Joseph Salloum v Country Steel Sales Pty ltd
[2023] FWC 1887
•4 AUGUST 2023
| [2023] FWC 1887 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Joseph Salloum
v
Country Steel Sales Pty ltd
(U2023/3598)
| COMMISSIONER BISSETT | MELBOURNE, 4 AUGUST 2023 |
Application for an unfair dismissal remedy
On 26 April 2023 Mr Joseph Salloum (Applicant) made an application to the Commission pursuant to s.394 of the Fair Work Act 2009 (FW Act) in which he sought a remedy for unfair dismissal. Mr Salloum was employed by Country Steel Sales Pty Ltd (Respondent). He was summarily dismissed from his employment on 25 April 2023.
Mr Sam Mangani is a Director of the Respondent and represented the Respondent at the hearing of the application. The Respondent operates a metal fabrication business and Mr Mangani said it is a small business which employs eight people. He said that the Small Business Fair Dismissal Code (Code) applies, and that the Respondent complied with the Code in dismissing the Applicant. The Applicant agreed that the Respondent employed eight people and did not dispute the application of the Code.
Prior to the hearing of the application the Applicant filed submissions. The Respondent also filed submissions and an ‘affidavit’ signed by the two Directors and six employees[1] of the Respondent. No witness statements as such were filed by Mr Salloum or Mr Mangani. Both however gave oral evidence. Two employees of the Respondent – Mr Luci Magda (Foreman) and Mr Vladan (Vlad) Mitrovic (Boilermaker), also gave evidence for the Respondent.
Having heard from the parties I determined to conduct the proceedings by way of a determinative conference. Given the lack of detailed material before the Commission, this allowed for a more exploratory, interrogative approach to the matters relevant to the Commission in determining the application.
The material filed by the Applicant and the Respondent, including the application and response to application, were collated into a court book which was provided to the parties prior to the hearing. The Applicant and Mr Mangani agreed that this was all the material that had been sent to the Commission. At the hearing the Applicant provided two photographs and a text exchange with Mr Mangani from the time surrounding his dismissal.
Preliminary matters
Section 396 of the FW Act sets out those matters that must be determined by the Commission prior to the consideration of the merits of the application. Section 396 states:
396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(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.
The Applicant and the Respondent agreed, and I find, that the application was made within time, that the Applicant was protected from unfair dismissal and that the dismissal was not related to redundancy.
I am satisfied that the Respondent is a small business. It is therefore necessary to determine if the dismissal was consistent with the Code.
The case for the Respondent
The Respondent said that the Applicant was dismissed for ‘repeated aggressive behaviour’[2] towards his colleagues. In particular Mr Mangani said that the Applicant was involved in a fight with Mr Mitrovic on 18 April 2023. Mr Mangani broke up that fight and hoped the Applicant and Mr Mitrovic could shake hands and move on. Mr Mangani said the fight involved the Applicant picking up a large hammer[3] used in the workshop near Mr Mitrovic’s work bay. On returning the hammer the Applicant threw it to the floor. When asked by Mr Mitrovic why he had done that the Applicant started fighting and spitting at Mr Mitrovic.
On 24 April 2023 Mr Mangani and the Applicant were working in the factory when Mr Mitrovic returned from a job site. Mr Mangani said when he saw the Applicant and Mr Mitrovic start to exchange words he intervened to ensure an altercation such as that on 18 April 2023 did not occur again. The Applicant then told him that he, the Applicant, was sick and was going home. Mr Mangani questioned whether he truly was sick but the Applicant left anyway.
Mr Mangani said that the incident of 18 April 2023 could have had fatal consequences, but he took no action against the Applicant as he wanted things to calm down and return to normal. He said however that, when he again had to intervene on 24 April 2023, it was too much.
Mr Mangani said that when he told the Applicant he would issue him with a warning after the incident on 24 April 2023 he had meant ‘termination’ and he just used the wrong word. He said he did not want to dismiss the Applicant as he was the only fabricator employed by the Respondent and it was a skill in high demand, so not easily replaced.
In addition to these two incidents Mr Mangani said the Applicant operated in an unsafe manner and used his mobile phone[4] while at his work bay, contrary to instructions.
