Mr Anthony James Ridout Woodforde v MSB Welding Contractors Australia T/A Arana Steel

[2010] FWA 8006

[2010] FWA 8006

FAIR WORK AUSTRALIA

DECISION

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

Mr Anthony James Ridout Woodforde
v
MSB Welding Contractors Australia T/A Arana Steel
(U2010/6732)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 18 OCTOBER 2010

Summary: termination of employment - abusive and violent language - small business unfair dismissal code - summary termination - held that no requirement to contact Police to validate the legitimacy of concern or reasonableness of belief.

[1] In this matter, Mr Anthony Woodforde (“the Applicant”) has made application under s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy in relation to the termination of his employment, which he alleges took place on 23 February 2010. The Applicant alleges that on this date he was dismissed by his employer, MSB Welding Contractors Australia T/A Arana Steel (“the Respondent”), for which he performed duties, for the most part as a casually-engaged welder (though from 9 November 2010 as a full time employee). 1

[2] The Respondent initially raised an objection in relation to whether the Applicant had had met the minimum employment period for purposes of s.383 of the Act. However, it later conceded that the Applicant’s period of employment with the former owner of “Arana Steel” was recognised when the Respondent purchased the business (see ss.311 and 384(2)(b) of the Act) and as a consequence, the Applicant had completed the minimum employment period.

[3] It was also uncontested that the Applicant was a small business employer for the purposes of s.23 of the Act, and as such employed fewer than 15 full time equivalent employees. The evidence of Ms Sabrina Blattman was supportive of this conclusion. Even on the worst case scenario, so speak, that all the Respondent’s Directors were employees and all casuals were to be counted as full time equivalent employees, the Respondent still employed at the relevant time fewer than 15 employees for the Act’s purposes. 2

[4] The Applicant, appeared at a general level, to contend that the Respondent terminated his employment for reason he “was going on” workers’ compensation. 3

[5] The Applicant stated that in October 2009 he contracted a skin condition as a result, he claimed, of working in the Murrumba Waste Water Treatment Plant.

[6] The Applicant sought medical treatment for the condition (in late December 2009) and claims that he made his condition known to the Respondent in October 2009 and then again on 5 January 2010. It appears the condition was expressed by a skin rash and the Applicant complained of some side effects from the medication. 4 The Applicant contends that the informed the Respondent of the prospect that he would make an application for “workers’ compensation”.5

[7] The Applicant further contends that he was urged to not make such an application by Mr Matthew Blattman, a Director of the Respondent. 6 The Respondent is said to have offered to meet his medical expenses privately rather than risk an increase in premiums.7

[8] The Respondent’s version of these particular events is different.

[9] Mr Blattman gave evidence that he had been informed by the Applicant of the rash on his arm on 9 December 2009 but that the Applicant was yet to see a medical practitioner. 8

[10] Mr Blattman claimed that the Applicant told him on or about 7 January 2010 that he had seen a medical practitioner and was taking medication and that the rash was improving. 9

[11] A week later Mr Blattman stated that the Applicant informed him that he had ceased taking the medication owing to its side-effects. 10

[12] Mr Blattman’s evidence was this was the only time that the Applicant had mentioned any medical practitioner appointments or medication issues with him: a claim which is at odds with the Applicant’s version of events as set out below. 11

[13] The Applicant, according to Mr Blattman, did not attend duties from 1 February 2010. On that date, the Applicant stated that he had informed the Respondent that he would not be coming into work for a period of a few days for reason of seeking treatment for his arm condition.

[14] Mr Blattman’s entry record for 1 February 2010 states, in effect, that the Applicant came back from a job in an “abusive mood” and left without saying what he was doing. 12 Mr Blattman’s diary entry for 2 February 2010 records that the Applicant did not attend for work and did not make contact with the Respondent.13

[15] On the 3 February 2010, the Applicant claims that upon contacting Mr Blattman’s office by telephone he was informed by Ms Myra Thompson that Mr Blattman had confirmed his intention to reimburse him for what appear to be out of pocket expenses for his medications. 14

[16] The Applicant then entered into a series of telephone conversations with the Respondent about his remuneration.

