Jimmy Koleski v Renito Pty Ltd T/A Hair Health and Beauty Professional

[2016] FWC 2169

[2016] FWC 2169

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jimmy Koleski
v
Renito Pty Ltd T/A Hair Health and Beauty Professional
(U2015/15266)

COMMISSIONER MCKENNA SYDNEY, 18 MAY 2016

Application for relief from unfair dismissal.

[1] Jimmy Koleski (“the applicant”) has lodged an application, pursuant to s.394 of the Fair Work Act 2009 (“the Act”), for an unfair dismissal remedy. In his application, the applicant contended that his dismissal by Renito Pty Ltd T/A Hair Health and Beauty Professional (“the respondent”) was harsh, unjust or unreasonable; he seeks by way of remedy an order for compensation.

[2] The matter was the subject of an earlier decision, in which Gooley DP declined to accede to the respondent’s application pursuant to s.399A of the Act seeking that the application be dismissed given the applicant’s materials had not been filed and served in accordance with the timetable in the directions (Koleski v Hair Health & Beauty [2016] FWC 1418). Consequent upon that decision, the matter was allocated to me for determination concerning the substantive allegation of unfair dismissal.

[3] As to preliminary matters to be considered pursuant to s.396 of the Act, I am satisfied the application was made within time; the applicant was a person protected from unfair dismissal; the respondent is not a small business, so consideration of consistency with the Small Business Fair Dismissal Code does not arise; and the dismissal was not a case of genuine redundancy.

[4] The applicant commenced employment with the respondent in April 2015. The industry in which the respondent operates is the wholesale hair, beauty products and equipment industry. The applicant was employed as a storeperson, pursuant to the provisions of the Storage Services and Wholesale Award 2010. While it appears that in the performance of his responsibilities as a full-time storeperson the applicant’s work itself was considered satisfactory (with the respondent submitting the applicant’s work was not an issue and the applicant worked quite well), the applicant was dismissed by the respondent on 11 November 2015 against the background of a number of concerns that had emerged about his employment conduct, including interactions with staff members and, on the day of the dismissal, swearing.

[5] The applicant contended, among other matters, that he had never been given (written) warnings during his employment. He also contended that, despite the reasons given to him for the dismissal, he had not threatened any staff or used abusive language towards them; and he had not pushed a trolley at a manager. In support of this, the applicant noted that he would not have threatened staff because, had he done so, he would have been in jeopardy of being sent back to jail given he was on parole at the time of his employment with the respondent. The applicant referred to a number of other matters, such as contending that one does not have to be friends with fellow workers so long as you get the job done.

[6] The applicant set out in his statement of evidence his description of what had occurred on the day of the dismissal itself. In that statement, the applicant acknowledged that he had uttered swear words when, in his view, he had been trying to assist two other staff, including the manager, with advice that a customer was waiting. According to the applicant, the staff had responded, however, in effect, with advice to him that he should not be telling them how to do their jobs. While the applicant could not remember exactly what he had said, he could remember saying words to the effect: “f… you” - and then also saying he would not again be advising staff there was a customer waiting to be served. The applicant continued that his swearing was not aimed personally at the manager or the other employee; rather, he explained that is how he speaks when he considers he has been abused. The applicant described that following upon this incident, he walked to the back of the workplace premises and started to move stock whereupon his manager then returned and dismissed him.

[7] For its part, the respondent contended that the applicant had used threatening and abusive language towards his female colleagues on a number of occasions, to the point of making them feel unsafe in the workplace in circumstances where the applicant was the only male working among five females at the particular workplace; and that he had an aggressive and unsettling demeanour. The respondent contended that Lewis Simmons, a director of the respondent, had counselled or warned the applicant about his behaviour prior to the dismissal as it concerned his interactions with staff, and that the female manager had also endeavoured to encourage the applicant to conduct himself differently in the workplace. The respondent also relied on the contents of a memorandum dated 13 April 2015, co-signed by Mr Simmons and the applicant in connection with his initial employment, which read:

“Renito Pty. Ltd Trading as Hair Health and Beauty Professional is committed to creating and maintaining an environment for all its employees that is free from bullying and violence.

Courtesy, understanding and mutual respect towards all persons is necessary for excellence in what we do, for safety in the workplace and for creating an environment that serves all our needs.

We will not tolerate violence, threats or any form of cyber bullying involving work or work related events by our staff against other staff members or other people or their property.

For the purposes of this policy, violence includes, but is not limited to:

• Any act that is physically an assault,



• Any threat or behaviour or action that is interpreted by a reasonable person as having the potential to harm or endanger the safety and/or reputation of others, or that may result in an act of any form of aggression, or



• To destroy or damage property.

