Luke Ngo v The Star Pty Limited T/A the Star

[2013] FWC 6819

[2013] FWC 6819

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Luke Ngo
v
The Star Pty Limited T/A The Star
(U2013/7198)

COMMISSIONER ROBERTS SYDNEY, 13 NOVEMBER 2013

Application for unfair dismissal remedy - misconduct - application dismissed.

[1] This decision concerns an application lodged on 5 March 2013 by Mr Ngo pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of his employment by The Star Pty Limited T/A The Star (the Star or the Company).

[2] The application was dealt with by a Fair Work Commission Conciliator on 26 March 2013 but the conciliation was unsuccessful. The matter then came before me for arbitration hearing in Sydney on 5 September 2013.

[3] At the hearing Mr Ngo represented himself. Mr T Saunders of Counsel with Mr S Ratu of Allens sought leave to appear for the Star. Mr Ngo did not object to legal representation for the Company and permission was granted. Mr Ngo gave sworn evidence on his own behalf and Mr J Alcock, Mr A Budiman and Mr S Friel gave sworn evidence for the Star.

Background

[4] Mr Ngo commenced work at the Star in 2003 as a full time Commis Chef and continued as such until 11 February 2013 when his employment was terminated for alleged misconduct. Mr Ngo was paid four weeks’ wages in lieu of notice plus other entitlements. Mr Ngo denies any conduct justifying termination of employment and seeks reinstatement without compensation.

Evidence

Mr Ngo

[5] Mr Ngo gave sworn evidence and adopted as his witness statement a written submission filed prior to the hearing 1. Mr Ngo’s statement sets out his employment history at the Star and goes on to respond to two disciplinary warnings issued to him in 2012. I have paid regard to that material.

[6] Mr Ngo’s statement goes on to set out his version of the incidents cited by the Star:

“On the 24th on January 2013, I started work in platinum kitchen, there was an order of wonton soup and as it was about to go out I took a look and told [name redacted] (general hand) and [name redacted] (commi chef) ‘How long have you been working her in the kitchen?’ Do you want me to take a picture of that?’ I then called [name redacted], sous chef of platinum kitchen to come and have a look at the dish and [name redacted] agreed with me that it’s not presentable and asked [name redacted] and [name redacted] to cook a new bowl of soup. [name redacted] then asked me ‘Why are you so aggressive?’ I told [name redacted] that ‘If something goes wrong, it’s you that is going to get into trouble because you are in charge, I’m just watching out for you. That’s all’. [name redacted] then went over to the wok section to talk with [name redacted] and [name redacted].

The next day when Audi [Budiman] came in and asked me ‘What happened yesterday? [name redacted] put in a report about you?’ so I told Audi ‘Go and ask [name redacted]’ That was the first time that I heard [name redacted] put in a report about the wonton incident. Rude hand gesture that I am accused, of, did not happen.

On the 3rd of February 2013, I was working in the morning and there was an order for an omelette, when it was done I put it on the past and [name redacted], who was high duty assistant manager at the time told me that there is a break in the omelette and told me that, next time I won’t serve it. After breakfast service when I saw [name redacted] again in the kitchen I asked [name redacted] in front of Audi ‘Was everything ok with breakfast service?’ [name redacted] told me ‘Yes’ in front of Audi. I did not refuse to remake the omelette nor was the omelette broken in half. Surveillance staff can verify this for me because I know that [name redacted] was asked to go into the kitchen so I could ask about breakfast service in front of Audi.

On the 4th of February 2013, whilst working in the platinum kitchen in the afternoon, Audi came into the kitchen and borrowed some money from [name redacted] (Demi chef) to buy something on behalf of Jason. I didn’t hear how much money Audi borrowed. After Audi left the kitchen I asked [name redacted], ‘Did you know that it is illegal to borrow money from another staff?’ [name redacted] told me “No, I didn’t know’.

Later in the evening Audi came into the kitchen to ask the staff to fill out a survey. I asked Audi ‘Who wrote this survey?’ Audi told me Andrew North. I then wrote ‘No Comment’ and gave it back to Audi. This survey came out a few hours after I talked to [name redacted] about staff borrowing money.

