Michael Kongor v Red Lea Chickens Pty Ltd T/A Red Lea

[2014] FWC 1645

[2014] FWC 1645

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Michael Kongor
v
Red Lea Chickens Pty Ltd T/A Red Lea
(U2013/14111)

VICE PRESIDENT HATCHER SYDNEY, 13 MARCH 2014

Application for relief from unfair dismissal.

[1] This is an edited reproduction of reasons for decision which I stated on transcript after the conclusion of the hearing of this matter on 7 March 2014.

[2] The applicant in this matter, Mr Michael Kongor, claims an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) in respect of the termination of his employment with Red Lea Chickens Pty Ltd (Red Lea).

[3] Before I can turn to consider the merits of this matter, s.396 of the Act requires me to decide four specific matters. I will deal with those in turn:

a) It was not in dispute, and I find, that Mr Kongor’s application was made within the 21-day period required in s.394(2)(a).

b) It was not in dispute, and I find, that Mr Kongor was a “person protected from unfair dismissal” within the meaning of that expression in s.382 at the time of the dismissal.

c) It was not in dispute, and I find, that Red Lea was not a “small business employer” within the meaning of that expression in s.23. Therefore the issue of consistency with the Small Business Fair Dismissal Code does not arise.

d) It was not in dispute, and I find, that the dismissal was not a “genuine redundancy” as defined in s.389.

[4] I now turn to the facts of this matter. Evidence was given by Mr Kongor in support of his application. For Red Lea, evidence was given by the following persons:

● Vicki Lynne Whiteman - Human Resources Manager
● Vicki Ann Ashen - Financial Controller
● Louise Castle - Pay Officer
● Nicole Marie Stimson - Workplace Health and Safety and Return to Work Coordinator

[5] Mr Kongor commenced employment as a process worker with Red Lea on 26 September 2011. In about June 2013 he suffered an injury to his shoulder which he says was caused as a result of his work. This injury required him to seek specialist medical assistance, and he was required to have some time off work.

[6] On 29 and 30 July 2013 Mr Kongor did not attend work. An issue arose as to whether Mr Kongor had notified Red Lea that he would be absent. Red Lea alleged that he had provided no notification of the absence. Mr Kongor’s evidence was that his doctor had, in his presence, rang someone at Red Lea on 29 July and informed that person that Mr Kongor would be absent for the two days.

[7] I do not need to resolve that factual controversy for the purpose of this decision. It is sufficient to say that Ms Whiteman had a meeting with Mr Kongor about the issue on 31 July 2013. He was given a warning, which was curiously described as a “verbal written warning”. Mr Kongor, at least initially, refused to sign, look at or take the written warning, and became, on Ms Whiteman’s description, “agitated”. Ms Ashen said she had to intervene in the meeting to terminate it, with Mr Kongor deciding to go home rather than return to work. There was an issue about whether he ultimately took a copy of the warning letter although again I do not need to resolve that.

[8] There were further issues concerning Mr Kongor’s attendance at work. On 29 August 2013, Ms Stimson and Ms Whiteman received an email from Ms Rebecca Reid of Xchanging, Red Lea’s workers compensation claims manager, which said:

“Heads up, Michael Kongor has called and has been quite aggressive regarding non-compliance and benefits being ceased. He has also advised me that he is refusing to attend work today. I did explain that if he is certified to do so that he is to show up. Not sure if he will be in - please be mindful that he has indicated that he would ‘like to teach XC a lesson’ and was very aggressive over the phone.”

[9] On 15 August 2013, Mr Kongor went to the Red Lea office to complain that he had been short-paid. On Ms Ashen’s evidence one sales clerk, Ms Catherine Cahill, went to her office to complain about him, saying among other things that Mr Kongor was getting quite aggressive and that she and another staff member were getting “quite scared”. Ms Ashen intervened again, and told him to come back the following day and speak to HR about it. She said that Mr Kongor was “quite aggressive”, repeated the same statements many times, talked over her, and did not listen. She also said that she felt harassed and intimidated by him, particularly as he was a very tall man (she estimated 6 feet 6 inches, which looks about right to my observation), and he stood very close to her, so that she had to bend her neck to look up at him.

[10] The evidence on this issue was somewhat unsatisfactory in that none of this evidence was put to Mr Kongor in cross-examination (noting that I did direct Red Lea’s counsel to be straight to the point in his cross-examination of Mr Kongor). Additionally, Mr Kongor did not reply to Ms Ashen’s statement about this incident - although served with Red Lea’s statements of evidence, he appears not to have read them. Nonetheless I am prepared to accept Ms Ashen’s evidence about this as indicative of Mr Kongor’s behaviour when agitated and his capacity to have an intimidating effect upon Red Lea female staff.

