Mr Mahmud Jawadbin Rashid v Gpo Sydney T/A Gpo Sydney Pizza by Wood Pty Ltd
[2010] FWA 8930
•23 NOVEMBER 2010
[2010] FWA 8930 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Mahmud Jawadbin Rashid
v
GPO Sydney T/A GPO Sydney Pizza by Wood Pty Ltd
(U2010/5203)
COMMISSIONER CAMBRIDGE | SYDNEY, 23 NOVEMBER 2010 |
Unfair dismissal - summary dismissal - misconduct - refusal to comply with reasonable direction - direct factual conflict - allegations of bullying, harassment and racial vilification - application dismissed.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged at Sydney on 11 January 2010. The application was made by Mahmud Jawadbin Rashid, (the applicant) and the respondent employer has subsequently been identified as GPO Sydney Pizza by Wood Pty Ltd (ABN: 15136834332) (the employer).
[2] The application indicated that the date of the applicant’s dismissal was 29 December 2009. Consequently the application was made within the 14 day time limit prescribed by subsection 394 (2) of the Act. Conciliation of the claim was unsuccessful and the matter proceeded to arbitration before Fair Work Australia (FWA) in a Hearing conducted in Sydney on 25 August and 21 September 2010. At the conclusion of the proceedings on 21 September a timetable for the provision of further written submissions was established such that the final written submissions of the applicant were to be filed by 11 October 2010.
[3] At the Hearing the applicant was represented by Mr E Schofield, a solicitor. The applicant was the only witness called to provide evidence in support of the claim. The employer was represented by Mr FFF Salama, a barrister, who called two witnesses, Mr Joseph Horak, a former Manager,and Mr Peter Petroulas, the Managing Director of the employer.
Factual Background
[4] The applicant had worked for the employer for about 1 year and 7 months. The applicant worked as a Pizza Chef at the employer’s pizza bar restaurant located at Martin Place, Sydney.
[5] In approximately May and September 2009 the applicant complained to the employer's Managing Director, Mr Petroulas, about difficulties that he was experiencing in the workplace. In particular the applicant complained about conflicts that he was experiencing with his immediate superior, Mr Horak. The applicant alleged that he had been bullied, harassed and racially vilified by Mr Horak. The applicant's complaints were intertwined with his refusal to sign documentation relating to the transfer of his employment between interrelated companies.
[6] Unfortunately the difficulties that the applicant was experiencing in respect to his relationship with Mr Horak escalated dramatically on 29 December 2009. On 23 December 2009 Mr Horak had left instructions for the applicant to clean the outside of the pizza oven. It was anticipated that the outside of the pizza oven would have been cleaned by the applicant at some time on 24 December as this was the last day of business operation before a Christmas closedown after which the pizza restaurant would reopen on 29 December 2009.
[7] On 29 December 2009 when Mr Horak returned to work after the Christmas break, he noticed that the outside of the pizza oven had not been cleaned. Mr Horak directed the applicant to clean the outside of the pizza oven. Although there was considerable conflict about precisely what occurred following the direction by Mr Horak for the applicant to clean the outside of the pizza oven, it was clear that the applicant refused to clean the oven as directed by Mr Horak.
[8] After the applicant had refused the direction to clean the pizza oven, Mr Horak went to see Mr Petroulas to discuss the applicant's conduct. Mr Petroulas then met with the applicant and had a discussion which culminated in Mr Petroulas advising the applicant that he was immediately dismissed from his employment. There was significant, direct factual conflict about what was said during the discussion between Mr Petroulas and the applicant. In summary, the applicant's version of the discussion suggested that Mr Petroulas briefly enquired as to why the applicant had not cleaned the pizza oven and then immediately advised the applicant of his dismissal. The alternative version of the discussion as advanced by Mr Petroulas, involved clear and repeated direction by Mr Petroulas for the applicant to clean the pizza oven to which the applicant responded with taunts inviting Mr Petroulas to dismiss him.
[9] Despite the significantly different versions of the detail of the discussion between the applicant and Mr Petroulas, there was no contest that the event culminated with the applicant being advised of his dismissal. The applicant requested written confirmation of the termination of his employment. Mr Petroulas complied with this request and provided the applicant with a hand written document, dated 29 December 2009 and entitled “TERMINATION FOR GROSS MISCONDUCT” 1.