Mr Mitrovic said that on 18 April 2023 he was working in his bay when the Applicant came past and took his hammer. Next to Mr Mitrovic’s workstation is a metal sheet which shields the person working in the next bay from getting ‘flashed’ when Mr Mitrovic is welding. Mr Mitrovic said the Applicant stared banging metal with the hammer and then ‘just [threw the hammer] into the corner of the bay.’ Mr Mitrovic asked the Applicant if that was where he had found the hammer. In response he said the Applicant turned around and spat at him. Mr Mitrovic said that he yelled ‘What the hell are you doing’ at the Applicant who then started walking aggressively towards Mr Mitrovic. Mr Mitrovic said that the Applicant got too close to him so he pushed him back. The Applicant landed with his hand on a ‘turn bar’ – a metal rod about a metre long weighing about 10 kilograms that is used to turn big, heavy beams. He says the Applicant started chasing him around the welding table with the bar and threw it from hip height. The Applicant then grabbed Mr Mitrovic’s ‘nips’ (metal scissors) and a small hammer and threw each of these at him and twice kicked him in the genitals.
Mr Mitrovic, when questioned, agreed that he got angry and yelled at the Applicant. He said that he did not know why the Applicant got angry at him that day but said there had been other incidents in the days leading up to this where the Applicant had done things including moving a metal beam directly above Mr Mitrovic’s head.
Mr Mitrovic denied that he threw a welding torch at the Applicant (as the Applicant alleged in his submissions) but agreed that he did swear at the Applicant and push him because he was angry at the Applicant for spitting at him.
Mr Mitrovic said he had a further interaction with the Applicant a few days later (although could not recall the day). He said that he returned from a job site and walked into the factory to talk to Mr Mangani. He said the Applicant stopped what he was doing and was ‘eyeballing’ (staring at) him. Mr Mitrovic asked the Applicant ‘what the hell’ he was doing at which point the Applicant started walking aggressively towards him. Mr Mangani told the Applicant to return to his work bench which he did but kept staring at Mr Mitrovic.
Mr Mitrovic said that, after the incident on 18 April 2023 he considered making a formal complaint to the police but eventually did not proceed with that as he did not want to cause any grief for Mr Mangani. Mr Mitrovic said however that he considered he had been assaulted by the Applicant.
Mr Mitrovic said that the Respondent was a good place to work and Mr Mangani was a good boss.
In relation the photograph taken by the Applicant of Mr Mitrovic apparently using his telephone and holding a cigarette in his hand while on the factory floor, Mr Mitrovic said he was probably texting Mr Mangani as this was quicker than walking up the stairs and disturbing others in the office and that the cigarette was not lit. Mr Mitrovic said he was probably about to head outside to the smoking spot.
Mr Magda gave evidence that he has worked for the Respondent for about 8 years and in the industry for 20 years. Mr Magda has a Certificate IV in Occupational Health and Safety. He said that the Respondent’s business is a good place to work, the factory is clean and tidy and that Mr Mangani is a good boss who looks after the workers including providing lunch for them at times.
Mr Magda said however that there were some language barriers with the Applicant and that he was not as relaxed as others on the shop floor.
Mr Mangani submitted that the Respondent had complied with the Code in dismissing the Applicant. He said that, in providing the Respondent’s response to the application he completed the Code checklist which confirmed he had complied with the Code.[5]
The case for the Applicant
The Applicant said that he was asked to work on 24 April 2023 – the day before the Anzac Day public holiday. At around 11.00 am Vlad (Mitrovic) came into the factory. The Applicant said that Mr Mitrovic was shouting and ‘talking badly’ and saying ‘Like ‘what the fuck’, or something like that’ but he said nothing to Mr Mitrovic. The Applicant said that Mr Mangani was witness to the exchange between him and Mr Mitrovic. The Applicant told Mr Magnani ‘Look I can’t stay, I’m feeling sick.’ He then went home.
The Applicant was told by Mr Mangani that he would receive a warning but instead he received the letter terminating his employment on 25 April 2023.
The Applicant said that on Thursday 18 April 2023[6] he needed the hammer[7] to fix a job. It was near Mr Mitrovic and the Applicant took it and completed his job. He said that he put it back, Mr Mitrovic looked at him angrily, threw the welding torch at him and then ran away. Mr Mitrovic was also ‘talking badly.’
The Applicant denied spitting at, or fighting with, Mr Mitrovic and said he was not aggressive.
