Mr Abdul Bashit v Versace Australia's Best Tyres, Automotive Services and Repairs
[2010] FWA 8790
•12 NOVEMBER 2010
[2010] FWA 8790 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Abdul Bashit
v
Versace Australia's Best Tyres, Automotive Services and Repairs
(U2010/6480)
VICE PRESIDENT LAWLER | MELBOURNE, 12 NOVEMBER 2010 |
Termination of employment -.
[1] This is an application pursuant to s.394 of the Fair Work Act 2009 for an unfair dismissal remedy. Section 385 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.
[2] The action was commenced against “Charles Gianni Versace trading as Versace Australia’s Best Tyres, Automotive Services and Repairs”. It is common ground that Mr Versace was not the employer of the applicant. An application to amend the application for an unfair dismissal remedy was allowed to substitute the correct name of the applicant’s employer, namely, Versace Australia’s Best Tyres & Automotive Services Pty Ltd (ACN 086 353 988). Mr Versace is the sole director of the respondent and its effective controller.
[3] The applicant has been employed as a tyre fitter at the same business premises for more than eight years. The business in which he was employed was taken over by the respondent in about 2006. The applicant’s employment was taken over at that time and continued until 11 February 2010.
[4] It is common ground that the applicant ceased working in the respondent’s business on 11 February 2010. However, there is a sharp divergence in relation to the circumstances in which that occurred. The applicant claims that he was subject to an unprovoked verbal and physical attack by Mr Versace who told him “you’re fired”. The respondent denies that it dismissed the applicant and contends that the applicant resigned or abandoned his employment. In particular, while Mr Versace accepts that there was a “scuffle” between them, he claims that it was the applicant who attacked him and then left saying “That’s it, I’m leaving”.
[5] The Tribunal has no jurisdiction to grant an unfair dismissal remedy unless, amongst other things, the applicant was dismissed by the respondent within the meaning of s.386 of the FW Act. Section 386 relevantly provides:
386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
[6] The account of events given by the applicant in his statement filed before the hearing was as follows:
2. On 11 February 2010 at approximately 11.15 AM I noticed a man known to me as Motahed was speaking to Charles Versace (the sole director of one of the Employer company). Motahed was known to me as the father of Ali. Ali was also a tyrefitter employed by the Employer and whose employment had been terminated by Charles Versace a short time before 11 February 2010.
3. After Charles Versace has finished his conversation with Motahed I went over to Motahed and said “Hello, how are you? How’s your family?” He replied “Fine, we are all well.” That was all that was said. He then walked out of the premises.
4. At approximately 1.15 PM I returned from my lunch break and Charles Versace called me over to see him. The conversation was as follows:
Charles | “What were you saying to Ali’s father earlier?” |
Me | “I just said hello him and asked him how he was going.” |
Charles | “You’re a liar, you fucking shit Muslims, you’re a son of a bitch, fucking black shit, get in your car and get out of here, you’re fired.” |
Me | “Why are you saying this, what’s wrong with my religion? What have I done? Aren’t you supposed to give me notice for sacking me?” |
Instead of answering me Charles Versace then started punching me in the head. He hit me at least twice on the side of my head and jaw. I immediately got in my car and left. As I did so Charles Versace ran after me to attempt to hit me again but was restrained by Gino Varriale and Chris (one of the mechanics).
5. I reported the assault to Campsie Police. Attachment “A” is an incident report notification from Campsie Police. 1
[7] The applicant presented as a quiet, mild-mannered man. I was generally impressed with his evidence. The applicant adhered to the essence of this account in his oral evidence. He gave additional details, including that the incident happened immediately as he left his car after returning from lunch. The applicant also referred to Mr Versace throwing a water bottle at the applicant’s car as the applicant was leaving: 2
So can you just point to where - or put a circle where you say the assault occurred?---Yes, just right in here, first punch on the left-hand side of head and then he’s pushing and he tried to hit me again and again and then my boss grab him and that Chris grab him. He pushed him away and then I just - my ex-boss say, “Go, go, go, go, go, get in your car. Go get in your car.” Then I'll come just right in there, was close to my car, he punched me again on that chin.
