Jamie Young v Pt Powder Coaters Pty Ltd T/A Pt Powder Coaters & Sandblasting Services

[2019] FWC 5258

[2019] FWC 5258

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jamie Young
v
PT Powder Coaters Pty Ltd T/A PT Powder Coaters & Sandblasting Services
(U2019/1030)

COMMISSIONER WILLIAMS PERTH, 31 JULY 2019

Application for an unfair dismissal remedy.

[1] This matter involves an application made on 2 February 2019, by Mr Jamie Young (Mr Young or the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is PT Powder Coaters Pty Ltd T/A PT Powder Coaters & Sandblasting (the Respondent).

[2] The application proceeded to conciliation but was not resolved and so has been referred to myself for determination.

Background

[3] This application was the subject of a hearing to determine a jurisdictional objection regarding the minimum employment period of the Applicant. This objection was dismissed by Deputy Present Beaumont in her decision of 18 June 2019, [[2019] FWC 3481].

[4] Subsequently, this application was allocated to myself for further hearing concerning the Respondent’s second objection that they had complied with the Small Business Fair Dismissal Code (the Code) and, subject to the outcome of that objection, the merits of the application.

[5] The background to this matter is detailed in the prior decision of Deputy President Beaumont.

[6] At the second hearing evidence was given by the Applicant, Mr Young and by the Respondents Director Mr Norm Trandos and the Respondents General Manager, Mr Jordan Buzzard.

[7] Both parties were self-represented.

Factual findings

[8] I find, and it is not contested, that the Respondent at the time of the Applicants dismissal employed fewer than 15 employees, specifically 9 employees.

[9] Mr Young was first employed in January 2018.

[10] Relevantly, his evidence in chief contained in his witness statement is that on Thursday, 17 January 2019 (Thursday), he arrived at work late which had been previously agreed to by Mr Buzzard on the prior Monday, 14 January 2019. This was because Mr Young had to take his son to work.

[11] On the Thursday morning when he arrived at work, he was then confronted by Mr Dragen Arsoki (Mr Arsoki) his Supervisor. Mr Young says Mr Arsoki confronted him in a threatening manner and was yelling at him. Mr Young says he yelled at Mr Arsoki and told him to get away and said he would be going to Mr Buzzard to report this.

[12] Mr Young’s evidence was there were many occasions when Mr Arsoki acted in an aggressive manner towards him and others and he had very limited English and would use his stature and aggression to get his point across.

[13] Mr Young says he then went to see Mr Buzzard to discuss what had just happened. When he saw Mr Buzzard and told him what had happened Mr Young says Mr Buzzard laughed at him and said that Mr Arsoki was responsible for dealing with Mr Young and Mr Buzzard supported Mr Arsoki’s actions. Mr Young says Mr Buzzard also said that he had not been doing his work satisfactorily and he was unhappy with Mr Young.

[14] Mr Young says that he was extremely angered by this and felt let down by Mr Buzzard. He says he walked with Mr Buzzard and Mr Buzzard says confronted Mr Arsoki and told him he is no longer to deal with Mr Young and that Mr Buzzard would do so personally. He says Mr Buzzard said “if I fucked up I would be gone.”

[15] Mr Young says Mr Buzzard then left and went back to his office and Mr Young went to his workstation grabbed his keys and left the premises to go home.

[16] He then contacted WorkSafe regarding what had happened and contacted his doctor and his doctor gave him a certificate for two weeks.

[17] Mr Young says he later returned to the workplace to speak to Mr Buzzard. Mr Buzzard was not there but arrived later.

[18] Mr Young says that he discussed with Mr Buzzard what had happened earlier that day and told him it was unacceptable, and that Mr Young had made a complaint to WorkSafe. Mr Young says Mr Buzzard said he did not wish to talk about it anymore and would call him tomorrow (18 January 2019), to discuss his employment. Mr Young says he gave Mr Buzzard his doctor’s certificate and left.

[19] There was no contact the next day on Saturday, 19 January 2019. Mr Young says that on Monday, 21 January 2019, Mr Buzzard contacted him to organise a meeting and they met that morning.

[20] Mr Young attended with his partner and present was Mr Buzzard, Mr Trandos and a Ms Cotty. He says he was then informed that his employment had been terminated due to gross misconduct effective immediately. Mr Young stated that the Respondent had several problems with him in the past and had not been happy with his performance for a long time. Mr Young and his partner then left the premises.

[21] In his oral evidence Mr Young said that on the Thursday he had a heated conversation with Mr Buzzard which involved what he refers to as “workplace swearing”.

[22] With respect to the evidence of Mr Buzzard contained in his witness statement Mr Young says there was no abuse, no threats and no violence.

[23] Mr Young also says he never said anything racist about Mr Arsoki or Mr Buzzard.

