Mr Malcolm West v Diamond Poultry No. 2 Pty Ltd T/A Da Hall & Co

[2011] FWA 1425

[2011] FWA 1425

FAIR WORK AUSTRALIA

DECISION

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

Mr Malcolm West
v
Diamond Poultry No. 2 Pty Ltd T/A DA Hall & Co
(U2010/10564)

DEPUTY PRESIDENT SWAN BRISBANE, 8 MARCH 2011

[1] This application is made by Mr Malcolm West [‘the Applicant’] pursuant to s.394 of the Fair Work Act 2009 [‘the Act’] seeking remedy for his alleged unfair dismissal from employment with Diamond Poultry No. 2 Pty Ltd T/A DA Hall & Co [‘the Respondent’].

[2] On 28 June 2010, the Applicant’s employment was summarily terminated by the Respondent on the grounds of serious misconduct.

[3] Mr West represented himself at the hearing, and the Respondent was represented by Mr D Pratt of Counsel.

Reasons given by Respondent for summary dismissal of Applicant

[4] The Respondent, in its termination letter to the Applicant, states:

• behaviour in relation to the written and verbal threats of violence towards another Company employee is considered to be Serious Misconduct:



• Was wilful and deliberate behaviour, including bullying and harassment of a fellow employee.



• Caused a serious and imminent risk to the health or safety of a person.



• Caused a serious and imminent risk to the reputation, viability or profitability of the Employer’s business.



• We have spoken to the local Police and provided them with copies of the documentation we have been given.



• is written notice today to confirm the following:



• You will be escorted from the work site today.



• You will be required to relinquish your motor vehicle.



• You are NOT permitted to enter any of the work sites or properties of DA Hall Co Pty Ltd – this will be considered trespassing and the appropriate action will be taken.



• consider that your actions constitute serious misconduct warranting summary dismissal.

You will be paid any accrued entitlements and outstanding remuneration, including superannuation, up to and including the date of this letter.” [Letter of termination-28 June 20]

[5] The Respondent said that the Applicant had admitted to making threats to another employee of the Respondent during an interview held on 28 June 2010.

[6] The Respondent reported the allegations to the Millmerran Police. At that time, the Police Officer asked Mr May [Chief Executive Officer of Respondent] whether he wanted the matters investigated and whether he should seek a restraining order under the Peace and Good Behaviour Act 1982 against the Applicant.

[7] In its view, the Respondent said that the Applicant was “obviously upset and frustrated that his daughter Shelley West aged approximately 28 years was having a relationship with her co-worker Lemuel De Mesa aged approximately 30 years. [Submissions in Response to the Application – page 2]

Background to claim

[8] The Applicant commenced his employment with the Respondent in February 2005 with the position of Maintenance Technician. By 2006, the Applicant had been promoted to Maintenance Manager.

[9] The Applicant recounted a history of a difficult work relationship with Mr Steve Blain [Egg Processing & Packing Shed Manager] during 2007. These problems stopped and started on a few occasions. While some issues with Mr Blain remained unresolved, ultimately in 2008, the Applicant was moved to another work area [the Poultry division].

[10] Over a period of time the Applicant experienced stress and depression because, while having been told he would be promoted, the Respondent eventually decided that he did not have sufficient experience for promotion.

[11] The Applicant says he was required to take a cut in his wages of $10,000 per annum. The Applicant believed that the Respondent kept “changing the goal posts” without consideration given to the affect it had upon the Applicant and his family. [Exhibit 1(b)]

[12] It was after some years of difficulties at the workplace that, in May 2010, the Applicant’s daughter, Shelly, [who also works for the Respondent] “broke down and opened up about sexual involvement between her and her Supervisor, Mr Lemuel De Mesa”. [Exhibit 1(b)]

[13] It was the events surrounding the issues raised in this discussion that proved to be the catalyst for the summary dismissal of the Applicant.

Ms Shelly West

[14] Upon the Respondent advising that it did not wish to cross-examine Ms West on her Affidavit, she was not called to give evidence by the Applicant. With the agreement of the parties, her Affidavit was admitted as evidence. The Affidavit says little more than that Ms West concurs with the views expressed by her father, Mr West.

[15] Ms West is 28 years of age. Mr West advised that his daughter suffered from Dyslexia.

The Applicant’s evidence

[16] The Applicant says that his case centres upon a complaint of sexual harassment made by his daughter, Ms Shelley West and then by himself, to the Respondent concerning Mr De Mesa. [PN284]

[17] The Applicant said that his daughter had been involved in a sexual relationship with another employee, Mr De Mesa, and she had been ‘a willing participant and at other times continued asking the guy and telling the guy “This has to stop”.’ [PN 346] The Applicant also agreed that his daughter and Mr De Mesa had sent sexually explicit emails to each other. [Exhibit 15 Applicant to Ms Faraon]

[18] Mr De Mesa was working for the Respondent under a Section 457 Work Visa. Mr De Mesa’s permanent residence is in the Philippines.

