Mr Jack Evreniadis v Swire Cold Storage Pty Ltd
[2010] FWA 6124
•6 SEPTEMBER 2010
[2010] FWA 6124 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Jack Evreniadis
v
Swire Cold Storage Pty Ltd
(U2010/7894)
COMMISSIONER HAMPTON | ADELAIDE, 6 SEPTEMBER 2010 |
Termination of employment - alleged unfair dismissal - individual conflict in the workplace - whether physical contact made - whether applicant pushed another employee - whether applicant misled employer about the event - whether valid reason for dismissal - whether adequate investigation conducted - whether employee denied fairness in the process - findings made based upon the evidence - dismissal not harsh, unjust or unreasonable.
Introduction and Case Outline
[1] This is an application by Mr Jack Evreniadis (the applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal. The applicant was dismissed from his role as a casual Storeman with Swire Cold Storage Pty Ltd (the respondent or the employer) following an incident involving another employee on the morning of 23 March 2010.
[2] The nature and extent of the applicant’s service is such that the employer has not raised any jurisdictional objections to the determination of this application. I accept that the application is properly before Fair Work Australia and is to be determined on its merits.
[3] On the morning in question, a verbal exchange took place involving the applicant and another employee, Mr Culpin. What is in issue in this matter includes whether any physical contact was made between these two employees, whether the applicant pushed Mr Culpin as alleged by the respondent and whether the applicant misled his employer by initially admitting to the push and later denying it. There are other issues associated with the nature and degree of provocation and the process adopted by the employer to investigate and reach its conclusions in the matter.
[4] Having regard to the matters outlined in s.399 of the Act, I considered that it was appropriate to conduct a hearing in this matter. 1 The hearing also included the viewing of Closed Circuit Television (CCTV) footage showing both the lead up to, and the incident itself.
[5] The applicant, who was initially represented by the National Union of Workers (NUW) and later appearing in his own right, contended that the decision to dismiss was harsh, unjust and unreasonable because he denied making any physical contact with Mr Culpin at the time of the specific incident as alleged. Further, the applicant contends that he was subject to threatening and intimidating behaviour by Mr Culpin prior to and during the alleged incident and that the CCTV footage was not consistent with the respondent’s allegations and supported his version of events. Further, it was argued that the conduct was not properly characterised as being serious and wilful misconduct and the dismissal was said to be disproportionate and harsh.
[6] The applicant also argued that the dismissal was unreasonable on a number of grounds including what was said to be an inadequate and unfair investigation and reliance upon previous disciplinary actions against him that were “inappropriate and irrelevant”.
[7] The applicant seeks reinstatement with consequential orders.
[8] The respondent, which was represented by Mr Callow, contends that the dismissal of the applicant was fair in all of the circumstances. It asserts that the applicant was involved in a loud verbal discourse with Mr Culpin during which the applicant forcibly pushed the other employee. The respondent contends that the applicant initially accepted that a push had taken place but then denied that aspect. Having interviewed the applicant and a number of witnesses that were said to have seen the final incident, and then reviewed the CCTV footage, it concluded that serious misconduct had occurred.
[9] The employer contends that given the nature of the final incident (even allowing for some provocation), the recanting of the initial admission and the fact that the applicant was said to have a history of recent warnings for similar behaviour; it had a valid reason to dismiss him.
[10] In light of the subsequent investigation and the formal disciplinary process that was said to have confirmed these elements in a procedurally fair manner, it was contended by the respondent that the dismissal of the applicant was in all of the circumstances both reasonable and appropriate.
The evidence
[11] The applicant gave extensive evidence in this matter 2 and called Mr Dean Martin, a casual Storeman (engaged by a labour hire firm to supply casuals to the respondent), in support of his case. Mr Martin was working in the area at the time and heard part of the initial conversation between the applicant and Mr Culpin but did not see or hear the later exchange when the alleged pushing and verbal altercation was said to have taken place.
