Mr Christopher Zammit v Botany International Foods Pty Ltd T/A Botany International Foods Pty Ltd
[2011] FWA 845
•8 FEBRUARY 2011
[2011] FWA 845 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Christopher Zammit
v
Botany International Foods Pty Ltd T/A Botany International Foods Pty Ltd
(U2010/7173)
COMMISSIONER DEEGAN | CANBERRA, 8 FEBRUARY 2011 |
Termination of employment and whether harsh, unjust or unreasonable.
[1] This is an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act). Mr Christopher Zammit (the applicant) lodged the application on 18 March 2010, his employment with Botany International Foods Pty Ltd (the employer) having been terminated on 5 March 2010.
[2] A conciliation conference conducted in relation to the matter on 12 April 2010 did not result in any settlement and the matter was listed for the hearing of a jurisdictional objection. This objection was withdrawn and the matter was set down for arbitration. Directions were then issued for the filing of witness statements and submissions. As the applicant was overseas and unavailable for some months the hearing of the matter did not occur until 5 November 2010. At the hearing the applicant appeared in person and the employer was represented by Ms Shields, a solicitor.
Background
[3] The applicant was engaged by the employer as a casual warehouse assistant, and had held that position since 29 November 2007. His employment was terminated by the employer on 5 March 2010 and a letter setting out the reasons for the termination was handed to the applicant at that time.
[4] The applicant gave evidence on his own behalf and evidence for the respondent was given by two directors of the employer, Mr Kenneth Wolfsohn and Mr Barry Gottheiner.
[5] The evidence of the applicant and that of the respondent’s witnesses was that there had been a number of occasions over the period of the applicant’s employment where interaction between the applicant and other members of staff had required the intervention of the supervisors or other managers. However, the evidence of the applicant and that of the respondent’s witnesses differed about the nature of those incidents and the manner in which the incidents were handled.
[6] The applicant gave sworn evidence in support of his application and was cross-examined. He had also filed a brief statement which outlined both his evidence and his submissions (Exhibit Z1). In essence the applicant claimed that his employment had been terminated unfairly as he had:
- not received any warnings;
- been falsely accused of causing dissent among other members of staff; and
- never been told either to read or to comply with the employer’s policies and procedures manual.
[7] During his evidence the applicant took issue with the evidence of the employer’s witnesses concerning the various incidents that it was claimed he had been involved in during his employment, and which contributed to the employer’s decision to terminate his employment.
The trolley incident
[8] The employer’s evidence was that the applicant had received a warning about his conduct following an argument he had with another employee, Danny. The applicant conceded that there had been an argument but claimed that it had been caused by the other employee, who had taken the trolley he was using. He also conceded that as a result of the altercation there had been a meeting attended by the two employees, Mr Wolfsohn and the warehouse manager. It was the applicant’s evidence that it was the other employee, Danny, who had been warned.
[9] When Mr Wolfsohn was cross-examined by the applicant he claimed unequivocally to have given the applicant a warning in relation to the “trolley incident”. It was Mr Wolfsohn’s evidence that he had informed both Danny and the applicant that the behaviour that had been exhibited by both of them was unacceptable and had to change.
[10] It was the applicant’s position that as he had done nothing wrong, and that only Danny was at fault, he could not have been subjected to a warning.
[11] Mr Gotteiner witnessed the end of the trolley incident. He stated that both employees were yelling and swearing at each other. He spoke to the applicant alone and also warned him about his behaviour. He also discussed the incident with Danny and decided that there was no reason to issue a warning to him. In response to a question from the applicant Mr Gottheiner advised that he had taken the decision to issue a warning to the applicant and not to Danny based on the information each had given him. Mr Gottheiner made a file note concerning the incident that day.
The incident with Angela
[12] The applicant agreed with the employer’s assertion that there had been an incident in the warehouse involving the applicant and another employee, Angela. According to the applicant it had been Angela who caused the problem. She had complained about trolleys being put in the wrong spot. The applicant claimed that he had been following instructions and taking the trolleys to a particular point when Angela “...started yelling and screaming at me.” The applicant claimed that the matter ended there but that he had been “branded as being the instigator again”.
