Mr Lawrence Dwyer v Steelcon Pty Limited T/A Steelcon Cava

[2016] FWC 2866

[2016] FWC 2866

The attached document replaces the document previously issued on 13 May 2016.

MNC added to Decsion.

Brendan Pearce

Associate to Senior Deputy President Richards

Dated 13 May 2016

[2016] FWC 2866

FAIR WORK COMMISSION

DECISION

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

Mr Lawrence Dwyer
v
Steelcon Pty Limited T/A Steelcon Cava
(U2015/15832)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 13 MAY 2016

Unfair dismissal application - whether dismissal at initiative of the employer – conduct issues – balance of probability

[1] This decision concerns an application by Mr Lawrence Andrew Dwyer under s.394 of the Fair Work Act 2009 (“the Act”). Mr Dwyer is seeking an unfair dismissal remedy in relation to his alleged dismissal from his position as a Hydraulic Hose Technician by Mr Guillermo Alonzo, the General Manager, of Steelcon Cava Pty Ltd (“the employer”) on 9 December 2015.

[2] I indicate at the outset that the employer objects on jurisdictional grounds to the application proceeding. That is, the employer contends that Mr Dwyer was not dismissed at the initiative of his employer but resigned his employment at his own volition.

[3] The circumstances in which Mr Dwyer allegedly came to repudiate his employment by way of abandonment are set out further below.

[4] The relevant legislative provisions, which require that a person can only be dismissed if they have been dismissed at the initiative of his or her employer are as follows:

Legislative provisions

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

Evidentiary claims

[5] Mr Dwyer had performed his duties with the employer since 13 March 2015. At the time of his recruitment Mr Dwyer alleges that he was informed by Mr Alonzo that the employer would provide for accommodation and meals as a component of his remuneration package. Mr Dwyer held that it was common for his co-workers to receive such benefits when working away from home, and he took Mr Alonzo at his word. Mr Dwyer admits that his written employment agreement did not make any reference to the provision of meals or accommodation, but the provision of free meals, along with access to a company vehicle and mobile telephone, had been provided subsequently nonetheless.

[6] On 9 December 2015 between six and 6:30am Mr Dwyer held that he was in the mess hall at the Moondarra Accommodation Village when Mr Alonzo approached him. Mr Dwyer held that Mr Alonzo enquired as to what was happening with the food at the caravan park and Mr Dwyer replied, he says by indicating that he was writing his name on the list each morning as per usual.

[7] Mr Dwyer alleges that Mr Alonzo then asked, “So that means Steelcon is paying for it?”

[8] Mr Dwyer states that he replied by saying, “I guess so, that’s the arrangement.”

[9] Mr Dwyer then held that Mr Alonzo “lost it” and began yelling and told him to “F**k off”.

[10] Mr Dwyer contends that he sought to explain to Mr Alonzo that Mr Alonzo had agreed to the meals and accommodation provisions at the initial interview as a term of his employment package but Mr Alonzo only “continued yelling, telling me to “F**k off, you’re finished here, get out of here.”

[11] It was further alleged by Mr Dwyer that Mr Alonso pushed his chest into Mr Dwyer, which necessitated Mr Dwyer pushing Mr Alonso, which required him to take one or two steps backwards.

[12] Mr Dwyer formed the view that as a consequence of Mr Alonzo’s alleged behaviour that Mr Alonzo had acted to bring his employment to an end immediately.

[13] Mr Dwyer conceded that he replied to Mr Alonzo by saying, “no, you F**k off”, and when Mr Alonzo was said to have continued yelling at him in offensive terms Mr Dwyer stated that he ultimately replied with words to the effect of, “kiss my arse”, whilst pointing to his posterior.

[14] Mr Dwyer then maintained that he returned to his employer’s shed and packed up his tools. Later in the afternoon of 9 December 2015, Mr Dwyer claims that he made a written record of the events of that day in his diary, which he tended in his evidence. That evidence is reflective of the above construction of the exchange between himself and Mr Alonzo. Mr Dwyer’s diary entry begins with the exclamation, “Wow! What just happened”.

[15] Mr Dwyer contended generally that but for this incident he would have continued to be an employee with the employer, and that prior to the incident he had never received any indication from his employer that he was not entitled to meals at the mess hall.