I know the objective of the survey was to know my answer, this is the reason why I wrote ‘No Comment’. When I finished my shift Audi called me into the office and asked me ‘Is this your final answer?’ I told Audi ‘What is the point? The survey is supposed to be anonymous, but the moment that you know my answer you rang him up and told him’. Audi told me ‘Yes, if everybody wrote ‘No Comment’ then I would get in trouble’. I then wrote ‘No worries’ on the desk and rubbed it out and went home.

On the 7th of February 2013, I arrived at work early as I usually do and saw Audi in the corridor, Audi told me ‘Go home, you’re early’. I can’t remember if I said anything to Audi, but remembering offering my hand for a handshake which he declined and walked into the scheduling office. I went on to collect my uniform and went up to the kitchen, when I was in the kitchen Audi again ask me ‘Go home’ again I said ‘No’ because I know that Audi was following Andrew North’s instructions to meet me in the corridor. I then asked Audi ‘Did you know that it is illegal to borrow money from another staff?’ Audi didn’t answer my question and as I walked into the lift to go down to level one to get some rock sugar to cook bird nest soup for our VIP. I called Audi an idiot and Audi turn to me and said ‘Did you just call me an idiot?’ and I said ‘Yes’. Also because Audi had falsely sign off an apprentice chef named [name redacted] wok skill for tafe.

I was then asked to go down to HR office to meet Jason Alcock and Shannon Friel who is HR advisor. I was questioned about my conduct at work and then I told both Jason and Shannon that ‘I had permission to come to work early’. They both asked me ‘Who gave you permission?’ I declined to answer both Jason and Shannon kept insisting that I tell them. I told both, Jason and Shannon ‘You are not qualified to ask me confidential information’. I then said ‘Go ask Paula’ they then both asked me, ‘Who’s Paula?’ I said, Paula Hammond HR General Manager. Shannon told me ‘You seem very agitated’ and I was. So Shannon adjourned the meeting until the next day and asked me to hand over my staff ID.

On the 8th of February 2013 in the second meeting, Shannon told me that she had asked Paula and Paula didn’t know what I was talking about. Then Jason told me ‘Then you are admitting you are lying?’ I told Jason ‘No, I didn’t say that I was lying nor did I say Paula was lying. Paula and I could not answer Jason and Shannon’s question because it would compromise The Star Communication Service. I can only say that it was a miss understanding. Shannon told me that I am suspended until Monday the 11th of February 2013. I told Jason and Shannon that I am going to make a statement to defend myself.

I came into work on Monday the 11th of February 2013 for the third meeting and before the meeting commenced I told Jason and Shannon hat ‘If my statement is misleading or a misinterpretation of an event, The Star can prosecute me. I then asked Jason ‘ Can you give Shannon the same guarantee as me?’ Jason declined to answer. I then handed Shannon and Jason each a copy of my statement. As was talking to Shannon about my statement and I notice that Jason was using his phone to text someone. We had a quick break and I reported this incident to senor management. I declined to answer anymore questions and my employment was terminated.

I see my termination from The Star by Jason Alcock under Andrew North’s instruction. Not only is it unfair but also unlawful because Andrew North’s employment with The Star has been terminated from breach of him duty of care to me, so was [name redacted]. Andrew North’s termination date would have been on the 1st or the 2nd of January 2013 Therefore Andrew has no authority to act and refusing to leave the Star would be seen as trespassing.”

[7] In cross-examination, Mr Ngo:

● Agreed that he was trained in the Star’s Code of Conduct. 2

Maintained his evidence that Mr North had been dismissed by the Star and therefore had no authority regarding the termination of his employment. 3

● Was questioned at length about the kitchen hierarchy at the Star.
● Was questioned at length about the operations of the Sovereign Kitchen.
● Agreed that he spoke aggressively to another employee during the soup incident. 4

Denied that his behaviour towards other staff members during the soup incident was inappropriate. 5

Denied making a rude or dismissive hand gesture towards Mr Budiman. 6

Denied that he was instructed to make a replacement omelette. 7

Said that he wrote ‘no comment’ on the survey form after being told that the survey had been written by Mr North. He did so because he believed that Mr North’s employment had already been terminated. 8

Was asked: “Why didn’t you want to give your response to what you were being asked?” and said: “Because I know the survey is primarily for me to know what my comment is so I don’t want to answer. I don’t want to answer this survey.” 9