[13] The applicant noted the employer’s statement that Angela had complained to management that the applicant had been yelling and screaming at her and that she had been scared. It was the applicant’s evidence that it was Angela who had yelled at him. The applicant denied that Mr Wolfsohn had told him at the time of the incident that he could not “just start yelling at people in the warehouse” He appeared to concede, however, that Mr Wolfsohn had said to him "If you have an issue you need to go and speak with Cliff about it." The applicant claimed he approached Cliff after Angela had yelled at him, but Angela refused to discuss the issue when subsequently approached by Cliff.
The complaint of other workers
[14] It was Mr Gottheiner’s evidence 1 that the applicant had worked on the floor of the warehouse throughout 2009 and in the early months of 2010. According to his evidence there were a number of occasions during that time when the applicant displayed unacceptable behaviour and attitude in the warehouse, including outbursts of temper, swearing and general disruption. Mr Gottheiner was able to recall only a few of the precise dates upon which the incidents occurred.
[15] According to the applicant, he was unaware that the employer had been approached by a delegation of three employees who had complained about him. While the statement of Mr Wolfsohn claimed that there had been complaints about the applicant’s erratic behaviour, bad language and erratic driving of the forklift, the applicant denied any such behaviour noting that he had received no warnings about driving the forklift dangerously.
[16] According to the evidence of Mr Wolfsohn, although no incidents concerning the applicant’s behaviour had been recorded between August 2009 and January 2010, various members of the staff continued to make informal complaints about the applicant’s behaviour, but none were serious enough to warrant further action. When cross-examined by the applicant as to why no action was taken Mr Wolfsohn replied:
“I was protecting you as best I could against your behaviour in the warehouse. I tried to smother it over, to appease them, to make them feel that yes, Chris is not a bad guy, he's just going through a rough period, help him, okay. So to come to you every day with something of a minor complaint we just didn't do, but when it became important enough to do, we did.”
The frozen fish incident
[17] The applicant gave evidence about another incident, also relied on by the employer as a ground for the termination, which had occurred between him and another employee. According to the applicant, he had approached Mr Wolfsohn because the employee, Tommy, had been leaving frozen fish defrosting while everyone went to lunch. He believed he had done the right thing by raising the matter with Mr Wolfsohn who had spoken to Tommy about it. It was the applicant’s evidence that Tommy again left frozen fish defrosting the next day and that he had again raised the matter with Mr Wolfsohn.
[18] According to Mr Wolfsohn the applicant had approached him about the frozen fish incident one Friday morning as he was about to leave for overseas. The applicant had lost his temper and had screamed at Mr Wolfsohn about the incident. The applicant claimed that he “was just pointing out what was going on but obviously it wasn't appreciated”. The applicant took the view that no one would do anything about the behaviour of Tommy as he was friendly with both Mr Wolfsohn and Mr Gottheiner.
[19] It was Mr Wolfsohn’s evidence that he took seriously the applicant’s complaint about frozen fish being left to thaw outside the freezer but that the applicant had not only raised the matter with him he had also yelled and screamed at Tommy. He had advised the applicant that he should address the problem by speaking to the warehouse manager, Cliff, about his concerns, rather than by yelling at Tommy.
The email complaints
[20] In relation to the email complaints made about him by Danny, the applicant noted that he was unsurprised as he had had a lot of problems with Danny. He refused to believe that there was any substance to the complaints and claimed this belief was supported by Mr Wolfsohn’s failure to respond to the first email sent to him by Danny.
[21] It was Mr Wolfsohn’s evidence that he had not responded immediately to the first email about the applicant as he had not seen it because he was on holidays. When he returned to work a second email arrived and he responded to that.
[22] When cross-examined by the applicant about the claims made in his statement about the applicant’s attitude to staff, Mr Wolfsohn claimed that he made the statement based on his observations of the applicant’s behaviour and comments made by the applicant over a period of time. He had remarked about the applicant’s attitude to women as a result of his conversations with the applicant who had said to him that “everybody had it in for (him), that everybody was gunning for (him), everybody was picking on (him), especially women”.
