Michael Ranieri v BioGiene Pty Ltd

[2011] FWA 5352

[2011] FWA 5352

FAIR WORK AUSTRALIA

DECISION

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

Michael Ranieri
v
BioGiene Pty Ltd
(U2011/6909)

COMMISSIONER MCKENNA SYDNEY, 17 AUGUST 2011

Application for unfair dismissal remedy - compensation ordered.

[1] Michael Ranieri (“the applicant”) has filed an application pursuant to s.394 of the Fair Work Act 2009 seeking an unfair dismissal remedy with respect to his dismissal on 29 March 2011 by BioGiene Pty Ltd (“the respondent”). The respondent is, apparently, a supplier of specialist outsourced hygiene and sanitation services to clients in the food and further processing industries. The applicant was employed by the respondent in a leading hand role in hygiene operations at a client abattoir located in Booyong, near Lismore in northern New South Wales.

[2] Before considering the application, it is apposite to outline some of the procedural history concerning the proceedings that were conducted in Lismore Court on 2, 3 August 2011. Following its allocation to me, the application was listed for telephone mention on 8 June 2011 for the purpose of discussing directions and programming for a regional listing, with the initial telephone mention having been vacated on the application of the respondent’s representative. The dates and directions were set by consent, in consultation with the parties’ representatives, namely, Mr P Smart of counsel for the applicant and Mr P Tilbury, Principal Consultant - HR Genie Pty Ltd, for the respondent.

[3] Shortly after the dates had been set for a regional listing at Lismore Court, Mr Tilbury made the first of what was to be a number of applications, which I determined in chambers, in relation to the proceedings scheduled for 2, 3 August 2011. Mr Tilbury made an application that two of the respondent’s witnesses give their evidence by telephone, on the basis that one witness would be interstate and the other would be overseas; that application was declined. I later acceded to an application made by Mr Tilbury that the two witnesses in question give their evidence by video-link; arrangements were made by my Associate with Lismore Court for that purpose. Mr Tilbury also made an application that the applicant be excluded from the proceedings when two other witnesses for the respondent were giving their evidence in person, on the basis of what were said to be security-related concerns about the applicant. That application was declined and, in so declining, the parties were informed (without any reflection or conclusion as to the matters outlined in support of the application) that Sheriff’s officers are located at Lismore Court. A further, renewed application by Mr Tilbury in similar terms again seeking the exclusion of the applicant from parts of the proceedings was also declined. Mr Tilbury foreshadowed the respondent would be filing an appeal against my decision not to accede to the application that the applicant be excluded from the court room when two of the witnesses were giving their evidence, but later advised there would be no appeal. Other applications made by Mr Tilbury included an application to extend the time for the filing and service of the respondent’s materials, which was granted. Mr Tilbury also made a number of other applications and communications, which are unnecessary to recount in this decision.

[4] The respondent, through Mr Tilbury, filed and served nine witness statements pursuant to the directions. Mr Tilbury later confirmed that some of the statements would not be relied on in the proceedings (although it may be noted a statement by one such person was tendered by consent in the proceedings). As a result, the respondent intended to rely principally on the evidence of four witnesses, with two witnesses to appear in person at Lismore Court, one to appear by video-link from interstate and another to appear by video-link from New Zealand.

[5] Mr Tilbury appeared in the proceedings at Lismore Court on 2, 3 August 2011 to represent the respondent. He was not accompanied by anyone from the respondent to give instructions. Mr Tilbury submitted that as the respondent was attending to arrangements related to its business operations, no representative of the respondent was available to attend the proceedings for the purpose of giving instructions. Mr Tilbury did, however, indicate he could obtain telephone instructions from a representative of the respondent and, in fact, he obtained telephone instructions at different stages in the proceedings.

