Mr Ardeshir Gobe Mohajer v Handy Industries Pty Ltd T/A Handyform
[2011] FWA 1629
•18 APRIL 2011
[2011] FWA 1629 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ardeshir Gobe Mohajer
v
Handy Industries Pty Ltd T/A Handyform
(U2010/11985)
COMMISSIONER SIMPSON | BRISBANE, 18 APRIL 2011 |
Termination of employment - application dismissed
[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Mr Ardeshir Gobe Mohajer (“the Applicant”) who alleges that the termination of his employment with Handy Industries Pty Ltd T/A Handyform (“the Respondent”) was unfair in accordance with the definition contained within s 385 of the Act.
[2] The Applicant was employed by the Respondent as a foreman on 21 September 2009 and dismissed on 19 August 2010. The Respondent is a bench top manufacturer who at the time of the Applicant’s dismissal employed approximately 30 to 33 employees. The Respondent does not employ dedicated human resource personnel.
[3] The application was filed on the 30 August 2010 and conciliation conferences were conducted on 20 September 2010 and 28 February 2011 which were not successful in resolving the matter.
[4] Following a directions conference with the parties on 11 February 2011 the matter was listed for hearing on Wednesday 7 March 2011 in Brisbane. At the hearing the Applicant represented himself and the Respondent was represented by Mr Heinz Lepahe, a solicitor with Mills Oakley Lawyers. There was no objection to Mr Lepahe representing the Applicant and leave was granted.
THE LEGISLATION
[5] Section 385 of the Act provides that a person has been unfairly dismissed if Fair Work Australia is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust and 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.
SUMMARY OF APPLICANT’S SUBMISSIONS
[6] The Applicant provided a signed 19 page statement which was admitted into evidence as exhibit 1.
[7] At his job interview the Applicant outlined his view and vision for the factory and production. 1 The Applicant was told to expect some resistance from employees. The Applicant stated that he was told;
“we do not want you to operate any machinery. All we want you to do is walk around the factory and improve the condition of the factory and get the guys whatever they need to do their job and improve the system and quality.” 2
[8] In relation to the issue of the disciplining of staff the Applicant said as follows;
“When I took up the position I asked if I had the responsibility of disciplining the staff. They clearly told me that the only authority I had as supervisor was to report the person’s actions to management who would decide what action to take. At no time I had any power to take action against the staff for bad behaviour or for not working properly, damaging products, or poor workmanship.”
[9] The Applicant stated that in the first two months of employment he would meet with both partners weekly, and inform his manager of what was occurring daily, however this became less regular over time. The Applicant stated that he started to complain about the managers failure to deliver his requested improvements. 3
[10] The Applicant claimed that management said it did not have time to meet with him and he was asked to provide in writing the reasons why a meeting was required.
[11] The Applicant said both managers agreed to meet with him after he returned from Annual Leave.
[12] The Applicant stated that in this first meeting with both managers after returning from Annual Leave which lasted for two and a half hours the managers sought to blame him for “...all their neglect and incompetence and even quality issues from machinery which every day I did report to them...”. 4The Applicant maintained that “..they lost the control of the factory floor while I was on holiday.”
[13] The Applicant claimed an employee he named as “little Steve” (Stephen Routledge) showed the Applicant he was not happy with management’s decision to hire him and described an incident that occurred on his first day of employment where he felt ‘little Steve’s” attitude was disrespectful. 5
[14] The Applicant maintained that he respected Rodney (Rodney Black) and believed that because staff were disappointed with management because Rodney was not the supervisor, this anger and disappointment was directed at him. 6
[15] The Applicant maintained there was a “secret war” going on between management and staff, and that there was a subversive group of employees who from his commencement had sought to make his job as difficult as possible, including creating a negative environment, causing great delays, stoppages and damage to products. 7
[16] The Applicant maintained because his every step, every action and every word was scrutinized by this group he decided to inform everything, even small matters relating to everyday work, to his manager in order to protect himself. 8
[17] The Applicant expressed frustration from his perspective that management would not take action against “the group’s action.” The Applicant stated that he requested the installation of security cameras but that this was rejected.
[18] The Applicant states that he introduced improvements in the factory. He stated that he made recommendations to improve the production system which were accepted by his manager. 9 However the Applicant claimed this became an issue with the “subversive group” as it would reduce the amount of overtime required.10
[19] The Applicant stated that he explained to management his new system would require monitoring, improvements to machinery, more staff training and cooperation from management.
[20] The Applicant maintained the “subversive group” deliberately sought to derail the new work systems in a range of ways.
[21] The Applicant claimed management sought the commencement of the new system before it was ready and proper measures were not in place including appropriate training.
[22] The Applicant stated that after the new system was introduced the mood became “very hostile”. The Applicant states that he requested more time to finish system procedures but this was refused. 11
[23] The Applicant claimed his manager Mr Tinson was placing pressure on him to pressure the staff.