[23] The applicant also put to Mr Wolfsohn that there was no substance to the claim that the applicant had engaged in threatening behaviour and that Mr Wolfsohn had never had the occasion to warn him about any such behaviour. It was Mr Wolfsohn’s evidence that the entire discussion he had with the applicant on 4 March 2010 had been about his “threatening behaviour” to John Whitehead and Tom Grossman.
The car park incident
[24] It was the employer’s evidence that in February 2010 the applicant was involved in another altercation with the employee Tommy when he parked in that employee’s parking space.
[25] The applicant explained that the employees had been told that they could park in a certain section of the undercover carpark. He claimed that he was unaware that Tommy had an allocated parking spot as he believed only managers had dedicated car spaces. The applicant considered that giving certain employees particular parking spaces was “discrimination”. The applicant claimed that the employee “Tom” had approached him “rudely” on the morning of the car park incident and told him to move his car.
[26] It was the evidence of Mr Wolfsohn and Mr Gottheiner that, at the time of the car parking incident, they had been in Germany on business and had been contacted by John Whitehead, a manager at the warehouse. Mr Whitehead had informed them about the incident indicating that he had been afraid that the applicant was going to attack both him and Tom over the incident.
The final warning discussion
[27] On his return from Germany Mr Wolfsohn had a meeting with the applicant to discuss the carpark incident. The meeting occurred on the afternoon of 4 March 2010.
[28] When cross-examined by the applicant about why he had not asked more questions about the incident, including whether the applicant had parked in the space deliberately, Mr Wolfsohn advised that he was not concerned about the use of the car park but about the applicant threatening John Whitehead so much that he was shaking, and about the applicant shouting and screaming at Tommy, who was 73 years old.
[29] According to Mr Wolfsohn, the applicant had claimed that the other employees had been “picking on him”, and had told Mr Wolfsohn that if he didn’t like the applicant’s behaviour he may as well sack him as the applicant did not intend to change. Mr Wolfsohn also recalled the applicant saying that he could not promise that he would not respond to provocation. He claimed that the applicant had repeatedly said to him throughout the two hour meeting “Fire me, go on, fire me”.
[30] The applicant denied Mr Wolfsohn’s claims and stated that Mr Wolfsohn had told him that if he didn’t like the way things were run at the warehouse “…there’s the door”. It was the applicant’s evidence that the staff were rude and disrespectful to him and that nothing was done to stop that behaviour. He claimed that no-one ever acted on his complaints about other staff and he found that unacceptable. The applicant conceded that he understood from the meeting that if he didn’t like the way things were run he was free to leave.
[31] The applicant also claimed that during the conversation Mr Wolfsohn was standing over him, yelling, and at one stage threw a set of keys at him. Mr Wolfsohn’s evidence was that during the meeting the applicant was both yelling and swearing. He denied throwing keys at the applicant although he stated that he threw some keys onto the table and told the applicant if he thought he could run the warehouse then “there are the warehouse keys”. Mr Wolfsohn’s evidence was that at the meeting he had responded to the applicant’s cries of “Fire me!” by indicating that he had no intention of firing the applicant. He had explained to the applicant that he was happy with his work but that his behaviour was an issue. He advised the applicant that he could not go around threatening people. According to Mr Wolfsohn the object of the meeting on Thursday, 4 March 2010 was to tell the applicant that his behaviour was unacceptable and to try to persuade the applicant that he needed to modify his behaviour. He had advised the applicant that he could not shout and scream at people and was not to swear and intimidate people. He told him that such behaviour was not acceptable and if that is what he intended to do he should leave.
[32] The applicant stated that he had been “spoken to on three different occasions over that one incident” (by John Whitehead, Barry Gottheiner and Ken Wolfsohn) but did not consider he had been warned in any of the discussions. The applicant put to Mr Wolfsohn that the reason for giving an employee warnings was “basically an intention of sacking a person”. Mr Wolfsohn conceded that that was so “unless their behaviour changes”.
