Josip Almasi v Mazzaferro Pty Ltd

[2012] FWA 3956

[2012] FWA 3956

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Josip Almasi
v
Mazzaferro Pty Ltd
(U2011/1073)

COMMISSIONER HARRISON SYDNEY, 10 MAY 2012

Termination of employment - unfair dismissal - arbitration.

[1] This decision arises from an application by Mr Josip Almasi for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in respect to the termination of his employment by Mazzaferro Pty Ltd T/A United Realty Cecil Hills - Hinchinbrook (United).

[2] When the matter came on for hearing I adjourned into conference to attempt to reach a settlement between the parties. Unfortunately agreement was not possible and the hearing resumed. At the request of United a further conciliation conference was held on 14 February 2012. Again an agreed settlement could not be reached despite a considerable narrowing of the differences between the parties.

[3] Mr Almasi appeared in person and United was represented by Mr Mark Helm of the Real Estate Employers Federation of NSW.

[4] Mr Almasi gave sworn evidence on his own behalf. Sworn evidence for United was given by Mr Tommy Tchan, Ms Melissa Mazzaferro, Ms Suzie Stojanoska, Ms Martina Nesan, Mr Giuseppe Mazzaferro and Mr Bassam Hendy.

Background

[5] Mr Almasi commenced employment with United on 22 March 2010 as a property sales associate until he was terminated on 31 May 2011 for allegedly assaulting the director of United, Mr Giuseppe (Joe) Mazzaferro.

[6] The incident which gave rise to the termination took place in the tea room at about 9 am. Mr Almasi argued he commenced play fighting with Mr Mazzaferro after Mazzaferro started tapping him following a verbal altercation over who should purchase milk.

[7] Mr Mazzaferro argued that Almasi initiated aggressive physical contact following which he sent him away from the office. When he later returned at 11 am, Mr Mazzaferro terminated him for serious misconduct.

[8] Shortly following the termination another incident between Almasi and Mazzaferro occurred and was partly recorded on Almasi’s mobile phone camera. United strongly opposed the footage being admitted as evidence.

The Evidence

[9] Mr Almasi gave sworn evidence and submitted a written outline of submissions and a witness statement. 1

[10] Mr Almasi stated, in summary:

• On 31 May 2011 at approximately 9 am he and another employee, Ms Martina Nesan were at the back of the office preparing tea and coffee when Mr Mazzaferro appeared and asked him to buy milk from a nearby store.



• He replied that he was making his own cup of tea and could he ask another employee.



• He states Mr Mazzaferro replied: “You’re not having another one of your brain snaps are ya?”

[11] Mr Almasi’s statement continued:

• “...I then replied ‘I don’t have brain snaps, i’m just simply saying that Tommy drinks a lot of coffee and also drinks the milk you like, so i’m sure he will have no problems in getting it’ Joe then replied ‘I’m asking you, i’m not asking Tommy’ I then said ok, give me the money and I will go and buy the milk as soon as the water boils and I dunk my teabags in the cup’ I then took the money from Joe, and placed the money on the coffee machine.



• At this point, Joe came up to me, next to Martina and turned the kettle off and pulled it out of the wall socket and said ‘Mate, if you don’t get the milk right now, your not drinking my water’ I was a bit surprised at his actions, which were quite normal. I then said ‘Ok mate, settle down, I am going to get your milk’



• As I approached Joe, he then started tapping me with his hands as if wanting to play wrestle and starting saying ‘Mate, whats wrong with you this morning, your having one of your brain snaps’. I then replied ‘Joe its all good, i’ll go get your milk just let me pass’ Joe continued to play tap and as I passed him a little bit more he jabbed me in the left of the chest. At this point I had returned the jab. It was in no way malicious or any direct attempt to wrestle. As the jab was purely play from Joe and in no way heavy or hard, it was merely returned back to him in the same manner, to the chest and lightly as if play fighting.