[24] The Applicant complained that he had asked Mr Tinson to purchase one nut and bolts to improve the condition of a machine and this was not done. 12
[25] The Applicant stated that the work environment was causing him to lose sleep and was also affecting his relationship with his partner. 13 He stated he is now suffering from clinical depression for which he is taking medication.
[26] The Applicant claimed that machinery was neglected, working conditions were unsafe and management would not “face” the “subversive group”.
[27] The Applicant referred to two instances where he was injured at work, the first occasion three weeks after commencing employment, and the second two weeks before his dismissal. 14
[28] The Applicant refuted the claim from management that he was terminated for an extended period of underperformance. He claimed at the time of his dismissal he was told “they were very happy with what I have achieved during my work there.” 15
[29] The Applicant referred to a day in November 2009 when inside the factory was 43 degrees Celsius when he told management he wanted six industrial fans by the next day. 16
[30] The Applicant stated that he felt the real reason for his dismissal was that he had complained about Mr Greg Tinson to his business partner Mr Steve Kallenbach. 17
[31] In response to the claims of the Respondent that staff had resigned because of him he said as follows;
• Both managers agreed that Jay (Jay Hinds) was out of control and better to let go.
• Robert (Robert Paschko) had apologised to him after both occasions they had arguments and had asked the Applicant not to report his outbursts. He resigned because he found a better job.
• In relation to Sean (Sean Gale) the Applicant stated that he was shocked that Steve Kallenbach was angry and agitated after he had heard claims from Sean that the Applicant was bullying staff and making everyone unhappy. 18 The Applicant said he officially complained to management that they had not investigated the facts regarding these allegations. The Applicant claims Sean resigned because he couldn’t stand the pressure.19
• The fifth resignation involved Mark (Mark Despetovic) who was careless, and made countless mistakes. However he was also blamed for damage which was not his fault as it was caused by poor machinery and resigned because of this and the heavy workload.
[32] The Applicant stated when he was on leave the person appointed to act as supervisor allowed the factory to become like a “war zone” with unfinished jobs, damaged tops piled up on trolleys and a range of other problems.
[33] The Applicant said the machine that helped to turn the tops upside down was damaging the tops and asked for a technician but he was told by management to tell the staff to turn the tops manually.
[34] The Applicant said that he had argued with his manager that the tops are very heavy and that he agreed with the men they should not have to turn the tops manually. He states that the manager was very angry at the time. 20
[35] The Applicant claimed management would bypass him to advise staff directly if overtime was available, but if there was to be a cut back of a benefit it would be his role to tell staff.
[36] In regard to the complaint from “little Steve” that the Applicant watched staff if they stopped work he claimed staff said he did not do this. 21
[37] In regard to a complaint from a member of staff that the Applicant accused him of glue sniffing the Applicant said this comment was made as a general comment to all staff not directed at the person who made the complaint.
[38] The Applicant referred to a discussion he had with an employee by the name of Jason who had told him “little Steve” had encouraged him to confront the Applicant. 22
[39] The Applicant stated that he was seeking a letter of apology and financial compensation.
SUMMARY OF RESPONDENT’S SUBMISSIONS
[40] The Respondent, in its Outline of Submissions stated that from the Applicant’s commencement of employment verbal complaints were received from employees under the Applicant’s supervision concerning the manner in which the Applicant spoke to employees and his management style. 23
[41] When complaints were made against the Applicant management would meet with the employee and the Applicant. 24 The Applicant consistently denied any inappropriate behaviour.25
[42] The Applicant was told by both Mr Kallenbach and/or Mr Tinson on several occasions his approach with employees was unacceptable and he needed to improve his relationship with employees. 26
[43] In September 2010 after the termination of the Applicant the Respondent obtained written statements from current and former employees in relation to the Applicant’s conduct and performance. 27 Many of these complaints were made verbally at the time of the incidents.
[44] The complaints included that the Applicant was rude, abrupt and confrontational, dismissive and demeaning, bullied and harassed other employees, lied about issues such as having products/tools and directions given to employees, and set unreasonable timeframes and gave conflicting instructions.
[45] In the middle of August 2010 the Respondent was in its busiest time and overtime was required to be performed. 28
[46] Three key employees refused to perform overtime because of the way the Applicant spoke to them about the required overtime. 29
[47] Mr Kallenbach and Mr Tinson stated that the reason a number of employees resigned was because of the Applicant’s conduct towards them. 30 These resignations have resulted in lost productivity and additional costs to the Respondent.31
[48] On 12 August 2010 a meeting was held as requested by the Applicant with Mr Kallenbach and Mr Tinson to discuss issues including discipline of employees. During the meeting it was explained to the Applicant that he needed to adjust the way he dealt with employees because the complaints about his conduct were causing lost productivity and poor morale. 32
[49] The Applicant denied that his conduct was inappropriate or that he needed to change his behaviour. 33
[50] At the end of the meeting the Applicant was advised that if the situation did not change or improve then the company would have to make some serious decisions or drastic changes. 34
[51] The Applicant replied that if Mr Kallenbach and Mr Tinson did not like what he was doing then he would leave. Mr Tinson advised at that stage that they were not terminating the Applicant but were requiring the Applicant to immediately change and improve his conduct. 35
[52] The Applicant was directed to attend a meeting with Mr Kallenbach and Mr Tinson on 19 August 2010. At the meeting the Applicant’s inappropriate approach to employees which led to employees refusal to perform overtime was discussed, as well as his unsatisfactory supervisory skills. 36
[53] The Applicant was advised that his continued failure to take any responsibility for the ongoing conflict with employees, ongoing unsatisfactory performance and misconduct had resulted in a decision by the Respondent to terminate his employment. 37 The Applicant was paid out his notice and accrued entitlements.