[17] The first of these was on 4 February 2010 when the Applicant states that he telephoned Ms Thompson, who performed payroll duties, about why he had not been paid for the previous week. He then telephoned Mr Andrew Gillon about the same issue, and informed him that his timesheets were in his toolbox. 15 There is some corroboration for the content of this telephone call in Mr Blattman’s diary records..16

[18] Mr Blattman recalled Mr Gillon mentioning to him that the Applicant had mentioned a medical certificate and a perhaps matter relating to “results”, but other than that there was no explanation for why the Applicant had been absent from work. 17

[19] The next day, 5 February 2010, the Applicant telephoned Mr Blattman on his mobile telephone and made a similar complaint. He did so because his pay had not been transferred into his account despite his approach to Mr Gillon the previous day. 18 It appears Mr Blattman redirected the Applicant back to Ms Thompson.

[20] The Applicant then spoke with Ms Thompson, who, according to the Applicant, stated that he could not be paid until she had evidence of his time sheets, which recent policy changes required that he supply these before payment could be made. 19

[21] The Applicant contended he informed Ms Thompson that he had told Mr Gillon the previous day where his time sheets could be found. He also states that he sought payment for days off work seeking treatment for his skin condition and reimbursement for his medical expenses. 20

[22] The Applicant also inquired why he had not been paid when Mr Blattman had been paid and they had both worked on the same job and completed a common time sheet. 21 It appears, at least, the reason for this was that Mr Blattman was on a salaried arrangement.22

[23] The Applicant then inquired of Ms Thompson why Mr Blattman’s wife had been “dissing me out”. The Applicant also accused Ms Thompson of “bagging him out to others”. 23 Ms Thompson is said to have volunteered to make inquires on the Applicant's behalf.24

[24] Ms Thompson, whose statement in evidence was tendered by the Applicant, stated that the Applicant had been “very upset” and had “become quite aggressive on the phone and [had] verbally abused” her. 25

[25] Ms Thompson further claimed that the Applicant had “verbally abused” her.

[26] Ms Thompson said that she had “stood her ground” and refused to pay the Applicant as she did not have the necessary time sheet data. The Applicant, Ms Thompson said, threatened to come in and “sort [her] out”. The evidence led in these proceedings suggests that the time sheet Ms Thompson had before her from the Applicant was blank.

[27] Ms Thompson, who was seemingly considerably affected by the incident reported the Applicant’s conduct to Mr Blattman and stated that she intended to resign. Mr Blattman talked her out of so doing and invited her to take the following week off work. 26

[28] A file note Ms Thompson created and signed the next day concerning the incident reads as follows in part:

“[...] I explained to Tony that I couldn’t pay him if I don’t have any time sheets from him and he continued to abuse me by saying that he was going to come in and sort me out. [...] Andrew then told me to just pay him for a 40 hour week. I believe the way Tony spoke to me was totally unjustified as all employees were issued with a letter in January explaining the rules of time sheets and when they had to be handed in. [...] Please accept this as a statement of what happened on the 5th of February 2010 and also as my letter of resignation. I love working for MSB Welding but do not want to be there incase Tony rings again.” (sic) 27

[29] The Applicant also led in these proceedings a statement from Ms Thompson. In that statement, despite it being led into evidence by the Applicant, Ms Thompson stated:

“The next morning I received a phone call from Anthony who was very upset. He advised me that he had still not been paid for the previous week. Anthony became quite aggressive on the phone and he verbally abused me.

I stood my ground on the phone and explained to Anthony that his pay had not been processed because I had not received his time sheets in accordance with the pay change letter issue[d] to all employees of MSB Pty Ltd in mid January 2010. Anthony continued to abuse me and told me he was going to “come and sort me out”. He also accused me of “bagging him out” to others.” 28

[30] A diary entry retained from Mr Blattman (which is discussed more fully below) supplements this evidence. In this entry Mr Blattman records speaking to Ms Thompson immediately after the telephone call from the Applicant:

“Myra was crying and could hardly breathe and told me Tony had abused her and was going to sort her out.”

