Iris Pagalia v Shevron Industries Pty Ltd

[2015] FWC 4063

[2015] FWC 4063 [Note: An appeal pursuant to s.604 (C2015/5024) was lodged against this decision - refer to Full Bench decision dated 14 October 2015 [[2015] FWCFB 6783] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Iris Pagalia
v
Shevron Industries Pty Ltd
(U2014/14363)

COMMISSIONER WILLIAMS PERTH, 13 JULY 2015

Termination of employment.

[1] This matter concerns an application made by Mrs Iris Pagalia (Mrs Pagalia or the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Shevron Industries Pty Ltd (Shevron or the respondent)

[2] Mrs Pagalia was dismissed with payment in lieu of notice on 25 September 2014. The letter of termination states that after multiple verbal and written warnings regarding unacceptable workplace behaviour and conduct the respondent had concluded that the verbal outburst towards her Supervisor earlier that day necessitated the decision to dismiss her.

[3] At the hearing Mrs Pagalia gave evidence on her own behalf and the respondent’s witnesses were Mr Phillip Wiseman (Mr P. Wiseman) the respondent’s Manager and Mr Alistair Jackson (Mr Jackson) the respondent’s Production Manager.

The evidence and factual findings

[4] Shevron is an auto accessories manufacturer and distributor producing car interior protection products. Shevron manufactures, amongst other products, dashboard covers (dash mats), seat covers and cargo area protectors.

[5] The business was founded by Mr Alan Wiseman (Mr A. Wiseman) in 1988.

[6] Mr P. Wiseman joined the business in 1997 initially as a Sales Representative. He later became Sales Manager and remained in that position for seven years and three years ago became the respondent’s Manager.

[7] Mr A. Wiseman semi-retired from the business three years ago but is still involved in some day-to-day matters that arise.

[8] Mrs Pagalia began work at Shevron in 1996 at which time the company employed approximately five workers.

[9] Mr Jackson was also first employed by the respondent in 1996 as a Labourer. He was appointed to the position of Production Manager 12 years ago. As the Production Manager he is involved in organising the respondent’s production including the delegation of work to the 15 machinists his supervises. Mrs Pagalia is one of those machinists.

[10] Mrs Pagalia works at a large table with other co-workers about 3 metres apart from each other.

[11] Mrs Pagalia was born in Chile. Her native language is not English but Spanish. Her evidence is that some of her co-workers are people from a different continent and culture and she is not accepted by them. Her evidence was that they make fun of her and insult her at times. The evidence is that most of the applicant’s co-workers are of Asian descent.

[12] I accept Mrs Pagalia’s evidence there has been some friction between her and other co-workers at times.

[13] Mrs Pagalia said that over the years she has reported this to Mr Jackson but he would say to her “Shut up you old woman, you are too old for this job.” Mr Jackson denies ever saying anything like this to Mrs Pagalia. Mr Jackson’s evidence was that most of the applicant’s co-workers are in their 50s. Mr Jackson is 36 years old.

[14] It is not critical whether this exchange happened as Mrs Pagalia says it did or not. But to the extent that it may be viewed as relevant, for reasons of credibility that I will explain later, on balance I accept Mr Jackson’s evidence that he did not say this to Mrs Pagalia at all.

[15] There have been a series of incidents and warnings over Mrs Pagalia’s period of employment and it is most useful to deal with these in chronological order. I find as follows.

November 2009 - not wearing resistant gloves

[16] As part of her job Mrs Pagalia operated an industrial sewing machine which uses a cutting blade in place of a needle. On some occasions materials are cut with a stanley knife by hand. I am satisfied on the evidence that it is a requirement at times that Mrs Pagalia wears cut resistant gloves when undertaking her duties.

[17] Mrs Pagalia was reluctant to wear the appropriate cut resistant gloves. She complained about the gloves and had been told that if they irritated her hands the company would pay for any appropriate creams or powder to resolve this.

[18] On 11 November 2009 Mr Jackson noticed Mrs Pagalia was not wearing the cut resistant gloves as required. He asked the applicant to put these on and she became very defensive and waved her arms and hands at him signalling for him to go away. She ignored his instructions and continued to do work on the dashboard mat with the stanley knife.

[19] Mrs Pagalia says that Mr Jackson then grabbed her hand without warning and banged it three times forcefully on the table in order for her to drop the stanley knife. She says her arm was bruised of which she has pictures and she went to see a doctor the same day and reported this to the police. No pictures, doctor’s report or police report were provided to the Commission.

