Jason Ishmael Sy v Leighton Contractors Pty Limited

[2013] FWC 9680

[2013] FWC 9680

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Ishmael Sy
v
Leighton Contractors Pty Limited
(U2013/2185)

DEPUTY PRESIDENT MCCARTHY PERTH, 10 DECEMBER 2013

Application for relief from unfair dismissal.

Background

[1] Mr Jason Ishmael Sy (the Applicant) lodged an application for unfair dismissal remedy (the application) on 4 July 2013. The Applicant claimed that he was unfairly dismissed on 20 June 2013 from his employment with Leighton Contractors Pty Limited (the Respondent).

[2] It appears from correspondence on the file from the Conciliator to the Applicant and the Respondent that an agreement was reached to settle the application at conciliation. The parties were advised a three day cooling off period applied and that it would be assumed that the matter had been resolved unless either of the parties advised otherwise.

[3] The Applicant advised by email on 15 August 2013 that he was not happy with the agreed settlement and preferred that the matter progressed to a formal conference or hearing.

[4] I issued Directions on 10 September 2013 which required the Applicant to lodge and serve submissions, witness statements and any other material he intended to rely upon by 10 October 2013.

Application to dismiss pursuant to s.399A

[5] On 28 October 2013 an application to dismiss the Applicant’s application (the dismissal application) was lodged by the Respondent. The only real ground for the dismissal application was the Applicant’s failure to comply with my Directions.

[6] On 12 November 2013 I proceeded to deal initially with the dismissal application. The Respondent detailed the sequence of events and the failures by the Applicant to comply with Directions I had issued. The Respondent stated that over a period of four months the Applicant has had the opportunity to prepare his documentation and comply with my Directions. They stated over those four months the Applicant had numerous opportunities to comply, and also failed to provide the Respondent with either an outline of his submissions, or any documentation. The Applicant responded that he had difficulties convincing witnesses to either make statements, or appear for him, and he had been concentrating his efforts on obtaining employment.

[7] I reserved my judgement on the dismissal application and proceeded to hear the substantive application.

[8] My consideration regarding the application pursuant to s.399A of the Fair Work Act 2009 (the FW Act) included that the Applicant had difficulties understanding the nature of the requirements and the obligation to comply. The Applicant was based in Karratha and ready advice and support was not as easily accessible as it would be in a capital city. The Applicant did seek advice from my office but from the notes on the file it is fairly obvious that he had difficulty understanding the obligations.

[9] The Applicant endeavoured to obtain supporting evidence but, not surprisingly, had difficulty obtaining it.

[10] I also note the conduct of the Respondent. The Respondent did not respond to the Conciliators request of 16 August 2013 to provide advice to assist with programming of the matter. The Respondent was sent a copy of my letter to the Applicant on 14 October 2013 regarding the failure to comply. In that letter I made it clear that the Respondent could make an application to dismiss for failure to comply. There was no communication from the Respondent to my office, or presumably to the Applicant, in response to my letter.

[11] The Applicant responded to my letter on 21 October 2013 and a copy was sent by my Chambers to the Respondent on that date. A letter addressed as an “appeal for discontinuance” was sent by the Respondent to my Chambers on 22 October 2013. In essence the content of the letter was a request that the Respondent not be required to comply with my Directions as the Applicant had not complied. My Chambers responded on that date and advised that I had waived the requirement for the Respondent to comply with my Directions, to which the Respondent responded “[w]e will await your instructions”.

[12] On 27 October 2013 the Respondent emailed my Chambers requesting that “the matter be dismissed due to repeated failures to comply with the directions issued”. Notably, the Respondent did not make an application for an order for me to be able to deal with that request, and I doubt whether they expected me to waive such a requirement. The Respondent ended the email by requesting “[p]lease advise how you [presumably meaning me] would like this actioned in the first instance”. My Associate emailed the Respondent on 28 October 2013 and provided a Form F1 which she advised the Respondent to complete and lodge.