[12] The following gave evidence in support of the respondent’s case:
- Mr Nevil Carvell, Storeman – who witnessed the alleged pushing and had a subsequent conversation with the applicant about the incident;
- Mr Richard Boyle, Team Leader - who witnessed the alleged pushing, separated the applicant and Mr Culpin and brought in management to deal with the matter;
- Mr Des Gyles, Transport Manager - who was the only Manager on site at the time and who requested those directly involved to prepare an incident report and made arrangements for the applicant and Mr Culpin to work in different areas pending an investigation;
- Mr Danny Sommer, Warehouse Manager - who was responsible for the area where the incident took place, investigated the matter and in effect made and communicated the dismissal decision;
- Mr Stephen French, Operations Supervisor - who took part in the investigation of the incident and participated in the interviews and decision making meetings; and
- Mr Raymond Poulish - Team Leader who initially (separately) interviewed the applicant and Mr Culpin during which the applicant was said to have demonstrated the physical contact between these employees.
[13] The written material before Fair Work Australia includes a map of the work area in which the incidents took place showing the three camera angles captured on the CCTV footage, the letter of dismissal and the warnings issued earlier to the applicant regarding other conduct matters. The actual CCTV footage was also viewed at various stages of the hearing and although it was lacking any sound recording and was somewhat unclear, it did assist me to understand the context and nature of the exchanges.
[14] Despite the strenuous pleadings of the applicant to the contrary, what is revealed in the CCTV footage is more consistent with the respondent’s version of events. I should however note that given the nature of the CCTV footage in this case, it is the direct personal evidence regarding the incidents upon which I have placed greatest weight in determining this matter.
[15] Mr Culpin was not called by either the applicant or the respondent. He was apparently an employee of a labour hire company used by the respondent to supplement its own workforce and it is clear that he was no longer required for work with the employer as a result of this incident. The respondent was in a position to call Mr Culpin but declined to do so as he was apparently unwilling to become involved. In these circumstances, there may have been grounds to draw an inference that the evidence of Mr Culpin may not have assisted the respondent. 3 However, the respondent has accepted that Mr Culpin did provoke the applicant and there is ample direct evidence before Fair Work Australia as to the alleged push and verbal exchange at that time and as to the subsequent events.
[16] It would be clear from the outline given earlier in this decision that this case turns for the most part upon the credibility of the witness evidence. The applicant denied there was any physical contact with the Mr Culpin (other than earlier on account of Mr Culpin when they were walking back to the part of the factory where the alleged push took place) and denied that he made any admissions about such contact at any time. The respondent has called two witnesses that have claimed to directly witness the incident and others that have heard the alleged admissions in the period immediately after the incident. I interpose that the applicant contends that neither of the witnesses were in a position to see any contact.
[17] In that context, I have carefully considered each of the witnesses and assessed their credibility having regard to all of the circumstances including the consistency, quality and overall probability of their evidence, the motive that each may have to give evidence (including their particular reporting and working relationships within the workplace) and the manner in which each witness dealt with matters and issues that were not necessarily helpful to their respective cases.
[18] I found the applicant to be a competent advocate in his own cause, but an unconvincing witness. He had a consistent tendency to exaggerate events and circumstances considered to be favourable, to understate or attempt to overlook facts and events that were unhelpful and to be evasive and unconvincing on the facts of the actual incident. It is not clear to me whether he now genuinely believes his version of events or rather has developed a scenario that may better suit the nature of the CCTV footage and other evidence that is available. In any event, I am not prepared to accept his evidence where it conflicts with reliable evidence to the contrary.
[19] The evidence of Mr Martin, although perhaps influenced by his friendship with the applicant, is of some assistance in determining this matter. However it does not go to the heart of the factual disputes between the parties.
[20] In terms of the respondent’s witnesses, I turn firstly to those who were said to have witnessed the alleged incident. I found Mr Carvell to be an impressive witness. He was frank and clear in his recall of the significant events and had no reason to mislead either his employer or Fair Work Australia. Indeed, I consider that he was somewhat uncomfortable about the import of his evidence and given his earlier role as a NUW delegate would in other circumstances have attempted to assist the applicant.
[21] Mr Boyle was also a reliable witness. I accept that he gave his evidence truthfully and with integrity and I accept it where it conflicts with the applicant. In reaching the conclusions with respect to Messrs Carvell and Boyle, I have considered the fact that each could not recall seeing the applicant holding a bag of bread when he allegedly pushed Mr Culpin. It is clear from the evidence that the applicant was holding a single bag of bread (probably a fruit loaf) in one of his hands at the time. These witnesses did not attempt to provide an explanation for their recall and indeed this confirms my view that their recall was genuine and uncompromised by later events.