On the right-hand side?---On the right-hand side. Then soon as I get in the car, because I tried to - I saw - so I don’t know what I’m - I got to do, what - I just lost it when he first punched me. I just - I don’t know what I’m - I just - all I remember like that in my head. I thought part of my head blew out, how he did it to me, and then soon as I get in that car and I just - I don’t know what to do.
You start ?---I just start the car.
Yes?---And I run - like, couldn’t do anything much to do and then I just in the car, then he went to the yellow pole. He’s got the water bottle. He has throw into the - my windscreen. I thought my windscreen fell on me.
Yes?---And just - and we both did - I run away. Like, I thought - I don’t know what’s going to happen. I felt terrified.
[8] In the early hours of the morning of 12 February 2010 the applicant passed out. When he regained consciousness he began vomiting. On this point, I accept the evidence of the applicant, corroborated by his house mate, Mr Bhuiyan. I could find no reason not to accept Mr Bhuiyan’s evidence. An ambulance was called and he was taken to hospital. The hospital records for the admission include the following: 3
Thank you for your ongoing care of Mr. Bashit, a 24yo male who presented to ED with headache and vomiting post-assault.
Claims boss at work assaulted pt at 1330 yesterday, punching pt to the left temporal head and jaw numerous times. [?] at scene and drove home. Subsequently lost consciousness for a few minutes. When he regained consciousness [?] profuse vomiting and was brought to ED by ambulance.
[On admission patient complained of] left temporal headache and right jaw pain but nil visual symptoms/paraesthesia/numbness/weakness. Nil [?]
...
Secondary survey- nil injuries noted. Mild left sided neck tenderness. Left temporal tenderness and right angle of [?]
Ax
Head injury post-assault
...
[9] The applicant tendered several photographs taken of him while he was in hospital. 4 Those photographs do not show any obvious injuries although the applicant’s complexion colouring may tend to hide minor bruising. The treating doctor was apparently satisfied that “head injury” was the proper diagnosis notwithstanding the absence of visible injuries.
[10] The account of events given by Mr Versace in his statement 5 filed before the hearing was as follows:
3. On 11 February 2010 I noticed the applicant talking to the father of a former employee. They spoke for at least five minutes. I went up to them and said to the applicant “You can’t talk company business with Ali’s father.” The applicant replied “I’m not, he’s a friend.” I then said “Well please go back to work, we need you on the shop floor.” The applicant replied “What’s wrong with you lately?” I replied “There’s nothing wrong, you just have no right to talk company business with Ali’s father, please go back to work.” The applicant then walked towards me and pushed me in the chest with the palm of his right hand. I responded by slapping the applicant with my left hand to his right cheek. The applicant then said “That’s it, I’m leaving. I want my pay and my holiday pay. I’m going to report you to the police.” The applicant then got into his car and drove off.
[11] Mr Versace’s statement also contains the following:
5. I spoke to the respondent’s office manager the following day and told her that I did not think the applicant intended to return to work. I instructed her to pay the applicant whatever entitlements he had.
6. Some two or three days a later a police officer from Campsie Police came to see me. He said words to the effect “We have received a complaint from Abdul Bashit that you assaulted him on 11 February and I would like to interview you regarding that matter.” I replied “That is not a problem. All that happened was that he pushed me in the chest and I responded by slapping his right cheek.” We had a further short conversation to the effect “I’ll note that you say it was self defence. I doubt you will hear any more about the matter.” 6
[12] It may be noted that, even on Mr Versace’s account, he hit the applicant in the head (albeit that he claims it was in self defence).
[13] If Mr Versace’s account is true then the applicant fabricated a contemporaneous complaint to police and engaged in a wholly or materially fabricated visit to the hospital in the early hours of 12 February 2010. This is improbable. No motive was suggested by Mr Versace as to why the applicant would behave in that way and no motive emerged from the evidence.