[6] The proceedings adjourned part-heard on 2 August 2011 with evidence having been given by the applicant and two witnesses who are employed by the respondent. On the second day of the proceedings, Mr Tilbury advised that neither of the respondent’s remaining two witnesses who had been scheduled to give evidence by video-link on the morning of 3 August 2011 was available to give evidence by that means, as neither had, due to the respondent’s business-related exigencies, attended the arranged locations where they were to give evidence by video-link. Mr Tilbury submitted that, in the circumstances, the evidence of those witnesses should be received by telephone and that their telephone evidence could be weighed accordingly. Mr Tilbury’s application to have the witnesses’ statements of evidence tendered and for the witnesses to be examined by telephone was strongly objected to by Mr Smart. Those objections were advanced on a number of bases, including submissions going to matters such as the assessment of witness demeanour in giving evidence as to contested issues. Mr Smart submitted, given the witnesses were not available to give their evidence by video-link, it would be open to the respondent to, for example, settle the matter, to seek an adjournment or to proceed without the tender of their statements of evidence in question. Having regard to my own concerns about the application that had been made and having also considered Mr Smart’s objections, I indicated I would not accede to Mr Tilbury’s application for the examination of the two witnesses to be conducted by telephone. On taking further instructions, Mr Tilbury submitted he had been instructed to proceed or, as his submissions put matters: “To go for it and continue”. There was no adjournment application or other application made by Mr Tilbury. As such, the proceedings then moved directly into closing submissions, without evidence from two of the respondent’s witnesses including the employee who had effected the applicant’s dismissal.

[7] I outline this background so as to give some context as to both the manner in which the proceedings unfolded in Lismore Court and the paucity of evidence in the respondent’s case.

BACKGROUND

[8] By way of overview, the applicant was employed for approximately three and a half years at the abattoir, most recently as a leading hand with responsibilities that included plant hygiene and supervision. The evidence indicated that the respondent performed his duties well. It was common ground on the parties’ submissions that the applicant was summarily dismissed by the respondent’s Operations Manager, John Balint, during a telephone conversation on 29 March 2011, despite some suggestions in the proceedings as to an alternative date arising.

[9] As to background, for a period during 2009, the applicant had supervisory responsibilities in relation to a casual employee named Jacqueline Ngakina West. There was a quality assurance issue about the standard to which Ms West had cleaned certain machinery, which the applicant raised with Ms West. As a result of the quality assurance issue going to the quality of her cleaning and manner in which Ms West had responded to the matters the applicant raised with Ms West, the applicant reported matters to the Site Manager.

[10] In 2010, the applicant raised an issue about a claimed entitlement to an offensive cleaning allowance with a then-newly appointed area manager named Colin West. Mr West is married to the Ms West who earlier had been the subject of adverse attention and report by the applicant. When the applicant raised an issue about a claimed entitlement to the payment of the offensive cleaning allowance in relation to his preparedness to undertake cleaning work on the slaughter-room floor, Mr West said words to the effect that the applicant had the choice to undertake the work without payment of the allowance or the applicant could “go join the queue at Centrelink”. The applicant indicated that he would continue to undertake the work in question only if paid the allowance. Mr West dismissed the applicant (being a first dismissal which is not the subject of this application).

[11] Following the first dismissal, the applicant sought legal advice and contacted the respondent’s management about the dismissal that had been effected by Mr West, advising that unless he was reinstated he would be taking the matter to Fair Work Australia. The respondent promptly reinstated the applicant after he threatened to take legal action in relation to that first dismissal. An allowance in the nature of an offensive clearing allowance was also paid to the applicant after the reinstatement, although there may be some doubt as to whether the applicant actually had an industrial entitlement to the claimed payment of the allowance in question. The allowance apparently was not paid to any employee apart from the applicant, although a memorandum issued by the respondent suggested it would be paid to other employees.

[12] Although it seems the Wests were only intermittently on site at Boyoong, the relationship between the applicant and the Wests, Ms West particularly, was poor. On a date that was not specified in the evidence, Ms West was later promoted in her employment with the respondent, with the result she then had supervisory responsibilities for the applicant rather than vice versa. The evidence indicated that comments were made by either or both of the Wests to the applicant to the effect that the applicant was “nothing but a lazy Australia”; that Asian cleaners were more efficient than the applicant; that the applicant was on “borrowed time”; and that “life around here will only get tougher” for the applicant. The applicant was also informed he would be cleaning a machine named a “Rovani”, although he had not received training in relation to that machine. The Rovani is dangerous machinery used for pig processing; an accident involving the Rovani could result in serious injury or death. On the applicant’s understanding, the training procedure for the Rovani should involve learning how to operate the various switches that control the machine; having hands-on experience with a certified operator for one week; and then having supervised, individual operation to assess competency. The applicant was also instructed to operate a forklift, although he was neither experienced nor licensed. The respondent had made arrangements for other employees to obtain a forklift ticket, but not for the applicant. The applicant’s evidence indicated that he refused instructions from Ms West to operate forklifts as he was unlicensed, whereas the respondent’s evidence suggested the applicant had, of his own volition, operated forklifts. However, as to that, the applicant’s evidence was that the situation concerning directions to unlicensed employees as to forklift operation became “so unpleasant” that a report was made to WorkCover NSW, although that report apparently was made by an employee other than the applicant. Following the involvement of WorkCover, driving of forklifts by unlicensed operators ceased.