[54] The Respondent contends that the Applicant was dismissed on the grounds of continuing unsatisfactory performance and misconduct. The Applicant’s behaviour was causing financial detriment to the Respondent through lost productivity and increased staff turnover and causing low staff morale.
[55] The Respondent decided to terminate the Applicant on the basis of:
a) consistent ongoing complaints from other employees about his conduct towards them; and
b) employees refusal to perform overtime because of the Applicant’s conduct toward them;
c) the Respondent was at risk of being unable to complete orders because of the Applicant’s inability to manage the employees under his supervision;
d) the Applicant refused to take any responsibility for the continuing conflict between him and the employees under his supervision;
e) the Applicant’s inability to effectively supervise the factory floor employees posed a workplace health and safety risk at the workplace.
[56] The Respondent states that the Applicant was notified of the reason for the dismissal at the meeting on 19 August and given an opportunity to respond to reasons related to his capacity or conduct at the meetings on 12 and 19 August in addition to numerous earlier discussions.
[57] The Applicant was warned about his unsatisfactory performance before the dismissal.
CONSIDERATION
[58] The evidence in witness statements and submissions was tested at the hearing on 7 March 2011.
[59] Mr Gislingham gave evidence that he believed that the Applicant did not have a basic knowledge of production of bench tops. 38
[60] The Applicant when under cross examination himself accused Mr Gislingham of lying 39 in relation to comments made to him by the Applicant in his statement.40 However when the Applicant cross examined Mr Gislingham he did not put to him the matters that he accused Mr Gislingham of lying about.41
[61] Mr Gislingham was of the view that morale on the factory floor was very low under the Applicant’s supervision. 42 He also gave evidence that “staff were bitter about management putting such a bad foreman in place.”43
[62] The Applicant accepted that he could not provide technical support and lacked knowledge of the machinery the factory operated. 44
[63] Mr Gislingham stated that it was hard to watch the Applicant’s altercations with other employees and see them given warnings for those altercations. 45 The Applicant in cross examination did not accept any fault on his part.
[64] The Applicant was referred to an attachment to Mr Gislingham’s statement 46 which was a written statement provided to the Respondent on 13 September 2010. In the statement Mr Gislingham refers to the Applicant having conflicts with senior staff and lying about materials needed for jobs. The Applicant denied these allegations.47
[65] The Applicant was referred to page 4 of the attachment 48 referred to above where it was said by Mr Gislingham that he witnessed “conflict after conflict with most of the floor staff resulting in key workers getting taken into the office and dressed down”.49
[66] The Applicant responded by saying he didn’t know which people Mr Gislingham was talking about and that it was a lie.
[67] The Applicant maintained he did not have any power as the supervisor, only management did.
“Bullying means treating someone to their prejudice by the misuse of one’s power? Sir, I don’t have any power. The power is in hand of management. I always refer to them for a punishment or rewarding somebody, I never had any power to bully anybody and they have always this power to come and talk to the management.” 50
[68] Mr Lepahe for the Respondent put to the Applicant the version of an exchange between the Applicant and Mr Hudson outlined in Mr Hudson’s witness statement. 51
[69] Mr Hudson’s statement describes the Applicant flying off the handle in a tone he described as very aggressive after Mr Hudson advised the Applicant he needed to look after his shoulder which had been injured, and that the Applicant should not be moving heavy trolleys as he had offered to do. 52
[70] The Applicant stated that he did recall the incident but that his tone of voice was “very funny, joking, and he was not acting serious.” 53 Following this exchange Mr Hudson stated that he said to the Applicant “you can stick your overtime up your arse” and left the factory floor.
[71] Mr Hudson also alleged that the Applicant “did not have any foreman skills and made the staff on the floor unhappy.” 54
[72] The Applicant at one point suggested that Mr Hudson did not wish to continue working overtime because that income would affect child support payments. 55
[73] The Applicant also suggested Mr Hudson did not wish to perform overtime due to an earlier discussion between the Applicant and Mr Hudson about deliveries that arrived before 12 o’clock and that Mr Hudson had failed to advise the Applicant about until 1.50pm.
[74] However Mr Hudson was consistent in his evidence that he left because of the manner in which he had been spoken to by the Applicant and the fact that Mr Tinson verified in his evidence a discussion between Mr Hudson and himself 56 outside the factory immediately after the exchange leads me to prefer Mr Hudson’s evidence to the Applicant’s on his reasons for leaving the factory on that day.
