Mr Donald Ross Burgess v General and Window Cleaning Pty Ltd

[2011] FWA 8329

[2011] FWA 8329

FAIR WORK AUSTRALIA

DECISION

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

Mr Donald Ross Burgess
v
General and Window Cleaning Pty Ltd
(U2011/5319)

COMMISSIONER DEEGAN CANBERRA, 23 NOVEMBER 2011

Introduction

[1] This decision arises from an application under s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal filed by Mr Donald Burgess (the Applicant) in relation to the termination of his employment with General and Window Cleaning Pty Ltd (the Employer).

[2] The Applicant’ employment was terminated on 18 November 2010. The application was filed on 22 February 2011, more than 14 days after the termination took effect. By Order [PR509414] of Fair Work Australia on 11 May 2011 the time allowed for the filing of the application was extended.

[3] The matter was the listed for a conciliation conference, which was cancelled when the Employer advised that it did not wish to participate. The matter was then listed for arbitration in the October 2011 arbitration roster in Hobart. The employer’s unavailability precluded any earlier listing. At the hearing Mr P Tullgren, an official of United Voice, appeared for the Applicant. The Employer was represented by Mr Charles Jones, Managing Director.

Background

[4] The Applicant had been employed by the Employer as a cleaner from July 2005. Until 1 November 2010 he was employed full-time. He became a part-time employee of the Employer from November 2010 as a consequence of the Employer losing the contract for one of the sites at which he performed duties as a cleaner. The Applicant’s services were retained by the new contractor at that site. The Applicant continued to work part time for the Employer at a school site.

[5] On 18 November an altercation took place between the Applicant and a supervisor at the school site. As a result of the altercation the Applicant’s employment was terminated.

The Applicant’s Evidence

[6] The Applicant filed a statement of evidence 1 which he expanded on at the hearing and was cross-examined. It was his evidence that his hours of work at the school premises were 3.30 a.m. to 8 a.m. Monday to Friday, during which time he cleaned floors and removed rubbish.

[7] According to the Applicant he generally dealt with one supervisor at the school, Mrs Goss. He claimed that in early November 2010 Mrs Goss informed him that another supervisor, Mr White, had instructed her that he, the Applicant, would be required to report to her each day upon commencing work. He then worked as normal from 8 until 14 November 2010. The Applicant stated that about 4 a.m. on 15 November 2010 he had seen Mr White at the school site and advised him that one of the polishing machines required a new safety tag as the tag affixed to the machine was out of date. Mr White had responded “Tag the machine” and walked away. The Applicant had then advised Mrs Goss that he would not use the machine again until it had been safety tagged and she had agreed. He did not use the machine again.

[8] The Applicant claimed that at 4.30 a.m. on 18 November he was approached by Mr White at the school premises as he was collecting equipment to wash some floors. It was his evidence that Mr White had accused him of failing to buff the floors for two weeks. The Applicant stated that he had replied that the tag on the buffer was out of date and that Mr White had responded that the machine could still be used. The Applicant had replied “Yes, fuck that”, and Mr White had commenced yelling at him to go. According to the Applicant he attempted to leave and was threatened by Mr White, who pushed him against a wall and said “I’ll smash your fucking face in”. The Applicant then left the building.

[9] The Applicant claimed that as he was leaving he spoke to another cleaner and informed her that Mr White had told him to leave. Mr White then appeared, carrying the buffer, and again told him to go and pointed out exposed wiring on the machine. The Applicant, whose evidence it was that he had not used the buffer since the previous Friday, denied any responsibility for the frayed wires. He then left the school premises.

[10] Attached to the Applicant’s statement was a copy of notes which he said that he had made on the day of the termination. The notes contained a similar version of events, although slightly more expansive, as set out in the Applicant’s statement of evidence.

[11] When the Applicant had Mr White’s version of the events of 18 November put to him he denied those parts of that statement that differed from his own.

[12] It was the Applicant’s belief that his employment with the Employer had been terminated as a result of the loss of the contract for the other site where he was employed. The Applicant believed that the Employer resented having to pay him a part-time rate of pay when there was no longer sufficient work for him to be employed full-time.

[13] When cross-examined by Mr Jones, the Applicant denied that his employment had been terminated as a direct result of his swearing on the premises, a girls’ school, on the morning of the 18 November 2010, rather than for any reason connected with the buffer. It was also his evidence that he spoke to Mr White in the same manner as Mr White spoke to him.