[11] A further issue then arose about Mr Kongor failing to give advance notice that he would not be able to attend work on 9 September 2013. He had rung work about his absence at 2:38pm in the afternoon of the 9th. Red Lea said he had previously been told he had been rostered to start at 6:00am, so that this constituted advice after the event. Mr Kongor said that the new 6:00am start time had not been confirmed, and he was acting on the basis that he still had to start at 3:00pm, which had previously been his start time.

[12] I do not need to resolve the issue of whether Mr Kongor had properly been notified of a new 6:00am start time. The incident is relevant because of Mr Kongor’s alleged behaviour at a meeting called on 13 September 2013 to discuss this incident.

[13] On 13 September 2013, Mr Kongor was initially called into the HR office, which appears to be an office shared by Ms Whiteman and Ms Stimson, for a meeting with Ms Stimson about his injury and the provision of suitable duties. A conference call occurred involving Mr Kongor’s treating doctor and a representative of Red Lea’s workplace rehabilitation service provider. The precise start time of this meeting is difficult to identify, but it appears to have started sometime between 11:00am and 11:30am, and to have lasted about 20 minutes.

[14] Ms Whiteman then entered the HR office to have a discussion with Mr Kongor about “his absences”. Mr Manny Galea also joined the discussion. Ms Stimson left after a short period, but returned later. It should be explained at this point that the HR office is small - approximately 3 metres by 3 metres at the most - and did not contain sufficient chairs to allow everyone to be seated. Accordingly, Mr Kongor, Ms Whiteman and Mr Galea were all standing during the discussion in close proximity to each other.

[15] Ms Whiteman asked Mr Kongor if he wanted a support person present but he did not directly answer. She raised the issue about his absences and his failure to follow proper notification procedures. He alleged in response that Red Lea wanted to get rid of him because of his injury. The discussion descended into an argument about whether Mr Kongor had known about and agreed to the new start time of 6:00am. Eventually, Ms Whiteman said in the meeting that Mr Kongor would be issued with a written warning about the matter. Ms Whiteman prepared the letter in his presence, and it was signed and dated by her and Mr Galea, but Mr Kongor refused to take it. Presumably Ms Whiteman sat down for the period it took to type the letter.

[16] At some point Ms Stimson, having no work to do outside the HR office, returned and sat down at her desk. She thus observed the latter part of the meeting.

[17] There was a dispute about Mr Kongor’s behaviour to this point. His evidence was that he did not speak loudly, did not repeat himself, and did not behave aggressively. I cannot accept that evidence. It was clear from the length of the meeting (it ultimately took about an hour to an hour and a half) that there must have been repetitive debate about the fairly simple issue at stake. It is also clear that Mr Kongor was speaking in a very loud and argumentative voice, since the discussion was heard by and attracted the attention of many staff outside the HR office, some of who gathered outside to listen.

[18] It is also clear that Mr Kongor’s physical size, the fact that he was standing up, and the small size of the room meant that he had an intimidating physical effect on the others present. I cannot wholly fault him for this; his physical size is not his fault, nor was the close proximity between the participants, and the fact that he had to stand. In retrospect the HR office was not a suitable place for the meeting.

[19] The evidence made it clear that Mr Kongor was upset, agitated, and behaving in a manner that was not usual for him. However, to this point I do not consider that Mr Kongor had done enough to justify dismissal. As stated, the physical constraints of the office and his personal physical characteristics were not his fault, and he undoubtedly felt strongly that the issue of a warning letter to him was an injustice. There was no suggestion that he had sworn at or abused or threatened anyone.

[20] However, there came a point in his behaviour during the meeting where he crossed the line into serious misconduct. The warning having been prepared and given to him, he was told to return to work. He refused to do this. Mr Kongor denied this happened, but I do not accept his evidence in this respect. Instead, he continued to stay and argue with Ms Whiteman and Mr Galea, talking over the top of them in a loud voice and continuing to refuse to leave. His face was described by the witnesses as contorted with anger and he was using emphatic hand gestures.

[21] At this stage, Ms Whiteman felt physically threatened by him, and Ms Stimson felt concerned for her physical safety. I consider that at that point Mr Kongor either knew or should reasonably have known that his behaviour was having this effect.

[22] Eventually, Ms Ashen, who could hear what was going on from her office and could see Mr Kongor standing in the doorway of the HR office, was forced to intervene. She told him to leave, but he again refused. He then engaged in an argument with Ms Ashen when he challenged her identity and then refused to take her business card when she proffered it. Ms Ashen repeated her request for him to leave, which he refused. She then said she would call the police if he did not leave, to which he replied “go on ring the police”. The police were then called.

[23] Mr Kongor was escorted by Mr Galea and Mr Alex Camilleri, the Production Supervisor, to the reception area. He then waited there for the police to arrive, with Mr Camilleri in attendance.

[24] Ms Ashen, who was herself personally concerned about Mr Kongor’s behaviour, returned to the HR office. She found Ms Stimson in there crying and shaking. She subsequently had a discussion with Ms Whiteman about what to do about Mr Kongor. She eventually resolved to dismiss him. This was within the scope of her authority.