[75] Paragraph 19 and 20 of the statement of Mr Tinson 57 were put to the Applicant for his response. They read as follows:
“19. There were early warning signs of Matthew’s inappropriate management style and the way he dealt with employees. Within the first month of Matthew’s employment I received complaints from several staff from the factory floor about Matthew. These complaints included the way that Matthew dealt with staff. I was informed by several factory floor employees that Matthew was disrespectful, that he had a dictatorial management style and would say things like “I’m the foreman and you’ll do it my way” in an aggressive and/or rude tone/manner.
20. Over the 11 month period of Matthew’s employment as Foreman, approximately 80% of the factory floor complained about Matthew.”
[76] In response to the statement in paragraph 19 the Applicant responded “Well I am not agreed that I said it in a rude manner. But I am agreed that I said these things to make the person work and do it in a way that I want.” 58
[77] There is a clear inconsistency between the competing claims from the Applicant on the one hand as the supervisor he has no power, and on the other hand agreeing that he made the statement set out above.
[78] The Applicant denied the statement of Mr Tinson’s that whenever complaints were received about the Applicant from the staff the Applicant was given the details and asked to respond. 59 The Applicant stated that he recalled one complaint.60
[79] Mr Lepahe for the Respondent took the Applicant in detail through the written complaints provided to the Respondent from employees following the Applicant’s termination.
[80] Mr Tinson’s statement referred firstly to a complaint from Mr Jai Hinds an experienced profile sander who requested a meeting with management and the Applicant. Mr Hinds stated that he had several heated arguments with the Applicant, that the Applicant repeatedly would approach him and tell him how to do things and would stare at him for long periods to intimidate him. 61 In the meeting the Applicant denied the allegations, Mr Hinds became upset and resigned immediately storming out of the meeting.
[81] The Applicant stated in cross examination that Mr Hinds did not have anything against him. 62
[82] In response to the complaints received by Mr Tinson from Mr Gislingham 63 the Applicant stated that Mr Gislingham was lying.64
[83] Mr Tinson’s statement referred to a complaint from Mr Despetovic who he said had always been a very hard working and dedicated member of staff before the Applicant commenced employment. Mr Tinson said the Applicant had complained to him regularly about Mr Despetovic. The Applicant gave evidence under cross examination that Mr Despotevic made many mistakes and management had directed him to work on a particular machine or to find another job, so Mr Despotevic resigned. 65
[84] The Applicant was referred to the complaints of Mr Robert Paschko a leading hand and prior to that a machinist with many years factory experience. Mr Paschko’s written complaints are set out in Mr Tinson’s statement and also attached to his statement. 66 These complaints included that the Applicant did not do proper handovers, that Mr Paschko had to go looking for the Applicant’s schedule folder to know what jobs needed to be finished, that he had frequent arguments with the Applicant and that the Applicant frequently lied.
[85] The Applicant denied that he had frequent arguments with Mr Paschko. 67 The Applicant acknowledged that Mr Paschko was very angry about an issue regarding delivery times but did not accept that he lied and seemed to believe that the dispute about delivery times was Mr Paschko’s responsibility and part of his job.68
[86] The claim in Mr Tinson’s statement that Mr Paschko resigned because he could no longer work with the Applicant was put to him. 69 The Applicant indicated it was his understanding that Mr Tinson was concerned about this at the time of Mr Paschko’s resignation.70
[87] The Applicant was referred to the complaints of Mr Sean Gale, a former Leading Hand. Mr Gale’s complaints are set out in Mr Tinson’s statement. 71 Mr Tinson claimed that Mr Gale had complained that he had several “run ins” with the Applicant and felt bullied by the Applicant. Mr Gale returned to work for the Respondent after the Applicant’s termination and Mr Tinson claimed in his statement that Mr Gale had only resigned because of the Applicant’s management style.
[88] The Applicant did not accept that Mr Gale resigned because of him. 72
[89] The Applicant said in evidence that “before I go on holiday floor was under control, everything was perfect, everything was alright.” 73 It was apparent from this evidence that the Applicant did not accept that there was high levels of discontent with his management style, despite high levels of complaints about him and resignations from a number of staff.
[90] The Applicant repeated his belief that the allegations being put were “all lies”. 74
[91] The Applicant was referred to the written complaints of Mr Routledge, the longest serving employee on the factory floor with about 14 years service, and third in charge after the foreman and leading hand. These complaints were set out in Mr Tinson’s statement and attached to that statement.
[92] Mr Routledge’s complaints included that the Applicant would tell employees to do things the wrong way, and that he would have frequent “run ins” with the Applicant. 75
[93] The Applicant made the concession that in general terms he did not know how to perform roles performed by staff that he was supervising. 76
[94] It was Mr Tinson’s evidence that the Applicant had made several requests for Mr Routledge to be dismissed. 77 The Applicant accepted that he did ask for Mr Routledge to be dismissed on one occasion.78 The Applicant stated that all of the complaints made about him by Mr Routledge were lies.79
[95] In reference to the allegation in Mr Tinson’s statement raised by Mr Routledge (and a number of other employees) that several staff felt they were accused of glue sniffing it was the Applicant’s evidence that he made the following statement at the time;
“If I get anybody who is sniffing glue he will be dismissed.” 80
[96] Despite making this statement the Applicant accepted that he had no evidence to support the conclusion that employees had been sniffing glue.