And

“Myra had told me latter on that day that she could not deal with the stress from what has happened with the office tension due to Amber resigning and to top it off Tony making personal violent threats.” (sic) 29

[31] Ms Thompson’s sister, Naomi Thompson, was seated beside her during the telephone call with Mr Blattman. She gave evidence of exchange from her sister’s side of the conversation and her evidence corroborated Mr Blattman’s evidence about the impact of the telephone call on her sister. Ms Naomi Thompson recalled her sister being effectively unable to talk after the telephone call. 30

[32] The Applicant, despite relying on Myra Thompson’s evidence in these proceedings, maintained with Myra Thompson was untruthful. 31

[33] Mr Matthew Blattman, according to the Applicant, telephoned him back after his call to Ms Thompson and explained that he had been paid because he was on salary, whilst the Applicant was not. Mr Blattman otherwise informed the Applicant that the matter would be sorted out. 32

[34] The Applicant then informed Mr Blattman that his medical practitioner had counselled him to have two weeks rest whilst he undertook medication for the treatment of his skin condition. Mr Blattman is said to have agreed with this course. 33

[35] The Applicant claims that at no point did he ever make any threatening or racial comments to any one. 34 The Applicant admitted to being “quite frustrated” and “firm in his conversations with” Ms Thompson and Mr Blattman (which are discussed immediately below).35

[36] Mr Blattman’s diary entries reveal a different conversation to that presented by the Applicant. That is the conversations were said to have gone well beyond being “firm” and evincing a measure of understandable “frustration”.

[37] Mr Blattman’s diary entries record the Applicant as having telephoned Mr Blattman around 10.00 am on Friday 5 February 2010 and having been “abusive” for reason of not being paid in a timely way. Mr Blattman’s record of the conversation has the Applicant telling Mr Blattman that he was “a smart c..t” and that he (the Applicant) was going to “f..k me up”. The Applicant, according to the diary entry, invited Mr Blattman to “meet him somewhere” because he is “going to punch me out”.

[38] The diary entry records Mr Blattman as defending the policy on time sheets while the Applicant states that:

“You are f..ked, your f...ing Myra, you’re a week c..t I know where she lives and myself, to watch my back (sic).” 36

[39] Mr Blattman then claims that he rang the Applicant back and the Applicant informed him that he:

“is going to shut down my business and take me for everything I had.”

[40] The diary entry further reads:

“He said that he was going to claim compo for 3-6 months so my premiums would go through the roof. He left the conversation by I am going hurt you, your family & business so bad you won’t know what happened. He was being rasis and degrading when talking about Myra. I suspect he might have been drinking from the previous nite with the way he was talking & burping on the phone. He may also have been on drugs, because this side of Tony I have never seen & is out of character for him.” (sic) 37

[41] On Monday, 8 February 2010, the Applicant stated that he telephoned Mr Gillon once more. This time the Applicant was seeking “further money I was owed for time off and expenses regarding my medication.” 38

[42] On Wednesday, 10 February 2010 the Applicant stated that he telephoned Mr Gillon and informed him that he would be coming into the work shop to see him about reimbursement for the expenses. 39 The Applicant claimed that upon doing do so he was informed by Mr Gillon that Mr Blattman would telephone him.40

[43] No such call emanated, according to the Applicant, and he telephoned Mr Blattman himself on 12 February 2010. Mr Blattman undertook, it was said, to have funds transferred into his account. 41 Mr Blattman telephoned him back that same day and told him that he, the Applicant, should make a WorkCover claim (which the Applicant said he had wanted to do on 5 January 2010 when he was counselled by Mr Blattman, as he alleges, not to do so).42

[44] The Applicant stated that he became “quite upset” at being so advised. 43

[45] Mr Blattman’s diary entry records a different sequence of events and different content in some respects. The entry for 19 February 2010 reads:

“Tony rang at 8.30 am told me he had not received any money for his medication and hadn’t bothered to ring to see how he was going. Told him I would sought it out today. Tony told me he is going to “f..k me up” when he see me and how I’ve tryed to screw him over.