[16] The employer’s asserted factual matrix differs critically from that of Mr Dwyer.

[17] In the first instance, Mr Paul Silva, the Manager of the Moondarra Accommodation Village, gave evidence that no records existed that Mr Dwyer had his food paid for by the employer and posed as a possible explanation for Mr Dwyer’s claims to the contrary that he might have a private agreement with a previous Accommodation Village Manager to provide meals free of charge. Mr Silva claimed this on the basis that he had no record of having invoiced the employer for any of Mr Dwyer’s meals in the past, and he had not invoiced the employer to date, either.

[18] For his part, Mr Alonzo claims that on the morning of 9 December 2015 he spoke with Mr Dwyer in the mess room and advised him that he was not entitled to have meals at the expense of the employer. Mr Alonzo stated that it was Mr Dwyer who then became “extremely agitated”.

[19] Mr Alonzo stated that throughout the course the conversation that he remained calm and did not use any profane language, or make any physical contact with Mr Dwyer.

[20] Mr Alonzo claimed that he did not terminate Mr Dwyer’s employment and it was Mr Dwyer, whilst pointing to his posterior, who told him to “stick my job up my arse”. With that, Mr Alonzo held that Dwyer was said to have left the mess hall proceeded to the shed and collected all his tools and left the site.

[21] Mr Alonzo held that Mr Dwyer had subsequently not made any effort to contact him and retract his resignation (as had been conveyed by his - Mr Dwyer’s - comment as set out above).

[22] Mr Eugene Pouesi was a mechanic with the employer and had worked closely with Mr Dwyer over the previous 12 months. Mr Pouesi gave evidence - by way of a statutory declaration - that on the morning of 9 December 2015 Mr Dwyer entered the employer’s workshop and said that “he was finishing with Steelcon” and “picked up his tools and left.” Mr Pouesi also claimed that Mr Dwyer said that he “had been speaking with Mr Alonzo and that the company wasn’t going to supply him with meals so he finished up.”

[23] Upon being questioned, however, Mr Pouesi’s evidence was found to be unsound. His recollections were confused as to his whereabouts at the time Mr Dwyer had commented to him, and considered it might have been at him home the following day, in the course of a social interaction with Mr Dwyer. Mr Pouesi’s evidence was also unsound as to precisely what Mr Dwyer had said to him in any event.

[24] Mr Pouesi’s English language skills were far from competent, as Mr Dwyer himself had indicated in his evidence, and his confusion may have arisen from that circumstance more than an intended mischief. I suggest this further because both he and Mr Dwyer considered one another to be on friendly terms and Mr Pouesi had no ostensible reason to act against Mr Dwyer’s interests for an ulterior reason.

[25] Irrespective of this, I must put Mr Pouesi’s evidence to one side as it has no probative value for these proceedings.

Consideration

[26] The factual matrices as asserted by Mr Dwyer and Mr Alonzo are incompatible, and both presented their claims in an uncompromising manner. In essence, therefore, I was left with the competing evidence of Mr Dwyer and Mr Alonzo, and a particularly narrow field of evidence.

[27] However, on the balance of probability, I prefer the evidence led by the employer in this matter. My reasons for so concluding are as follows.

[28] Mr Dwyer gave evidence that he had interacted with Mr Alonzo in prior periods and considered that Mr Alonzo had been “very happy” with both his work and with his attitude towards his work. Mr Alonzo, for his part, considered Mr Dwyer to possess important skills and to be a required employee for the business.

[29] To this I add that to date, the employer had not been required to meet any costs in relation to Mr Dwyer’s meals claims to date, as it had not been invoiced in any past period, and had not been invoiced more recently by Mr Silva, either. In essence, therefore, irrespective of what Mr Dwyer’s past conduct may have been in relation to meals, the employer had not borne any costs.

[30] Generally then, there had been no prior vitriol between the parties, the parties appear to have held a respectful view of one another, and the issue of meals had never been raised at a previous time either.

[31] This then, was the relational setting and context when the two individuals came together in the mess hall on the morning of 9 December 2015.