[25] The police came after about an hour and a half. Ms Ashen informed the police that Red Lea intended to terminate Mr Kongor’s employment. This was passed on to Mr Kongor by the police. A termination letter was prepared. There was an issue about whether Mr Kongor refused to receive the letter or not, but there was no dispute that it was sent to his house. Mr Kongor eventually left the premises.

[26] The termination letter which was signed by Ms Whiteman, the HR Manager, and dated 13 September 2013 said:

“After two previous incidences of harassment, intimidation and abusive language directed towards Red Lea employees and a recent incident today of further harassment, intimidation and abusive language.

In accordance with Red Lea’s Employee Induction Manual, Termination of Employment Clause (b), you have been intimatory [sic] and abusive to the extent that the police had to be called.

Red Lea is exercising the right to immediately terminate your employment without notice.”

[27] Mr Kongor has not been able to work at all since his dismissal because of his incapacity caused by his injury. From the date of dismissal to the date of hearing, he has been paid workers compensation benefits of $879.00 per week gross. Before his injury and dismissal, Mr Kongor worked 38 hours a week in the five days from Sunday to Thursday each week, at slightly over $19.00 per hour with Sundays paid at double time. He also usually worked Fridays as an overtime day. His workers compensation benefits appear on my calculations to equal the ordinary time pay on the roster I have described.

[28] Mr Kongor contends that his dismissal was unfair, principally on the basis that he did not behave in the way alleged by Red Lea on 13 September 2013. He does not seek reinstatement, but rather compensation as a remedy.

[29] In considering whether Mr Kongor’s dismissal was harsh, unjust or unreasonable, s.387 of the Act requires me to take into account the matters specified in paragraphs (a) - (h) of that section. I will therefore deal with these matters in turn.

Paragraph 387(a)

[30] I consider that there was a valid reason for the dismissal. I have earlier stated my findings concerning Mr Kongor’s conduct and behaviour at the meeting on 13 September 2013. As earlier stated, Mr Kongor engaged in serious misconduct when he refused the lawful and reasonable direction to leave the meeting and continued to argue with those present in what can objectively be described as an aggressive and intimidating manner, and thereby caused distress to the female staff that were present.

Paragraphs 387(b) and (c)

[31] Mr Kongor was not notified of the reason for his dismissal before it occurred, and thus had no opportunity to respond to it. It would have been preferable if he had been given such an opportunity. However, I give little weight to this factor because of the nature of Mr Kongor’s misconduct, and the fact that during the hearing he did not disclose any explanation for his conduct (beyond a mere denial, which I have rejected) such as to suggest that the provision of procedural fairness would have given him any real opportunity to avoid dismissal.

Paragraph 387(d)

[32] There were no discussions relating to the dismissal, so no issue of the presence of a support person arises.

Paragraph 387(e)

[33] The dismissal did not relate to unsatisfactory performance, so the issue of prior warnings in this connection does not arise. In any event, as already stated, Mr Kongor had been given two previous warnings about his conduct.

Paragraphs 387(f) and (g)

[34] Red Lea is of sufficient size to have specialist HR personnel. I must observe that the dismissal procedure it followed did not reflect this fact, although this is partly explained by the fact that Ms Whiteman, the HR Manager, was herself a participant in, and became a witness to, the events which led to the dismissal.

Paragraph 387(h)

[35] I regard the following matters as being of relevance:

1) Mr Kongor’s length of service was less than two years. There was no evidence, one way or the other, as to the quality of that service.

2) Mr Kongor had been the subject of two warnings prior to the dismissal.

3) There had been previous instances of behaviour on the part of Mr Kongor which had been of concern.

4) In the period of time since his dismissal (which is about one week short of six months), it does not appear that Mr Kongor has suffered any financial loss. If he had not been dismissed, it is probable that he would have remained off work due to his incapacity caused by his injury, and received the same level of workers compensation benefits that he has received since his dismissal, or alternatively, at best would have worked light duties and simply would have received ordinary pay but no overtime. This does not suggest that his dismissal was harsh because of its economic consequences. Furthermore, it is reasonably likely that Mr Kongor would have been dismissed for incapacity to perform his duties once six months had passed in any event: see s.248 of the Workers Compensation Act 1987 (NSW).

[36] My conclusion in this matter, having taken all these matters into account, is that Mr Kongor’s dismissal was not harsh, unjust or unreasonable. He engaged in serious misconduct and I cannot identify any significant mitigating factors.

[37] Accordingly, Mr Kongor’s application is dismissed.

VICE PRESIDENT

Appearances:

M. Kongor on his own behalf

R. Crow of counsel with A. Fetherston, solicitor, for Red Lea Chickens Pty Ltd

Hearing details:

2014.

Sydney:

7 March.

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