[22] It is clear from all of the evidence that the bag was in the applicant’s left hand and that this was obscured from both Mr Carvell and Mr Boyle given their relative location in relation to the applicant and Mr Culpin. It is also clear that the presence of the bag would not have prevented the pushing action as contended by the respondent’s witnesses.
[23] I turn now to the evidence of Mr Poulish who, amongst other roles, spoke to the applicant shortly after the incident occurred. I found Mr Poulish to be a very impressive witness whose recall of events was consistent and convincing. In particular, I am left with the clear view that the applicant did inform him that he (the applicant) was very upset with Mr Culpin and in effect that he had pushed him in the heat of the moment. I also accept that the pushing action was explained and demonstrated.
[24] I have also considered that the original incident reports provided by these employees did not contain all of the details set out in their evidence to the Tribunal. However, this was explained by reference to what they each saw as a simple incident at the time and in the case of the management personnel, the immediate needs of the workplace.
[25] In terms of the decision makers, Mr Sommer was in my view a reliable witness and I accept his evidence. He convincingly recalled key details and I have no reason to doubt his testimony. Although the recall of Mr French was not as sharp as that of Mr Summer on some matters of detail, I also accept his evidence on the significant elements of the case.
[26] Mr Gyles was (only) called to complete the entire picture of the facts surrounding this matter and I accept that his evidence was factual and accurate.
[27] I have in reaching my findings on credit, also considered the fact that the respondent’s witnesses did not maintain contemporaneous notes of the conversations. This may not be good practice but does not detract from the fact that their recall of events was sufficiently detailed and importantly, their evidence of the key facts was clear and for the most part, convincing.
General findings of fact
[28] Based upon the material before me, the following facts emerge.
[29] The applicant had at the time of his dismissal been employed by the respondent in its Dry Creek cold storage facility for over three and a half years. He was paid as a casual employee but worked regularly for the employer during that time.
[30] The respondent is a relatively large national employer with well over 500 employees. Its Dry Creek facility employs over 50 employees, including some casual and labour hire employees.
[31] The applicant worked in an environment which involved the storage and handling of food products, generally in bulk. Associated with this activity was the regular movement of forklifts throughout the workplace. The cold storage facility is also a noisy working environment.
[32] The applicant was generally considered to be an employee with a good work ethic. Indeed, I find that other than concerns about certain elements of his conduct at times, he was well regarded by management.
[33] There were a number of warnings issued to the applicant about his conduct. He was verbally warned on two occasions, in July 2008 and June 2009 about his conduct. He also received a (first) written warning in October 2009 in relation to alleged abusive behaviour to other workers and abuse of company property. The written warning indicated in part that “... any further breach of the code of conduct may result in termination of employment”. 4 Mr Sommer conducted this warning and in that context suggested that the applicant should consider the Employee Assistance Program that was made available to employees by the respondent.
[34] In November 2009, the applicant was subject to a performance review and this confirmed his good work ethic and the need to continue to deal with “abuse and anger” issues.
[35] On the morning of 23 March 2010, the applicant was working with a number of employees including Mr Culpin and Mr Martin on packing bread into cartons. Mr Culpin apparently damaged a bag of bread by the manner in which he was handling the baskets containing the bread products. This annoyed the applicant who made an expletive in reference to Mr Culpin and forcefully told him that he had been shown before how to undertake the work in question. The applicant then went to the freezer area, some 30 metres away, to obtain a replacement bag.
[36] The applicant’s manner apparently upset Mr Culpin, who met the applicant on his way back to the area where the bread was being packed. The applicant contends that Mr Culpin said words to the effect of “take it easy Jack” and forcibly grabbed his arm almost pushing him into a nearby forklift. The CCTV footage shows that he may have brushed the applicant but is not consistent with any forceful contact. In any event, it is clear that the two then walked back to the packing area where Mr Culpin said words to the effect of “Do you often get punched in the head at (or after) work”.
[37] The applicant then turned around and fronted Mr Culpin about what he saw as a threat. There was then some yelling between them that attracted the attention of Mr Boyle and Mr Carvell.
[38] The applicant contends that during the exchange he kept his hands close to his side and leaned in at a 45 degree angle with his torso and head when saying words to the effect of “do you want to have a go?” He then suggested that both he and Mr Culpin stepped back simultaneously and that at no time did he even raise his arms. The applicant also contended under cross-examination that he stumbled when attempting to stand upright and that their freezer jackets may have brushed.