The Applicant also said:
· If he uses the phone at work it is to call Mr Mangani;
· Mr Mangani allows inexperienced operators to use the crane and he took a photo of an inexperienced person using the crane;[8]
· Mr Mangani allows people to smoke in the factory. Vlad and Luci smoke all the time in the factory even though he has asked them not to. The smoke makes it difficult for him to breathe;
· Mr Mangani listens too much to the foreman (Luci Magda);
· Mr Mangani knows nothing about fabricating or welding;
· Mr Mangani is not telling the truth about the incident;
· Mr Mangani doesn’t care about health and safety;
· Mr Mangani claimed ‘unnecessary jobkeeper’ even though they had a lot of work and were doing overtime. When asked how he knew this the Applicant asserted that he had information;
· Mr Mangani does not allow people to have sick leave;
· Mr Mangani does not pay entitlements.
The Applicant said that he thinks he was dismissed from his employment because Mr Mangani informed the foreman (Mr Magda) who probably said the Applicant’s employment should be terminated.
The Applicant is of the view that Mr Mangani listened too much to Mr Magda. He said when something needed fixing in the factory and he told Mr Mangani what to do, Mr Mangani would say to check with Mr Magda.
The Applicant believes that Mr Mangani, Mr Mitrovic and Mr Magda worked together to make the Applicant leave the job.
The Small Business Fair Dismissal Code
The Small Business Fair Dismissal Code is as follows:
Small Business Fair Dismissal Code
Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.
Summary Dismissal
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.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.
In Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe[9] Deputy President Bartel said:
[60] At the outset it is appropriate to note that unlike a consideration of the dismissal of an employee of a business that is not a small business employer, the function of FWA is not to determine on the evidence whether there was a valid reason for dismissal. That is, the exercise in the present matter does not involve a finding on the evidence as to whether the applicant did or did not steal the money. The application of the Small Business Fair Dismissal Code involves a determination as to whether there were reasonable grounds on which the respondent reached the view that the applicant’s conduct was serious enough to justify immediate dismissal. As such, the determination is to be based on the knowledge available to the employer at the time of the dismissal, and necessarily involves an assessment of the reasonableness of the steps taken by the employer to gather relevant information on which the decision to dismiss was based.
In Pinawin T/A RoseVi.Hair.Face.Body v Domingo[10] the Full Bench of the Commission affirmed the above finding and said:
[29] We believe that the approach and observations in these two decisions are correct. There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.
[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.
I have applied these principles to the matter before me.
Assessment of accounts of the events on 18 April and 24 April 2023
The evidence of the Applicant in relation to the events of 18 April 2023 and 24 April 2023 was very different to that of Mr Mangani and Mr Mitrovic (although Mr Mitrovic could not recall the date of the second incident). Each made their statements under oath.
On review, I prefer the evidence given by Mr Mitrovic and Mr Mangani over the evidence given by the Applicant. I have reached this conclusion for a number of reasons.
Firstly, I found Mr Mitrovic to be open and honest in his evidence about what he did and said on 18 April 2023 even when that evidence was not to his advantage. He agreed that he got angry at the Applicant, yelled and swore at him and pushed him. I would observe that, while provoked, such conduct in the workplace is not acceptable.
Secondly, Mr Mangani witnessed much of the incidents on 18 (and 24 April 2023) and was concerned enough to come down from his office to stop the exchange between the two. What he said he witnessed generally accorded with the evidence of Mr Mitrovic.
Thirdly, much of the Applicant’s evidence (and general complaints about the workplace) went not to the incidents of 18 or 24 April 2023 involving Mr Mitrovic but to other conduct in the workshop and complaints of the way Mr Mangani ran his business. The incident of 18 April 2023 did not warrant a mention in the Applicant’s submissions and, of the incident of 24 April 2023, he says he said nothing to Mr Mitrovic. Further, the Applicant suggested in his application that his employment was terminated because he went home sick on 24 April 2023. The Applicant did not address the matters raised in the termination letter in his submissions but clearly was agitated about his grievances which he continued to pursue at the hearing.
The Applicant claimed that Mr Mangani allowed smoking in the workshop, breached safety rules by letting unqualified people operate the crane, was untruthful in respect of JobKeeper payments during COVID-19 and denied employees their entitlements. The Applicant’s claims of such conduct were not supported by evidence except for an undated text message he says he received from Mr Mangani around that time where Mr Mangani suggested his sickness was not legitimate. The context of this text message was not explained.
Further, the Applicant took photographs in the workplace on 18 April 2023 – one of a worker allegedly operating the crane (although no controls are seen in is hand) and another of Mr Mitrovic with a phone in one hand and a cigarette (although it is not clear that it is alight) in the other – apparently in support of his grievances. That is, much of his evidence sought to deflect attention away from the critical incidents that led to his dismissal.