[14] It was common ground between the applicant and Mr Versace that there were several witnesses to the incident. Mr Gino Varriale 7 and an employee by the name of ‘Chris’. Neither the applicant nor the respondent sought to call either of these persons as a witness. Given the difficulty associated with deciding between the utterly inconsistent oral evidence of the applicant and Mr Versace, and the absence of any documents that substantially assisted in resolving that conflict I thought it desirable to endeavour to hear evidence from Mr Veriale and/or ‘Chris’. Each of those persons was contacted by phone by my associate and invited to give evidence by telephone. Mr Varriale agreed. ‘Chris’ refused. I place no significance on that refusal one way or the other.
[15] Mr Varriale gave evidence by phone. Mr Versace noted that he and Mr Varriale had been business partners and that they were in dispute over a relatively large sum of money said to be owed by Mr Varriale to Mr Versace. He was concerned that Mr Varriale, because of ill will towards Mr Versace arising from their commercial dispute, may give evidence that was biased against the respondent or otherwise untruthful.
[16] Mr Varriale was asked by me whether he recalled the incident in question and give his account of it. Each of the applicant and Mr Versace were given an opportunity to cross-examine Mr Varriale. In the event, it was far from clear to me that Mr Varriale was hostile to Mr Versace and I gained the impression that, if anything, Mr Varriale was being cautious not to slant his evidence against Mr Versace. Relevantly, Mr Varriale’s evidence was as follows: 8
Well, this happened so quick. Charlie was upset with Abdul about the matter happened in the workshop and where were things. I’m not quite sure exactly what happened but Charlie was very, very upset with Abdul and we were just sitting outside the carpark, me, Charlie, and I think it was a guy by the name of Chris the mechanic. Abdul at that time had lunch with his car - I think it's a blue Magna - for half an hour. At that time we were just talking outside, me and Charlie and I think even Chris, but it happened so quick, and Abdul came back from lunch which - his car is about five - four, five metres away from us and Charlie sort of just was very, very angry upset with Abdul and just told him to get out, you know, was very angry, upset about some matters and Abdul, you know, his English, like, wasn’t very - well, mine is not (indistinct) either but, you know, “What’s wrong? What’s the matter?” Well, things like that, and then Charlie was just getting more angry and angry, that's when (indistinct) and I think there was a plastic bottle of water thrown on the floor in his car. Like I said, it just happened so quick and then I had to sort of - well, split up or - Charlie had not actually punched but he was telling him, you know, just told him to get out and there was some shoving and pushing and, I don't know if the elbow hit his face, his nose, his head, I’m not sure. You know, it just happened so quick. Tried to stop him - “Get in the car and just get out,” and that’s all I remember.
[17] Mr Varriale emphasised repeatedly that the incident happened quickly, implying that he was unable to remember every detail with precision. However the following emerged from his evidence:
- The incident was initiated by Mr Versace. 9
- Mr Versace was angry 10, Mr Bashit was surprised.11
- Mr Versace did make reference to the applicant being a Muslim and the applicant objected to this. 12
- Mr Versace did not use the word “fired” but told the applicant to “get out”. 13 He also agreed that the applicant said words to the effect: “Aren’t you supposed to give me notice for sacking me?”14
- Mr Varriale did not recall any punching (and he observed that, as a former boxer, would have remember punching). There may have been an elbow to the head. 15 He recalled the applicant saying “my face” but did not see any blood.16
- He had to restrain Mr Versace. 17
- A bottle of water was thrown by Mr Versace 18
[18] Mr Varriale rejected Mr Versace’s essential account when it was put to him without explicitly identifying it as Mr Versace’s account. 19
[19] I find that Mr Varriale was doing his best to tell the truth. His evidence is corroborative of fundamental aspects of the applicant’s account and wholly inconsistent with the fundamentals of Mr Versace’s account.
[20] Mr Versace did make some points in cross-examination of the applicant. However, they were not such as to cause me to alter my view that the applicant was giving reliable evidence in relation to the essentials of his account of what occurred.
[21] Mr Versace relied upon the fact that the police had decided to take no action against him in response to Mr Versace’s complaint. I do not regard this as a matter to which much weight should be attached. There was no evidence from the relevant officer as to why that decision was made. Given the relatively minor nature of the assault (from a police perspective) and the absence of any significant injuries, together with the fact that Mr Versace was claiming to have acted in self defence in response to a physical assault initiated by the applicant, it would be unsurprising if the investigating officer concluded that there were insufficient prospects of proving the assault alleged by the applicant to the criminal standard of proof beyond reasonable doubt.