[24] Relevantly, the evidence in chief of Mr Buzzard contained in his witness statement is that on Friday, 11 January 2019, he asked Mr Arsoki, to ask Mr Young and another employee to swap their shifts around which meant Mr Young would then do the morning shift. He said this was because Mr Young had not been performing his duties satisfactorily on afternoon shift after the morning shift, including Mr Buzzard and Mr Arsoki, had left for the day.

[25] Mr Buzzard’s evidence was that the following Monday, 14 January 2019, Mr Young told him that he had to drop his son at work and would be a little late which Mr Buzzard said was fine. Then on Tuesday, 15 January 2019, Mr Young called in sick and said he would be away both Tuesday and Wednesday and returning to work on Thursday, 17 January 2019. Mr Buzzard’s evidence was that Mr Young never mentioned he would be late again on that Thursday.

[26] Mr Buzzard said that on Thursday when Mr Young arrived at work the leading hand Mr Arsoki asked Mr Young why he was late. Mr Buzzard says that Mr Young became very angry with Mr Arsoki and started arguing with him to which Mr Arsoki asked him to leave or to speak to Mr Buzzard.

[27] Mr Buzzard’s evidence was that Mr Young then came into his office and started yelling abuse. Mr Young’s words were:

“Fuck Dragan, I’m not taking orders from him, he isn’t Australian, I don’t have to listen to him, he is a cunt, he can’t speak fucking English, he can get fucked.”

[28] Mr Buzzard’s evidence is that Mr Young also said to him

“Get fucked, I can pick my own shift, you can’t change it, you have no balls, go get fucked, you guys are cunts, I am an Australian you can’t tell me what to do.”

[29] Mr Buzzard says Mr Young was yelling and abusing him and being racist towards Mr Arsoki. He says Mr Young was throwing his hands around acting in a threatening manner. His actions were extremely over-the-top and unpredictable, and he kept saying the same things over and over.

[30] Mr Buzzard says he asked Mr Young to calm down and to explain what was going on. Mr Young did not calm down and just kept verbally abusing Mr Buzzard and also talking about Mr Arsoki. This was overheard by other staff members in the vicinity.

[31] Consequently, Mr Buzzard asked Mr Young to follow him to another office to discuss this further. He says that as they were walking to the other building Mr Young was still verbally abusing him in front of other staff and customers.

[32] Mr Buzzard says Mr Young decided to leave to calm down. Mr Buzzard called Mr Young and says he told Mr Young that he would be contacting ‘Fair Work’ to get some advice. He says he called ‘Fair Work’ to see what they could do about the situation as Mr Young’s behaviour was outrageous and unacceptable. He says ‘Fair Work’ sent him an email containing information about termination of employees.

[33] Mr Young returned to the workplace at 12 noon and collected all his belongings and personal items. Mr Buzzard says he told him he would speak to Mr Trandos and be in contact with him as to what was going to happen.

[34] Mr Buzzard spoke to Mr Trandos. They discussed Mr Young’s past history. He says that after reviewing the email from ‘Fair Work’ and discussing these issues along with the serious misconduct from that day’s incident, they were left with no choice other than to terminate Mr Young’s employment effective immediately.

[35] Mr Buzzard says he tried to contact Mr Young on his home phone because he doesn’t have a mobile phone but was unable to contact him, so he sent out a letter of termination on the afternoon of Thursday, 17 January 2019.

[36] The letter of termination dated 17 January 2019, relevantly states:

“Your behaviour and conduct today was totally unacceptable and will not be tolerated. Under the circumstances your continued employment during a notice period would be unreasonable.

We consider that your actions constitute serious misconduct warranting summary dismissal.

You will also be paid your accrued entitlements and any outstanding pay up to and including your last day of employment.”

[37] In his oral evidence Mr Buzzard said he believed Mr Young verbally abusing him and being racist toward Mr Arsoki  in a threatening manner in front of other staff and customers on Thursday, 17 January 2019, was serious enough to justify immediate dismissal. He said he believed Mr Young’s conduct on the Thursday justified him being dismissed immediately.

[38] On Monday, 21 January 2019, Mr Young came to the workplace and met with Mr Buzzard and Mr Trandos. Mr Young informed them that he was just depressed and extremely stressed as he had a lot going on at home. He told them that was why his behaviour on Thursday was what it was. Mr Young told them that this is what caused him to be angry and aggressive that day.

[39] Obviously, the Respondent had already decided to dismiss Mr Young summarily and on Thursday, 17 January 2019, prior to this Monday 21 January meeting had written and sent the letter of termination advising Mr Young that he was dismissed effective that Thursday.

[40] Mr Trandos’s evidence was limited to what occurred at the meeting on Monday, 21 January 2019. He says that at this meeting held at Mr Young’s request he told them he was suffering from depression and stress and had a lot going on at home which is what caused his behaviour on the previous Thursday.