• Joe obviously did not like the fact that I returned the jab, and proceeded to grab me by the shirt. I also grabbed Joe by the front of his shirt. I thought it was all just play wrestling. He applied pressure to me in which I was pushed back from it, although I then returned pressure. Joe applied even more pressure and starting ripping my shirt as I could hear it tear along the seams. At this point I had dropped the money that he gave me to buy the milk which was in my right hand. Also Joe was frustrated with the whole jab and play wrestling which almost was becoming a little overboard.”

[12] It was Mr Almasi’s evidence that at this point Mr Mazzaferro became upset and asked him to leave the office and not attend a scheduled 9.30 am meeting.

[13] Mr Almasi’s statement regarding his termination records that when he returned to the office at approximately 11 am Mr Mazzaferro asked him into his office and said to him:

“‘Mate, you don’t wrestle with the director of the company, your brain snaps and attitude is not welcome in this company anymore, pack your things and you no longer work here anymore’ Something along those lines. I then replied ‘If thats how you feel then what can I do’. It then appeared that Joe’s brain snapped in which he spoke in a raised voice with a frustrated tone. He said ‘Mate, whats wrong with you, you don’t wrestle with the director’ I then said ‘Excuse me, it was all good untill I returned the jab you took first in which you grabbed me by the shirt and started pushing me back’ Joe replied with an even raised voice ‘Don’t you fucken say that I punched you first, how dare you say that I punched you first’ At this point, I thought that Joe was delusional. I then replied with a bit of hesitation as I was confused at what he was saying ‘Mate, you punched me first and as soon as I returned it, you hated the fact and started wrestling me almost ripping my clothes’ Joe then replied ‘Your a fucking idiot. I will sue you for your words. Don’t you dare tell anyone that I punched you first. Get up, go to your desk, pack your fucken things, leave your company tie and work van key and you get out’” 2

[14] In lengthy cross-examination, Mr Almasi:

• Confirmed he left Australia to visit Croatia on 2 June on a pre-arranged 2 month holiday. In August he extended his stay and returned to Australia on 17 November 2011.



• Stated he browsed Australian websites for job vacancies but never applied for any positions,



• Denied he received induction training when he commenced employment,



• Stated he “was thrown onto the telephone to make 700 cold calls a day...” 3



• Denied initiating a physical altercation at the staff Christmas party in 2010 and observed he was never counselled about the allegations.



• Agreed he was formally warned for distributing unauthorised canvassing material,



• Restated Mr Mazzaferro initiated the physical altercation on 31 May 2011 when he “...punched me in the chest.”



• Stated Mr Mazzaferro became volatile and angry immediately following the termination and that Mr Mazzaferro assaulted him in an effort to retrieve a work diary:

“I was grabbed by Mr Mazzaferro and thrown back into the furniture and office chairs. At that point I pulled out my video phone and started recording and approximately 30 seconds after that is when Joe attempted to half heartedly - according to Joe - tried to get the diary out of my hands, but has missed and punched me in the side of the stomach.” 4

[15] The only witnesses to the 9 am incident were Mr Mazzaferro himself and Ms Martina Nesan. The evidence of the three other witnesses for United was not relevant to the issue which gave rise to the termination.

[16] Ms Nesan is a property officer with United and her version of events were set out in a sworn statement in which she:

• Confirmed she was preparing her coffee whilst conversing with Mr Almasi for about five minutes when Mr Mazzaferro arrived at the office;



• Offered to make a coffee for Mr Mazzaferro and then discovered there was no milk in the fridge; and



• Stated Mr Mazzaferro came to the kitchen “...and looked at Mr Almasi and said politely ‘Josip, would you mind going to Woolies to buy me my milk?’ Mr Mazzaferro then placed some coins on the kitchen bench.