[97] The Applicant was referred to the part of Mr Tinson’s statement which refers to complaints made by Mr Bill Hudson an employee with between 13 and 14 years of experience in the quality assurance area. 81 Mr Tinson states that Mr Hudson complained he had frequent arguments with the Applicant, he did not like the way the Applicant spoke to him and that he could not work with the Applicant any longer. Mr Tinson gave evidence that he arranged for Mr Hudson to be moved to another position within the business.
[98] The Applicant gave evidence that it was he who asked for Mr Hudson to be moved because he was distracting other employees. 82
[99] The Applicant was referred to complaints referred to in Mr Tinson’s statement and to a document attached to his statement from Mr Robert Graham, a delivery driver under the supervision of the Applicant. Mr Graham was an employee with five years service. Mr Tinson claimed Mr Graham had described the Applicant to him as arrogant, a bully with no people skills, constantly yelling at staff and a liar.
[100] The Applicant denied these allegations and also denied the claim in Mr Tinson’s statement 83 that he had met with the Applicant and asked him to respond to Mr Graham’s complaint.84
[101] The Applicant was referred to the statement of Mr Tinson where he raises a complaint of Mr Martin Jefferies’. 85 Mr Tinson claimed Mr Jefferies stated that the Applicant had shouted at him when loading a truck. Mr Tinson claimed he asked the Applicant to respond to this complaint. The Applicant in response claimed that Mr Tinson had lied to him because Mr Tinson had told him he would ask the driver to move the truck and he didn’t.86
[102] The question was put to the Applicant during cross examination as to why he put up with so many complaints about him if he believed all the complaints were lies. 87
[103] Initially the Applicant responded by indicating he maintained that the Respondent’s evidence which included a range of different complaints from different staff was manufactured by the Respondent, 88 however this statement was subsequently withdrawn.89
[104] The Applicant was referred to the part of Mr Tinson’s statement referring to a complaint and written statement received from Mr Lyndon De La Cruz. 90 Mr De La Cruz complained about the glue sniffing allegation as he understood it was directed at him, and further that the Applicant was rude, abrupt and confronting to others. The Applicant accused Mr De La Cruz of lying.91
[105] The Applicant was referred to paragraphs 87 to 90 of the statement of Mr Tinson where he refers to a complaint from Mr Shane Bullen who was employed by the Respondent for 11 years and who resigned after an exchange with the Applicant. Mr Tinson states that Mr Bullen complained to him that when he made an error one day the Applicant yelled at him with words to the effect that he was “useless and couldn’t do anything.” The Applicant denied this allegation. 92
[106] Mr Tinson’s statement describes another complaint he received from Mr Nathan Trask who Mr Tinson stated complained that the Applicant would often pressure him and use bullying tactics.
[107] According to Mr Tinson’s statement on or about 18 August during a busy period on the factory floor Mr Trask was asked by the Applicant to do some overtime. Mr Tinson states that Mr Trask claimed he was unable to do the overtime and the Applicant became angry. After the confrontation Mr Trask left the factory. The Applicant denied these allegations. 93
[108] Mr Tinson’s statement refers to complaints made by Mr Rodney Black and a subsequent written statement. 94 Mr Black was the foreman prior to the Applicant commencing and had been employed for 12 to 13 years and had transferred out of the factory to another part of the business.
[109] According to Mr Tinson allegations from Mr Black included the Applicant not understanding what board batch numbers were, lying to management about that issue, lying about not having super glue in the factory and blaming staff for his own mistakes. The Applicant stated he was surprised at these allegations and that Mr Black is the foreman at a different factory and it has nothing to do with him. 95
[110] Mr Tinson’s statement also refers to complaints and a subsequent written statement from Mr Sebastian Lordachescu who became the leading hand after the resignation of Mr Rob Paschko. 96 These complaints included that his job was difficult because of the ill feeling toward the Applicant, conversations with the Applicant developed into arguments, employees were stressed and started to make mistakes and staff were refusing to work overtime because of the Applicant. The Applicant generally denied these claims.97
[111] Mr Tinson’s statement refers to complaints received from Ms Patricia Burton and a subsequent written statement. 98 Ms Burton listed a series of complaints including that there was constant friction with the Applicant because the Applicant would not have jobs finished on time. Ms Burton also complained about the way the Applicant spoke to her. The Applicant rejected these complaints as a lie.99
[112] The Applicant also said that Ms Burton had apologised to him saying “I was wrong to you.”. 100 The Applicant denied the allegation that Ms Burton was reduced to tears because of the manner he spoke to her101 and also denied the allegation that on many occasions he would lie to management and blame other staff members and Ms Burton herself for his errors.102
[113] Mr Tinson’s statement refers to a written complaint from Mr Tim Bates attached to his statement. 103 Mr Bates alleged that the Applicant would tell him to do something one way, and then “get up me and say I’d done it the wrong way”. Mr Bates statement claimed the Applicant would attack him for no apparent reason. The Applicant said Mr Bates was lying.104
[114] Mr Tinson’s statement referred to a written complaint from Mr Adam Lovelock 105 who claimed the Applicant didn’t know what he was doing and couldn’t switch on most equipment, blamed others without finding out information and made personal slanderous remarks about staff. These claims were rejected by the Applicant.106
[115] It was put to the Applicant that he visited Mr Tinson’s office four or five times a day advising of complaints from the factory floor. 107 The Applicant stated it was in fact more often than that but it was not to complain. The Applicant agreed that he recalled Mr Tinson telling him it was not productive to come to his office four or five times a day and it was wasting a lot of Mr Tinson’s and the Applicant’s time.108
[116] The Applicant in evidence repeated his earlier assertion that he did not have any power and that is why he was informing Mr Tinson. 109
[117] The Applicant agreed that at the meeting on 12 August 2010 with both Mr Tinson and Mr Kallenbach that he said words to the effect “If you think everything is my fault, so I should go.” 110The Applicant was in effect admitting he offered to resign.