[22] During cross-examination Mr Versace put his version of the events of 11 February 2010 to the applicant and accused him of saying after the “scuffle” in a “yelling form”: 20
I’m not coming back. Fuck you and you Australian shitheads and you Christians. They should have hung Jesus Christ upside down like you...”
[23] I was struck by the spontaneous authenticity of the applicant’s intense rejection of that suggestion. I note that Mr Versace did not refer to this alleged abuse by the applicant in either the F8 Employer Response form, or in his ‘statement’ filed in accordance with the directions. It may be thought that if the applicant had engaged in racial and religious abuse of this sort then it would have found its way into the statement at least. I am satisfied that Mr Versace fabricated that accusation.
[24] On the version put by Mr Versace in cross-examination there were two incidents involving pushing by the applicant. The first occurring earlier in the morning of 11 February 2011. Again, this is not a matter that was referred to in Mr Versace’s statement when, if it were true, one would have expected it to be included.
[25] From these and other aspects of Mr Versace’s evidence and conduct of the respondent’s case, together with my assessment of demeanour, I formed a particularly negative view of Mr Versace. I concluded that Mr Versace was not a reliable witness. Indeed, I gained the impression that he would say anything that he thought would advance the respondent’s case, without regard to whether or not it was the truth.
[26] In relation to whether Mr Versace told the applicant that he was “fired” I find that that word was used but that it was not noted by Mr Varriale. Why else would the applicant have said, to Mr Varriale’s recollection, “Aren’t you supposed to give me notice for sacking me”? However, even if the word “fired” was not used by Mr Versace I am satisfied that there was a termination at the initiative of the employer. There is nothing magical about the word “fired”. I proceed on the basis that a termination of employment at the initiative of an employer within the meaning of s.386 does not require that specific word (or the word “terminated” or “dismissed”) to be used provided the employer has said or done things that make it objectively clear to the employee that the employment is terminated. I am satisfied that, even if the word “fired” was not used, that is what occurred in this case.
[27] In summary, I find that the applicant’s employment was terminated at the initiative of the respondent through the agency of its director and effective controller, Mr Versace.
[28] Section 387 of the FW Act specified the criteria that FWA must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable. I turn to consider those criteria.
Section 387(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)
[29] Having essentially accepted the applicant’s version of events it follows that I find that there was no valid reason for the dismissal related to the applicant’s capacity or conduct arising out of the events of 11 February 2010. I have considered whether the applicant’s brief exchange of pleasantries with Motahed, Ali’s father, provided a valid reason in the sense of a reason that is “sound, defensible or well founded” 21 and find that it most certainly did not.
[30] The respondent also alleged that the applicant effectively stole a set of tyre rims belonging to the respondent and, on one view, sought to rely on that conduct as well. Apparently the respondent has brought proceedings against the applicant in the local court in relation to that allegation. I accept the applicant’s denial that he engaged in the conduct alleged against him. In short, I am not satisfied on the evidence before me that the applicant engaged in the conduct alleged and, consequently, conduct that could constitute a valid reason for the applicant’s dismissal.
Section 387(b): whether the person was notified of that reason
[31] There was no valid reason on 11 February 2010 for the applicant to be notified of.
Section 387(c): whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[32] This factor is not applicable.
Section 387(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
[33] This factor is not applicable.
Section 387(e): if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[34] This factor is not applicable.
Section 387(f) and (g): 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 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
[35] The respondent is a relatively small business without dedicated human resources manager specialists or expertise. It would be a travesty to describe what occurred in this case as the following of procedures.
Section 387(h): any other matters that FWA considers relevant.
[36] A reference attached to the application suggests that the applicant was a very good employee.
[37] For the reasons I have given I am satisfied that the dismissal was harsh, unjust or unreasonable. Obviously, the dismissal was not consistent with the Small Business Fair Dismissal Code and the dismissal was not a case of genuine redundancy. It follows that I find that the applicant was unfairly dismissed.