[13] The Respondent lodged a Form F1 on 28 October 2013. The only real ground in the application stated that the Applicant had unreasonably failed to comply with my Directions. No explanations were provided as to why the failures were unreasonable.

[14] A File Note of my Associate states that Mr Jos Smith, apparently the Employee Relations Manager for the Respondent, telephoned her the day after they had lodged an application to dismiss and stated words to the effect that “he wanted put on the record” that it was the fourth time the Applicant had sought an extension of time. The Respondent confirmed that request by email after the telephone conversation.

[15] A File Note on 5 November 2013 notes that Mr Jos Smith telephoned my Associate advising he was going on leave and provided alternative contact details for the Respondent. He also asked my Associate “where his [my] mind was at” apparently completely unaware of the inappropriateness of such a comment or question.

[16] It is apparent therefore that the Respondent had avenues available to them to lodge an application to dismiss much earlier than they did. It appears that they were ignorant of the requirements of s.399A that the FWC can only dismiss an application for failures to comply “on application”, although it should have been clear to them from the letter I sent on 14 October 2013.

[17] The Respondent’s later communications seem to suggest that they considered I should act on their email requests and simply dismiss the matter, without a formal application and without providing the Applicant with an opportunity to explain. Thus, they were seeking a dismissal because of the Applicant’s inaction, yet they had not acted themselves by lodging an application.

[18] I also note that the physical file was lost prior to it being allocated to me and a new physical file had to be made up on 23 August 2013. I am not therefore confident that everything relating to the application is on the file.

[19] I have decided not to dismiss this application pursuant to s.399A. I do not find the Applicant failed unreasonably to comply with my Directions.

The Application Proper

[20] In the circumstances I have also decided to proceed to determine the application based on the documents that have been filed and the evidence of the Applicant in the proceedings of 12 November 2013.

[21] The Applicant’s own evidence and the submissions of the Respondent are sufficient for me to make findings and a determination.

[22] The Applicant in the application stated that the reason for his dismissal was a “Breach of Leighton Contractor Core Values (Bullying & Harassment)”.

[23] He stated that the dismissal was unfair because:

“1. I was having an informal conversation with the safety officer regarding a hazard at work, then my co-worker suddenly passed by and said angrily to the officer “He is a liar!, don’t believe in what he's saying”. I just ignored him and continued with our discussion. Then everyone went to the meeting room for our job hazard analysis review and that same co-worker was there too. He yelled to everyone that “I am lazy and full of shit!” I was embarrassed and upset so I’ve told him, “Remove your sunglasses and show your eyes”, he did not react at all and so I didn’t say another word. It was early morning inside the meeting room and he’s the only one wearing sunnies. I was suspecting he’s under the influence of drugs so he’s hiding his eyes and that’s why he had some unusual behaviour that day (I used to know him as a user). Please refer to attached additional page for more explanations.

2. I reported his behaviour to my supervisor at the end of work on that same day. The next day, our Project Manager and Senior HR Advisor called me for a meeting. I have explained what had happened and they had made their own investigation. As a result, they believed that I was harassed but then I have also participated (because of the words I have said) so I have harassed him too. Prior to this incident, I was given a first and final written warning regarding harassment of another co-worker, so they have decided to terminate my employment due to being involved again.

3. I believed that this was an unfair dismissal because I was the victim here and I don’t think that what I have said to him was harassment. I have actually spoken appropriate words and I have done it for the safety of everyone in the workplace as drug influence might affect safety and may result to serious accidents. I was told by the Project Manager and HR Senior Advisor that I should have just kept quiet and should have just ignored him. From my point of view, it is very unfair to accept the insult and harsh words he had spoken to me in front of everybody. Besides, he was the one who started it and I have not done anything wrong for him to say those words to me.”