[118] Paragraph 125 of the statement of Mr Tinson’s was put to the Applicant including the words “I told Matthew he needed to change the way he interacted with staff or we would need to make changes”. The Applicant agreed that he was being warned about his performance by Mr Tinson and Mr Kallenbach at the meeting on 12 August 2010. 111 However it was also clear the Applicant did not accept that the warning was in any way justified.112 He accepted that he was being asked to improve and he understood that,113 however he went on to say in evidence that he did not accept the warning or that he had to change.114 The Applicant claimed to be confused and did not understand what Mr Tinson and Mr Kallenbach were talking about.115
[119] The Applicant accepted that on 18 August 2010 three employees in Nathan Trask, Mark Hudson and Lars Spasovski refused to perform overtime. Mr Tinson stated that after speaking with Mr Mark Hudson in the car park on the afternoon of 18 August he spoke to Steve (Kallenbach) about the Applicant’s behaviour. Mr Tinson said it was clear to him and Mr Kallenbach that the Applicant had not taken any notice of their direction to change his management style from the meeting the week before. 116
[120] Mr Tinson’s evidence was that a meeting was held on 19 August 2010 where a decision was taken to terminate the Applicant. In the meeting Mr Kallenbach said words to the effect;
“We were looking for you to make some changes in your management style and we need someone on the factory floor who can control the employees and earn their respect. This is just not working out. We’ve given you every opportunity to make those changes in our recent meeting and you have clearly not made any attempt to make any change and have continued to be rude and arrogant towards the staff.” 117
[121] The Applicant was paid four weeks payment in lieu of notice. Mr Tinson stated that the Applicant was initially pleasant but then “started to rant with words to the effect of “If I was the boss I would sack you, you’re incompetent with no manufacturing skills.” Further he stated the Applicant said he was too cute and couldn’t manage the staff here. 118
Conclusion
[122] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account the criteria in section 387 of the Fair Work Act.
(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);
[123] The Applicant claimed on a number of occasions throughout the hearing that he did not have any power as the supervisor, only management did. This seems to me to demonstrate that the Applicant did not have a proper understanding of his role as a supervisor. It appeared it was the Applicant’s belief that he was not responsible or accountable for discontent or disputation remaining unresolved on the factory floor as long as he had passed on to someone in management that such problems existed.
[124] In his evidence Mr Tinson stated that when the Applicant was employed he was advised that dismissals or warnings were to be overseen by management. The authority to dismiss or warn employees would need to be done with the authority of management. 119 Mr Kallenbach also said that at commencement the Applicant could run the floor including disciplining staff however formal warnings would be issued by Mr Tinson or himself. 120The Applicant’s seems to have interpreted these discussions to mean that he had no responsibility for matters concerning discipline or performance. This is plainly wrong and flies in the face of any common sense understanding of the role of a supervisor or foreman.
[125] It is of course part of the role and responsibility of someone in a foreman/supervisor position to work to manage and resolve conflict between employees under their direction, and also between employees and themselves. If a foreman/supervisor cannot successfully do these things which are clearly a part of their function then ultimately they must be answerable for that.
[126] The Applicant’s general attitude to both employees under his supervision and the managers he answered to was one of total distrust. For example it was put to the Applicant that he could have called Ms Burton to give evidence in his case on the basis of his claims that she had admitted acting wrongly toward him. He responded by indicating he did not believe he could call her because she worked for the Respondent, would lose her job and would lie anyway. 121
[127] The Applicant appeared generally unable to accept wrongdoing on his own behalf, or any suggestion that the complaints from staff about him were in any way attributable to his own behaviour.
[128] The Respondent decided not to call a large number of witnesses who could have been called, and who have supplied written statements to the Respondent after the termination of the Applicant which have been tendered through the statements of Mr Tinson and Mr Kallenbach. In most instances these written statements were provided following verbal complaints which were made to the management at the time of the incident.