11.30 am Rang Tony back and told him what to do through work cover as no money would go into his account because it had gone legal. He replied you have screwed me over again. Wait intill I see you. Where are you I’ll meet you to sort this out. I told him my location but no sign of him.” (sic) 44

[46] Mr Blattman thereafter claims that he contacted both Workplace Health and Safety Queensland and his solicitor about the Applicant's threatened course of conduct. 45

[47] The Applicant claims that he was in contact with Mr Gillon between 12 and 22 February 2010. 46 On 22 February 2010 the Applicant spoke by telephone to Mr Gillon and advised him that he was returning to work the next day with his medical practitioner’s approval. He was advised by Mr Gillon to attend at the Murrumba Downs Waste Water Treatment Plant.47

[48] Mr Gillon, for his part, recalls the conversation of 22 February 2010 with the Applicant but drew no inference from it that the Applicant would be returning to work as an employee of the Respondent or that he had permission to return to work. 48

[49] Mr Blattman’s evidence was that the Applicant contacted him on 22 February 2010 and informed him that he was coming into collect his hard hat and glasses and that he was going to work for another named employer. 49

[50] Whilst in attendance at the facility the next day, the Applicant represented himself as an employee of the Respondent. This led to a query from the site supervisor (a third party) why three of the Respondent's employees were on site when only two were required.

[51] The Applicant, given his view of the facts, presumed he was still an employee of the Respondent. The Respondent, given his view of the facts, believed that he had absented himself from his employment or else effectively resigned by way of his prior conduct, and was working for another employer.

[52] The Applicant claims he was subsequently informed by telephone by Mr Blattman that he, the Applicant, was no longer an employee of the Respondent and that the reason for this was that “he was going on workers’ compensation”. 50

[53] The Applicant also stated that Mr Blattman had said words to the effect that:

“Don’t think you are working for me any more, it is my duty of care to look after my employees. I can’t have you back because my staff feel threatened by you. If something happened to Myra I wouldn’t be able to sleep at night.” 51

[54] Mr Blattman was then said to have expressed surprise that Mr Gillon had said nothing to him about these circumstances as he had known that “you were sacked”. 52

[55] Upon agitating the issue, amongst others, of payment for medical expenses, the Applicant claims Mr Blattman stated:

“I am sick of your s..t Tony. I cannot wait to run into you.” 53

[56] Mr Blattman’s version of the telephone call was that he said in reply to the Applicant’s query as to why he was not working for the Respondent, words to the effect that:

“You must be joking. Go and see a doctor.” 54

[57] The Applicant considers the comments by Mr Blattman to have been sufficient to indicate that he had been dismissed. Mr Blattman did not quibble with this at the hearing, though he did appear to be of the view that he believed that the matter, initially, had self-corrected itself by the Applicant having abandoned his employment. This assumption became problematic once the Applicant re-presented himself for work on Friday 23 February 2010, a few days after their telephone conversation (inclusive of a weekend).

[58] The Applicant claimed that he was given no “written warnings” in relation to his conduct. 55 This is unchallenged. The dismissal was taken by all the parties to have been of a summary nature.

[59] The Applicant and Mr Blattman subsequently (that is, after the alleged termination of the Applicant's employment) had an altercation at a petrol station on 12 March 2010. The Applicant said that upon approaching the company vehicle (believing it was another individual driving it) he saw Mr Blattman. The Applicant says Mr Blattman asked whether he still had a problem with him and reached for a shifting spanner. The Applicant states that he “grabbed him” and the two had a “tussle”. 56

[60] Mr Blattman claims that he was set upon by the Applicant at the service station and reported the incident to the Police. 57

[61] The Respondent tendered in these proceedings a Certificate of Conviction from the Sandgate Magistrates’ Court issued on 6 September 2010. The certificate certified that the Applicant had been convicted of the offence of unlawfully assaulting Mr Blattman. 58

CONSIDERATION

[62] Section 387 of the FW Act reads as follows:

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.

