Mr Desire Gerard Gaetan Frichot v Centre West Exports

[2011] FWA 227

[2011] FWA 227

FAIR WORK AUSTRALIA

DECISION

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

Mr Desire Gerard Gaetan Frichot
v
Centre West Exports
(U2010/10038)

COMMISSIONER WILLIAMS PERTH, 17 JANUARY 2011

Application for unfair dismissal remedy.

[1] This matter involves an application made under section 394 of the Fair Work Act 2010 (the Act) by Mr G Frichot (the Applicant). The Respondent is Centre West Exports (the Respondent). The matter was subject to a conciliation conference however it was not resolved and was referred for arbitration.

Background

[2] Centre West Exports is involved in growing and processing carrots for export overseas and to the other states of Australia.

[3] The Applicant was employed in May 2007 in the position of Quality Control Assessor. He was responsible for the quality assurance of the Respondent’s product.

[4] The Applicant was terminated on 23 June 2010 following a meeting with Mr Nathan Troy the Respondent's Production Manager and Ms Andrena Winning the Respondent's Administration Manager.

[5] The letter of termination of that date refers to the meeting and says that the following matters were put to the Applicant at the meeting:

• Failure to follow procedures correctly



• Failure to follow instruction



• Verbal intimidation and threat



• Physical threat

[6] It is the Respondent's submission that the actions of the Applicant on Tuesday 22 June 2010 the day prior to his termination, amounted to serious misconduct.

[7] The Respondent asserts that the Applicant on the Tuesday repeatedly refused to leave an office area when instructed to do so by Mr Troy, that he verbally threatened Ms Winning and then deliberately, with both hands, forcefully swung a door towards Ms Winning causing her to nearly fall backwards.

[8] The Applicant submits that he did not commit these acts which the Respondent asserts amount to serious misconduct.

The evidence

[9] The Applicant gave evidence on his own behalf and called evidence from two other members of his family and another four persons.

[10] For the Respondent's Mr Troy and Ms Winning gave evidence.

[11] The Applicant gave evidence regarding a range of matters, including practices of the Respondent he alleges are illegal. These practices occurred throughout his period of employment but were not related to the events of Tuesday 22 June 2010. I have considered these matters but none of these in my view have any relevance to the Applicant's application for unfair dismissal.

[12] The Applicant also gave evidence to the effect that he believed in July 2009 Mr Troy had previously tried to dismiss him. I have considered the evidence of the Applicant and the evidence of Mr Troy on this issue and it is clear that what occurred at this time was dealt with then and there and in any event it is an exaggeration to suggest that Mr Troy tried to dismiss the Applicant at that time. There is nothing at all in the evidence that supports an argument that those events had any influence on Mr Troys decision to dismiss the Applicant nearly one year later in June 2010.

[13] The central issue to be determined in this application is whether the alleged misconduct that the Respondent based its decision to dismiss the Applicant on occurred or not.

[14] The facts leading up to Tuesday 22 June 2010 are generally not in dispute.

[15] On Thursday 17 June 2010 the Applicant asked Mr Troy if he could take leave on Friday 18 June 2010 in order to take his daughter who had been unwell to the doctor. Mr Troy told the Applicant that would be fine. As a consequence the Applicant, with the Respondent's approval, was absent from work on Friday, 18 June 2010.

[16] Early on the morning of Monday, 21 June 2010 the Applicant rang Mr Troy and told him that his daughter was still unwell and that he wouldn't be able to come in. The Applicant’s wife was unavailable to look after their daughter that day.

[17] Mr Troy again advised that the Applicant that this was fine and that he would see him tomorrow.

[18] The Applicant resumed work on Tuesday, 22 June 2010.

[19] During that morning the Applicant saw his pay slip and noticed that the absence he had had not been paid as annual leave as he expected it would be. He then went to the office to query this.

[20] What occurred from this point on is in dispute between the Applicant and the Respondent.

[21] The Applicant says that he spoke to Dawn the lady in the office who told him his leave had not been approved, that she couldn’t explain why and he should perhaps speak to Mr Troy. 1 He says Mr Troy was then passing by so the Applicant called him back and queried why his annual leave was not approved. Mr Troy told the Applicant that he should have provided a medical certificate. The Applicant said he then told Mr Troy that he was not sick and Mr Troy then remembered that it was his daughter who had been unwell and Mr Troy told him that there was no problem he would be paid next week.2

[22] The Applicant says that Mr Troy and himself then moved into the office of Ms Winning at which point Ms Winning told him he could not be paid because the leave had not been approved. The Applicant says he told her that Mr Troy had approved it and she should speak with him but instead Ms Winning kept saying the same thing again and again. The Applicant says that he told her that his daughter was very sick and that he needed the money. The Applicant says Ms Winning said that she did not care about his daughter and this was not her problem. Ms Winning started to get very angry at him and told him very loudly to leave her office which he did.