[129] The fact that some of these employees did not appear to give evidence does limit the weight that can be afforded to this material. However as generally the statements provided were subsequent to verbal complaints made to either Mr Tinson and Mr Kallenbach, and those two witnesses gave direct evidence about those conversations, I have had regard to the evidence of those two witnesses regarding these complaints.
[130] I found the four witnesses called by the Respondent to be more credible than the Applicant in that they were more consistent and direct compared to the Applicant who was often inconsistent or evasive when giving his evidence. The material in the written statements of employees not called was generally consistent with the evidence of the four witnesses who were called to give evidence for the Respondent.
[131] It was evident to me that management had also reached a point of exhaustion with the regularity with which the Applicant sought meetings to discuss matters on a daily basis which management regarded as minor or matters he should have been capable of dealing with on his own. 122
[132] I am also satisfied that the Respondent adopted a proper approach with regard to the handling of complaints made by employees against the Applicant. That practice, depending on the gravity of the complaint was to speak to parties separately first before having a subsequent joint discussion to try to establish what had happened. 123
[133] I do not think it is plausible that so many different employees would conspire with management to manufacture the wide variety of allegations that have been levelled at the Applicant. Further there is considerable consistency between the nature of the allegations made by staff, even though the incidents occurred at different times involving different employees in different roles.
[134] The complaints are generally consistent in going to the way the Applicant conducted himself as the foreman/supervisor, the inappropriate manner in which he addressed staff, blaming others for his own errors or failures and lying to protect himself. During his evidence the Applicant frequently just flatly denied allegations made against him with no plausible alternative explanation for why the complaint would have been made by the employee in the first place. I preferred the evidence of Mr Gilingham, Mr Hudson, Mr Tinson and Mr Kallenbach to the evidence of the Applicant with regard to complaints referred to in evidence by these witnesses.
[135] It is clear to me from the evidence that the Respondent had absolutely no alternative but to terminate the Applicant. The situation had clearly become untenable. The evidence indicates that had the situation been allowed to continue as it was the Respondent would have been likely to face further disruption and loss of productivity. Mr Tinson claimed four or five staff had resigned because of the Applicant and the evidence indicates that is probably right. 124
(b) whether the person was notified of that reason;
The Applicant was notified of the reason for his dismissal at the meeting of 19 August 2010.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
The Applicant was given numerous opportunities to respond to the reasons related to his capacity or conduct including at the meetings of 12 and 19 August 2010 and failed to do so.
(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;
The Applicant did not request a support person.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;
The Applicant was warned about the matters that were relied on by the Respondent to terminate his employment at the meeting on 12 August 2010.
(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;
The Applicant is not a small business as defined by the Act employing approximately 30 employees however does not employ dedicated human resource staff.
(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;
It is my view the Applicant was afforded procedural fairness regarding the handling of complaints against him despite neither Mr Tinson or Mr Kallenbach having any human resources training or experience.
[136] For all of the reasons set out above the Application is dismissed.
COMMISSIONER
1 Exhibit 1 - page 1
2 Exhibit 1 - page 2
3 Exhibit 1 - page 2
4 Exhibit 1 - page 3
5 Exhibit 1 - page 3
6 Exhibit 1 - page 4
7 Exhibit 1 - page 4
8 Exhibit 1 - page 5
9 Exhibit 1- page 6
10 Exhibit 1 - page 6
11 Exhibit 1 - page 8
12 Exhibit 1- page 9
13 Exhibit 1 - page 9
14 Exhibit 1 - page 11
15 Exhibit 1 - page 11
16 Exhibit 1- page 12
17 Exhibit 1 - page 13
18 Exhibit 1 - page 14
19 Exhibit 1 - page 14