[17] It was Ms Nesan’s evidence that:

• “Mr Almasi then reached across in front of me and grabbed the money off the bench. He proceeded to slam the money down on the bench in front of me, with his arms being centimetres from my body. As he slammed the money on the bench, Mr Almasi said words to the effect of ‘No Joe, it is not in my job description. I won’t buy milk, no way’. I noticed that Mr Almasi’s facial expression had changed and he looked agitated. He had raised his eyebrows and he had creases showing on his forehead.



• Mr Mazzaferro then said ‘are you serious or are you joking?’ and Mr Almasi said aggressively ‘I am dead fucking serious it is not in my job description. Get Tommy or someone else to buy you your milk. I don’t drink your milk’.



• Mr Mazzaferro and I then made eye contact for a moment. Mr Mazzaferro looked confused, astonished and shocked and I thought to myself ‘did Josip just say that?’



• Mr Almasi then put a teabag in his cup, he then turned and took a step in the direction of Mr Mazzaferro and the exit. I noticed that the kettle had finished boiling and switched off not long before this.



• Mr Mazzaferro then said words to the effect of ‘that’s ok Josip, have you had a bad morning?’ Mr Almasi replied to this in words to the effect of ‘I’ll fucking go then’ and Mr Almasi picked up the coins again from where had slammed them down on the bench.



• Mr Mazzaferro then said words to the effect of ‘Don’t worry about it Josip, you must be having a mood swing or something this morning’ in what appeared to me to be an attempt to lighten the situation to avoid further confrontation.



• Mr Almasi then approached Mr Mazzaferro he grabbed the front of Mr Mazzaferro’s black vest and shirt in a very aggressive way. I looked at Mr Almasi and he looked extremely frustrated or angry. I could see veins bulging in Mr Almasi’s neck and I saw that his eyes were bulging and his mouth looked very tense. It looked like Mr Almasi was going to throw a punch at Mr Mazzaferro.



• Mr Almasi’s expression then changed and he smiled and laughed and said ‘I’m joking’. The way that Mr Almasi said this sounded like he was trying to make out that it was all a joke. However, Mr Almasi kept holding Mr Mazzaferro by his shirt and vest. Mr Mazzaferro was leaning away from Mr Almasi and trying to keep away from Mr Almasi and Mr Mazzaferro said in a scared tone of voice ‘There is no need for this Josip’...



• Mr Mazzaferro then said words to the effect of ‘Did you just grab and push me?’



• At about this time Mr Almasi must have briefly let go of Mr Mazzaferro’s shirt and vest but I do not recall exactly when he let go of Mr Mazzaferro.



• Mr Almasi then grabbed the front of Mr Mazzaferro’s black vest and shirt around the collarbone area again and he forcefully shook Mr Mazzaferro back and forth 3 or 4 times. As Mr Almasi shook Mr Mazzaferro I heard a tear in Mr Mazzaferro’s clothes.



• Mr Almasi was trying to pull Mr Mazzaferro towards him. Mr Mazzaferro was trying to step back away from Mr Almasi but he bumped into a cupboard that was behind him so he was not able to back away.



• Mr Mazzaferro then stretched his arm out to try and keep Mr Almasi away from him and he grabbed Mr Almasi’s shirt in the shoulder or chest area to hold back Mr Almasi to try and stop himself being pulled in towards Mr Almasi.



• Mr Almasi and Mr Mazzaferro then struggled for a second or two with Mr Almasi trying to pull Mr Mazzaferro towards him and Mr Mazzaferro trying to keep Mr Almasi away.



• Mr Mazzaferro then stated words to the effect of ‘What are you doing, let go, you don’t want to be doing this’. It appeared to me that Mr Almasi’s grip on Mr Mazzaferro loosened and then Mr Mazzaferro released Mr Almasi, and then Mr Almasi did the same. Mr Mazzaferro then stated wording to the effect of ‘Josip, you need to leave the office right now. You need to go and calm down. I do not want you present at the meeting. We will talk about this later.’