The Applicant’s Case
[10] At the Hearing the applicant was represented by Mr Schofield, a solicitor, who made verbal submissions which were subsequently supplemented with written submissions. The submissions made by Mr Schofield initially addressed the alleged harassment, intimidation, bullying and racial vilification of the applicant. Mr Schofield said that the treatment of the applicant during his employment was, prima facie, unfair.
[11] Mr Schofield acknowledged that the applicant had been directed to clean the pizza oven and that he had refused to do so. However, according to the submissions made by Mr Schofield, the applicant was entitled to refuse to comply with the direction to clean the pizza oven because that directive was entirely unreasonable.
[12] The submissions made on behalf of the applicant asserted that there were three reasons why the direction to clean the pizza oven was unreasonable. Firstly, the direction was unreasonable because it was made in a rude, offensive and harassing manner. Mr Schofield submitted that the evidence established that Mr Horak and Mr Petroulas had allowed their frustrations to enter into the tenor of the directive. Therefore the directive was not uttered in a reasonable or conciliatory tone.
[13] Mr Schofield further submitted that the directive was unreasonable because it breached food safety practices established under standard 3.2.2 of the Food Standards Code of Australia. Mr Schofield referred to evidence that Mr Horak had requested that the applicant get a mop and bucket as the means to clean the pizza oven and that as the mop and bucket was for floor cleaning, a directive to clean the oven with a mop and bucket would be contrary to proper food hygiene practices.
[14] Mr Schofield said that the third reason why the directive to clean the pizza oven was unreasonable involved a failure to consider the directive in the context of the history of discriminatory conduct that had occurred by way of the actions of Mr Horak. Mr Schofield said that it was appropriate for FWA to look at the circumstances surrounding the applicant's employment and in doing so to consider the directive in the context of the history of discriminatory conduct.
[15] In summary, Mr Schofield asserted that the dismissal of the applicant was unfair because, for the three reasons that he had identified, the directive for the applicant to clean the pizza oven was unreasonable. Therefore the applicant was entitled to refuse to comply with that direction. Mr Schofield submitted that the applicant's claim should be granted and that compensation of 16 weeks pay in lieu of notice should be awarded.
The Respondent’s Case
[16] Mr Salama, a barrister, appeared on behalf of the employer at the Hearing. Mr Salama made both verbal and written submissions opposing the claim.
[17] Mr Salama commenced his verbal submissions by indicating a belief that the matter would be determined primarily upon the issue of credit. Mr Salama said that the factual contest as between the applicant's version of the discussion with Mr Petroulas as against the evidence provided by Mr Petroulas and Mr Horak was fundamental to the determination of the application. Mr Salama provided detailed submissions in support of the assertion that the applicant should not be held to have been a witness of truth.
[18] Mr Salama made further submissions which addressed the nature of the directive given to the applicant to clean the pizza oven. Mr Salama stressed that the applicant had been required to clean pizza oven on previous occasions and had in fact done so. Further, Mr Salama said that the directive to clean the oven was clearly within the ambit and scope of the duties and responsibilities of the applicant's position. According to the submissions of Mr Salama, it was entirely reasonable for the applicant to be required to perform the work involving the cleaning of the pizza oven.
[19] Mr Salama rejected suggestions that the directive involving the use of a mop and bucket necessarily contravened food hygiene standards. Mr Salama mentioned that the applicant had been directed to clean the outside surface of the pizza oven which did not come into contact with food at all. Further, according to the submissions of Mr Salama, there was no evidence that the applicant refused the directive because it involved the use of a mop and bucket as opposed to some other method of cleaning.
[20] In summary, Mr Salama submitted that the evidence provided by the applicant should not be considered as truthful or accurate. Mr Salama submitted that the applicant's refusal to comply with the directive to clean the pizza oven represented clear refusal to comply with a directive that was not unfair or unreasonable and therefore the applicant's claim should be dismissed.
Consideration
[21] Section 385 of the Act stipulates that FWA must be satisfied that 4 cumulative elements are met in order to establish an unfair dismissal. These elements are:
(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.