[33] After the meeting Mr Wolfsohn prepared a final warning letter for the applicant. By the time the letter was finished the applicant had left for the day.
The termination
[34] According to the evidence of Mr Wolfsohn, on the morning of Friday, 5 March 2010, before he had given the applicant the final warning letter, he was advised by an employee (who happened to be Peter Zammit the applicant’s brother) that “Chris was telling people in the warehouse that if they did not like working in a discriminatory warehouse they could leave." He called the applicant to his office and said to him that he had been told by someone that the applicant was “once again been purposely causing dissent in the warehouse and upsetting the employees” and asked him if it was true. Mr Wolfsohn claims he then said to the applicant: "You have obviously not heeded my warning from yesterday regarding the need to have a harmonious workplace. It appears to me that you purposely want me to fire you and now I feel that you've given me no option", and "We've tried everything we can assist you and given you every chance to improve your behaviour”.
[35] At the hearing the applicant denied that he had been creating dissension in the warehouse on the Friday morning. He claimed that all he had been doing was talking to his work friends and sharing opinions. It was his evidence that his brother had denied speaking to Mr Wolfsohn about him that morning. He also denied deliberately trying to be fired. The applicant noted that he was never given the final warning letter and that when he was called to the office Mr Wolfsohn already had the termination letter prepared.
[36] When cross-examined by the applicant about why he did not give him the final warning letter Mr Wolfsohn responded that it was because when he came in on the Friday morning he was told that the applicant was “deliberately going around provoking and trying to cause dissension once again, despite the fact that we had had a discussion on the Thursday afternoon regarding your behaviour, that I needed to call you up and put you on the spot and say enough is enough, and that's exactly what happened.” It was also Mr Wolfsohn’s evidence that he had given the applicant the opportunity to respond to the allegation that morning but at that time the applicant chose not to deny it. It was Mr Wolfsohn’s opinion that the applicant wanted to be fired.
[37] When the applicant put to Mr Wolfsohn that his brother Peter Zammit had denied having the conversation with Mr Wolfsohn that Friday morning, Mr Wolfsohn stated that it was because it was the applicant’s brother who had given him the information that he had refused to tell the applicant who had told him. Mr Wolfsohn agreed that he had taken the decision to terminate the applicant’s employment on the basis of something that he had been told by another person but reiterated that the applicant was given the opportunity to refute the allegation and did not.
[38] Mr Wolfsohn stated that he stood by his statement that the applicant had not received any written warnings but had been made well aware that his behaviour would not be tolerated and that it had the potential to affect his employment if it continued. Mr Wolfsohn also stated that it was clear that the applicant had received two formal warnings about his behaviour and numerous informal warnings.
Submissions
[39] It was the applicant’s submission that he was unaware of any warnings having been given to him. He denied ever having signed for or received a copy of the employer’s policy and procedures handbook, or having signed anything to acknowledge his receipt of any warnings. He questioned whether any warnings were in fact given. He agreed that there had been incidents where managers were present but he didn’t consider them warnings. The applicant also put that there was some confusion as he could not understand how he could be given a warning when he had done nothing wrong, as was the case in the “Danny incident”. The applicant could not understand how every time a person was called in and talked to it could be considered a warning.
[40] The respondent lodged written submissions and made short oral submissions. It was put that the applicant’s denial of every claim made by the employer’s witnesses put his credibility in question. It was submitted that the applicant’s evidence in relation to the warnings was inconsistent and that there was an issue about what constitutes a warning.
[41] In summary the respondent submitted that it had a valid reason for terminating the applicant's employment on account of his poor behaviour which had continued over a period of 11 months. The applicant had received numerous warnings, both formal and informal, that his behaviour was unacceptable. He was made aware that he needed to improve his behaviour and received procedural fairness prior to and at the time of the termination of his employment.