[13] There was also a separate issue about the non-payment (for about a year it seems) of superannuation and associated life insurance that the applicant had raised with the respondent’s head office. While the concern about the unpaid superannuation was common to the respondent’s employees at Booyong, the documentary evidence indicated that the applicant had sent communications to the respondent’s offices in North Sydney about such matters by registered mail and/or by SMS. Mr Smart submitted the applicant certainly had been “noticed” by the respondent as a person involved in the superannuation-related underpayment complaints.

[14] The events that formed the general backdrop to the second dismissal of the applicant on 29 March 2011 involved the applicant and Ms West. On 28 March 2011, the applicant attended work following an absence on bereavement-related leave. Ms West informed the applicant that from the following day, 29 March 2011, the applicant would be cleaning the Rovani. The applicant expressed concerns about his lack of training in relation to that particular machine. Ms West responded by stating, among other matters, “so you don’t know how to clean”, that his training-related concerns were a “load of rubbish” and that he was “nothing but a lazy clown”. The respondent’s evidence indicated that, over the course of his employment, earlier offers made to the applicant to learn how to clean the Rovani had been refused by the applicant, although the applicant denied that he made any such refusal at work. One way or the other, the evidence indicated that the applicant had not received any formal training in relation to the Rovani at the time Ms West instructed that he would be cleaning that machine from the following day. The applicant informed Ms West he was going to complain to Aaron Langley, the respondent’s Managing Director - which he then did by leaving a voice mail message. The applicant then returned to his duties. The applicant later received a text message from Mr Langley advising that the complaint would be investigated.

[15] The next day, 29 March 2011, Ms West informed the applicant he would have the responsibility for cleaning the offal rooms that night, which was not part of the applicant’s usual responsibilities. When the applicant asked why he was being given the offal rooms, Ms West indicated that he should do as he was instructed. The applicant said he would clean the offal rooms, but needed training in relation to machinery in those rooms. It appears that while the applicant had earlier received some informal guidance or advice as to the offal room machinery, he had not received proper, formal training. In this respect, it may also be noted that there was dispute in the proceedings as to the authenticity of the applicant’s signatures and initials on certain documents, including training and proficiency-related documents. In this respect, it also cannot go unremarked in this decision that the evidence appeared to suggest that no isolation-type measures were adopted as pre-cleaning steps for hazardous processing machinery; somewhat startlingly, the evidence suggested that machines were simply switched-off or unplugged at the power-point. Be that as it may, it seems to be common ground, nonetheless, that Ms West indicated to the applicant that offal room-related training would be provided to the applicant. Around this time, an exchange occurred between the applicant and Ms West, which was witnessed by several co-workers and a trainee manager. Among other matters, Ms West questioned whether the applicant knew how to clean and she made a comment about the applicant’s balding head in comparison with the length of his beard, while laughing at him, in connection with the comment or an instruction about wearing a beard net. The applicant, who has been treated for depression, indicated in his evidence that he felt embarrassed and humiliated - much as he had felt previously when comments had been made to him by either or both of the Wests.

[16] At the time the comments were made about the beard net, the applicant was not in a production area where beard nets actually needed to be worn. There was, however, dispute on the evidence as to whether the applicant had, in a more generalised sense, refused to wear, or had cavilled about wearing, a beard net. The applicant individually confirmed with the employees who were present, gesturing with an open hand or pointed finger directed to individual employees, that each had witnessed what had just happened and also asked one employee if he, too, would have taken offence - which that employee affirmed. The applicant’s advice to Ms West that he had taken offence about the comments concerning his personal appearance and his request for an apology from Ms West were met with her continued laughing. The respondent’s evidence indicated that Ms West also told the applicant his conduct in asking the employees whether they had seen what had happened was intimidating, and should cease. The applicant did not consider that his conduct was intimidating to the employees and, in my assessment, the available evidence did not suggest his conduct could be characterised as intimidation of those employees.