[39] I find that the applicant did respond to what he considered to be provocation from Mr Culpin and did forcibly push him away with his hands. This was witnessed by both Mr Carvell, who was sitting on a near-by forklift at the time, and Mr Boyle who immediately stepped in to keep the two men apart and to deal with the situation.
[40] Mr Boyle sent the applicant and Mr Culpin to two different rooms.
[41] Mr Poulish spoke to the applicant and Mr Culpin shortly after the incident and I find that he was given a consistent version of the events by both employees, including that the applicant had pushed Mr Culpin. The applicant also demonstrated the pushing action and after being told that he should not have touched or pushed a workmate, the applicant informed Mr Poulish words to the effect that “I’ve told Danny, if anyone’s going to go me, I’m going to defend myself”. I note that after this discussion, the applicant then consistently denied any physical contact with Mr Culpin in any formal discussions with management.
[42] Mr Gyles was the only Manager on site at the time and he briefly spoke to the applicant and Mr Culpin and requested them to complete incident reports. Others involved were also requested to do likewise. The applicant’s incident report as subsequently completed indicated that there “was no physical contact”. 5 Mr Culpin’s incident report made allegations that he had been physically abused by the applicant, had been pushed and had fended him off.6
[43] The applicant subsequently returned to the work area and Mr Culpin was sent to another part of the employer’s operations pending further developments.
[44] The applicant did briefly discuss the circumstances with Mr Carvell and others in the lunch room on 23 March 2010 and I find that he did confirm that he had shoved Mr Culpin. It is also clear that Mr Carvell was offering to support the applicant, in terms of the provocation that he had received from Mr Culpin, but was not prepared to deny the fact of the push.
[45] Mr French was made aware of the earlier developments and having read the incident reports he viewed the CCTV footage and spoke to Messrs Boyle, Carvel and Poulish. Mr French then briefly spoke to the applicant who denied that he had made any physical context with Mr Culpin. The applicant was then sent home pending further investigation.
[46] I interpose that the respondent did not interview Mr Martin and was therefore not informed as to his perspective of the events leading to the confrontation. I accept that Mr Sommer and Mr French were later aware that the applicant wanted Mr Martin to be interviewed but this was not done as Mr Martin did not see the actual incident.
[47] The applicant was invited to and attend the respondent’s premises on 25 March 2010 during which he viewed the CCTV footage and was interviewed in relation to the matter. The applicant was asked at the outset whether he wanted a representative present but he declined that invitation. The employer apparently then offered to have Mr Carvell (who was the NUW delegate but also a witness to the events) but the applicant declined the offer to have any representation. The meeting involved the applicant, Mr Sommer and Mr French.
[48] Management put the alleged push and verbal abuse to the applicant who denied that he had made any physical contact with Mr Culpin. Some of the most relevant CCTV footage was shown to the applicant and his perspective was sought. Indeed, the implications of the footage as seen by management (that there was a push as the two employees moved swiftly apart) was repeatedly put to the applicant. The applicant also indicated that he should not receive a warning about the incident. The applicant was then requested to leave the premises whilst investigations would be continued. He was also advised by Mr French that a decision would be made (on his future) having regard to the written material and the CCTV footage.
[49] Having considered that material, the employer determined that the applicant had committed an act of misconduct and that he should be dismissed. This decision was made on 25 March 2010.
[50] The applicant was then invited to attend a meeting on 26 March 2010. The employer arranged for a NUW official to be present and informed the applicant that he was being dismissed for reasons including the physical and verbal altercation with Mr Culpin. The applicant was invited to respond and he again denied that he had touched Mr Culpin and indicated that he had been provoked. The applicant was then given a pre-prepared letter of dismissal.
[51] The letter of dismissal confirmed the basis of the termination in the following terms: 7
“...
On 23 March 2010 you were alleged to have been engaged in an altercation with another employee resulting in inappropriate and aggressive physical contact by you. This is the latest incident in a pattern of aggressive and abusive behaviour as demonstrated by prior documented counselling and formal warnings (both verbal and written).