• Mr Almasi then put the coins down on the top of the sales filing cabinet and as he walked out he slammed the internal wooden doors to exit into the foyer of our office and yelled loudly ‘This is bullshit’.” 5

[18] Under cross-examination Ms Nesan stated she did not recall any play wrestling between the two men. She stated Mr Mazzaferro reacted in self-defence when he grabbed hold of Mr Almasi.

[19] Mr Giuseppe Mazzaferro is the Manager of United and Director of Mazzaferro Investments Pty Ltd. His evidence, in so far as it is relevant to the incident, was when recalling the words exchanged between himself and Mr Almasi, coincidentally word for word with Ms Nesan’s evidence.

[20] Mr Mazzaferro stated that after he was told by Ms Nesan there wasn’t any milk for his coffee he popped his head around the corner of the kitchen...

“and placed about $4.00 in coins on the kitchen bench and politely said words to the effect of ‘Josip, would you mind going to Woolies to buy me my milk?’ I said this respectfully and in a pleasant tone. Mr Almasi just looked down at the coins for about 5 or 10 seconds. What happened next I will never forget. Mr Almasi turned and stared at me for maybe 5 seconds and his face changed colour, I can best describe him as turning pale. Mr Almasi grabbed the money off the bench and slammed it back down on the bench with force and said ‘No. No way Joe. It’s not in my job description’

I was shocked by the sudden change in Mr Almasi and by the sheer intensity in his voice and also the force with which he slammed down the coins on the bench. I looked at Ms Nesan and also detected astonishment on her face.” 6

[21] It was Mr Mazzaferro’s evidence that he then asked Mr Almasi whether he was joking and he replied “I am dead fucking serious it is not in my job description. Get Tommy or someone else to buy the milk. I don’t drink your milk.”

[22] According to Mr Mazzaferro the exchange between himself and Mr Almasi then continued in words to the following effect:

“Giuseppe Mazzaferro: Josip, don’t worry about it. Josip have you had a bad morning?

Josip Almasi: Fuck I’ll go.

Giuseppe Mazzaferro: Don’t worry about it. You must be in one of those moods today. Don’t worry about it. It’s not about the milk.

Mr Almasi was huffing, puffing and sighing loudly during this time and he picked up the coins from the counter.

Mr Almasi then turned around to face me and he walked towards me. He stared at me straight in the eyes and he seemed to be shaking a little. Mr Almasi then pushed me with an open hand in chest and shoulder area and this jolted me backwards a little. A moment after that Mr Almasi grabbed the shoulders of my black cotton vest and shirt with both of his hands and pulled me violently towards him with force. I heard my vest rip. I feared for my safety believing that Mr Almasi was about to head butt me or punch me in the face. I said ‘Josip you don’t want to be doing this’ he did not reply and stared me in the eyes in a threatening way. I struggled to push Mr Almasi away. I put out my hands and grabbed Mr Almasi’s shirt and pushed back against him trying to keep myself away from the head butt or punch that I feared was coming.

I then said words to the effect that ‘you can’t be serious. You can’t touch anyone like that in the workplace. You are not welcome in this meeting. Get out. Go away and cool down. We will talk about this later.’

Mr Almasi then let me go, he slammed the money down on the filing cabinet shouting out words to the effect of ‘Ok Buddy’ and he proceeded to leave slamming the doors behind him and yelled out ‘This is Bullshit’.” 7

Conclusions and Findings

[23] Mr Almasi’s employment was terminated on the grounds of serious misconduct for allegedly assaulting Mr Mazzaferro on 31 May 2011.

[24] In the course of the hearing peripheral and irrelevant evidence was given in an attempt to impugn Mr Almasi’s credibility. These matters include his behaviour at a Christmas party in 2010, his demeanour toward other employees, his tendency to take offence or lose his temper, whether he was a team player and alleged violent indiscretions prior to and outside of the employment relationship.

[25] These matters were not relied upon when the termination was effected and I have not considered them in arriving at my decision.

