Mr Brendan Wayne Foley v Alice Auto Repairs Pty Ltd T/A Alice Auto Repairs Pty Ltd

[2010] FWA 8172

[2010] FWA 8172

FAIR WORK AUSTRALIA

DECISION

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

Mr Brendan Wayne Foley
v
Alice Auto Repairs Pty Ltd T/A Alice Auto Repairs Pty Ltd
(U2010/10103)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 25 OCTOBER 2010

Termination of employment.

[1] This application was heard in Alice Springs on 15 September 2010.

[2] Mr Foley and Mr and Mrs Sheedy, the principals of Alice Auto Repairs Pty Ltd trading as Alice Auto Repairs Pty Ltd (the employer), were self represented, although Mrs Sheedy spoke on behalf of Mr Sheedy at the proceedings.

[3] The facts of this application are straight forward.

[4] Mr Foley took exception to the manner in which he says Mrs Sheedy spoke to a fellow employee. His evidence concerning the contents of the remarks he made to her is as follows.

“Monday 28th June 2010 (5:02pm)

I finished my rostered shift at 5pm. As I was leaving I walked through the office and said see you tomorrow to Dianne, to which she replied that she hoped Mark Sheedy was in a better mood tomorrow (during the day they had had words which is a normal occurance).

Unable to hold my tongue any more I quipped I hope you are to. She queried why I said that with a snide remark to which I replied she was the reason he (Mark) was in a bad mood.

On a roll I also told her I wasn’t happy with the rude way I was spoken to earlier when I was assisting the customer.

I stated that she was out of line in the way she spoke to Jason W at smoko and stated that her comments were offensive and I believed they were harassing and bullying.

I made her aware that I was still waiting on leave loading that should have been paid for two days of annual leave that I had taken a fortnight earlier (11th & 15th June 2010) and that I want it sorted out this week or I would follow it up with the relevant authority. She replied that she doesn’t have to pay annual leave loading until I use all my outstanding annual leave (incorrect).

I then told her that her head was so far up her arse that she wouldn’t know whether she was coming or going.

I then went home.

I freely admit that during this final exchange I did swear several times as I was extremely angry and frustrated with Dianne by this stage.

Tuesday 29th June 2010

7:45 I arrived at work ready for my scheduled start time of 8:00am. Prior to starting work I was sitting down with my boss Mark Sheedy whilst he was having a coffee and we were talking about football stuff.

8:00am Mark Sheedy left the premises to collect parts needed to complete repairs.

8:10am Dianne Sheedy arrived for work much earlier than usual (generally she arrives at approx 10am). She asked me how I was today to which I replied good. She stated she was good too and motioned for me to come with her to the office. Once there she presented me with a cheque. With a huge smile on her face told me that it was my final pay. Still smiling she told me to pack up my toolbox and leave as I was fired. She stated that she didn’t like the way I had spoken to her yesterday.

I was stunned and said you’ve got to be joking. I also asked her why I wasn’t entitled to voice an opinion (meaning yesterday 28th June). She replied by stating that I need psychiatric help. I then told her she needed to take a look at herself (given that she was taken enjoyment from firing me and her behaviour yesterday). I then left the office went out to the workshop to pack up my toolbox.

While I was in the front yard of premises loading my gear into my vehicle Mark Sheedy returned to the premises. I asked him if we could have a chat.

He dropped his parcels inside and returned to the front yard where I was waiting. I asked him what was going on to which he replied that I should not have spoken to Dianne that way (yesterday 28th June) and as he did not speak to my wife that way. He then walked away from me. I climbed into my vehicle and left.

I was never provided with verbal or written warnings about my conduct prior to my dismissal.

I was not provided with a letter of dismissal or separation certificate.”

(my emphasis).

[5] Mrs Sheedy denied speaking to the relevant employee in the manner described by Mr Foley. She confirmed that Mr Foley’s employment was terminated for misconduct which was identified as the manner of his speaking to her.

[6] For the purpose of considering applications of this kind I am required by the Fair Work Act 2009 (the Act) to consider the criteria set out below.

Section 387

“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.”

[7] I do not have to resolve whether or not Mrs Sheedy spoke inappropriately to the employee the subject of Mr Foley and Mrs Sheedy’s dispute. If Mrs Sheedy had addressed the employee in the manner described by Mr Foley it would have been inappropriate conduct by her. However, even if she had done so, I do not consider that it would have had a sufficient mitigating effect on any consideration of Mr Foley’s own conduct in speaking to Mrs Sheedy in the manner identified by him. That manner of speaking to Mrs Sheedy in these particular circumstances was itself entirely inappropriate. I have determined that it was a valid reason for the termination of his employment.

[8] I have given separate considerations to the criteria outlined in subsections (b), (c), (d), (e), (f), (g) and (h) of section 387. None of the criteria referred to in those subsections alter the conclusion I have reached that there was a valid reason for termination of Mr Foley’s employment and that the termination which resulted was not harsh, unjust or unreasonable in all the circumstances of the case.

[9] The application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr B Foley, on his own behalf.

Mrs D Sheedy & Mr M Sheedy, on their own behalf.

Hearing details:

2010

Alice Springs.

September, 15.

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