The Company has carefully evaluated the evidence relating to the incident on 23 March 2010; including; Incident Notification forms, witness statements, video surveillance footage and your statements during the subsequent investigation and finds that your response does not explain justify or excuse your conduct. While you have denied that there was aggressive physical contact, the extensive and credible evidence has been collected, clearly suggests otherwise.
Having regard to the seriousness of the latest incident and taking into consideration all the circumstances of it including your explanation, the previous incidents and warnings issued, the Company has decided to terminate your employment effective 26 March 2010.
...”
[52] As stated, the dismissal was effective from that day, being 26 March 2010.
[53] I add that Mr Culpin, who was a short term labour hire employee, was not required to work at the respondent’s facility following the events on 23 March 2010. Leading to that point, a parallel investigation and disciplinary process was conducted by the employer in relation to Mr Culpin’s contribution to the events.
Consideration – was the dismissal harsh, unjust or unreasonable?
[54] The Act relevantly provides as follows:
“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.”
[55] I have earlier set out the general contentions of the parties and although I have considered the detailed submissions made by the parties, I will not repeat them for present purposes.
[56] It is clear that s.387 contemplates that an overall assessment as to the nature of the dismissal must be made by FWA. In so doing, the Act sets out a number of considerations that are, where relevant, to be taken into account.
[57] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.
Section 387(a) – whether there was a valid reason for the dismissal related to the applicant’s capacity or conduct (including its effect on the safety and welfare of other employees).
[58] ‘Valid’ in this context is often considered to be whether there was a sound, defensible or well founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly. 8 In a case such as this, consideration of the conduct as the Tribunal finds it to be, based upon the evidence before it, must be made.9
[59] The considerations associated with physical confrontations in the workplace are well summarised by the Full Bench in Tenix Defence Systems Pty Ltd v Fearnley. 10 These include the consideration of the nature of the ‘assault’, the degree of provocation and whether there is an element of self defence, the employer’s need to establish and maintain discipline and the circumstances of the employee concerned. Given the terms of s.387(a) of the Act, issues associated with the safety and welfare of employees must form part of that consideration. This includes whether the environment within which an incident took place was such as to aggravate the seriousness of the conduct.
[60] The conduct relied upon by the respondent involved two elements. The incident itself, involving the physical confrontation with the other employee. Further, the failure to truthfully recount his conduct as part of the later investigation.
[61] I have found that the applicant did aggressively push Mr Culpin. This was not appropriate in any workplace context and particularly so given the environment in which the employees were working. The applicant was provoked by Mr Culpin and this is a mitigating factor. This however falls short of circumstances whereby the applicant could claim that the push was in the nature of self defence. Rather, it was an aggressive shove in the heat of the moment.
[62] In these circumstances, the physical contact with Mr Culpin may of itself have provided a valid reason for dismissal, however without the intervention of other factors, I would need to consider whether a dismissal based upon those circumstances alone, would have been harsh.
[63] Importantly, the applicant has also initially admitted to the push and then denied that such took place. This is clearly also relevant to the immediate consideration as the failure to be honest with the employer strikes at one of the fundamentals of the employment relationship. 11 This is not simply a case of not cooperating with an investigation, but rather attempting to deny conduct that was directly witnessed and originally admitted.
[64] Given the blatant nature of that behaviour and its impact upon the employment relationship, I find that this of itself provided a valid reason for dismissal.
[65] When the applicant’s conduct is considered as a whole, I find that a valid reason to dismiss existed in this matter.
Section 387(b) – whether the applicant was notified of the reasons for dismissal.
[66] The applicant was notified of the reasons for his dismissal both in the form of the allegations and more importantly as confirmed in the dismissal interview and letter on 26 March 2010.
Section 387(c) – whether the applicant was given an opportunity to respond to any reason related to his capacity or conduct.
[67] The applicant was given a reasonable opportunity to respond to allegations about his conduct during the investigation and disciplinary process. This included sufficient particularisation of the allegations and the inferences that were being drawn. The applicant was also shown the most relevant CCTV footage and given an opportunity to confirm his perspective and provide any mitigating circumstances.
Section 387(d) – any unreasonable refusal by the respondent to allow the applicant to have a support person present to assist in any discussions relating to his dismissal.
[68] The applicant contended that he was not aware of the nature of the first meeting conducted on 25 March 2010 and that the respondent should have arranged a union representative for him (as they did for the subsequent meeting). He also, correctly in my view, raised concerns about whether Mr Carvell (who was the union delegate but also a witness to the events - who was apparently offered to the applicant when he did not attend with a representative of his own for the first meeting) would have been appropriate.