[17] The applicant left work early and went home, having informed Ms West that he was going to make a formal complaint. The applicant then telephoned the respondent’s offices, seeking to speak to Mr Langley or Mr Balint and advising the respondent’s receptionist he was very upset and embarrassed about what had happened to him in the previous 48 hours. The receptionist informed the applicant that neither Mr Langley nor Mr Balint was available. The receptionist said she would take some particulars and send an email to Mr Langley. A witness statement of that receptionist was in evidence, in which she described the applicant as appearing “calm, calculated and measured in his approach over the phone” about “an alleged insult to his physical appearance”. There were unresolved differences on the evidence as to the number of telephone conversations between the applicant and the receptionist.

[18] Mr Balint telephoned the applicant on his mobile telephone some short time later. The applicant had met Mr Balint previously when he had been at the Booyong site. The applicant recounted the ensuing telephone conversation as follows. The applicant said Mr Balint “yelled” the following words at him: “What the bloody fuck is going on Mick, talk to me man, I’ve just received a message saying that you’re harassing the girls at the office”. The applicant responded that the only call he had made was about a half an hour earlier “to report an incident that took place onsite today”. While the telephone reception was poor and it was hard to hear everything Mr Balint said, the last words the applicant heard Mr Balint say were: “Get your fucking shit off my site and fuck off”. The telephone line then dropped-out. The applicant telephoned Mr Balint immediately after the line had disconnected. Nothing was said other than “Hello”, when either Mr Balint hung-up or the line again disconnected. The applicant did not make any further telephone calls to Mr Balint.

[19] There was no evidence as to whether Mr Balint had made any inquiries as to what had happened at the Booyong site prior to telephoning the applicant. The applicant generally denied he was at all abusive in the telephone conversation with Mr Balint. The applicant said his telephone manner with Mr Balint was the same as the calm, calculated and measured approach described by the receptionist. There was no evidence to counter the applicant’s description of what transpired in the telephone conversation which resulted in the applicant’s dismissal by Mr Balint on 29 March 2011.

SUBMISSIONS

Applicant’s submissions

[20] Mr Smart submitted that after the first dismissal and reinstatement in October 2010, the treatment of the applicant in his employment became distinctly different and he came to be regarded as an unwanted whistleblower, for reasons relating to claiming the offensive cleaning allowance; objecting to being instructed to clean certain areas without proper training in relation to dangerous machinery; objecting to unlicensed forklift operation; complaining about superannuation-related underpayments; and complaining about the general abuse to which he had been subjected by Ms West.

[21] The applicant’s submissions were that the applicant had a legitimate complaint, but that Mr Balint was abusive to him and dismissed him. Mr Balint alleged the applicant had harassed office employees, but this was denied by the applicant and otherwise was unsupported on the evidence of the respondent’s receptionist. It was submitted that the applicant’s denials that he was in any way abusive to Mr Balint should be accepted. Mr Smart submitted it should not be accepted that the applicant spoke to Mr Balint in an abusive way in connection with making a complaint to that manager about Ms West, more particularly considered in the context of the receptionist’s description of the applicant’s telephone manner.

[22] The applicant’s submissions contended that the respondent had not made out any case for “instant” dismissal. Mr Smart submitted the applicant was unfairly dismissed, after a period of being targeted for dismissal for reasons associated with the assertion of entitlement to industrial benefits; for asserting the need for occupational health and safety-related training concerning dangerous processing machinery; and for objecting to forklift operation without licensing needed in connection with the performance of the work he had been instructed to undertake. Mr Smart contended that the applicant had otherwise come under individual notice concerning the employees’ complaints about non-payment of superannuation entitlements. Mr Smart submitted that, among other matters, the applicant had also been harassed, abused and ridiculed in his employment by Mr West and Ms West in the prelude to the dismissal, and that there was evidence suggesting Mr West had been making the applicant’s post-dismissal succession planning some time before the dismissal was, in fact, effected.

[23] Mr Smart submitted it was his “forensic duty” to point out that nearly all the applicant’s evidence was unchallenged. He submitted the respondent had not defended the application as a “normal respondent” would do, and that there was a “stupidity to these proceedings” in as much as the respondent had not “robustly” defended the application.

[24] Mr Smart’s other submissions were to the effect that the respondent had engaged in conduct designed to dissuade witnesses from coming forward to give evidence and that the respondent had made unfounded allegations about the applicant’s alleged intimidation and harassment of potential witnesses. Mr Smart questioned the basis on which, as had been adverted to in various applications and submissions, the respondent had proposed to itself advance a collective application in the courts on behalf of its employee witnesses seeking personal apprehended violence orders concerning the applicant.