Said: “This survey is a joke”. 10

Agreed that he defaced Mr Budiman’s desk. 11

Agreed that Mr Budiman twice asked him to leave when he entered the Sovereign Kitchen some three hours early. 12

Further agreed that he refused to leave the kitchen area. 13

Admitted calling Mr Budiman an ‘idiot’. 14

Was asked: “There was another staff member present when you called him an idiot, wasn’t there?” and said: “Yes.” 15

Agreed that he was aware that he could bring a support person to the disciplinary meeting on 8 February 2013. 16

Said that when he was taken through each of the incidents on 8 February 2013, he did not want to make any comment. 17

● Maintained that he had permission to be in the kitchen early. 18

Said that he could not say who gave him permission to come in early “because it would compromise the Star communication system.” 19

Was asked: “You don’t want to answer or you can’t answer?” and said: “I can’t answer even if it’s like to save myself.” 20

● Said that it was unlikely that he was laughing and giggling during the two disciplinary meetings. 21

Agreed that he was told on 11 February 2013 that his employment was to be terminated and was told the reasons for the termination. 22

● Was questioned about the two 2012 disciplinary warnings.
● Said that he was bullied by other employees. 23

Said that he was aware when he received a final warning that any further poor performance or misconduct might result in the termination of his employment. 24

Said that various employees of the Star had been dishonest towards him. 25

Said that he has not sought or obtained work since the termination of his employment. 26

[8] At the conclusion of the cross-examination, I invited Mr Ngo to address me on any matters which may have arisen from cross-examination but he declined to do so.

Mr Alcock

[9] Mr Alcock gave sworn evidence and submitted a witness statement 27. His statement said that he is the Star’s Executive Sous Chef and has worked there since February 2012. He reports directly to the Executive Chef who in turn reports to Mr North (Director of Food and Beverage). All of the Star’s Chefs de Cusine report directly to Mr Alcock.

[10] Mr Alcock’s statement goes on to say that he has general responsibility for the operation and administration of the various kitchens at the Star including the kitchen that is attached to the Sovereign Room which is an exclusive gaming room. Mr Ngo worked in the dedicated Sovereign Kitchen.

[11] Mr Alcock’s statement goes on to set out the alleged disciplinary history of Mr Ngo during his employment. This consisted of written warnings issued in February and April 2012. The first warning concerned Mr Ngo’s response to a direction to cook rice in a particular manner when he was alleged to have told the then Director of Culinary Operations and Casual Dining “next time you want something get it your fucking self”. When another employee attempted to calm the Applicant down, the Applicant handed a knife to that employee and said: “what are you gonna do?”. The second warning involved an incident in which Mr Ngo refused to follow directions while working in the Sovereign Kitchen. The second final warning “clearly said that any further misconduct by the Applicant could result in the termination of his employment.”

[12] “In late January and early February 2013, Audi Budiman, who is a Sous Chef responsible for the day-to-day supervision of the Sovereign Kitchen, reported to me that the Applicant had engaged in six separate incidents of misconduct (the Incidents):

(a) on 24 January 2013, the Applicant upset the Sovereign Kitchen by overreacting to the substandard presentation of a dish of soup. I was told that he had been aggressive and offensive to two of his colleagues;

(b) on 25 January 2013, the Applicant refused to answer Mr Budiman’s questions about this incident when he spoke to him about it;

(c) on 3 February 2013, the Applicant attempted to serve a patron with a broken omelette and then refused to remake the omelette when requested to do so;

(d) on 4 February 2013, the Applicant acted in a hostile and insubordinate way towards Mr Budiman, challenging and undermining his authority in the presence of the entire team;

(e) later on 4 February 2013, the Applicant continued this behaviour towards Mr Budiman by defacing the desk in Mr Budiman’s office by writing ‘Don’t Worry’ across the top of the desk with a permanent marker pen; and

(f) on 7 February 2013, the Applicant arrived at work three hours before the start of his shift and refused to comply with Mr Budiman’s direction to leave the work area until his shift commenced. I was told that the Applicant had refused to comply with Mr Budiman’s directions and was eventually escorted from the kitchen by him, at which point he called Mr Budiman an idiot.”