[20] Mr Jackson’s version is that he only put his hand out on top of her hand to stop her cutting with the knife. She jerked her hand away in response and he grabbed her hand and took the knife off her. He denies this was an aggressive action or that he hurt her at all. He agrees she was upset with him. He says she removed her cotton gloves and threw them at his chest and face and stormed out of the factory. Mr Jackson reported the incident and made a contemporaneous file note of these events consistent with his oral evidence which was provided to the Commission 1.

[21] Mr Jackson says he had only days earlier told Mrs Pagalia that she must wear the cut resistant gloves and was concerned that she could seriously injure herself.

[22] Mrs Pagalia complained about Mr Jackson’s actions and that she was being bullied by him.

[23] The evidence of Mr P. Wiseman and Mr Jackson is that an investigation was conducted at the time by an independent investigator and the allegation of bullying was found not to be substantiated. The police apparently were never involved nor, Mr Jackson says, was any medical certificate provided regarding any bruising to her arm.

[24] In her written statement Mrs Pagalia says that she knows the company safety rules and that she is to wear cut resistant gloves while she works with knives but because she was upset due to the verbal abuse from her co-workers she had forgotten to put her gloves on this day. This frankness was in contrast with her oral evidence where she only reluctantly conceded there was a requirement for her to wear such cut resistant gloves.

[25] On the conflict between Mrs Pagalia’s version of these events and Mr Jackson’s I prefer the evidence of Mr Jackson as to what occurred on this occasion. At worst it may have been unwise for him to place his hand on hers and remove the knife from her grip however I accept it was well-intentioned and was not done in the aggressive and forceful manner Mrs Pagalia said. Of course if Mrs Pagalia had simply followed his instructions in the first place when Mr Jackson had told her to put on the cut resistant gloves nothing further would have happened.

16 June 2010 - ignoring Mr Jackson’s instructions and leaving early

[26] Mr Jackson’s evidence was that on a regular basis Mrs Pagalia would simply refuse to comply with his instructions. His evidence was that Mrs Pagalia would often become argumentative with him, tell him that he was not her boss and that she had only to respond to either Alan or Phillip Wiseman. I accept the evidence that this did occur on a number of occasions.

[27] Specifically on 16 June 2010 Mr Jackson asked Mrs Pagalia to stop the task she was working on and trim a particular order that was required to be completed for that afternoon. Mrs Pagalia responded by walking out of the factory and not returning that day. When she returned the following day she arrived at work 15 minutes late. Mr Jackson consequently reported this to Mr P. Wiseman.

[28] Mr P. Wiseman subsequently issued Mrs Pagalia with a written warning about her failure to carry out instructions from her Supervisor.

[29] That warning states amongst other things “I must advise that this is unacceptable and we expect that when your Supervisor asked you to do a task required under your employment you are required to do so in a timely manner.”

[30] The letter notes that whilst this is the first written warning these non-compliance issues have been discussed with Mrs Pagalia previously.

31 December 2010 - leaving early without approval

[31] Mrs Pagalia told Mr Jackson that she needed to finish work early because she had things to do at home. She was told that that was not possible and that she needed to work until 2.30 p.m. like any other Friday along with all the other staff.

[32] Mrs Pagalia left the factory at 12.00 p.m. telling Mr Jackson that she was too busy to stay.

[33] On 4 January 2011 Mr P. Wiseman provided Mrs Pagalia with a warning regarding a failure to comply with work requirements for this event. The letter explained that it was a warning and that she must improve.

May 2013 - WorkSafe complaint

[34] In May 2013 Mrs Pagalia made a complaint to WorkSafe that she had been experiencing bullying by Mr Jackson and other co-workers.

[35] Mr P. Wiseman was advised of the complaint and took advice from WorkSafe as to what should be done. Accordingly an independent investigator, Mr Tim Law (Mr Law), was engaged to investigate the complaint. Mr Law spent a number of days at the business and privately interviewed a number of employees. Mr Law’s report was that there was no evidence of their being any bullying or harassment.

5 August 2013 - verbal outburst towards Mr Jackson

[36] Mr Jackson was doing some tech welding and had set up the job with a large sheet of cardboard to shield the job from the traffic work area and with a fire extinguisher at hand.