[25] Mr Smart submitted than an order for compensation should be made in the applicant’s favour. He also foreshadowed a costs application against the respondent.

Respondent’s submissions

[26] Mr Tilbury’s submissions referred to advice from the Fair Work Ombudsman suggesting the applicant was not entitled to the offensive cleaning allowance to which the applicant had asserted entitlement and submitted that matter should not be considered in any order for compensation. In relation to the compensation order, Mr Tilbury later also made submissions about the applicant’s receipt of social security benefits following the dismissal.

[27] Mr Tilbury submitted that although the respondent had not been able to prove through testimony from Mr Balint that the applicant used the words that were alleged to have been used by the applicant in the telephone conversation on 29 March 2011, the respondent’s evidence otherwise had proved that the applicant had been guilty of serious and wilful misconduct in refusing to take lawful and reasonable instructions from both his Site Manager and Ms West.

[28] Mr Tilbury submitted that, despite the applicant’s denials, two written warnings concerning early departures in October 2010 were given simultaneously to the applicant but the applicant refused to co-sign them. Moreover, the applicant had a further unauthorised early departure from work in January 2011 and the applicant had, in consequence, received a further verbal warning. The applicant’s unauthorised absences meant the other employees were left with additional work and this situation did not promote a positive workplace team environment; and it showed a lack of responsibility by the applicant and a lack of consideration for his co-workers.

[29] Mr Tilbury objected to the submissions by Mr Smart questioning the authenticity of the applicant’s signatures and initials on certain documentation. Mr Tilbury submitted that Mr Smart is not a handwriting expert, and there had been no effort on Mr Tilbury’s own behalf or by the respondent to manipulate those documents. Mr Tilbury acknowledged he was not a handwriting expert but, in his opinion, the signatures were sufficiently similar for him to believe the signatures were certainly those of the applicant. Further, the respondent’s evidence had explained why the documents as to occupational proficiencies bore common dates. Mr Tilbury submitted that this was because Booyong and parent sites are self-insured due to the nature of their work. The respondent had been requested to improve the standard of its documentation, thereby explaining why many of the documents have the same date.

[30] Mr Tilbury also submitted that the respondent is a small business with no designated human resources manager and, certainly, minimal resources expertise - which was why, given the respondent’s growth, Mr Tilbury and his colleagues recently had been engaged to act as the respondent’s human resources advisors. As to the respondent’s status as a small business, Mr Tilbury submitted that, at the time of the dismissal, a significant number of the respondent’s workforce were contracted, rather than being full-time or part-time. While Mr Tilbury acknowledged that the respondent could not presently be described as a small business due to additional contracts, Mr Tilbury submitted that “we stick with” the submission that there were fewer than 15 employees at the time of the dismissal. Mr Tilbury submitted that any consideration of the application should take into account the lack of human resources expertise available to the respondent at the time of the dismissal.

[31] Mr Tilbury submitted that the respondent did not regard the applicant as a troublesome, trouble-making employee. The applicant, he submitted, was a valued employee and there was no issue whatsoever about the standard of the applicant’s work. The evidence demonstrated the respondent had attempted to work with the applicant on numerous occasions, including through the issuing of the warnings, rather than by effecting a dismissal, concerning early departures; by the payment of the claimed offensive cleaning allowance to the applicant and to no other employee, being an allowance it was not legally obliged to pay; and by the payment to the applicant of over-award wages. Mr Tilbury submitted the problem was the applicant’s behaviour, which had become untenable.

[32] Mr Tilbury submitted that the respondent had not engaged in any conduct designed to prevent the applicant from gathering testimony for these proceedings. The respondent had considered seeking apprehended personal violence orders on behalf of its employees “as a group” as they felt they were being harassed, albeit not threatened. Mr Tilbury submitted also, “We do agree however that there have been no allegations of threats or fraud or violence” but the applicant’s conduct in leaving work early and leaving the crew minimised was serious misconduct. He submitted that the evidence of the respondent’s witnesses was true and correct, and was not affected by coaching, pressure or manipulation; and that the applicant’s evidence had not been corroborated by anyone else.