[69] However, the evidence is that the applicant was offered the chance for representation during the first meeting and declined. I do not accept that he did not know the purpose or importance of the meeting given that he had earlier been effectively suspended and sent home in the context of his alleged conduct.
[70] Importantly, this particular statutory consideration relates to a refusal to permit the applicant to have such assistance. 12 The applicant did not seek that opportunity, and accordingly there was not as such a refusal by the employer.
Section 387(e) – if the dismissal is related to unsatisfactory performance by the applicant – whether the person has been warned about that unsatisfactory performance before the dismissal
[71] The matter concerns an alleged act of misconduct rather than unsatisfactory work performance by the applicant. Rather, the applicant was considered by most witnesses to be a productive employee with a good work ethic. There are pre-existing conduct warnings and I will return to these in due course.
Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
[72] The respondent is a relatively large employer and there are no special considerations that apply in this context.
Section 387(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
[73] There is little evidence as to role played by the employer’s dedicated human resource management specialists other than for the fact that they were consulted as part of the decision making process. In any event, it does have such resources and accordingly this is also not a particularly relevant consideration in the context of this matter.
Section 387(h) – any other matters that FWA considers relevant
[74] The applicant’s length of service with the respondent and the fact that he was generally regarded as a diligent worker are relevant considerations in this matter.
[75] The fact that the applicant has at no time accepted any responsibility for the events leading to his dismissal, including before the Tribunal, is a relevant consideration.
[76] The fact that the applicant was already on formal notice as to his conduct and had been formally warned about abusive and aggressive behaviour is a relevant consideration.
[77] The fact that the applicant was provoked by Mr Culpin is relevant to his initial conduct but not to his subsequent denial of any physical contact on his behalf. In that regard, the fact that Mr Martin was not interviewed would in other circumstances have been a relevant consideration. However, the existence of the provocation was not in issue, the direct witnesses had been interviewed and the applicant and Mr Culpin spoken to, and Mr Martin could cast no light as to the circumstances at the time of the final incident. In that context, this element is not significant in this matter.
Conclusion as to the nature of the dismissal
[78] Having regard to the considerations raised by s.387 and the facts of this matter, I find that the dismissal of the applicant was not harsh, unjust or unreasonable in all of the circumstances. As a result, I find that the applicant was not unfairly dismissed within the meaning of the Act.
[79] An order dismissing the application [PR500418] has been issued in conjunction with this decision.
COMMISSIONER
Appearances:
J Evreniadis on his own behalf.
R Callow of Business SA with S Gowdie for the Respondent.
Hearing details:
2010;
Adelaide;
August 9, 10
1 Both parties supported the conduct of a hearing and the matter involved multiple witnesses and issues of credit are critical considerations.
2 This included a witness statement (Exhibit MFI1) and a supplementary witness statement (Exhibit A1).
3 In the absence of a satisfactory explanation for evidence not being called when a fact is in issue, it is permissible (but not necessary) to draw an inference that the evidence would not have assisted the only party who was in a position to call that evidence: Jones v Dunkel and Another [1959] HCA 8; (1959) 101 CLR 298.
4 Attachment B to the witness statement of Mr Sommer - exhibit R8.
5 Exhibit A2.
6 Exhibit R3.
7 Exhibit A3.
8 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, Ross VP, Williams SDP, Foggo C, 15 June 2004 PR948009
9 Edwards v Giudice [1999] FCA 1836; King v Freshmore (Vic) Pty Ltd, AIRC Print S4213, 17 March 2000 per Ross VP, Williams SDP and Hingley C.
10 AIRC Print S6238, 22 May 2000 per Ross VP, Polites SDP and Smith C - particularly as summarised at par [25].
11 There is a clear duty of fidelity upon the employee including an obligation not to mislead or deceive the employer. Equally, an employee is entitled to fairness and honest dealings. As stated in Blyth Chemicals Limited v. Bushnell [1933] HCA 8; (1933) 49 C.L.R. 66 per Dixon and McTiernan JJ. at pp. 81-82:-
`Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal ... But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises.'
12 Explanatory Memorandum Fair Work Bill 2008 para 1542.
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<Price code C, PR500417>
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