[22] In this case there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that FWA must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:
(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.
S. 387 (a) - Valid reason for the dismissal related to capacity or conduct
[23] The applicant was provided with a letter of dismissal which clearly set out the reason for his dismissal. Relevantly the letter included the following:
“Your termination was brought about by your refusal to clean the oven as directed by your Manager.”
[24] The evidence provided in this matter has confirmed that the applicant did refuse to clean the pizza oven as directed by his Manager, Mr Horak. There was significant factual conflict about the detail of the conversation between the applicant and Mr Petroulas during which the applicant was dismissed. Consideration of this matter can be approached by initially putting the factual conflict about that conversation to one side.
[25] There was no dispute that the applicant refused to clean the pizza oven as directed by Mr Horak. The submissions advanced in support of the applicant's claim have asserted that the applicant was entitled to refuse the directive given by Mr Horak because it was an unreasonable direction. The direction was said to be unreasonable for three reasons.
[26] Firstly, it was said that the directive was made using language and tone that was rude and offensive. Secondly it was asserted that the directive was contrary to proper food hygiene practices. Thirdly the directive was unreasonable in the context of an alleged history of oppressive and unreasonable work conditions.
[27] The evidence provided by the applicant about the directive given by Mr Horak on 29 December, can be conveniently summarised in the following extract of transcript during the applicant's evidence in chief:
“PN359:
THE WITNESS: I answer, "Joseph, I'm doing something. You stand by here, I'm doing something."
PN360:
MR SCHOFIELD: Would you say that it was aggressive?
PN361:
THE WITNESS: He said, "No, you did this one. Did this way, you don't do this one?" I say, "I'm doing something." He said, "Okay." He go upstairs.
PN362:
MR SCHOFIELD: When you refused, you refused to what he requested. Is that right? You did not do what he said.
PN363:
THE WITNESS: I did not do what he said, yes.
PN364:
MR SCHOFIELD: Why was that?
PN365:
THE WITNESS: Because this time first things, I'm doing something. Second thing, his way of talking, very rude, very, very rude. Third, there's other staff stand by doing nothing but I am supervisor.” 2
[28] It is interesting to note that the applicant provided evidence of three issues as to why he refused the directive. The first issue involved him performing some other task at the time that he was asked to clean the oven. The second issue mentioned by the applicant related to the language and tone of the directive, and the third issue involved a suggestion that other staff could have performed the directive rather than the applicant.
[29] It is important to note that the applicant made no mention that the directive involving the mop and bucket might have been an inappropriate method of cleaning the oven. Upon a consideration of the totality of the evidence, it has become clear that the suggestion that the applicant was entitled to refuse the directive on the basis of some contravention of proper food hygiene practices has been an issue that has been introduced in an endeavour to provide for additional, belated justification for the applicant's refusal. The apparent search for subsequently manufactured justification for the refusal of the directive does not assist in respect to the applicant's credit.
[30] It is of particular interest to note the contents of PN361 above. According to the evidence of the applicant, after he refused to clean the oven Mr Horak said “Okay” and then he went upstairs. By way of explanation, the reference to Mr Horak going upstairs involved him going to meet with Mr Petroulas to seek assistance in respect of the applicant's conduct. It would seem to be inconsistent with the level of rude and aggressive tone that the applicant attributed to Mr Horak for Mr Horak to have calmly accepted the applicant's refusal with the response of “Okay”, and then to have walked away from the confrontation in order to get assistance from Mr Petroulas.
[31] Consequently the applicant's own evidence does not support any confirmation of the harassment, intimidation, bullying and racial vilification of which the applicant complained. The totality of the applicant's evidence, when carefully considered, provided a picture of exaggeration and embellishment combined with a degree of self manifested victimisation. Therefore the third basis advanced as justification for refusal of the directive, involving an alleged history of oppressive work environment, has not been established as fact.
[32] The reasons advanced as justification for the applicant’s refusal to comply with the reasonable directive of Mr Horak must, upon analysis, be rejected. The evidence strongly suggested that the applicant primarily refused to clean the pizza oven because he felt that someone else should be asked to do it. Therefore the applicant's refusal to comply with the reasonable direction of the employer represented valid reason for dismissal.