[33] Mr Tilbury submitted that the applicant had been offered training in relation to cleaning machinery, but the training repeatedly had been refused. Otherwise, the documentation signed by the applicant indicated he had been trained in relation to the offal room equipment and one of the witnesses said he had trained the applicant for the offal room. Further, Mr Tilbury submitted it would be reasonable to expect a person holding a position such as that held by the applicant should have a working knowledge of all machinery, so as to be able to cover absences and to train younger employees. Mr Tilbury submitted that the applicant had never been forced to operate a forklift, albeit he acknowledged that unlicensed forklift operation ceased at the site following the complaint that led to WorkCover’s intervention.

[34] Mr Tilbury submitted there was a valid reason for the dismissal being serious misconduct, which was conveyed to the applicant. He also submitted that the procedures adopted by the respondent needed to be considered in the context of the Small Business Fair Dismissal Code (“the Code”). Mr Tilbury submitted that the applicant was dismissed for “repeated inappropriate, irresponsible and reckless workplace behaviour which was constituted by leaving work before his designated finish time, leaving his workmates to potentially work longer hours and to potentially have their safety put at risk”, being a dismissal which had not stemmed or flowed from initial disputation about the offensive cleaning allowance.

[35] In conclusion, Mr Tilbury reiterated there was a valid reason for the dismissal based on serious and wilful misconduct and, he submitted, the respondent’s position was that the applicant was notified of that reason. As this was a summary dismissal, issues as to providing a response and involving a support person did not arise. The dismissal was not performance-related; it was behaviour-related. At the time of the dismissal, there was no dedicated human resources management specialist available within the respondent’s team. Even without the evidence from Mr Balint, the respondent had, Mr Tilbury submitted, been able to prove the applicant had been guilty of serious and wilful misconduct.

[36] Mr Tilbury submitted that the application for an unfair dismissal should be dismissed. He also foreshadowed a costs application against the applicant.

CONSIDERATION

Small Business Fair Dismissal Code

[37] Dealing first with preliminary matters, there was dispute between the parties as to whether the Code applied. Mr Tilbury submitted that the respondent employed nine employees and, as such, the Code applied. Mr Smart submitted this was not the case and contested the proposition the respondent was a small business.

[38] The initiating process filed by the applicant identified the respondent as “Captive Group T/A Biogiene”. There was also evidence of a pay advice identifying the applicant’s employer as “Captive 2”, at least as at October 2010. However, Mr Tilbury’s submissions confirmed that “BioGiene Pty Ltd” was the correct legal entity and name of the respondent employer for the purposes of these proceedings and, as such, the respondent’s name was amended thereto without objection.

[39] Mr Tilbury, in contending the Code applied, submitted that documentary material would be tendered on the second day of the proceedings confirming the respondent employed fewer than 15 employees, but subsequently submitted he had no such material to tender in support of that proposition. While there was no direct evidence one way or the other as to the specific number of employees employed by the respondent, the available evidence suggests the respondent employed a substantially larger number of employees than nine employees. An induction booklet titled “Welcome to BioGiene” was in evidence, with a company address for the respondent identified as being in North Sydney. The booklet was given to the applicant in connection with his employment and was tendered in the proceedings by Mr Tilbury. In 2010, the applicant was required to sign an acknowledgement of his (much earlier) receipt of the booklet. In the booklet, the respondent describes itself as follows:

“Operating in Australia and New Zealand as a division of the Captive Group, BioGiene P/L is today an international provider of hygiene and sanitation services to the food processing and retail industry employing some 1500 people.”

[40] The available evidence suggests that the respondent itself, or the respondent as part of a larger group of associated corporate entities, employs some 1,500 people. In this respect, it may be noted that the booklet refers to the industrial agreements that govern the respondent’s waged employees in Queensland, New South Wales, Victoria and Tasmania. Among other matters, the booklet further refers to the respondent’s “HR department”, its “Support Office” and advises employees to contact the “Human Resources Manager” about certain matters. It also may be noted that there was evidence of a letter to the applicant on “BioGiene” letterhead paper concerning the offensive cleaning allowance, unpaid superannuation and life insurance. The signature is identified as being that of the respondent’s “HR Manager”, with an address in North Sydney.

[41] I am not satisfied the respondent was, as at the date of the dismissal of the applicant, an employer to which the Code applied. The available evidence runs counter to the submissions of Mr Tilbury in this respect. I proceed on the basis the Code did not apply.

Dismissal

[42] 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): There was some fluidity on the evidence and submissions as to the date of the dismissal, but it appears squarely to have taken effect on 29 March 2011 during the telephone conversation between the applicant and Mr Balint. As I outline below, there was no evidence supporting a conclusion that Mr Balint had a valid reason to summarily dismiss the applicant based on reasons of serious and wilful misconduct as outlined Mr Tilbury’s submissions.

