Mr Ioannis (Yiannis) Athanasiou v Quality Plumbing and Building Contractors Pty. Ltd

[2011] FWA 8879

[2011] FWA 8879

FAIR WORK AUSTRALIA

DECISION

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

Mr Ioannis (Yiannis) Athanasiou
v
Quality Plumbing and Building Contractors Pty. Ltd.
(U2011/11347)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 20 DECEMBER 2011

Termination of employment.

[1] This is an application pursuant to s.394 of the Fair Work Act 2009 (the Act). The time for lodgement of the application was extended by Vice President Lawler 1.

[2] Mr Athanasiou's application was listed before me for arbitration in Darwin on Monday, 21 November 2011. Mr Athanasiou did not attend on that day. He sent a friend to ask for an adjournment of approximately 3 weeks because he said he had not received the notification. I refused that application for adjournment. Having ascertained how long Mr Athanasiou would need to travel to Darwin from where he was working in the bush, I adjourned the arbitration to Wednesday, 23 November 2011, on which date both parties represented themselves.

[3] The Greek interpreter, who had been arranged for the hearing on 23 November 2011, was unavailable on the day. The arbitration proceeded with a telephone link to an interpreter in Melbourne. This process worked well and the arbitration proceeded efficiently in this regard.

[4] Mr Athanasiou had difficulty addressing the reason relied on by the respondent for the termination of his employment, as well as why that reason was harsh, unjust or unreasonable. To assist Mr Athanasiou I asked the respondent's manager, Mr Schloss, whether he would agree to present the respondent’s evidence first and allow Mr Athanasiou to cross-examine. He agreed.

[5] In essence, the respondent’s evidence was that Mr Athanasiou's employment was terminated for what was alleged to be abusive conduct towards his foreman Mr Kokoroyianis. Mr Schloss accepted MrKokoroyianis’ version of events, found it to be consistent with Mr Athanasiou’s past conduct and decided that Mr Athanasiou's conduct was a valid reason to terminate his employment.

[6] Upon questioning by myself, Mr Schloss confirmed that the respondent did not pay Mr Athanasiou an amount of money in lieu of notice. Mr Schloss did not consider that the respondent was obliged to make the payment because Mr Athanasiou was paid a very high daily rate. He did not consider Mr Athanasiou’s conduct to be gross misconduct disentitling him to notice. I disabused Mr Schloss of this misunderstanding and, following the conclusion of the hearing, the respondent confirmed payment to Mr Athanasiou of the proper amount of money in lieu of notice.

[7] Despite repeated directions to do so, Mr Athanasiou failed to give evidence about, or deal with in any proper fashion, the conduct alleged by the respondent to be the reason for the termination of his employment. Mr Athanasiou wanted to give evidence about other matters and he did so.

[8] I accept the evidence of Mr Kokoroyianis and Mr Schloss.

[9] I accept that Mr Athanasiou was terminated for conduct which was misconduct amounting to a valid reason for the termination of his employment. That conduct was unacceptable abuse of his foreman Mr Kokoroyiannis.

[10] Mr Athanasiou was notified of the reason for termination of his employment.

[11] Mr Athanasiou was given an opportunity to respond to the reason provided to him by Mr Schloss for the termination of his employment. That reason related to his misconduct.

[12] There was no unreasonable refusal by the respondent to allow Mr Athanasiou to have a support person present to assist in the discussion related to his dismissal.

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

[14] The size of the respondent’s enterprise, and the degree to which the absence of dedicated human resource management specialists or expertise within the respondent, are factors which have been considered by me but are, in my opinion, irrelevant.

[15] I have given consideration to Mr Athanasiou's contribution to the business of the respondent and the length of his employment. I have taken those matters into account.

[16] I am not persuaded that the termination of Mr Athanasiou's employment by the respondent was harsh, unjust or unreasonable.

[17] The application is dismissed.

SENIOR DEPUTY PRESIDENT

 1   [2011] PR516211 Lawler VP, 2 November 2011

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