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)

[63] In this matter, I have accepted the evidence of the Respondent in relation to the telephone conversations between the Applicant and Ms Myra Thompson and Mr Blattman on 5 February 2010 and 19 February 2010. There are reasons for this.

[64] Firstly, the statement of Ms Myra Thompson as to the impact of the Applicant's telephone call is independently corroborated by the evidence of Ms Naomi Thompson and Mr Blattman. I have set this evidence out above. It is reasonable to infer that Ms Thompson’s reaction to the telephone is for the reasons given in her evidence, which concerns the particularly offensive nature of the Applicant's comments to her. I cannot accept the Applicant's claims that he had an anodyne conversation with Ms Thompson and yet it elicited such an extreme response. Nor can I accept that Ms Thompson’s contemporaneous file note in which she described the terms of the telephone call from the Applicant was fabricated. The evidence in favour of Ms Thompson’s statement (which was led by the Applicant) is interlocking and corroborated and is to be preferred over that the Applicant as to the nature of the telephone call on 5 February 2010.

[65] The situation in an evidentiary sense is somewhat different in relation to the telephone call to Mr Blattman.

[66] Upon my questioning of the Mr Blattman during the course of his cross examination, he revealed that he contacted Workplace Health and Safety after his telephone conversation with the Applicant:

“THE SENIOR DEPUTY PRESIDENT: Can we just come back onto front and centre matters. Can I ask Mr Blattman, did you ever have cause to contact the police in relation to any conduct of Mr Woodforde?---Excuse me, did I?

Ever have cause to contact the police in relation to any conduct of Mr Woodforde?---I actually rang workplace health and safety after the assault, yes I did have contact with the police.

The only time you contacted the police was after the alleged assault - well, the assault in the garage?---That's right.

What about in relation to any telephone calls you received?---Not the police, I rung industrial relations and workplace health and safety.

You spoke to someone at workplace health and safety was it?---I did.

Somebody that was known to you or just - - - ?---No, it's not a number I've got to ring all the time.

Were you given a case number of some sort?---No, I just told them the situation that had gone on and they advised me of what to do.

What did they advise you to do?---They said I had a duty of care to my employees not to allow Mr Woodforde to step on the premises and that I've got to have a safe work environment for all my employees.

Did you use that language later in a telephone conversation?---I would have probably used words to the effect.

In talking to whom?---Mr Woodforde.

At what point?---Around 20 February.”

[67] The Respondent claims that when Mr Blattman acted to terminate his employment he stated relevantly as follows:

“Don’t think you are working for me any more, it is my duty of care to look after my employees. I can’t have you back because my staff feel threatened by you. If something happened to Myra I wouldn’t be able to sleep at night.” 59

[68] This evidence, as led by the Applicant, is supportive of the claim by Mr Blattman that he obtained advice from Workplace Health and Safety Queensland after the conversation of 19 February 2010.

[69] In the ordinary course, it would be unusual to telephone Workplace Health and Safety if the content of the telephone conversation had been benign. Given these circumstances, I can reasonably infer that the Applicant did telephone Mr Blattman on 19 February 2010 and that the content of that telephone call was sufficient to warrant Mr Blattman seeking advice about his rights and duties.

[70] It follows that the content of that telephone call must have been sufficiently disturbing to warrant that course of action, which would not arise in the ordinary course of a civil exchange.

[71] I am able to rely further upon the contemporaneous diary records of Mr Blattman, which I have cited above, to ground a finding that the content of the conversations of 19 February 2010 are as Mr Blattman claimed them to be, or included such content.

[72] It appears to me that the language used by the Applicant in conversing, on 5 February 2010, with Ms Thompson and Mr Blattman and again with Mr Blattman on 19 February 2010 (on two occasions) was personally abusive and commercially threatening. The threat to Mr Blattman also extended to his family’s well-being.

[73] I cannot discern in the evidence a defence on the grounds of sufficient provocation in relation to the sweep of telephone conversations referred to above. It seems that the Applicant might have been of the belief that his employer would provide an offset for medical bills he had incurred, but equally he appears to have had an interest in an unrelated payment to a third party with whom he appears to have a relationship. Regardless of these circumstances, even if they have some element of relevant fact about them, they cannot mitigate the Applicant’s conduct in speaking in abusive and threatening terms to Ms Thompson, who had no role whatsoever in relation to the wider issues that might have come between the Applicant and Mr Blattman..