[13] He went on to say: “As with all commercial kitchens, each member of the Sovereign Kitchen staff (including the sous chef, the commis chefs, the chef de partie, general hands) has his or specific function that is clearly assigned. There is no reason for a chef to be present in the Sovereign Kitchen hours before the commencement of his or her shift. In the Sovereign Kitchen in particular, the restricted physical space also makes it impractical for chefs to be present in advance of their rostered shifts.”

[14] Mr Alcock went on to say that a disciplinary meeting was held on 8 February 2013 with the Applicant together with himself and Mr Friel. The applicant was given an opportunity to have a support person present but declined. Mr Friel told Mr Ngo that the purpose of the meeting was to discuss various incidents and to receive Mr Ngo’s versions of events. The incidents were then set out to Mr Ngo and he admitted some of the misconduct against him but denied others. He refused to answer many questions put to him and answered other questions with words to the effect: ‘You don’t have clearance to hear these answers’ and ‘This is top secret confidential information that I will not tell you’. The Applicant laughed and giggled through most of the meeting and the meeting was adjourned to a later date to allow Mr Ngo to compose himself.

[15] The second (or adjourned) disciplinary meeting occurred on 11 February 2013, at which time Mr Ngo again declined to have a support person present. Again, Mr Ngo refused to comment and responded with words to the effect of ‘I can’t tell you, it’s classified, you don’t have clearance’. He laughed and giggled throughout the second disciplinary meeting.

[16] “Once we had questioned the Applicant about each of the Incidents and had given him a chance to respond and his [sic] present us with his statement, Mr Friel and I left the meeting room to consider what the Applicant had said and all other available material concerning the Incidents. Mr Friel expressed to me his view that the Applicant had engaged in misconduct justifying dismissal as a result the Incidents and the previous warnings that had been given to him. I agreed with this conclusion and made the decision to terminate the Applicant’s employment with notice. Mr Friel and I returned to the meeting room and told the Applicant of this decision. On the following day, I signed a formal termination letter that was sent to the Applicant.”

[17] The witness statement goes on to reply to part of Mr Ngo’s evidence which alleged that two employees, [name redacted] and Mr North, had been terminated by the Star. Mr Alcock said that [name redacted] resigned and Mr North remains an employee of the Star and Mr Alcock reports to him. The statement goes on in response to Mr Ngo’s evidence in relation to an allegation that Mr Budiman acted improperly in borrowing money from another chef on 4 February 2013. Mr Alcock said that Mr Budiman borrowed some money from another employee to make an urgent purchase for the Star and the other employee was reimbursed by the Company.

[18] Attached to Mr Alcock’s witness statement was a copy of the letter of termination dated 12 February 2013 28:

“Dear Luke

Re: TERMINATION OF EMPLOYMENT

On behalf of The Star Pty Ltd (‘The Star’), I confirm that a decision has been made to terminate your employment as a Commis Chef with the Food and Beverage Department effective from 11 February 2013.

This decision was verbally communicated to you at a meeting that was held on 11 February 2013. You declined the offer to have a support person present at the meeting.

In attendance at the meeting were:

● Luke Ngo Commis Chef
● Jason Alcock Executive Sous Chef
● Shannon Friel Human Resources Advisor

The Star has decided to terminate your employment because of several breaches by you of The Star’s workplace policies, including the Code of Conduct and Bullying and Harassment Policy. In particular, the decision to terminate your employment was taken because of your continued:

• Mistreatment of colleagues



• Failure to carry out a reasonable management instruction



• Failure to carry out the requirements of your role



• Failure to observe the requirement that employees not be present in a work area during non working hours

As communicated at our meeting yesterday, you have, on a number of occasions, breached the Code of Conduct and other workplace policies of The Star. Also as discussed yesterday, you have previously received a written warning and a final warning in relation to similar breaches outlined at yesterday’s meeting.

You shall be paid up until 11 February 2013, you will also be paid four (4) weeks wages in lieu of notice as well as the balance of any employee entitlements that you are owed such as annual leave. These payments will be made into your nominated bank account. Should you have any queries in relation to payment of your entitlements, then please contact Payroll on [numbers omitted].