[37] Mrs Pagalia approached and said that the welding was not good for peoples’ eyes. Mr Jackson explained that that was what the cardboard was for and that a person would not be able to see the sparks. Mrs Pagalia then said that he was going to start a fire and Mr Jackson pointed to the fire extinguisher and said that’s there just in case but there was nothing in the area to catch fire anyway. Mrs Pagalia continued to remonstrate with Mr Jackson. Mr Jackson told her to go and speak to Phil or Alan if she wanted to.

[38] Mr Jackson reported to Mr P. Wiseman what he viewed as Mrs Pagalia’s outburst towards him and provided a contemporaneous file note he had made with a photograph of the welding set up on that day. The evidence is that Mrs Pagalia was not working in the immediate vicinity at the time but rather in a separate room behind full curtaining and so was quite removed from the area the welding was being undertaken.

[39] Mr Jackson’s file note states:

“There is a huge possibility that eventually, I will be just another employee added to the list of people that have left the company because of her troublemaking and bullying, a person can only put up with so much crap.”

September 2013 - a verbal outbursts towards Mr Jackson and Mr A. Wiseman

[40] On Thursday, 26 September 2013 Mr Jackson asked Mrs Pagalia a question regarding poor cuts to airbag and vent cut-outs on particular items. His evidence was that everybody in the cutting department had been spoken to about poor cuts at some stage. Mrs Pagalia would not even let him finish his question but rather started yelling at him in a raised voice in front of the other workers. Mr Jackson reported this incident to Mr P. Wiseman.

[41] Mr P. Wiseman spoke to Mrs Pagalia about this the same day. During the discussion with her he formed the view that she was still very worked up and was not fit to be working on the machines and sent her home for the remainder of the day.

[42] As a consequence of these events a final warning was issued to Mrs Pagalia dated 2 October 2013. This referred to the verbal outburst with Mr Jackson and that Mrs Pagalia had been yelling at another worker in the department that day, Chew Fong.

[43] The letter also referred to an event that had occurred earlier that month which Mr P. Wiseman had verbally warned her about. On this occasion Mrs Pagalia had started yelling at Mr A. Wiseman at about 4.25 p.m. one afternoon because he had asked her why she was going home early. Mrs Pagalia had said to Mr A. Wiseman that everyone else was standing around talking so she was going home. The final warning stated that there was no need for her to argue with the Managing Director of the business who simply asked a question of her.

[44] This final warning regarding workplace conduct concludes as follows:

“There is a clear pattern of behaviour from you that is unacceptable in our workplace, the managers and supervisors do not raise their voices and yell and scream at you, it is not acceptable workplace behaviour for you to behave the way you do when asked a question.

We have given you two written warnings in the past regarding your failure to comply with workplace requirements along with a number of verbal warnings. This letter is now your third and final warning that you must improve your behaviour and conduct whilst at work. If you choose not to improve your behaviour in the future or failed to comply with what is required of you whilst at work your employment will be terminated.”

28 July 2014 - deliberate damage to equipment

[45] Mr P. Wiseman’s evidence is that on the morning of 28 July 2014 he was walking through the factory when Mrs Pagalia told him that the jigsaw laid on the sewing machine she was operating needed to be replaced because it was not sharp enough. He examined the blade and told her that it was sharp enough to cut the material and did not need to be replaced. Mr Wiseman returned to his office.

[46] A few minutes later Mrs Pagalia came to the office and said the blade was broken. Mr P. Wiseman went out to the factory, inspected the blade and it was bent. He then straightened the blade and checked that the machine was working as it should be. Mrs Pagalia then in full view of Mr P. Wiseman used her hand to bend the blade. She then turned to him to show him that the blade was bent and therefore needed to be replaced. Mr P. Wiseman was shocked by this deliberate action to damage the equipment.

[47] He later that day gave Mrs Pagalia a written warning about deliberate damage to the respondent’s equipment. That letter stated that he wanted to schedule a meeting in the next day or two with Mrs Pagalia and her support person. Her support person is named Elsa and she has attended with Mrs Pagalia on a number of occasions to discuss matters including a number of the incidents mentioned above.

[48] The letter asked for Mrs Pagalia to arrange for Elsa to contact him to book a meeting time.

[49] A meeting was subsequently scheduled for 30 July 2014 but Mrs Pagalia did not attend on that day. Mr P. Wiseman made at least three additional attempts to reschedule this meeting but Mrs Pagalia did not respond and no meeting was ever held.