[33] Further, as a result of the analysis of the uncontested evidence of events and issues arising prior to the conversation between the applicant and Mr Petroulas on 29 December 2010, the observations and conclusions that have been made have not assisted in respect to the credit of the applicant as a witness. Therefore, a preference for the evidence of Mr Petroulas over that of the applicant has logically followed. The factual contests surrounding the conversation between the applicant and Mr Petroulas have broadly been resolved by adoption of that event in the terms deposed to by Mr Petroulas.
S. 387 (b) - Notification of reason for dismissal
[34] The applicant requested and was given, written notification of the reason for his dismissal shortly after he was advised verbally of that decision. Consequently this factor does not provide any basis for criticism of the dismissal of the applicant.
S. 387 (c) - Opportunity to respond to any reason related to capacity or conduct
[35] The evidence provided by Mr Petroulas about the detail of the conversation that he had with the applicant before he decided to dismiss him established clear opportunity for the applicant to offer explanation and/or defence in respect of his refusal to clean the pizza oven. Rather than provide explanation or perhaps offer to conditionally comply with the directive, the applicant invited dismissal as a further act of defiant misconduct.
[36] The procedure adopted by the employer on 29 December, whereby firstly Mr Horak left the confrontational situation, and secondly the involvement of Mr Petroulas leaving his office and sitting down with the applicant to discuss the refusal to clean the pizza oven, ensured that matters were considered in a relatively calm manner and without the applicant being in any doubt as to the seriousness of the circumstances. The procedure adopted in this instance and in the context of the particular workplace, has not been open to criticism.
S. 387 (d) - Unreasonable refusal to allow a support person to assist
[37] There was no evidence that the applicant was given an opportunity to have a support person to assist. Conversely there was no evidence to suggest that the applicant requested a support person and that such request was refused.
[38] It would seem that the circumstances in this instance were unlikely to have involved consideration of the issue of a support person. The nature of the issue under consideration, refusal to clean the pizza oven, would have initially appeared to have been a matter that would have been resolved without contemplation for disciplinary action. Unfortunately the matter quickly escalated without there being an opportunity for contemplation of an issue such as a support person.
S. 387 (e) - Warning about unsatisfactory performance
[39] In this instance the dismissal did not relate to unsatisfactory performance but instead gross misconduct and therefore this factor has no relevance.
S. 387 (f) - Size of enterprise likely to impact on procedures
[40] This issue is not relevant in this instance.
S. 387 (g) - Absence of management specialists or expertise likely to impact on procedures
[41] This issue is not relevant in this instance.
S. 387 (h) - Other relevant matters
[42] There were no other relevant matters that required consideration in this instance.
Conclusion
[43] The applicant was dismissed because he refused to comply with the reasonable direction of the employer. The applicant refused to clean the outside of the pizza oven. This was a task that he had performed previously and was clearly a task comprehended by the general duties that would be anticipated as incidental to the role of a Pizza Chef.
[44] Although the applicant has asserted that, for various reasons, the directive to clean the pizza oven was unreasonable and that the applicant was justified in refusing the directive, an analysis of the reasons for the applicant's refusal does not establish that the directive was unreasonable nor that the applicant was justified in refusing to comply with the directive of the employer. Consequently the applicant refused to comply with the reasonable instruction of the employer without justification. The refusal of the applicant to comply with the reasonable instruction of the employer constituted gross and wilful misconduct and provided valid reason for dismissal.
[45] There were no extenuating or mitigating circumstances related to the misconduct of the applicant. Therefore the dismissal of the applicant was not harsh, unjust or unreasonable and the application seeking remedy for unfair dismissal must fail. Accordingly the application is dismissed.
COMMISSIONER
Appearances:
Mr. E. Schofield (Solicitor) for the Applicant.
Mr. F.F.F. Salama (Counsel) for the Respondent.
Hearing details:
Sydney:
Friday 7 May 2010
Friday 11 June 2010
Tuesday 20 July 2010
Wednesday 25 August 2010
Tuesday 21 September 2010
Final supplementary written submissions:
Applicant: 24 September 2010
Respondent: 8 October 2010
1 Exhibit 8 Attachment “E”
2 Transcript of proceeding (25 August 2010) @ PN359 to PN365
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