[24] The Respondent in their Employer’s Response stated that the reasons for the dismissal were as follows:

“1. The Applicant commenced employment with the Company on the Gorgon LNG Jetty and Marine Structures Project as a Labourer/Forklift Operator - CW3 at Dampier Port Operations on 5 November 2012;

2. The Applicant’s terms and conditions of employment were set out in the ‘Offer of Employment’ dated 1 November 2012;

3. The Applicant had been counselled on multiple occasions for his poor time keeping;

4. The Applicant was subsequently issued a written warning for failing to attend pre-start meetings and for poor time keeping on 27 March 2013;

5. Multiple employees alleged the Applicant harassed another employee and behaved in a manner inconsistent with the Company’s Core Values and Code of Conduct;

6. An investigation was carried out and the allegations were substantiated;

7. The Applicant was consequently issued a final written warning for harassment and behaviours inconsistent with the Company’s Core Values and Code of Conduct on 12 June 2013.

8. Attached to this final written warning were a copy of the Company’s Code of Conduct and Core Values;

9. A second employee implicated in the same matter was also disciplined;

10. Approximately one (1) week later it was alleged the Applicant harassed another employee and behaved in a manner inconsistent with the Company’s Core Values and Code of Conduct;

11. An investigation was carried out and the allegations were substantiated;

12. The Applicant was dismissed with notice for harassment and behaviours inconsistent with the Company’s Core Values and Code of Conduct on 20 June 2013;

13. A second employee implicated in the same matter behaviour was also dismissed.”

[25] The submissions the Applicant provided stated as follows:

“1) Employment

I have commenced permanent employment with Saipem Leighton Consortium on the Gorgon LNG Jetty and Marine Structures Project as a Labourer/Forklift Operator - CW3 at Dampier Port Operations on 5^th of November 2012. Work dismissal took effect on 20^th of June 2013.

2) Work Dismissal

I have received a final written warning for Bullying and Harassment which I should have not been given in the first place. After a week, one of my co-workers harassed me through saying harsh words against me, I reacted by saying back appropriate words. I have reported this incident to the office and they have made an investigation. They had talked to me and told me that I should have just kept quiet and should have not said a single word because I already have a final written warning. This has then resulted to my termination.

3) Why was the dismissal unfair?

I believe the dismissal was unfair because I was the victim of harassment here. Even though, I had a final written warning, it should have not been applied to this specific incident because I have only defended myself by answering back and most importantly, using appropriate words.

4) Evidences

Witness statement to be brought on the hearing and some text messages.”

[26] Whilst the Applicant gave evidence at the proceedings on 12 November 2013, that evidence was essentially a restatement of what he had provided earlier in the application and the submissions repeated above. Importantly, he admitted that he had had earlier warnings including a final warning, although he disputed the grounds for that final warning. He also admitted that he had training with respect to bullying and harassment and he admitted that he had said “bad words” but they were in retaliation.

[27] I find that he Applicant had been warned about his behaviours but continued with the behaviours he had been warned about. It was explained to the Applicant that the type of conduct he engaged in would not be tolerated through pre-start meetings and through the final warning he had been given. The Applicant was thus aware of the behaviours expected, through his own submissions and evidence it seemed to me to that he considered he had justification for not abiding by the behaviours expected. The Applicant also did not have a good record having previously been warned about timeliness. The Applicant had been employed by the Respondent for a relatively short period, some seven months.

[28] I find that there was a valid reason for dismissal.

[29] I also find that the Applicant was advised of that reason and given an opportunity to respond. He was not refused the presence of a support person.

[30] The Respondent is a large employer with dedicated human resources expertise, and it appears to me that the procedures used, and expertise provided in respect of the dismissal were reasonable for the nature of the employment and the project involved.

[31] I find that the dismissal was not unfair. The application is dismissed.

DEPUTY PRESIDENT

Appearances:

Applicant self represented.

Ms A. Fabbro for the Respondent.

Hearing details:

2013.

Perth:

November 12.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR545518>