20 Exhibit 1 - page 15
21 Exhibit 1 - page 17
22 Exhibit 1- page 18
23 Exhibit 4 at paragraph 19 and Exhibit 5 at paragraph 28
24 Exhibit 4 at paragraph 22 and Exhibit 5 at paragraph 31
25 Exhibit 4 at paragraph 26 and Exhibit 5 at paragraph 35
26 Exhibit 5 at paragraph 35
27 Exhibit 4 at paragraph 27 and Exhibit 5 at paragraph 38
28 Exhibit 4 at paragraph 129 and Exhibit 5 at paragraph 60
29 Exhibit 4 at paragraph 129 and Exhibit 5 at paragraph 61
30 Exhibit 4 at paragraph 30, 52, 58 and 89; and Exhibit 5 at paragraph 44
31 Exhibit 5 at paragraph 47
32 Exhibit 4 at paragraph 125
33 Exhibit 4 at paragraph 125 and Exhibit 5 at paragraph 55
34 Exhibit 4 at paragraph 126 and Exhibit 5 at paragraph 58
35 Exhibit 4 at paragraph 127-128
36 Exhibit 5 at paragraphs 65 and 66
37 Exhibit 5 at paragraph 69
38 Exhibit 2 at paragraph 4
39 Transcript dated 7 March 2011 at PN 157
40 Exhibit 2 at paragraph 9
41 Exhibit 2 at paragraph 9 and transcript dated 7 March 2011 at PN 869-887
42 Exhibit 2 at paragraph 13
43 Exhibit 2 at paragraph 13
44 Transcript dated 7 March 2011 at PN 188-189
45 Exhibit 2 at paragraph 14
46 Exhibit 2 at JG1
47 Transcript dated 7 March 2011 at PN 216
48 Exhibit 2 at JG1
49 Transcript dated 7 March 2011 at PN 223-229
50 Transcript dated 7 March 2011 at PN 213
51 Exhibit 3 at paragraph 7
52 Exhibit 3at paragraph 6
53 Transcript dated 7 March 2011 at PN 246
54 Exhibit 3 at paragraph 15
55 Transcript dated at 7 March 2011 at PN 1086
56 Exhibit 3 at paragraph 10 and Exhibit 4 at paragraph 42
57 Exhibit 4
58 Transcript dated 7 March 2011 at PN 269
59 Transcript dated 7 March 2011 at PN 275
60 Transcript dated 7 March 2011 at PN 279
61 Exhibit 4 at paragraph 28 and 29
62 Transcript dated 7 March 2011 at PN 286
63 Exhibit 4 at paragraph 31-37
64 Transcript dated 7 March 2011 at PN 290
65 Transcript dated 7 March 2011 at PN 294
66 Exhibit 4 at paragraph 46-54 and attachment GT2
67 Transcript dated 7 March 2011 at PN 306
68 Transcript dated 7 March 2011 at PN 317.
69 Transcript dated 7March 2011 at PN 324
70 Transcript dated 7 March 2011 at PN 325
71 Exhibit 4 at paragraph 55-58
72 Transcript dated 7 March 2011 at PN 337-342
73 Transcript dated 7 March 2011 at PN 350
74 Transcript dated 7 March 2011 at PN 359
75 Exhibit 4 at paragraph 61 and attachment GT3
76 Transcript dated 7 March 2011 at PN 376-399
77 Exhibit 4 at paragraph 62
78 Transcript dated 7 March 2011 at PN 401-408
79 Transcript dated 7 March 2011 at PN 409
80 Transcript dated 7 March 2011 at PN 436
81 Exhibit 4 at paragraph 66-68
82 Transcript dated 7 March 2011 at PN 444-446
83 Exhibit 4 at paragraph 71
84 Transcript dated 7 March 2011 at PN 455-459
85 Exhibit 4 at paragraph 74-78 and attachment GT5
86 Transcript dated 7 March 2011 at PN 470-471
87 Transcript dated 7 March 2011 at PN 473-475
88 Transcript dated 7 March 2011 at PN 475-523
89 Transcript dated 7 March 2011 at PN 525
90 Exhibit 4 at paragraph 79-86 and attachment GT6
91 Transcript dated 7 March 2011 at PN 537
92 Transcript dated 7 March 2011 at PN 539-544
93 Transcript dated 7 March 2011 at PN 545-549
94 Exhibit 4 at paragraph 94-98 and attachment GT7
95 Transcript dated 7 March 2011 at PN 551-552
96 Exhibit 4 at paragraph 99-106 and attachment GT 8
97 Transcript dated 7 March 2011 at PN 556-562
98 Exhibit 4 at paragraph 107-111 and attachment GT 9
99 Transcript dated 7 March 2011 at PN 565
100 Transcript dated 7 March 2011 at PN 580
101 Transcript dated 7 March 2011 at PN 603
102 Transcript dated 7 March 2011 at PN 606
103 Exhibit 4 at paragraph 112 - 113, and attachment GT 10
104 Transcript dated 7 March 2011 at PN 626
105 Exhibit 2 at paragraph 114-115 and attachment GT 11
106 Transcript dated 7 March 2011 at PN 632-634
107 Transcript dated 7 March 2011 at PN 640
108 Transcript dated 7 March 2011 at PN 642
109 Transcript dated 7 March 2011 at PN 643
110 Transcript dated 7 March 2011 at PN 655
111 Transcript dated 7 March 2011 at PN 663-683
112 Transcript dated 7 March 2011 at PN 663-666
113 Transcript dated 7 March 2011 at PN 689
114 Transcript dated 7 March 2011 at PN 819-820
115 Transcript dated 7 March 2011 at PN 827
116 Exhibit 4 at paragraph 131
117 Exhibit 4 at paragraph 135
118 Exhibit 4 at paragraph 138
119 Transcript dated 7 March 2011 at PN 125-130 and PN 1357-1359
120 Exhibit 5 paragraph 54
121 Transcript dated 7 March 2011 at PN 583-602
122 Transcript dated 7 March 2011 at PN 1362-1364
123 Transcript dated 7 March 2011 at PN 1366-1368
124 Transcript dated 7 March 2011 at PN 1265
Printed by authority of the Commonwealth Government Printer
<Price code C, PR507588>
0
0
0