[26] As Mr Almasi’s employment was terminated on the ground of serious misconduct, I must determine if the conduct occurred and, if so, whether it amounted to a valid reason for termination of employment. In King v Freshmore (Vic) Pty Ltd 8 the Full Bench observed:

“When a reason for termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

[27] In Qantas Airways Ltd v Cornwall, 9 the Full Court of the Federal Court said:

“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”

[28] In closing submissions Mr Almasi characterised the unfairness of his termination as being the sum total of the 9 am incident and the post-termination incident at 11.15 am. He stated he was not provocative and he simply asked if someone else could buy the milk. He submitted “It was all basically irrelevant until about 11 o’clock or a quarter past 11, which I think is the real problem in this matter”. 10

[29] Mr Almasi submitted that Mr Mazzaferro acted unprofessionally and that the evidence of United was irrelevant to the fact he had been dismissed and then physically and verbally assaulted by Mr Mazzaferro. He said the video evidence should be sufficient to cast doubt on Mr Mazzaferro’s credibility.

[30] The video footage was taken after the termination; contextually it does not record the lead up to the images of Mr Mazzaferro behaving in an aggressive and threatening manner toward Mr Almasi. I have not considered the video in arriving at my decision.

[31] I find Mr Almasi’s description of the 9 am incident as “play wrestling” to be a gross understatement. A 10 centimetre rip through the knitted double reinforced neckband of Mr Mazzaferro’s vest that he wore on the day 11 demonstrates Mr Almasi applied severe force during the incident.

[32] This is a difficult decision for the Tribunal. As noted above the evidence of Ms Nesan and Mr Mazzaferro had a certain sameness. Word for word recollections of an incident five months previous tend to undermine the credibility of such evidence.

[33] Their evidence, nevertheless, is the only corroborated version of events before me and I accept it. Where the evidence of Mr Almasi conflicts with the evidence of Ms Nesan and Mr Mazzaferro I prefer the evidence of the latter.

[34] After careful consideration of the evidence, materials and submissions put to me in this matter, I find that on the balance of probabilities Mr Almasi provoked the incident and initiated the resultant physical altercation in the tea room about 9 am on 31 May 2011. It follows that I find there was a valid reason for the termination on the grounds of serious misconduct.

[35] I now consider whether the termination was harsh, unjust or unreasonable. Section 387 of the Act provides:

“387 Criteria for considering harshness etc.

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

[36] I have found there was a valid reason related to Mr Almasi’s conduct which by its nature also had an effect on the safety of other employees.

[37] The reasons for the termination were conveyed to Mr Almasi at the 11 am meeting on 31 May 2011.

[38] Mr Almasi was given an opportunity to respond.

[39] A support person was not requested.

[40] United is a relatively small business employing 22 persons over two locations. It is apparent that the owners are not experienced in human resources management and this had an effect on the procedures followed on the day.

[41] There are no other matters.

[42] In all the circumstances of this matter and having regard to my conclusions and findings above, I find the termination of Mr Almasi’s employment was not harsh, unjust or unreasonable. The application is therefore dismissed.

COMMISSIONER

Appearances:

J Almasi, the Applicant.

M Helm, Real Estate Employers Federation of NSW for Mazzaferro Pty Ltd.

Hearing details:

2011.
Sydney:
December 5, 6.

2012.
Sydney:
March 12.

 1   Exhibit A1, A2.

 2   Exhibit A2, PN13.

 3   Transcript PN236.

 4   Transcript PN920.

 5   Exhibit H7, PN30-46.

 6   Exhibit H10, PN37.

 7   Exhibit H10, PN40-43.

 8 [2000] AIRC 1019; S4213 at [23]-[24] per Ross VP, Williams SDP and Hingley C.

 9 (1998) 84 FCR 483 at 492; (1998) 83 IR 102 at 110; [1998] FCA 865 per Burchett, Cooper and Finn JJ.

 10   Transcript PN2996.

 11   Exhibit H2.

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