[43] First, Mr Tilbury’s submission that it was the applicant’s allegedly, but unspecified, immoderate language in the telephone conversation that led Mr Balint to dismiss the applicant was unsupported by evidence. The available evidence indicated that the applicant was generally proper in his approaches to the respondent about employment-related matters. For example, the letter from the respondent’s Human Resources Manager in response to communication by registered mail and SMS messaging noted that the applicant’s “patience and understanding had been greatly appreciated”. When the most recent incidents had arisen involving Ms West, there was nothing to suggest that the applicant had responded in a way that was inappropriate. He first verified that the other employees had observed what had happened and, among other matters, requested an apology, before then telephoning the respondent’s management to make a complaint. The receptionist who took the applicant’s complaint described the applicant’s benign telephone composure in making that complaint. The applicant’s uncontested evidence otherwise indicated that he was not in any way abusive in the telephone call made by Mr Balint to him following the making of that complaint.

[44] Second, Mr Tilbury’s submissions indicated that the respondent relied on two prior written warnings in relation to early and unauthorised departures from work in October 2010, together with a report from an unidentified employee as to a further, unauthorised early departure in January 2011. The written warnings in question were dated 19 October 2010 and 25 October 2010. The applicant denied having seen the warnings, denied having refused to co-sign them and denied that there had been unauthorised early departures in October 2010 and in January 2011. On the other hand, the respondent’s case contended that the written warnings had been given to the applicant, but he had refused to co-sign them; and that there had then been a report from an (unidentified) employee as to a further, unauthorised early departure, resulting in a verbal warning to the applicant.

[45] The evidence of pay records indicated that the applicant was on annual leave on one of the two dates in October 2010 - with the result that the applicant could not have had an unauthorised early departure from work on that particular day. There was no direct evidence as to any early departure by the applicant in January 2011, only hearsay. Given the objective evidence contradicting the date on at least one of the written warnings, I am inclined to the view that the warnings were neither given nor refused in the manner contended for in the respondent’s case. To that extent, I prefer the applicant’s evidence as to the alleged warnings. In any event, it is otherwise unclear how it could be contended that the evidence of the alleged warnings, the last said to have been verbally communicated in January 2011, would then have given the respondent a proper basis for Mr Balint to effect a summary dismissal on the much later date of 29 March 2011.

[46] Third, the respondent’s submissions did not appear to rely on any other matters having what I would regard as any particular substance such as would lead to a conclusion that there were capacity-related or conduct-related reasons grounding a valid reason for the dismissal on 29 March 2011. I have considered Mr Tilbury’s submissions arguing that the respondent’s evidence had established the applicant had engaged in a pattern of serious and wilful misconduct by refusing to take lawful and reasonable instructions from both his Site Manager and Ms West. However, the evidence did not, in my opinion, support any such conclusion.

[47] Whether the person was notified of that reason: There was no evidence that Mr Balint notified the applicant of the reason(s) for his decision to dismiss.

[48] Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person: There was no evidence that the applicant was given an opportunity to respond to any reason for dismissal related to his capacity or conduct.

[49] Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal: There was no evidence about any discussions relating to the dismissal in which the question of a support person would relevantly arise.

[50] If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal: The dismissal, the respondent’s submissions confirmed, did not relate to unsatisfactory performance. The applicant was described in the evidence and submissions as being most satisfactory in the performance of his duties.

[51] The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal/the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal: The case advocated by Mr Tilbury in which he submitted to Fair Work Australia that the respondent was a small business, lacking in access to human resource management specialists or expertise, cannot, I think, be accepted. On such evidence as was available in the proceedings, it appears the respondent is not a small business. It also apparently has in-house human resources personnel including (at least) a Human Resources Manager, if not, based on the information in the respondent’s induction booklet, also a Human Resources Department. As I have noted earlier, the respondent’s Human Resources Manager corresponded with the applicant about the payment of an allowance, superannuation and life insurance. While the letter in question from the respondent’s Human Resources Manager is dated 22 February 2010, that date, from a reading of the content and context of the letter, is clearly a typographical error. It may be inferred that 22 February 2010 probably should read 22 February 2011, being a date reasonably proximate to the date of dismissal on 29 March 2011.