Yours sincerely,

Jason Alcock

Executive Sous Chef”

[19] Also attached to Mr Alcock’s statement were copies of the two written warnings to Mr Ngo in 2012. 29

[20] Mr Alcock was not cross-examined.

Mr Budiman

[21] Mr Budiman gave sworn evidence and submitted a witness statement 30. In his statement, Mr Budiman said that he is a chef at the Star reporting to Mr Alcock who in turn reports to Mr North. Mr Budiman is responsible for the Sovereign Kitchen.

[22] The statement goes on to say that on 7 February 2013 Mr Budiman prepared a report concerning the Applicant’s behaviour between 21 January 2013 and 7 February 2013. The report was given to Mr Alcock and Mr Friel. Attached to the witness statement was a copy of the report (the Budiman Report) 31.

[23] The Budiman Report concerns six alleged incidents. The first of these occurred on 24 January 2013 when Mr Ngo is alleged to have reacted aggressively towards two other staff members over the presentation of a soup dish. According to another employee, Mr Ngo was offensive in his comments, which continued for some time. The second incident occurred when Mr Budiman investigated the soup incident on the next day. He called Mr Ngo to his office where Mr Ngo refused to discuss the matter and showed him disrespect with a hand gesture.

[24] The next incident occurred on 3 January 2013 when Mr Ngo prepared an omelette for a patron and was requested by an Assistant Manager to remake the dish after the Assistant Manager had seen that the omelette was broken. Mr Ngo declined and ignored the request.

[25] The fourth and fifth incidents occurred on 4 February 2013 when Mr Budiman asked Mr Ngo to fill in a questionnaire: “I hand the questionnaire for Sovereign that must be filled anonymous to gather feedback in regard of work environment, he filled in front of everybody in the briefing and write no comments on all questions. After the service finish I asked him whether he would like to express his opinion instead of writing no comments, he decline and write don’t worry on my working desk with permanent marker, while laughing and left the premise as he is finishing his shift.”

[26] The sixth incident occurred on 7 February 2013 when Mr Ngo arrived at work some three hours early and was told that he should leave the premises until his shift started. The Applicant queried this direction and did not leave the kitchen for some time. When entering the elevator with Mr Ngo, Mr Budiman heard Mr Ngo call him an ‘idiot’.

[27] Mr Budiman was not cross-examined.

Mr Friel

[28] Mr Friel gave sworn evidence and submitted a witness statement 32.

[29] His statement was that he has been employed by the Star as Human Resources Advisor since July 2012 and reports directly to the Human Resources Manager. He provides human resources services to the Star’s Food and Beverage and Hotel departments, which together employ around 1,400 persons. Throughout Mr Ngo’s employment with the Star, the Applicant worked within the Food and Beverage department.

[30] Mr Friel’s statement goes on to give a brief history of the Applicant’s employment at the Star, details of the Star’s Code of Conduct 33, the working environment of the Sovereign Kitchen and the two warnings issued to Mr Ngo during 2012. I have paid regard to that material, some of which is also contained in the evidence of Mr Alcock and Mr Budiman.

[31] Mr Friel’s statement also gave a detail account of the incidents during January and February 2013 leading up to the dismissal of Mr Ngo. I have paid regard to that material, much of which occurred in summary form in the evidence of Mr Alcock.

[32] Mr Friel’s statement goes on to deal with the investigation of the above incidents and the resulting disciplinary meetings. Mr Friel said that he was informed of the incidents by 7 February 2013. “Given that they involved allegations of insubordination and rudeness to colleagues in the workplace, I thought that it was appropriate to suspend the Applicant with pay for a short period while the Incidents were investigated. On 7 February 2013, I spoke with the Applicant and informed him that management had been made aware of his behaviour on those occasions and that, if true, those allegations constituted misconduct. I directed the Applicant to attend a disciplinary meeting on 8 February 20123 to discuss the Incidents.”

[33] Mr Ngo was given a letter 34 on 7 February 2013 confirming his paid suspension from employment:

“Dear Luke,

Re: SUSPENSION OF EMPLOYMENT

Further to our conversation earlier today (7 February 2013), I hereby suspend your employment with The Star Pty Ltd (‘Star’) with pay. This means that for the duration of your suspension you shall be paid for rostered shifts that you would have worked if your employment was not suspended.