[42] It was put for the respondent that the evidence of Mr Gottheimer and Mr Wolfsohn was consistent and should be preferred to the applicant’s evidence. It was noted that the applicant had been given two weeks’ pay on termination despite being a casual employee and the termination could not be considered harsh.
Consideration of the Issues
[43] Section 387 of the Act sets out the criteria which are to be taken into account in determining whether a dismissal is unfair. I have considered this matter in the context of those matters.
Valid Reason
[44] I am satisfied that there was a valid reason for the applicant’s dismissal. In this respect, I accept the evidence of Mr Wolfsohn and Mr Gottheiner wherever there is a conflict between their evidence and that of the applicant. The applicant’s conduct in the warehouse clearly warranted dismissal. I accept that on a number of occasions he lost his temper and confronted other staff in such a way as to intimidate them and make them afraid for their safety. I accept that on occasions he screamed and yelled at Mr Wolfsohn, both about other staff and about the manner in which he was being treated. I do not accept that his behaviour was warranted or that it need be condoned. The respondent was not required to continue to employ the applicant in such circumstances, particularly given the effect of his behaviour on other employees.
Notified of the reason
[45] Despite the applicant’s view that nothing that was said to him by any of the managers about his behaviour constituted a warning I am satisfied that the applicant was well aware of the reason for the termination of his employment. The reasons were clearly set out in the letter of termination handed to the applicant on the morning of 5 March 2010.
Opportunity to respond
[46] I accept the evidence of Mr Wolfsohn that he told the applicant about the allegation that had been made concerning him causing dissension in the warehouse on the morning of 5 March 2010, and I also accept Mr Wolfsohn’s evidence that he asked the applicant whether the allegation was true and that the applicant did not refute it.
Unreasonable refusal to allow support person and unsatisfactory performance
[47] Neither of these matters were raised in this case. The applicant did not claim to have asked for a support person at any stage and there was no evidence of any refusal to allow such a person to attend any of the meetings. Unsatisfactory performance was not a matter which had any bearing on the dismissal. Mr Wolfsohn’s evidence was unequivocal that there was no dissatisfaction with the applicant’s work performance at all. It was for this reason that Mr Wolfsohn attempted to modify the applicant’s behaviour rather than terminate his employment earlier.
Size of the employer’s enterprise
[48] It was put for the respondent that the employer is an enterprise of about 29 employees. Clearly, in such a small undertaking problems caused by one staff member’s conduct can affect a large percentage of the other employees.
Absence of dedicated HR resources
[49] It was apparent from the evidence in this matter and from the submissions put for the respondent that the respondent’s enterprise does not have a dedicated human resources area. The directors, both of whom gave evidence at the hearing, carry out all the employee related functions. Any deficiencies that might be identified in the process leading to the applicant’s dismissal are in my view of little significance and explained by the absence of dedicated human resource specialists. In my view, the applicant benefited from the absence of human resource specialists in the undertaking. It is unlikely that the applicant would have been retained in his employment as long as he did had a person dedicated only to dealing with human resources concerns been involved in his management. As directors of the company Mr Wolfsohn and Mr Gottheiner obviously had other matters to deal with and became involved only when the applicant’s behaviour was so serious that action had to be taken.
Other relevant matters
[50] I have taken into account the applicant’s short history of employment with the respondent and the fact that both directors of the respondent called as witnesses appear to have made a number of attempts to have the applicant modify his behaviour to no avail. I am satisfied that the applicant received a fair go all round while the directors who gave him that fair go have suffered a great deal of inconvenience in defending this application.
Conclusion
[51] On the basis of the matters set out above I am satisfied that the termination of the applicant’s employment was not harsh, unjust or unreasonable. The dismissal was not unfair and the application is dismissed.
COMMISSIONER
Appearances:
Mr Christopher Zammit, self-represented (for the applicant)
Ms Alexandra Shields, Norton Rose (for the respondent)
Ms Sally Woodward, Norton Rose (for the respondent)
Hearing details:
Friday, 5 November 2010
Fair Work Australia, Sydney
1 Exhibit B2 - witness statement of Barry Gottheiner
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