[74] That is, even if the Applicant had a reason to be frustrated with his employer for misleading him for a period, arguably, or for underpayment, that cannot be an excuse for the course of conduct in which he proceeded.

[75] The nature of the language and threats directed at Ms Thompson and Mr Blattman on 5 and 19 February 2010 are sufficient to establish a valid reason for the dismissal of the Applicant. The abusive language and the threatened actions had a conspicuously serious impact upon the confidences that must underpin the employment relationship and also put at risk the safety and welfare of another employee; Ms Thompson (irrespective of whether the Applicant made amends, as it were, with Ms Thompson at a later point in time).

[76] That is, the valid reason for the dismissal existed in so far as it is taken that the Respondent terminated the Applicant's employment on 23 February, as the Applicant contends occurred.

[77] I make a further comment about the evidence.

[78] It appears to me that there may have been more in the terms of the relationship between Mr Blattman and the Applicant than the evidence as led admits. I say this because the relationship between the two deteriorated at a rate that appeared to me to be artificially steep in the context of the evidence that is before me. At one stage the relationship was such that Mr Blattman invited the Applicant on a fishing trip. 60 The relationship, however, culminated in an assault and court proceedings. I am not entirely confident that all that passed between the Applicant and Respondent has emerged in the evidence.

[79] In light of this, I make a further finding about whether the Respondent had a valid reason for the termination of the Applicant's employment.

[80] Even if I was wrong in relation to the telephone conversations in respect of 19 February 2010, or else if there was provocation on Mr Blattman’s part, the comments directed to Ms Thompson on 5 February 2010 are in their own right sufficient to warrant a finding that there was a valid reason for the termination of the Applicant's employment.

[81] That is, I would have reached the same conclusion as articulated above had I relied only upon Ms Thompson’s evidence, which formed part of the Applicant’s case. In threatening to “sort out” Ms Thompson, a threat which demonstrably distressed her, the Applicant severed the employment relationship and otherwise gave the Respondent reasonable grounds (see discussion immediately below) to consider that the Applicant's conduct warranted summary dismissal.

[82] I have so far considered the issue of whether there was a valid reason for the termination of the Applicant's employment on the basis that I must make finding of fact about the nature of the Applicant and determine whether that conduct warranted dismissal.

[83] As a small business employer within the meaning of s.23 of the Act, however, the statutory test is different, and does not require a finding of fact, as it were, in relation to the conduct that gave rise to the dismissal.

[84] The Small Business Code (“the Code”), which is set out at s.388 of the Act, states that for a dismissal to be deemed fair, it is sufficient, though not essential, that an allegation of theft, fraud or violence or serious breaches of occupational health and safety procedures be reported to the police, so long as there were reasonable grounds for so doing.

[85] It is fair, in my view, for the Respondent to have terminated the Applicant's employment summarily. This is because on the basis of the telephone conversation of 5 February 2010 alone, the Respondent, as a small business employer had reasonable grounds, consistent with the terms of the Small Business Code to believe that that the Applicant’s conduct was sufficiently serious to justify immediate dismissal.

[86] As I have found above, the Respondent had reasonable grounds to consider that the Applicant's conduct warranted summary dismissal. In the circumstances, there was no requirement to validate the legitimacy of that concern or reasonable belief that the Respondent needed to report the conduct to the Police. In any event, the Respondent did telephone a relevant State-based authority about his concerns.

[87] There is an alternative argument before me and that is that the Applicant by his course of conduct evinced an intention as a fact to abandon his employment. I have not had recourse to turn to this argument. This is because the matter is resolved comprehensively on the basis of the acceptance of the Applicant’s claim the employment relationship was terminated at the Respondent's initiative on 23 February 2010 (by refusing the Applicant’s return to work).