Fourthly, Mr Magda’s statement to the Commission was not supportive of the Applicant’s evidence in relation to safety standards in the workplace. Both Mr Mitrovic and Mr Magda strongly endorsed the workplace as having good health and safety and cleanliness standards, of Mr Mangani being a good boss and of a generally harmonious workplace. The photographs provided by both the Respondent and the Applicant suggest a neat and well ordered workplace clear of obstacles and rubbish which, on their face, are not supportive of some of the Applicant’s claims.
For these reasons I prefer the evidence of Mr Mitrovic to that of the Applicant in relation to the conduct on 18 April 2023 and 24 April 2023.
Consideration
I am satisfied that the Applicant was dismissed without notice or warning. There is no dispute that the Applicant left the workplace on 24 April 2023 at around lunch time. The following day he received a notice of termination of his employment from Mr Mangani.
It is not in dispute, and I am satisfied, that the Applicant was not paid any notice and that the termination took effect without notice.
Mr Mangani agreed that on 24 April 2023 he told the Applicant he would receive a warning. In his statement to the Commission Mr Mangani said that he had used the wrong language and he had always sought to convey to the Applicant that he was being dismissed.
Did Mr Mangani hold a belief that the Applicant’s conduct was sufficiently serious to justify immediate dismissal?
I accept that Mr Mangani had concerns in relation to the Applicants conduct on 18 April 2023. He said, and I accept, that he took no action against the Applicant at that time as he hoped the Applicant and Mr Mitrovic could shake hands and get on with their work. Mr Mangani indicated he had resolved conflict in the workplace on previous occasions (not involving these two employees) in similar ways. There is no evidence before the Commission that Mr Mangani cautioned the Applicant at this time, which would have been appropriate.
I am satisfied that when Mr Mangani saw the Applicant and Mr Mitrovic confronting each other on 24 April 2023 he had a belief that a further altercation between the two would occur.
The conduct of 18 April 2023 provided the impetus and the context within which Mr Mangani formed that belief and then decided to dismiss the Applicant. While Mr Mangani did not act on that incident, the further confrontation between the Applicant and Mr Mitrovic some six days later gave Mr Mangani grounds to re-evaluate his decision to not act after the 18 April 2023 incident. The 24 April 2023 incident was, in this respect, the tipping point.
Mr Mangani said that the incident of 18 April 2023 could have resulted in serious injury. It appeared to him that the confrontation on the 24 April 2023 could escalate and this might result in serious harm to Mr Mitrovic. His concern was reasonable given the incident on 18 April 2023.
Given the implements the Applicant had picked up during the confrontation on 18 April 2023 I am satisfied that Mr Mangani had grounds to accept that the conduct was sufficiently serious.
Did Mr Mangani carry out a reasonable investigation into the matter?
I acknowledge that Mr Mangani did not carry out any ‘investigation’ per se. He did, however, witness both incidents in a relatively small workplace and did intervene in both cases – in the first case some time into the altercation. In the second case Mr Mangani was already present when matters started to flare again.
Mr Mangani did not make a decision to dismiss the Applicant after the first incident, hoping that matters would calm down. While he did not conduct a formal investigation as such I am satisfied, based on his knowledge and observation of the incidents, that his conclusion was reasonably open to him.
In this case it was the culmination of incidents that led Mr Mangani to conclude that the Applicant’s conduct was sufficiently serious to dismiss the Applicant without notice.
Conclusion
For the reasons outlined above I am satisfied that the Respondent has complied with the Small Business Fair Dismissal Code.
Section 385 of the FW Act states
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.
In circumstances where the Applicant’s dismissal was consistent with the Small Business Fair Dismissal Code it cannot be that the dismissal was unfair.
For this reason the application must be dismissed.
COMMISSIONER
Appearances:
J Salloum for himself.
S Mangani for the Respondent.
Hearing details:
2023.
Melbourne:
18 July 2023.
[1] The document was not a formal affidavit but rather a statement signed by eight individuals although it was headed ‘affidavit’
[2] Notice of termination, Court Book (CB) page 19
[3] The hammer is large implement that was on the ground, leaning against the wall where it normally sits
[4] See CB page 29 that is said to show the Applicant using his mobile phone and CB page 30 shows the Applicant standing on a makeshift ‘ladder’
[5] CB pages 23-27
[6] 18 April 2023 was a Tuesday but the Applicant insisted this incident occurred on Thursday 18 April 2023
[7] The hammer is a large tool that generally rests on the floor
[8] See exhibit A2
[9] [2010] FWA 7891, [60]
[10] [2012] FWAFB 1359
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