[23] The Applicant says he then went into the other office and spoke to one of the other ladies about his weekend but was not discussing the issue of his pay slip when Ms Winning rushed out and shouted violently at him to leave the lady alone and get out of the office. The Applicant says Mr Troy came out too and also told him to leave.

[24] The Applicant says that he then proceeded to leave the area and move through the door in to the passageway. He says the door opens only one way, into the office area and so the door cannot swing into the passage. 3 He says he opened the door and Ms Winning who was following him4 slammed the door at him and so he pushed it back to avoid being hit by the door.5

[25] The Applicant says that Mr Troy then said that pushing the door back at Ms Winning's face was unacceptable and he had to go straight home.

[26] The evidence of Mr Troy and Ms Winning is at odds with that of the Applicant's version of these events.

[27] Their evidence is that when the Applicant first came into the office and queried his pay slip with Dawn he was already very animated and loud. As a consequence Mr Troy came to the front desk to explain to the Applicant that he had not approved the annual leave because he believed the Applicant was actually entitled to carers leave which would be to his benefit because he would be paid for the absence but his annual leave would not be reduced. Mr Troy was trying to explain to the Applicant that to do this he needed some sort of medical certificate.

[28] Mr Troy says that the Applicant was quite annoyed and so he asked him to come into the other office where Ms Winning was to sort the issue out. Mr Troy says that the Applicant would not listen as he tried again to explain what he was proposing.

[29] Their evidence is that Ms Winning also tried to explain the situation to the Applicant and the Applicant then aggressively said to her “What’s it got to do with you it's none of your business.” while standing over her as she sat at her desk.

[30] Ms Winning told him that it had everything to do with her because it is her responsibility to make sure all paid absences are approved.

[31] Mr Troy and Ms Winning say that the Applicant was arguing loudly and was getting more agitated.

[32] Ms Winning tried to stop the Applicant talking so loudly and angrily at her but he told her to be quiet. At this point she too became angry and says she shouted that the Applicant should not speak to her like that and that he should leave the office.

[33] Mr Troy then repeatedly told the Applicant to leave the office area and that he personally would take care of the leave payment issue.

[34] The Applicant eventually walked out of this office but stopped about five meters away and appeared to be discussing the situation with another of the office staff. As a result Ms Winning stepped out of office and loudly asked the Applicant to leave the office and leave her staff alone.

[35] At this point the Applicant moved away, followed by Ms Winning and immediately behind her by Mr Troy. They moved from the office on to the kitchen area and towards the door which is between this area and the passageway which leads to the production shed.

[36] The evidence of Mr Troy and Ms Winning is consistent as to what happened next. They say that as the Applicant had moved through the doorway into the passageway Ms Winning took hold of the door knob to close the door behind him. At this point the Applicant turned around and with both hands on the door and deliberately pushed the door with considerable force towards her, saying “ I'm not scared of you, you'd better watch out”.

[37] To avoid being struck by the door Ms Winning was forced backwards and was caught by Mr Troy. Mr Troy and Ms Winning’s evidence is that if Mr Troy had not been behind her she would have fallen to the ground.

[38] At this point Mr Troy stepped around Ms Winning into the passageway and told the Applicant that his behaviour was unacceptable and told him to immediately leave the premises.

[39] Mr Troy in his evidence was adamant that it was obvious to him that the actions of the Applicant in forcefully pushing the door with both hands was targeted at Ms Winning and designed to hurt her.

[40] None of the other witnesses who gave evidence witnessed the critical event of the Applicant moving from the kitchen area into the passageway except Ms McRoberts. Her evidence however was at odds with that of the Applicant and of Ms Winning and of Mr Troy. Her recollection of events was that all three of them had moved well into the passageway out of the kitchen area and so she saw nothing of any door pushing nor heard any of what passed between these three persons. 6 Given the agreement between the Applicant, Ms Winning and Mr Troy that there was some interaction between them as the Applicant passed through the door to the passageway including that the Applicant agrees that after this Mr Troy stepped through the doorway into the passageway and told him his behaviour was unacceptable and he must leave the premises immediately, my conclusion is that Ms McRoberts’ recollection of these events is not reliable and should be discounted.

[41] As mentioned previously the Applicant denies making any verbal threats or forcefully pushing the door deliberately towards Ms Winning in an aggressive manner at all.

[42] Having seen Mr Troy as a witness I observed that he was a candid and open witness who gave his evidence in a measured and genuine manner.