[88] Though on the basis of my findings in relation to the Code it is not necessary for me to deal further with this matter, I will provide my views in relation to the further requirements of s.387 of the Act (just as I have done so in considering the requirements of s.387(a) of the Act above). I do for reason of dealing with the application comprehensively.

(b) Whether the person was notified of that reason

[89] Because this was a summary dismissal the conduct of the Applicant was such that no notice was provided.

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[90] The Applicant was not given an opportunity to respond to the Respondent's view as to his conduct.

(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

[91] Because of the circumstances of this application, there were no opportunities for which the assistance of a support person was able to be sought.

(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[92] This application concerned the conduct of the Applicant and not the performance of his duties.

(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

[93] The Respondent's business is a small business as defined at s.23 of the Act. I have found above that the Respondent is a small business employer, for the Act’s purposes. It is likely that this fact impacted on the manner of the execution of and the procedures applied in relation to the dismissal. But this matter was not dealt with as a matter of evidence beyond the employer’s status as a small business employer in its own right.

(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

[94] The Respondent's business is a small business as defined at s.23 of the Act. It does not have any human resource specialists. It is likely this circumstance effected the procedures followed in respect of the dismissal, though this is not an observation which relies on any evidence but for the fact of the employer’s status as a small business employer.

(h) Any other matters that FWA considers relevant

[95] I have had regard to the Applicant's period of service with the employer as it continued upon the purchase of the business.

[96] I acknowledge that it is common ground that the Applicant suffered a skin complaint on his arm that required medical treatment, and he took medication, possibly for a limited period in relation to the skin complaint. It is possible that medication may affect a person’s temperament, but the Applicant's submissions do not promote this possibility whatsoever in his circumstances.

CONCLUSION

[97] Given the above discussion, in my view, the Respondent had a valid reason for terminating the Applicant’s employment and the contextual circumstances are such that the dismissal was not harsh, unjust or unreasonable.

[98] Further, and in any event, as a small business employer, the Respondent had reasonable grounds for its belief that the Applicant’s conduct was sufficiently serious to warrant or justify immediate dismissal. The decision to dismiss the Applicant was not unfair for that reason.

[99] Out of abundance of caution, I note further that the failure to accord procedural fairness in relation to giving notice of the dismissal and an opportunity to respond to the reason for the dismissal does not, in the egregious circumstances of this application, render the dismissal harsh, unjust or unfair. Indeed, given the findings I have made in relation to the Code, such matters are not relevant in any event.

[100] I therefore dismiss the application under s.394 of the Act.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr A. Woodforde for himself

Mr A. Herbert of Counsel instructed by Hall Payne Solicitors for the Respondent

Hearing details:

2010.

Brisbane.

October 11.

 1   Statement of Mr M Blattman dated 25 May 2010 at PN 31

 2   Transcript of Proceedings dated 11 October 2010 at PNS 272-273

 3   Statement of Mr A Woodforde dated 31 May 2010 at PNS 13 and 74

 4   Statement of Mr A Woodforde dated 31 May 2010 at PNS 15-27

 5   Statement of Mr A Woodforde dated 31 May 2010 at PNS 28

 6   Statement of Mr A Woodforde dated 31 May 2010 at PNS 28-29

 7   Statement of Mr A Woodforde dated 31 May 2010 at PN 29

 8   Statement of Mr M Blattman dated 25 May 2010 at PN 31

 9   Statement of Mr M Blattman dated 25 May 2010 at PN 34

 10   Statement of Mr M Blattman dated 25 May 2010 at PN 35

 11   Statement of Mr M Blattman dated 25 May 2010 at PN 45

 12   Supplementary Statement of Mr M Blattman affirmed 11 October 2010 at Annexure MB-4

 13   Supplementary Statement of Mr M Blattman affirmed 11 October 2010 at Annexure MB-4

 14   Statement of Mr A Woodforde dated 31 May 2010 at PNS 40-42. See also Mr Blattman’s diary record of the same day Supplementary Statement of Mr M Blattman affirmed 11 October 2010 at Annexure MB-5.

