

 11   Ibid PN2932

 12   Ibid PN4350

 13   Ibid PN617

 14   Ibid PN206 - PN213

 15   Ibid PN1951 - PN1953

 16   Ibid PN618

 17   Ibid PN1359 - PN1364

 18   Ibid PN1117 - PN1128

 19   Ibid PN785

 20   Ibid PN1031 - PN1037

 21   Ibid PN513

 22   Ibid PN3547

 23   Ibid PN3550

 24   Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371 at 373, 7 July 1995, Northrop J

 25   Ibid PN5230

 26   Sayer v Melsteel P/L[2011] FWAFB 7498 at pns 14 and 20

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