[52] Any other matters that FWA considers relevant: A number of the applications made on the respondent’s behalf and in the submissions made by Mr Tilbury alluded to allegedly intimidating conduct by the applicant in connection with the proceedings. As Mr Smart noted, those allegations were not supported on the evidence. It nonetheless may be accepted that the two witnesses who did give evidence seemed disquieted about having been involved in the dispute between the applicant and the respondent, albeit for reasons which did not appear to stem from concerns related to alleged intimidation by the applicant.

[53] The applicant denied that some signatures and initials on the documents produced under summons by the respondent concerning certain occupational proficiencies were his own. There was nothing to contradict the applicant’s evidence that the signatures and initials in question were not his own, being signatures and initials which did not appear necessarily to resemble the applicant’s acknowledged signature and initials. I consider there was substance to Mr Smart’s submission that the some of the documents which had been put before Fair Work Australia were “questionable to say the least”. It was unresolved and, as Mr Smart put it, “interesting”, as to who may have signed or initialled the documents in question, or why.

[54] Mr Smart also submitted he was bound to note that the respondent had not proposed to rely on statements of evidence that had been filed and served in support of the respondent’s case and that the usual inferences could be drawn.

Conclusion as to alleged unfairness

[55] On the basis of what has been advanced in the evidence and submissions, I am satisfied the applicant has established a case that he was unfairly dismissed and that he should have a remedy in his favour. No grounds or substantial grounds for the summary dismissal have been supported on the evidence and the applicant was not afforded procedural fairness in connection with the dismissal. The dismissal was, I accept, harsh, unjust and unreasonable.

Compensation

[56] As reinstatement would be inappropriate here, given it was not sought as a remedy and the applicant has obtained alternative employment (and reinstatement was otherwise opposed by the respondent), I consider that an order for compensation in lieu of reinstatement is appropriate in all the circumstances of the case. As such, I turn now to the matters required to be considered in relation to an order for compensation.

[57] The effect of the order on the viability of the employer’s enterprise: There was no evidence as to the effect of any order for compensation on the viability of the respondent’s enterprise.

[58] The length of the person’s service with the employer: The applicant was continuously employed at the Booyong site from 17 September 2007 until his dismissal by Mr Balint on 29 March 2011, although it is not entirely clear whether the employment was always with the respondent now identified by Mr Tilbury as the correct respondent corporate entity for the purposes of these proceedings.

[59] Remuneration received, mitigation etc: I have considered the evidence and submissions as to the remuneration that the applicant would have received, or would have been likely to receive, if he had not been dismissed; the efforts of the applicant to mitigate the loss suffered because of the dismissal (which included registration with a job network agency, directly approaching employers in the area, applying for various positions advertised in newspapers and on the internet, and obtaining training to improve his skills and accreditation); and the amount of remuneration earned by the applicant from the alternative employment he obtained after a period of unemployment. Despite Mr Smart’s submission seeking consideration for such an amount, I make no order for interest.I note that the applicant was also in receipt of unemployment benefits for some period of time before he obtained alternative employment. Arising from that, the applicant will be expected to inform the relevant government agency of the order for compensation.

[60] Any other matter that FWA considers relevant: The calculations for the amount claimed by the applicant were fairly and properly outlined in the oral submissions made by Mr Smart. The claimed amount is not, in my assessment, to be considered to be ambit in nature or otherwise inflated.

[61] Misconduct reduces amount: The evidence does not support a conclusion that the applicant misconducted himself in a way that relevantly would lead me to the conclusion there should be any reduction in the order for compensation.

[62] Shock, distress etc. disregarded: The order for compensation made in favour of the applicant does not, although broached by Mr Smart, include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the applicant.

Conclusion as to compensation

[63] The calculations supporting the amount sought by way of an order for compensation were addressed in the evidence and elaborated in the submissions. Having assessed those matters in the context of the relevantly applicable principles and statutory provisions, I am satisfied it is appropriate to make an order for compensation in the amount sought by the applicant, namely $10,560.00. An order to that effect has been issued in conjunction with the publication of this decision.

Costs

[64] Mr Smart foreshadowed an application for costs. Unless any such application is made within 14 days of the date of this determination, I will then treat the proceedings as concluded and close the file.

COMMISSIONER

Appearances:

P Smart of Counsel for the applicant.

P Tilbury, Principal Consultant HR Genie Pty Ltd, for the respondent.

Hearing details:

2011

Lismore

2, 3 August

Printed by authority of the Commonwealth Government Printer

<Price code C, PR513372>