Remedy
[38] Section 390 of the FW Act provides:
390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
[39] I am satisfied that the applicant was protected from unfair dismissal and was unfairly dismissed. The applicant, understandably enough, does not seek reinstatement and I am satisfied that reinstatement is not appropriate. I am satisfied that a remedy in the form of compensation is appropriate in all the circumstances of the case.
[40] In determining the amount of compensation I am required to take into account all of the circumstances of the case including, in particular, the matters specified in s.392(2). I turn to consider those matters:
Section 392(2)(a): the effect of the order on the viability of the employer’s enterprise
[41] There is no evidence on which I could find that the order I proposed will have an adverse effect on the viability of the employer’s enterprise. Mr Versace noted that the business turns over $4 million a year. 22
Section 392(2)(b): the length of the person’s service with the employer
[42] The applicant has been employed by the respondent since it took over the business in the 2006 and had worked for some six years in the business prior to that time.
Section 392(2)(c): the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed
[43] I am satisfied that if the applicant has not been unfairly dismissed he would have continued working in the business indefinitely.
Section 392(2)(d): the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal
[44] I am satisfied that the applicant made real efforts to mitigate his loss by seeking alternative employment. He was eventually successful and obtained a full-time job as a tyre fitter at Bob Jane. That job, which paid more or less what the applicant was earning in his employment with the respondent, commenced about a week before the final day of hearing on 24 August 2010.
Section 392(2)(e): the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation
[45] Apart from two weeks work in a bakery, the applicant was unemployed for the period from 12 February 2010 to about 17 August 2010. The applicant earned about $658 from his work at the bakery.
Section 392(2)(f): the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation
[46] The applicant has been earning a full time income as an employee of Bob Jane at an hourly rate similar to the hourly rate that he earned whilst employed by the respondent.
Section 392(2)(g): any other matter that FWA considers relevant
[47] While I have considered all the circumstances of the case there are no other matters of particular relevance that I consider warrant mentioning under this head.
[48] I am satisfied that the proper level of compensation is the wages lost in the period 12 February 2010 to 17 August 2010 (a period of about 26 weeks) assuming that the applicant had continued working for the respondent. I had no clear evidence of the hours usually worked by the applicant. I will proceed on the basis of the standard full time hours of 38 hours per week. There will be an award of compensation in the amount of $14,656 (38 hours per week x $15.50 per hour x 26 weeks less $658 earned in the bakery).
VICE PRESIDENT
Appearances:
The applicant appeared in person.
C. Versace, Director, appeared for the respondent.
Hearing details:
2010.
Sydney:
July 9.
August 24 via telephone.
1 Exhibit 1, Witness Statement of A. Bashit.
2 Transcript, 9 July 2010 at PN478-PN482.
3 Exhibit 4 - it may be noted that the copy of the hospital notes “cut” off the extreme right edged of the writing printed on the page. Missing words are indicated thus are indicated by the following: [?]
4 Exhibit 3.
5 Exhibit B, Statement of evidence of C. Versace.
6 Ibid.
7 Mr Varriale’s name is spelt differently in the transcript. The correct spelling of his name appears on a reference attached to the application for an unfair dismissal remedy.
8 Transcript, 24 August 2010 at PN765.
9 See also Transcript, 9 July 2010, at PN800-804.
10 Ibid at PN781, PN806.
11 Ibid at PN781.
12 Ibid at PN806-7.
13 Ibid at PN806, PN821.
14 Ibid at PN808.
15 Ibid at PN791-2, PN809-10.
16 Ibid at PN796.
17 Ibid at PN774.
18 Ibid at PN765. Note: the transcript, when first produced, recorded at PN748 Mr Varriale saying that the water bottle was thrown by the applicant. Counsel for the applicant sought to have this transcript corrected. I listened to the tape and I am satisfied that the answer to the relevant question referred to Mr Versace, not the applicant.
19 Ibid at PN800.
20 Ibid at PN1046.
21 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.
22 Transcript, 9 July 2010, at PN1596.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR503907>
1