25 September 2014 - verbal outbursts towards Mr Jackson

[50] Late in the morning of 25 September 2014 Mr Jackson called a meeting of the workers whom he supervised intending to discuss a problem of poor cutting/incorrect trimming of dashboard mats. Mrs Pagalia however refused to participate in the meeting. Mrs Pagalia proceeded to verbally remonstrate in front of all of the other workers blaming her co-workers for issues relating to poor hand cutting and machine punching of the dashboard mats and refusing to listen to Mr Jackson and accept that customers had returned faulty products.

[51] Mr Jackson said to her that “You are a part of this department and this is where the problem is and you need to see this.” After Mrs Pagalia continued to refuse to participant in the meeting he said “If you aren’t happy, why are you still here?”

[52] Mr Jackson viewed her refusal to join the meeting to discuss the problems in the department as having a negative impact on her co-workers and her continued poor behaviour was negatively affecting the morale in the workplace.

[53] He sent a text message to Mr P. Wiseman regarding the incident and expressed his frustration at Mrs Pagalia’s ongoing behaviour which was preventing him from doing his job properly. He then spoke to Mr P. Weisman on the telephone in more detail and told him that he wanted to take the rest of the afternoon off as he could not deal with Mrs Pagalia any longer and Mr P. Wiseman agreed to this.

[54] As a result of this incident Mr P. Wiseman decided that Mrs Pagalia’s employment should be terminated. In coming this to this decision he considered the recent damage to their equipment that he had witnessed and the history of repeated misbehaviour of Mrs Pagalia.

[55] He says this was not an easy decision to make given that she had worked for the business for so long. His evidence was that being mindful of Mrs Pagalia not attending the meeting that had been scheduled for 30 July 2014 to discuss her damaging the respondent’s equipment and her apparent refusal to willingly reschedule this meeting with him despite repeated attempts to do so he felt there was little value in any further attempts to convene a meeting with Mrs Pagalia over this most recent incident of misbehaviour.

[56] That afternoon Mr P. Wiseman handed Mrs Pagalia a written letter of termination of the same date. He invited her into his office where he explained the contents of the letter and the reason he was dismissing her. Mrs Pagalia said little in response to this.

[57] Mrs Pagalia’s written statement of evidence is that on this day she had been upset by the verbal abuse from her co-workers. She says that Mr Jackson as usual accused her of wrongly cutting some materials. Because she was upset from the abuse from the co-workers she argued with him and defended herself from being blamed for something she did not do which is her right.

[58] She says that about 3.00 p.m. she was called into the office by Mr P. Wiseman who told her that this outbursts towards Mr Jackson in front of all the co-workers meant that she was dismissed on the spot. She was told this before she could express her version of events.

[59] I note that Mrs Pagalia does not dispute that she argued with Mr Jackson. She seeks however to excuse her misbehaviour by blaming her co-workers for having abused her and upset her. I note this is the same explanation Mrs Pagalia gave six years earlier for not wearing her cut resistant gloves in 2009.

[60] In finding the facts I have above I have had to consider those instances where the evidence of Mrs Pagalia conflicted with that of Mr Jackson or Mr P. Wiseman.

[61] Mrs Pagalia gave her evidence in a very defensive manner. Under cross-examination Mrs Pagalia seemed unsure or uncertain about the details of the events dealt with in the various written warnings however in re-examination by contrast she seemed to have a clear memory and could give detailed explanations as to why she had done nothing wrong on each of these occasions. I found Mrs Pagalia not to be a convincing witness at all. In contrast I found both Mr Jackson and Mr P. Wiseman to have given their evidence in an open and honest manner. Consequently I have preferred the evidence of Mr Jackson and Mr P. Wiseman over that of Mrs Pagalia to the extent that there are conflicts between their evidence.

[62] The respondent currently employs approximately 30 employees but has no dedicated or specialist human resource staff.

Consideration

[63] The criteria for determining whether a dismissal was harsh, unjust or unreasonable is set out in section 387 of the Act below.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.”

Valid reason for dismissal

[64] Mrs Pagalia’s refusal to comply with the reasonable and lawful instruction of Mr Jackson on 25 September 2014 that she participate in a meeting with her co-workers to discuss faulty workmanship and the manner of her refusal being verbally confrontational were valid reasons for her dismissal related to her conduct.