The Respondent’s Evidence

[14] Mr Michael White, a supervisor with the Employer, was called as a witness. Mr White had filed a statutory declaration setting out his version of the incident on the morning of 18 November.

[15] According to Mr White’s statutory declaration, he had gone to the school on 18 November to check the plant and equipment to ensure it was in good order and properly safety tagged. He noticed that all the tags on the polishers were out of date and one had live wires showing. He spoke to Mrs Goss, the onsite supervisor, who told him that she had asked the Applicant if any of the equipment needed testing and tagging. It was Mr White’s evidence that he had then approached the Applicant, who denied that he had been asked to check the equipment and said that Mrs Goss was a liar. Mr White had asked the Applicant to keep his voice down and stop swearing as the school boarding house was nearby. He and the Applicant had continued to argue about whose responsibility it was to check whether the equipment needed testing and tagging and, when Mr White mentioned the frayed wires on the buffer, the Applicant tossed a mop handle at him, put his face close to his and left, continuing to swear. Mr White next saw the Applicant speaking to another cleaner outside the building and again asked him to leave.

[16] Mr White’s oral evidence differed only slightly to that contained in his statutory declaration. He claimed that on 18 November he asked Mrs Goss whether anyone had mentioned their equipment being out of date and she had replied that no-one had reported anything. He had then checked the equipment and found bare wires on the buffer. He returned to Mrs Goss with the buffer and asked her if anyone had reported it. She had responded that no-one had reported it to her.

[17] Mr White claimed that he had then gone to talk to the Applicant and found him with a mop and bucket outside the cleaners’ room. He claimed that he “just mentioned to him about his buffers being out of date” and that Mrs Goss had mentioned to him that they are supposed to report to her if they're out of date. According to Mr White the Applicant then “just went off” saying "She's a fucking liar" at the top of his voice, and swearing. He continued swearing and Mr White asked him to be quiet because the girls were asleep. It was the further evidence of Mr White that the Applicant flung his mop at him so Mr White asked him to leave. The Applicant then “stuck his face out, continued swearing, and [he] just took off”.

[18] Mr White denied swearing or raising his voice at the Applicant, stating that it was necessary to be very quiet as the girls were sleeping nearby. He stated that the incident took less than five minutes.

[19] Under cross-examination Mr White agreed that he had told the Applicant in the past that he was not to use equipment that had not been properly tagged and tested. He denied that he had ever told the Applicant to tag a machine, stating that tagging was his job. He also denied that he had started the conversation with the Applicant by claiming that Mrs Goss had said that the Applicant had not buffed the floors for two weeks. The witness also denied that he had tampered with the wires on the buffer, noting that he was responsible for health and safety.

[20] According to Mr White the Applicant would still be working for the Employer had he not sworn at him, continually and loudly, and had he not thrown his mop at him. Mr White claimed the Applicant had thrown the mop directly at him and that it had hit him on the shoulder. It was at that time he had told the Applicant to leave.

Submissions

[21] It was submitted for the Applicant that the Employer’s witness had fabricated the evidence in order to dismiss the Applicant. It was put that Mr White had a “very short fuse” and that he would become strident when challenged. It was the Applicant’s submission that he had no motive for engineering his own dismissal, whereas while the Employer may have wanted to dismiss the Applicant because he was working for the firm that gained the cleaning contract lost by the Employer. Further, the Applicant’s contention was that there was no serious misconduct on his part. He denied throwing the mop and noted that this accusation only arose in the oral evidence of Mr White and did not form part of his statement.

[22] It was the Employer submission that the evidence of Mr White should be accepted. He had been employed by the company for 25 years and no situation such as the matter before the tribunal had ever arisen before. In particular the tribunal should not accept any suggestion put by the Applicant that Mr White had tampered with the wiring on the buffer.

Consideration

[23] There was no suggestion that the Applicant in this case was not protected from unfair dismissal 2 or that the Small Business Code3 had any application. In those circumstances it is the criteria set out in s.387 of the Act which I must take into account in determining whether or not the dismissal was unfair.

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.