I have verbally advised you:

● Of the reasons for your suspension of employment; and
● That a process of investigation is continuing into the reason(s) for your suspension of employment.

You are required to attend a meeting 8 February 2013 at 4.30 pm in the Human Resources Office located on Level 00 with both Human Resources in attendance and Jason Alcock, Executive Sous Chef.

Attendance at the meeting is compulsory and you may have a witness and/or support person of our choice present during the meeting.

At the meeting you will be given the opportunity to respond to the reasons for your suspension and the concerns raised today regarding your recent conduct within the workplace.

If there are any queries in relation to your suspension of employment, please contact me by telephoning [number omitted].

Yours sincerely,

Shannon Friel

Human Resources Advisor”

[34] In relation to the first disciplinary meeting, Mr Friel said that each of the incidents was put to Mr Ngo. The Applicant denied arguing with his colleagues during the soup incident and further denied making “a rude and dismissive gesture towards Mr Budiman”. Mr Ngo admitted that he did not remake the omelette when requested because he did not think the direction was made seriously. In relation to the survey incident, Mr Ngo had said that he was entitled not to complete the questionnaire. The Applicant admitted defacing Mr Budiman’s desk “and agreed that he was wrong to have done so.” In response to the incident when he was alleged to have refused to leave the kitchen when not on shift, Mr Ngo admitted that he had called Mr Budiman an ‘idiot’. However, the Applicant did not see anything wrong with him being in the kitchen some three hours before the start of his shift. The Applicant further claimed that he had permission from senior management to do so. He had said words to the effect: “The reason I have been in the kitchen three hours before the start of my shift is top secret. I can’t tell you why, you don’t have clearance. Paula Hammond [the Star’s General Manager of Human Resources] and senior management know why and have given me prior approval to be in the kitchen early.”

[35] Mr Friel then spoke to Ms Hammond and ascertained that she had not given permission to Mr Ngo to be present in the kitchen outside his rostered hours and this led Mr Friel to believe that Mr Ngo was lying to him. When confronted with that allegation, Mr Ngo began to laugh.

[36] Mr Friel then put Mr Ngo’s prior disciplinary history to him and:

“The Applicant and I then had a conversation to the following effect:

Applicant: No, I don’t have a final warning anymore, senior management said it is no longer final.

I: Who do you mean by ‘senior management’?

Applicant: I can’t tell you. You don’t have clearance. I don’t want to get people into trouble.

I: What do you mean? Who would you be getting into trouble?

Applicant: I took the final warning because I did not want to get [name redacted] from HR and Jason Alcock in trouble. Jason is a liar and needs to be investigated. Andy North and [name redacted] need to be investigated.”

[37] When asked why those persons should be investigated, Mr Ngo had replied: “I can’t tell you” and had then claimed that he was being bullied and harassed but refused to say when or by whom. The Applicant continued to laugh and giggle.

[38] Mr Friel went on to say that at the second disciplinary meeting, the Applicant produced a written statement setting out his responses to the allegations made against him. 35 At that meeting, the Applicant said in response to the soup incident that other staff members had threatened to stab him. When asked for further information, he said words to the effect: “I can’t tell you. It’s classified. You don’t have clearance.” He then went on to admit refusing to cooperate with Mr Budiman in his investigation and now claimed that he had not been asked to remake the omelette. Concerning the survey incident, Mr Ngo admitted that he acted contrary to the direction of Mr Budiman in not completing the survey confidentially and admitted to defacing Mr Budiman’s desk.

[39] “Throughout the Second Disciplinary Meeting, the Applicant made vague references to other unspecified, unparticularised breaches by other members of staff of various workplace policies of the Respondent and its parent company, Echo Entertainment Group Limited. Each time Mr Alcock and I tried to obtain more information from the Applicant about these alleged breaches he responded with words to the effect of ‘I can’t tell you’ or ‘That is classified information.’ Also throughout the Second Disciplinary Meeting, the Applicant once again laughed, giggled and frequently refused to answer questions from Mr Alcock and me.”

[40] “The view I reached was that the Applicant had, as a result of the Incidents which considered in aggregate, engaged in misconduct that justified dismissal, given the prior warnings that the Applicant had already received. I conveyed this conclusion to Mr Alcock who agreed with it and made the decision to terminate the Applicant’s employment with notice.” Mr Ngo was then told of that decision.