Notification of the reason

[65] Mrs Pagalia was notified by Mr P. Wiseman on 25 September 2014 both verbally and in writing of the reason she was to be dismissed.

Opportunity to respond

[66] It is apparent from Mr P. Wiseman’s evidence that he did not provide Mrs Pagalia an opportunity to respond to the reasons he was thinking of dismissing her before he had made up his mind to dismiss her.

[67] He did however meet with her explaining why he was dismissing her and giving her a letter to that effect and there was an opportunity at that time for Mrs Pagalia to respond. However Mrs Pagalia was placed in the position where she had no warning her employer was contemplating dismissing her and consequently she was disadvantaged in the sense of not having an opportunity to marshal any argument she might otherwise have put to Mr P. Wiseman as to why he should not do dismiss her.

Unreasonable refusal to allow a support person

[68] There was no unreasonable refusal by the respondent to allow a support person to be present in the discussion relating to Mrs Pagalia’s dismissal.

Warnings about unsatisfactory performance

[69] The reasons for the dismissal related to Mrs Pagalia’s conduct not her performance so this is not relevant.

The size of the enterprise/human resource management specialists and the impact on the procedures followed

[70] The respondent is a medium sized business.

[71] There is a very small management team and there are no dedicated human resource management specialists nor expertise within the enterprise. The procedures followed in this case have generally been sound other than for the fact that Mr P. Wiseman did not give Mrs Pagalia an opportunity to respond to the reasons he was considering dismissing her before he made his final decision to do so. Obviously the lack of human resource management specialist has impacted on the procedure followed and explained this deficiency.

Other matters

[72] As can be seen from the evidence there is a long history of warnings where Mrs Pagalia has been taken to task for her conduct. These warnings document four separate instances of verbal outbursts between August 2013 and September 2014 and one case of deliberate damage of the respondent’s equipment. A final warning regarding Mrs Pagalia’s conduct was issued 12 months prior to her dismissal. Her behaviour on 25 September 2014 was of a similar type to that addressed in that final warning. Mrs Pagalia yet again refused to acknowledge the authority of Mr Jackson and chose to express her views in an unreasonable and disrespectful manner.

[73] Mrs Pagalia is in her 60s and has worked for the respondent for many years.

Conclusion

[74] Mr Jackson has been the Production Manager for over 12 years. It is quite clear that Mrs Pagalia has a long-standing antipathy towards Mr Jackson. Mrs Pagalia has adopted the view that she is not required to accept his directions and is free to challenge them when she chooses.

[75] The Manager of the business has specifically explained to Mrs Pagalia, including in writing, that she is required to follow the instructions of Mr Jackson. Obviously Mrs Pagalia is obliged to follow the reasonable and lawful instructions of Mr Jackson but it is quite apparent she has a long history of not doing this.

[76] The only matter that leans in favour of this application succeeding is the fact Mr P. Wiseman did not provide Mrs Pagalia with an opportunity to respond to the reasons he was considering dismissing her before he made that decision. In cases where there has been a deficiency in the procedure followed in effecting the dismissal this does not of itself render a dismissal unfair 2.

[77] The question is whether the dismissal in all the particular circumstances of this case was harsh, unjust or unreasonable. In this case there has been nothing put during the hearing which could have been raised, if an opportunity to respond to the likely dismissal had been provided to Mrs Pagalia, which might have changed Mr P. Wiseman’s decision.

[78] When Mrs Pagalia chooses to take issue with Mr Jackson’s instructions she has done so in a verbally aggressive and confrontational manner, raising her voice towards him and on the final occasion doing this publicly in front of her co-workers. She has been warned about her conduct on a number of occasions. The respondent has been patient with Mrs Pagalia over a long timeframe and was mindful of her age and her lengthy service with the company. Mrs Pagalia has been advised in writing that a repeat of this behaviour may lead to her employment being terminated. Mrs Pagalia chose to ignore the warnings and repeated this behaviour.

[79] In all these circumstances her dismissal was not harsh, unjust or unreasonable. The dismissal was not unfair and this application will be dismissed. An order to that effect will be issued.

COMMISSIONER

Appearances:

M. Moleirinho, lawyer for the applicant.

E. Hartley of HWL Ebsworth Lawyers for the respondent.

Hearing details:

2015.

Perth:

May 18.

 1   Exhibit R6.

 2   P.Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5987 at [76] and [83].

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