[24] In this matter the question whether there was a valid reason for the dismissal rests solely on the events of the morning of 18 November 2010. There were only two witnesses to those events and both gave evidence. The versions given by each witness were quite different in relation to the matters of significance. Both claim to have been motivated by occupational health and safety concerns in adopting their attitude at the time. Having seen both witnesses give their evidence it is my opinion that what actually occurred that morning was not accurately described by either witness. Both put a gloss on the events which presented their own behaviour in the best possible light. Clearly there was an argument about the machinery and the safety tagging of that machinery. The Applicant’s evidence was that Mr White had spoken to him previously about using machinery that did not have an up to date safety tag and that this had made him particularly careful not to repeat that conduct. That evidence of the Applicant as to Mr White’s previous attitude to safety tagging of machinery gives greater credence to Mr White’s version of the conversation he had with the Applicant on 18 November than to the Applicant’s claim that Mr White suggested that the machinery could continue to be used in the absence of a valid tag.

[25] While I am prepared to accept that the conversation may have been about the matters claimed by Mr White I do not accept his evidence of the manner in which that conversation developed, in particular that the Applicant was the only participant swearing or raising his voice. Nor do I accept Mr White’s evidence that the Applicant deliberately struck him with the mop. Significantly, this allegation did not form part of Mr White’s original statement despite his evidence that it was this action on the part of the Applicant that largely led to his decision to terminate the Applicant’s employment.

[26] On the balance of probabilities I find that an altercation did take place between the Applicant and Mr White on the morning of 18 November 2010. I am unable to determine who was responsible for the escalation of the argument but am satisfied that neither man was blameless. I find that the Applicant did swear and raise his voice at Mr White and that the argument was most likely about Mr White’s allegation that the Applicant had failed to report equipment requiring safety tagging. I am prepared to accept that Mr White told the Applicant to leave because of the noise the altercation was generating and because he was not happy with the Applicant’s aggressive response to his allegations. Similarly I am prepared to accept that the Applicant responded in the manner he did because of the way in which he was approached by Mr White.

[27] I am not satisfied that, in all the circumstances, the Applicant’s response to Mr White amounted to serious misconduct. Had I accepted that the Applicant deliberately threw the mop at Mr White I would have taken a different view.

[28] As the Applicant was summarily dismissed he was not given an opportunity to give his version of the events of 18 November 2010 to his employer. No discussions took place in relation to the termination. No doubt the size of the employer’s enterprise impacted on the manner in which the dismissal was effected. There was no evidence of any human resources expertise and it appeared that the Managing Director, Mr Jones, together with Mr White, had responsibility for the Employer’s human resources tasks.

Conclusion

[29] I find that there was no valid reason for the termination of the Applicant’s employment and, in the circumstances, given the lack of procedural fairness afforded to him, the termination was unreasonable.

Remedy

[30] As noted, I am satisfied that the Applicant was, at the time of the termination, a person protected from unfair dismissal and that he was unfairly dismissed.

[31] So far as the requirements of s.390 of the Act are concerned, I am satisfied that reinstatement of the Applicant is inappropriate. The Applicant did not seek reinstatement and clearly the employment relationship has broken down. I am satisfied that I should make an order for compensation in lieu of reinstatement. There was no submission put for the Employer that any order I might make would affect the viability of the business 4.

[32] The Applicant had been employed by the Respondent for a period of 5 years 5. At the time of the termination he was working part-time hours only. It was his evidence that after losing his position with the Respondent he did not actively seek other employment while he waited for another position to come up with his current employer. There was no serious misconduct on the part of the Applicant which justified summary dismissal. The Applicant should have been paid an amount equivalent to 5 weeks wages in lieu of notice.

[33] In all the circumstances, given that the Applicant’s own behaviour contributed to the dismissal 6 and that he made no effort whatsoever to mitigate his loss7 I am only prepared to make an order that he be paid compensation in the amount of 5 weeks wages. Had the Applicant made any effort at all to mitigate his loss additional compensation may have been ordered.

[34] An Order giving effect to this decision is issued separately.

COMMISSIONER

Appearances:

Mr P Tullgren, United Voice, on behalf of the Applicant.

Mr C Jones, General and Window Cleaning, on behalf of the Respondent.

Hearing details:

2011.
Hobart:
5 October.

 1   Exhibit B1

 2   Fair Work Act 2009 (Cth) s.382.

 3   Fair Work Act 2009 (Cth) s.388.

 4   Fair Work Act 2009 (Cth) s.392(2)(a)

 5   Fair Work Act 2009 (Cth) s.392(2)(b)

 6   Fair Work Act 2009 (Cth) s.392(3)

 7   Fair Work Act 2009 (Cth) s.392 (2)(d)

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