[43] I also note that Ms Winning admits to some personal failing in that she did act in a less than professional manner in responding to the Applicant's earlier verbal aggression by herself shouting at him.

[44] In contrast the Applicant denies any wrongdoing on his behalf at any stage.

[45] Doubt is cast over the credibility of parts of the Applicant's evidence in that he says that at all times he was calm and that it was others who were becoming agitated during his interactions with Mr Troy and Ms Winning. 7

[46] This however is at odds with the evidence of Mr Troy, Ms Winning but also of Ms McRoberts whose evidence was that the Applicant was upset in the office and that she heard raised voices from all three persons being the Applicant, Mr Troy and Ms Winning. 8

[47] It is also notable that the Applicant himself agrees that whatever occurred between Ms Winning and himself as he moved from the kitchen area through the doorway into the passageway that Mr Troy came into the passageway and told him that he had to leave the premises immediately because his actions were unacceptable. It is inconceivable that Mr Troy would say this if what occurred was consistent with the Applicant's version of events.

[48] In this case then the Tribunal has before it the evidence of Mr Troy and Ms Winning, which is consistent, as to the actions of the Applicant versus the evidence of the Applicant himself who denies their version of events. Therefore the majority of the evidence favours a finding that the Applicant did act in the way that Mr Troy and Ms Winnings say he did.

[49] It is my conclusion then that on balance the evidence supports a finding that the Applicant did threaten Ms Winning with words to the effect that she had better watch out and that he did deliberately with both hands forcefully push a door towards her causing her to fall backwards such that she would have fallen to the ground had she not been caught by Mr Troy who was directly behind her.

[50] One final issue on which evidence was provided is worthy of comment and that is the issue of the surveillance cameras. The Applicant has submitted that the events in question would have been captured by security cameras the Respondent has placed throughout the premises. Mr Troys evidence was that when the Respondent tried to retrieve video recording of the events in question it discovered that the computer system on which the cameras images are recorded had failed. In support of this a report from an electronic engineering company was provided which explains the system failure and specifically that the only images recorded were for the days 8, 9, 10 and 11 June 2010 and these largely showed only dark images. Consequently I am satisfied that there is not a video recording of the events of Tuesday 22 June 2010 that would be helpful in determining what occurred.

Consideration

[51] In considering whether the dismissal here was harsh unjust or unreasonable I must take into account the criteria set out in section 387 below.

s. 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.

[52] In this case I have found that the Applicant acted as the Respondent asserted he did on Tuesday22 June 2010. He made a verbal threat to Ms Winning and deliberately, forcefully pushed a door towards her such that had she not been caught by Mr Troy she would have fallen backwards to the ground. I am also satisfied that this amounts to serious misconduct that would warrant dismissal. The actions of the Applicant on this day were a valid reason for his dismissal related to his conduct.

[53] The Applicant was notified in the meeting with Mr Troy and Ms Winning on Wednesday, 23 June 2010 of the reasons for his dismissal and this was confirmed in the termination letter of the same date.

[54] The Applicant was given an opportunity to respond to the reasons for his dismissal at the meeting on Wednesday, 23 June 2010 but denied he acted inappropriately.

[55] There was no refusal by the Respondent to allow the Applicant to have a support person present at discussions relating to the dismissal.

[56] The dismissal did not relate to unsatisfactory performance.

[57] The procedures followed in affecting the dismissal were consistent with the size of the Respondent and the absence of dedicated human resource management specialists or expertise was not an issue in this case.

[58] The Applicant has been employed for just over three years. He was employed in a senior position and should have understood that threats and physical aggression in the workplace is not to be tolerated and would place his employment in jeopardy. During the meeting on Wednesday, 23 June 2010 he was given an opportunity to admit his behaviour was unacceptable and to apologise however he did not do so and rather continued to deny that he acted as the evidence demonstrates he did. At no time has he acknowledged any wrongdoing on his part.

[59] Considering all of the above factors then I am satisfied that the Applicant was not unfairly dismissed.

[60] This application will be dismissed.

COMMISSIONER

Appearances:

Mr G Frichot, the Applicant.

Mr D Jones, Senior Industrial Relations Adviser, Chamber of Commerce & Industry, for the Respondent.

Hearing details:

2010:

Perth.

December 7

 1   PN 202, PN203

 2   Para 4 Applicants document “Unfair Dismissal from Centre West Exports”

 3   PN 253, PN254.

 4   PN 257

 5   Para 6, Para 4 Applicants document “Unfair Dismissal from Centre West Exports” and PN 260

 6   PN 560

 7   PN213 - 216

 8   PN 600, PN542, PN 558

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