[41] There is some commonality in the evidence of Mr Young and Mr Buzzard as to what occurred between them on the morning of Thursday, 17 January 2019. However, the differences between the two witnesses as to the detail of what occurred is critically important in this matter.

[42] Mr Young’s evidence in summary was that whilst the discussion was heated and there was some swearing by him, he was never abusive, never made any racist statements about either Mr Arsoki or Mr Buzzard and was not aggressive at all.

[43] Mr Buzzard’s evidence is at odds with Mr Young’s evidence and in summary was that for an extended period, in front of other staff and customers, Mr Young had been repeatedly abusive about Mr Arsoki, made derogatory comments about his nationality, similarly was abusive towards Mr Buzzard, having also made derogatorily comments about his nationality and Mr Young in an abusive manner had also challenged Mr Buzzard’s authority.

[44] Mr Young concedes in his evidence that the interaction between himself and Mr Buzzard was heated and involved some swearing by him.

[45] I note also that the letter of termination from Mr Buzzard, which was written on the Thursday, focused exclusively on Mr Young’s behaviour and conduct that day and refers to this as having been unacceptable and intolerable and warranting summary dismissal.

[46] I also note the evidence of both Mr Buzzard and Mr Trandos was that at the meeting on the Monday, 21 January 2019, Mr Young said his behaviour on Thursday was caused by his depression and stress, an explanation that would be unnecessary if Mr Young’s behaviour that day was as innocuous as he said it was in his evidence.

[47] Considering all the evidence and having had the benefit of observing both Mr Young and Mr Buzzard give their evidence at the hearing I find that the evidence of Mr Buzzard as to how Mr Young behaved and what he said to Mr Buzzard on Thursday, 17 January 2019, should be preferred over Mr Young’s evidence.

[48] Consequently, I find that Mr Young was, over an extended period in front of staff and customers, verbally abusive towards Mr Buzzard himself, abusive in reference to his leading hand Mr Arsoki, made derogatory comments about the nationality of Mr Arsoki and Mr Buzzard and crudely challenged his general managers authority to alter his shifts. Mr Young’s conduct during this interaction with Mr Buzzard was aggressive and threatening in that at times he was yelling and throwing his arms around.

The legislation

[49] Section 385, below, sets out that amongst other things for a person to have been unfairly dismissed the Commission must be satisfied the dismissal was not consistent with the Code. This Code applies to employers with fewer than 15 employees at the time the dismissal had effect.

[50] If then a small business acted consistently with the Code a resulting dismissal cannot be unfair.

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC 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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

The Small Business Unfair Dismissal Code

[51] Summary Dismissal is dealt with as follows in the Code.

“It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.”

The principles

[52] The Commission in past decisions has considered how the Commission should apply the Code to an unfair dismissal remedy application where the small business employer has dismissed an employee with immediate effect.

[53] In the case of Grandbridge Limited v Wiburd [2017] FWCFB 6732, a Full Bench of the Commission explained the proper enquiry the Commission is required to make when considering the Code in cases of summary dismissal is as follows:

“[14] We consider that an arguable case of error has been established and the public interest is enlivened by the appeal. Specifically, we are persuaded that Grandbridge has made out an arguable case of appellable error in relation to grounds 2, 13 and 15 of its Notice of Appeal in so far as they concern the dishonest conduct reason for Ms Wiburd’s dismissal. It is arguable that the Deputy President fell into error by asking herself the wrong question in focussing on whether Ms Wiburd’s conduct “was serious enough” to sustain summary dismissal. The proper inquiry raised by the Code is relevantly, whether at the time of the dismissal the employer genuinely believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. The Code focusses attention on the employer’s belief which must be based on reasonable grounds, not on whether the employee’s conduct as a matter of fact and law justified immediate dismissal. It is therefore arguable that the Deputy President failed to properly apply the Code as Grandbridge contends by ground 13 of its Notice of Appeal.” (Underlining added)

Consideration

[54] The Respondent was, at the time of Mr Young’s dismissal, a small business employer to whom the Code applied.

[55] In this case Mr Buzzard on Thursday, 17 January 2019, decided to dismiss Mr Young immediately and that day sent him a termination of employment letter advising him that he had been summarily dismissed.

[56] I am satisfied on the evidence that Mr Buzzard genuinely believed that Mr Young’s behaviour and conduct on Thursday, 17 January 2019, was sufficiently serious to justify his immediate dismissal. Further Mr Buzzard’s belief was held on reasonable grounds given he had witnessed Mr Young’s behaviour and conduct that day, much of which was directed at him.

[57] Consequently, I am satisfied that the dismissal of Mr Young was consistent with the Code. Therefore, by virtue of section 385 Mr Young has not been unfairly dismissed.

[58] Mr Young’s application will be dismissed and an Order to that effect will now be issued.

Appearances:

J Young, for the Applicant.

J Buzzard, on behalf of the Respondent.

Hearing details:

2019.

Perth:

July 24.

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