[32] Mr Dwyer’s evidence reconstructed a conversation in which immediately upon him having informed Mr Alonzo in civil terms that he had been writing his name on the list at meal times, Mr Alonzo instantly responded in an extremely aggressive manner by yelling at him, including telling him to “F**k off”. The escalation of the issue from a point of ordinary inquiry to an abusive dismissal was said to have been seamless and instantaneous.

[33] Mr Dwyer stated that he attempted to explain that this was the arrangement to which he believed he was entitled, Mr Alonzo continued yelling at him and told him to “F**k off, you’re finished, get out of here.”

[34] At some point there was also said by Mr Dwyer to be a chesting and shoving component to the incident (although Mr Dwyer’s primary witness statements filed for these proceedings made no reference to this interaction, which was denied by Mr Alonzo).

[35] It is possible that a person may react in such spontaneous, extreme and final terms as it was said did Mr Alonzo, but absent any further context (such as a provocative remark being uttered, or a disrespful gesture, or some prior adverse interactions to rely upon as suggested above) I am not satisfied that on the balance of probability that Mr Alonzo would have acted as Mr Dwyer claims.

[36] It seems to me to be improbable that Mr Alonzo – given the fact of his prior positive view of Mr Dwyer would have reacted with such vitriol and without regard to the known needs of the business – in respect of what was not a particularly significant issue and not a matter that had to that point, been the cause of any commercial loss to the company. That is, the employer’s exposure to Mr Dwyer’s conduct was non-existent, whereas Mr Dwyer clearly placed great importance on the alleged inclusion of meals in his employment contract.

[37] Mr Dwyer’s evidence asks me to accept that Mr Alonzo is capable of acting irrationally and impulsively, and that he is an unstable personality type. That much was not strongly evident from Mr Alonzo’s demeanour as observed in the witness box.

[38] It may be the case, I surmise only, that Mr Dwyer and Mr Alonzo had an exchange which included some strong language. But on the balance of probability, I do not consider that the manner of the escalation of that exchange proferred by Mr Dwyer to be evidence of a natural event. That is, when considered in their context, I consider Mr Dwyer’s claims to be contrived.

[39] In so concluding I have not given great weight to Mr Dwyer’s alleged contemporaneous notes of the incident. The diary used by Mr Dwyer did not seem to me to be used with any continuing purpose of recording his thoughts or interactions at any time prior, and the tone of the writing in relation to an event that occurred quite some number of hours previously struck me as exhibiting an artificial level of excitement (“Wow! What just happened”). That is, the diary note did not strike me as an authentic record of the incident in question.

[40] It appears to me that Mr Alonzo’s evidence is to be preferred, as it was more likely than not (relative to my findings above) that it was Mr Dwyer’s reaction to the withdrawal of an assumed entitlement that triggered Mr Dwyer’s disdain, and led him to pointing to his posterior (as he accepted that he did) and indicating to Mr Alonzo that he no longer wished to remain an employee.

[41] I add at this juncture that CCTV footage of the incident was led by the employer. Whilst there was some extensive commentary on its meaning, the footage was ultimately of no probative value. This was because the camera footage was too distant, lacked continuity at critical points – owing to the manner of its operation - and illuminated very little of the exchange between Mr Dwyer and Mr Alonzo. The camera footage had no audio component, and it was particularly difficult to ascribe any meaning to any gestures (as might been observed from a distance).

Conclusion

[42] Mr Dwyer’s evidentiary case causes me to conclude that he was not dismissed at the initiative of the employer, but rather resigned his employment in a moment of pique. So much was evident to Mr Alonzo’s evidence. Mr Dwyer made no effort to rescind his resignation subsequently. Mr Alonzo reasonably relied on the Mr Dwyer’s conduct to assume Mr Dwyer had voluntarily ceased to be an employee at his own volition. Mr Dwyer’s application therefore cannot meet the jurisdictional test of s.385(a) of the Act, and must be dismissed as a consequence.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr Klevanski barrister for the respondent

Ms Podleska solicitor for the respondent

Mr Worcester solicitor for the respondent

Mr Heffernan representative for the applicant

Hearing details:

Brisbane

9am 10 May 2016

Printed by authority of the Commonwealth Government Printer

<Price code C, PR580101>