Any employee who commits an act or threatens to commit an act towards other persons or property such as described above, at work or in a work related event will be subject to disciplinary action, up to and including immediate dismissal from employment, exclusive of any civil remedy or criminal penalty that might be pursued if appropriate.

It is the responsibility of every employee, supervisor and manager to take any threat or violent act as described above seriously and report those acts or threats to myself at Head Office.” (bold in original)

[8] The respondent considered that the applicant’s conduct was contrary to the letter or spirit of the matters set out in the preceding document, which the applicant signed as having read and understood it contents in connection with his initial employment.

[9] In considering the applicant’s application for an unfair dismissal remedy and the positions advanced by the parties in relation to the matter, the Act specifies the matters to be taken into account as follows:

“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.”

[10] I turn now to consider those matters.

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)

[11] It may be noted the respondent’s evidence put matters as to the extent of the swearing admitted by the applicant very much higher than described by the applicant. That swearing in the workplace, in response to comments in which the applicant considered himself to have been abused (even if only to the extent of swearing to which the applicant himself admitted in response to what the employees had said to him), leads to the view there was a valid reason for the dismissal related to the applicant’s conduct. In so concluding, I prefer and accept the evidence of the manager as to what was said and the extent of it. While the applicant may consider that he was not directing the swearing at the employees, but rather, that he was just uttering swear words because that is the way he speaks when he considers he has been abused, the conduct was inappropriate. In any event, I prefer the evidence for the respondent that the swearing was more extensive than the applicant described and (even if the applicant had not intended it to be so) his demeanour was intimidating and aggressive. I accept also the evidence of the manager that the applicant was, among other things, effectively inviting her to dismiss him while calling her an inappropriate, pejorative name. The respondent contended there had been a pattern of similar types of behaviours, and he previously had been alternatively encouraged not to be aggressive, and was otherwise counselled or verbally warned. I accept that evidence.

Whether the person was notified of that reason

[12] The applicant identified in the initiating process that the reasons given to him for the dismissal were (1) misconduct as an employee; and (2) use of threatening and abusive language towards colleagues.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[13] There was no evidence that the applicant was given an opportunity to respond to the reason for the dismissal. Rather, the dismissal followed almost immediately upon the swearing and related commentary - as a summary dismissal.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[14] There were no discussions related to the dismissal which could have involved a support person. Rather, the dismissal was peremptorily effected after the swearing and related commentary.

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

[15] The applicant’s dismissal did not relate to unsatisfactory performance, as such. As noted earlier, the respondent considered the applicant performed his work as a storeperson satisfactorily. Unfortunately, it was the existence of other issues which led to concern about him, with the immediate trigger then being the swearing and the like on the day of the dismissal.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal/The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[16] The respondent employs about 22 staff in total, but the particular workplace employed about a half a dozen employees. The respondent does not employ any human resources personnel. The circumstances surrounding the dismissal are reflective of an almost immediate response in a small workplace to what had unfolded following the incident.

Any other matters that the Commission considers relevant.

[17] The applicant was most concerned in the proceedings to address what appears to have been a suggestion that he may have physically threatened to injure the manager with a trolley or hit her with the trolley. There is no evidence, and nor was it contended in the respondent’s evidence, that the applicant either physically threatened the manager with the trolley or attempted to injure her with it. Rather, Mr Simmons may have conflated an expression of concern about what the manager apprehended may happen with the trolley, rather than anything that actually happened. In this regard, the evidence of the manager made it plain she personally felt very concerned for her safety by the way the applicant was holding the trolley in her proximity around the time of the dismissal; however, and to avoid doubt, there was no suggestion the applicant either physically attempted to hit or actually hit the manager with the trolley even though, for her own part, the manager personally had some apprehension about such matters.

[18] With respect to the applicant, it does not appear he comprehended the effect of his behaviour and the concern it brought about in the comparatively short period of his employment. While the applicant was regarded as a satisfactory worker, I accept the respondent’s contention that, following endeavours to seek modification of what was perceived to be unacceptable workplace interactions, the eventuality of the swearing incident and what he otherwise said to the manager on the date of the dismissal rendered the summary dismissal that day not harsh, unjust or unreasonable.

[19] I am not satisfied the applicant has established a case that he was unfairly dismissed given my consideration of the matters arising in the evidence and submissions. As such, an order dismissing the application issues in conjunction with these reasons.

COMMISSIONER

Appearances:

J. Koleski in person.

L. Simmons for the respondent.

Hearing details:

2016.

Sydney;

April, 6.

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<Price code C, PR578777>