Mr Lindsay Baker v S&L Lenz Pty Ltd T/A Lenz Family Trust and IGA Byford

[2013] FWC 847

[2013] FWC 847

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mr Lindsay Baker
v
S&L Lenz Pty Ltd T/A Lenz Family Trust and IGA Byford
(U2012/12774)

DEPUTY PRESIDENT MCCARTHY PERTH, 6 FEBRUARY 2013

Termination of employment - initial matter - whether Applicant dismissed - application dismissed.

[1] Mr Lindsay Baker (the Applicant) lodged an application for unfair dismissal remedy on 29 August 2012. He claimed that he was unfairly dismissed from his employment with S&L Lenz Pty Ltd trading as Lenz Family Trust and IGA Byford (the Respondent).The Respondent asserted that the Applicant was not dismissed from his employment.

[2] The relevant facts centre around a discussion between Mr Steven Lenz and the Applicant on Thursday 16 August 2012. Mr Lenz was clearly a person with the senior managerial authority over the Respondent.

[3] The Applicant and Mrs Sharon Baker, the Secretary/Accountant for the Respondent and the wife of the Applicant gave evidence. Mr John Musca and Mr Lenz gave evidence for the Respondent.

[4] Mr Lenz evidenced that there was a heated discussion with the Applicant on the evening of Thursday 16 August 2012. The discussion involved a disagreement over a welder and the progress of welding work done by the Applicant and also over allegations by the Applicant about a text message Mr Lenz had sent to Mrs Baker by addressing her as "sweetie".

[5] Mr Lenz stated that there were a lot of matters raised during that discussion. Mr Lenz claims that the Applicant was agitated and raising matters of little or no significance and also distorting the real nature of matters he did raise. Mr Lenz says that he raised the performance of the Applicant in the discussion and that the Applicant became aggressive and abusive.

[6] Mr Lenz says that the discussion was left on the basis that the Applicant would be returning to work on the next day with the Applicant saying "I will see you tomorrow" and the Respondent expecting that he would. He says the conversation only took about three minutes and the Applicant stormed off into the office after it. Mr Lenz in cross-examination agreed with the Applicant that immediately after the incident he walked off and left the premises, after having refused the Applicant’s request to go into the office.

[7] Mr Lenz says that at no stage did he dismiss the Applicant nor make any statements that should have led the Applicant to form the view that he was dismissed. Rather he says that the conversation was left on the basis that the Applicant was expected to be at work on Friday. Mr Lenz says he is an experienced employer and has over 80 staff . He says that he is very mindful of what he says to staff

[8] The Applicant did not attend for work the following day or at any time after Thursday 16 August 2012.

[9] The Respondent also says the discussion took place at about 4:00pm or 4:30pm. The Applicant asserts it took place about 3:00pm or 3:30 pm.

[10] Mr Musca gave evidence that on the evening of 16 August 2012 Mr Lenz told him he had held a discussion with the Applicant, which was quite heated. He stated that Mr Lenz had told him the discussion ended with Mr Lenz expecting the Applicant to attend for work the next day.

[11] The Applicant gave evidence that Mr Lenz was walking past him and he asked to see him for a moment. The Applicant then raised issues in respect of a welder. During that conversation Mr Lenz is alleged to have said the Applicant was slow. The Applicant says that Mr Lenz said "You're sacked ". After that the Applicant says he then said "I will come back tomorrow and you should put it in writing". It is claimed Mr Lenz then said "You're not getting it in writing. You're sacked."

[12] Mrs Baker gave evidence that the Applicant entered the office on the 16 August 2012 and told her he "had been sacked". Mrs Baker also testified that Mr Lenz also entered the office and said that “I don't think your husband will be very happy with me. I've put him off." There were no questions put to Mr Lenz about that assertion. Mr Lenz did challenge Mrs Baker about her evidence regarding the comment she asserts he made.

Consideration and conclusions

[13] There are two directly contrasting versions of what took place in the discussion between Mr Lenz and the Applicant on the afternoon in question in respect of whether Mr Lenz dismissed the Applicant or not. The Applicant asserts Mr Lenz says he was sacked. Mr Lenz denies that he made that statement or even any statement to that effect.

[14] The other issues that were canvassed in the discussion are fairly consistent between Mr Lenz's version and the Applicant’s version. Mr Lenz evidenced that the Applicant was agitated, abusive and swearing. The Applicant did endeavour to give an account with an impression of a measured and calm demeanour on his part.

[15] I have made allowance for the fact that the Applicant represented himself. Nevertheless it remains important that relevant questions are put to the other side. Indeed I alerted the Applicant of the need to put questions to Mr Lenz on matters he would be giving evidence about. Clearly the Applicant knew that he would be calling Mrs Baker with the main purpose being for her to give evidence about Mr Lenz’s comments in the office after his conversation with Mr Lenz. I have also taken into account that Mr Lenz is not an advocate or experienced in proceedings of this nature.

[16] The evidence established that Mr Lenz had earlier refused the Applicant’s request to go into the office with a retort that he wouldn't “because he did not want the Applicant to be a hero in front of his wife". It therefore seems improbable that immediately after the conversation he would then go into the office after the Applicant had been there and convey anything to the Applicant’s wife. Mr Lenz’s evidence was that he immediately left. Indeed the questions about Mr Lenz's departure after the discussion/argument lend weight to Mr Lenz's version in that regard. There is also evidence about the comments Mr Lenz made to Mr Musca that Mr Lenz expected the Applicant to attend for work the following day.

[17] However the essential difference here is an account by the Applicant and a different account by Mr Lenz of the same conversation. My role is to assess what is the more probable of the versions and make a decision based on that assessment

[18] I consider that it is more likely that the Applicant may have believed that his employment would be at an end following that conversation but I do not consider he should have formed that view from words Mr Lenz actually spoke or intended. Here I prefer the evidence of Mr Lenz that there was no termination of the Applicant’s employment by him. I prefer Mr Lenz's account of the discussion and I find that the Applicant was not dismissed from his employment.

[19] The application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Baker on his own behalf.

Mr Lenz on behalf of the Respondent.

Hearing details:

20 December 2012

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