 15   Statement of Mr A Woodforde dated 31 May 2010 at PNS 46-47

 16   Supplementary Statement of Mr M Blattman affirmed 11 October 2010 at Annexure MB-5

 17   Statement of Mr M Blattman dated 25 May 2010 at PNS 49-50 and MB-6

 18   Statement of Mr A Woodforde dated 31 May 2010 at PN 49

 19   Statement of Mr A Woodforde dated 31 May 2010 at PN 50; Statement of Ms M Thompson dated 28 May 2010 at PN 19; Supplementary Statement of Mr M Blattman affirmed 11 October 2010 at Annexure MB-13

 20   Statement of Mr A Woodforde dated 31 May 2010 at PN 52

 21   Statement of Mr A Woodforde dated 31 May 2010 at PN 53

 22   Transcript of Proceedings dated 11 October 2010 at PN 378

 23   Statement of Ms M Thompson dated 28 May 2010 at PN 19

 24   Statement of Mr A Woodforde dated 31 May 2010 at PN 55

 25   Statement of Ms M Thompson dated 28 May 2010 at PN 18

 26   Statement of Ms M Thompson dated 28 May 2010 at PNS 23 and 25

 27   Supplementary Statement of Mr M Blattman affirmed 11 October 2010 at Annexure MB-7

 28   Statement of Ms M Thompson dated 28 May 2010 at PNS 18-19

 29   Supplementary Statement of Mr M Blattman affirmed 11 October 2010 at Annexure MB-6

 30   Transcript of Proceedings dated 11 October 2010 at PNS 641-646

 31   Transcript of Proceedings dated 11 October 2010 at PN 143

 32   Statement of Mr A Woodforde dated 31 May 2010 at PN 55

 33   Statement of Mr A Woodforde dated 31 May 2010 at PN 57

 34   Statement of Mr A Woodforde dated 31 May 2010 at PN 58

 35   Statement of Mr A Woodforde dated 31 May 2010 at PNS 56 and 59

 36   Supplementary Statement of Mr M Blattman affirmed 11 October 2010 at Annexure MB-6

 37   Supplementary Statement of Mr M Blattman affirmed 11 October 2010 at Annexure MB-6

 38   Statement of Mr A Woodforde dated 31 May 2010 at PN 61

 39   Statement of Mr A Woodforde dated 31 May 2010 at PN 62

 40   Statement of Mr A Woodforde dated 31 May 2010 at PN 64

 41   Statement of Mr A Woodforde dated 31 May 2010 at PN 65

 42   Statement of Mr A Woodforde dated 31 May 2010 at PN 66 and see above

 43   Statement of Mr A Woodforde dated 31 May 2010 at PN 66

 44   Supplementary Statement of Mr M Blattman affirmed 11 October 2010 at Annexure MB-8

 45   Supplementary Statement of Mr M Blattman affirmed 11 October 2010 at Annexure PN 65

 46   Statement of Mr A Woodforde dated 31 May 2010 at PN 67

 47   Statement of Mr A Woodforde dated 31 May 2010 at PN 69

 48   Statement of Mr A Gillon dated 3 September 2010 at PNS 16-17

 49   Statement of Mr M Blattman dated 25 May 2010 at PN 73

 50   Statement of Mr A Woodforde dated 31 May 2010 at PN 74

 51   Statement of Mr A Woodforde dated 31 May 2010 at PN 75

 52   Statement of Mr A Woodforde dated 31 May 2010 at PN 76

 53   Statement of Mr A Woodforde dated 31 May 2010 at PN 80

 54   Statement of Mr M Blattman dated 25 May 2010 at PNS 76-77

 55   Statement of Mr A Woodforde dated 31 May 2010 at PN 77

 56   Statement of Mr A Woodforde dated 31 May 2010 at PNS 85-88

 57   Statement of Mr M Blattman dated 25 May 2010 at PN 78

 58   See Exhibit R2; Transcript of Proceedings at PNS 226 and 235

 59   Statement of Mr A Woodforde dated 31 May 2010 at PN 75

 60   Transcript of Proceedings dated 11 October 2010 at PNS 414-417

Printed by authority of the Commonwealth Government Printer

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