[41] The witness statement goes on to deal with other matters such as the employment status of Mr North in similar terms to the evidence of Mr Alcock.

[42] Mr Friel was not cross-examined.

Outlines of submissions

[43] Both parties filed written outline out submissions prior to the arbitration. 36 Mr Ngo’s written outline also serves as his witness statement and therefore has been dealt with earlier in this decision.

[44] The Star’s outline, per its solicitor, Mr P Arthur, covers matters which are already dealt with elsewhere in this decision and I will not repeat that material here. To the extent that any new argument is advanced in the submissions, I have paid regard to that. I have also paid regard to the case law cited during proceedings and in submissions by the Star.

Final oral submissions

[45] Mr Ngo did not make final oral submissions and relied on his evidence and written materials.

[46] In closing submissions, Mr Saunders summarised the evidence from the Star’s witnesses and that of Mr Ngo. The conclusion drawn by Mr Saunders was that Mr Ngo would not follow any direction given to him if it upset him and/or he did not agree with it. He went on to say that approximately the first ten years of Mr Ngo’s employment were uneventful in that there is no evidence of any warnings been given to him but from the “start of 2012 onwards it went wrong in a very bad way”. 37

[47] Mr Saunders argued that the application should be dismissed. Mr Ngo declined to make any submissions in reply.

Conclusions and Findings

[48] Section 385 of the Act provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWA 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.”

[49] As Mr Ngo’s conduct from 24 January 2013 to 7 February 2013 was the reason for the termination of his employment, I have to determine for myself whether the impugned conduct occurred and, if so, its nature and then, depending on the outcome of my determination of the earlier matters, whether any such conduct amounted to a valid reason for termination of employment. In this regard I respectfully agree with the following observations of the Full Bench in King v Freshmore (Vic) Pty Ltd 38:

“When a reason for a 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.”

[50] In Container Terminals Australia Limited v Toby 39, a Full Bench said: “In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable…”40

[51] Northrop J in Selvachandran v Peteron Plastics Pty Ltd 41 said:

“In its context in s 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, ….”

[52] In Qantas Airways Ltd v Cornwall 42, 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.”

[53] In Edwards v Justice Giudice 43, Moore J said:

“The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.”

[54] I have formed the view that the Star’s witnesses were truthful in their evidence concerning Mr Ngo’s behaviour during and after the incidents set out in the evidence of Mr Alcock at paragraph 12 above and in the evidence of Mr Budiman at paragraphs 23 to 26 above. I am satisfied that the Budiman Report supplied to Mr Alcock was an accurate representation of events with one exception: I am unable to be satisfied on the balance of probabilities that Mr Ngo made a dismissive and/or rude hand gesture towards Mr Budiman on or about 25 January 2013. This may well have been the subjective impression gained by Mr Budiman and I do not disbelieve him but, from observation of Mr Ngo in the witness box when he demonstrated the hand gesture, I do not believe it conveyed the meaning which Mr Budiman ascribed to it.

[55] I further accept the evidence of Mr Alcock and Mr Friel as to the investigation process and the conduct of the disciplinary meetings. I can discern no procedural unfairness in the way the Star dealt with these matters. Here I note that none of the Star’s witnesses were cross-examined by Mr Ngo.

[56] Mr Ngo’s evidence, and the written materials he relied upon, was in my view unreliable and at times bizarre. I am therefore satisfied that I should accept the evidence of the Star’s witnesses in preference to that of Mr Ngo wherever the evidence is in conflict except for the hand gesture incident.

[57] I am therefore satisfied and find that there was a valid reason for the termination of Mr Ngo’s employment based on his behaviour in the incidents that occurred between 24 January and 7 Februaryf 2013. Mr Ngo’s behaviour was totally unacceptable and fundamentally breached his obligations as an employee both in relation to his superiors and to those working with him in the kitchen at his or a lower level.

[58] I now turn to the question of whether the dismissal of the Applicant was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria for considering harshness etc. It 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.”

[59] In Byrne v Australian Airlines 44, McHugh and Gummow JJ of the High Court said:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[60] In Parmalat Food Products Pty Ltd v Wililo 45, the Full Bench held:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.” 46

[61] The question of valid reason is dealt with above.

[62] It is clear that Mr Ngo was notified of the reasons for the termination of his employment by way of verbal advice to him on 11 February 2013 and Mr Alcock’s subsequent letter to him dated 12 February 2013 and I so find. The termination letter was set out earlier in this decision. It is further clear and I find that Mr Ngo was given an opportunity to respond to the allegations against him before a decision was made to terminate his employment. Further, it is clear that the Applicant was offered the opportunity to have a support person to assist him during the meetings with the Company. I am further satisfied and find that he misconducted himself during the incidents complained of by the Company. The question of unsatisfactory performance does not relevantly arise.

[63] The size of the employer enterprise is a factor which is likely to have impacted on the procedures followed in effecting Mr Ngo’s dismissal. On what is before me, I conclude that the Star has access to extensive internal resources and professional advice and that this led it to conduct a procedurally fair process leading up to the dismissal and I so find.

[64] I have also taken into account a number of other factors. These include his long employment history with the Star, his failure to attempt to mitigate his loss, his future employment prospects and the economic and personal effects of the termination of employment on him. I have also paid regard to the relevant provisions of the Star’s Code of Conduct. Here I wish to note that I have not been influenced in my decision by the two warnings issued to Mr Ngo during 2012. His behaviour during January and February 2013 was sufficient on its own to justify the termination of his employment by the Company.

[65] All in all, I am unable to find that the Star’s treatment of Mr Ngo was in any way harsh, unjust or unreasonable in all the circumstances of his dismissal. Mr Ngo’s actions towards fellow employees and his disdain for the Star’s authority over him led him to behave in such a manner that the Company was entitled to consider as misconduct. Mr Ngo’s reasons for behaving in the way he did remain a mystery. His prior long service with the Star is not sufficient to mitigate that behaviour. By his behaviour, Mr Ngo brought the termination of employment on himself.

[66] In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’.

[67] The application is dismissed. An order reflecting this decision is in PR541605.

COMMISSIONER

Appearances:

L Ngo, the Applicant.

T Saunders of Counsel with S Ratu of Allensfor The Star Pty Limited T/A The Star.

Hearing details:

2013.

Sydney:

5 September.

 1   Exhibit Ngo 1.

 2   Transcript PNs113-114.

 3   Transcript PN160 and following.

 4   Transcript PN200 and following.

 5   Transcript PN212 and following.

 6   Transcript PN229 and following.

 7   Transcript PN258.

 8   Transcript PNs275-278.

 9   Transcript PN279.

 10   Transcript PN289.

 11   Transcript PN295.

 12   Transcript PN370.

 13   Transcript PN371.

 14   Transcript PN374.

 15   Transcript PN375.

 16   Transcript PN387.

 17   Transcript PN400 and following.

 18   Transcript PN423.

 19   Transcript PN425.

 20   Transcript PN441.

 21   Transcript PNs479-480.

 22   Transcript PNs482-484.

 23   Transcript PN517 and following.

 24   Transcript PN606.

 25   Transcript PN619.

 26   Transcript PNs623-627.

 27   Exhibit Star 1.

 28   Annexure JA5 to Exhibit Star 1.

 29   Attachments JA2 and JA4 to Exhibit Star 1.

 30   Exhibit Star 2.

 31   Annexure AB1 to Exhibit Star 2.

 32   Exhibit Star 3.

 33   Annexure SF3 to Exhibit Star 3.

 34   Annexure SF12 to Exhibit Star 3.

 35   Annexure SF15 to Exhibit Star 3.

 36   Exhibits Ngo 1 and Star 4 respectively.

 37   Transcript PN841.

 38   Print S4213, 17 March 2000, per Ross VP, Williams SDP and Hingley C.

 39   Print S8434, 24 July 2000, per Boulton J, Marsh SDP and Jones C.

 40   Ibid at para 15.

 41 (1995) 62 IR 371 at 373.

 42 [1998] FCA 865.

 43 [1999] FCA 1836.

 44 (1995) 185 CLR 410.

 45   [2011] FWAFB 1166

 46   Ibid at para 24.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR541604>