[19] A personal relationship began between Mr De Mesa and Ms Shelley West whilst both were working for the Respondent. Mr De Mesa was Ms West’s Supervisor.

[20] When Mr West became aware of the relationship, he and Mr De Mesa’s wife, Ms Rechelle Faraon began communicating with each other via the Internet. In her e-mails, Ms Faraon says that she has also communicated with the Respondent. The Respondent had not answered any of her e-mails.

[21] Ms Faraon’s e-mails implore the Respondent not to let her husband return to the workplace because of his relationship with Ms West.

[22] An insight into some of the e-mails from the Applicant to Mr De Mesa and from the Applicant to Ms Faraon and others, is shown hereunder:

a) On 11 May 2010, the Applicant wrote to Mr De Mesa. Included in the somewhat lengthy communication are the following comments:

“I will only accept your apology if you go back to your home country and stay there. Only then, I will feel that you are genuinely sorry. Only then, our family will be able to move on fully. Only then, you can avoid your wife finding out what you have done. You are no longer welcome at my work place, my town, my country. You have abused the opportunity you were given here, and we do not want people like you in our country. You must go back where you came from and never come back. This is my place of work, my town, my country.

…

I am giving you the opportunity to leave and not come back of your own volition. If you do this, that will be the end of it and your wife and family need never know what you have done. If you do not take this opportunity yourself, I will contact your wife and family, and tell them the reasons why you are not welcome here. I will also do everything possible to ensure your life here is miserable. If needed, I will seek that the immigration department remove you from this country. If needed, I will inform the anti-discrimination department about you and your sexual harassment of Shelly when you constantly pressured her daily when you wouldn’t take no for an answer. The bottom line is, the nest is no longer available, and if needed, I will clip the wings of the bird myself! Do not take what I say lightly. I am a man of my word. If you don’t leave and not come back of your volition, I will not stop until you are gone”

[Exhibit 13 - Applicant to Mr De Mesa – 11 May 2010]

b) A further e-mail from the Applicant to a range of people including Mr De Mesa, stated, inter alia, that:

“Day by day since you ruined my family I have become angrier and angrier with you because of the continuous disrespect you have shown to me and my family. If you think you can bluff your way out of this you are kidding yourself. You are also kidding yourself if you think you can come back here and simply get away with what you have done. I will be waiting for you. I will hunt you down. I will humiliate you, I will make sure everyone knows the truth about you. They will know what a pig you are and you will pay for what you did.

…

You will be deported. You will be humiliated. And during all of it, I’m going to beat the shit out of you also for what you did to us. Then you can go to the police and complain about me, but that won’t stop me. Nothing will stop me. When you go to the police, you will have to tell them why I beat you up, then they will know the truth about you. I will win no matter what you do. I don’t care how long it takes – you will pay!”[Exhibit 16- from Applicant to Mr De Mesa and others dated 26 June 2010]

c) Another e-mail was sent to Mr De Mesa from the Applicant. This e-mail reads as follows:

“Time to go home you pig. Finally, the day I have been waiting for. Now I can work on keeping you out of here for good. Now I can get my plans together of how you will suffer if you decide to come back. I will not stop. My family will not stop. My friends will not stop. You will be very lonely here if you come back. You will lose everything. Anyone who tries to protect you will also lose. Things might slow down, but I will always be looking at ways to make you leave my country. You have abused the code of conduct. You have failed the character test for entry in this country. If I have to go to immigration, I will. There is no future for you in my country anymore. You must know that. Go back to your home and stay there. Make up with your wife and children and become a decent man for them, instead of the coward and pig you currently are. [Exhibit 14 - from the Applicant to Mr De Mesa – 16 May 2010]

d) In an e-mail to Ms Faraon, the Applicant says, inter alia, that:

“I have given him enough hints in my emails to him that I will not stop….. He has no right to think he can still come back here after what he did. He must be such an arrogant person to think he can do this. This is my home. He had his chance to fit into the community nicely. He does not get another chance. He might think he will be protected while he is at work. But the company has made it clear they will not act on anything that happens outside of work. They have said it is not their business. So Lemuel will need to be very careful outside work, because there will be no one to protect him. Even if he goes to the police for protection, it will all come out in the community as to what he and Shelley did…… So if he comes back, he will come back to a very hostile place. He might be protected at work – I cannot touch him there. But outside of work, there will be no protection for him to receive justice. If my life is going to be miserable while he is here, then I will make his life more miserable. He must know that. [Exhibit 15- from the Applicant to Ms Faraon 8 June 2010]

e) An e-mail sent by the Applicant to Mr De Mesa [on the Applicant’s e-mail and copied to the Applicant’s son, Daniel West] included the following:

“You really are an arrogant pig. That also makes you a very stupid pig. There are many pig hunters around here. And you should remember the words you told your wife – men are supposed to be hunters. Round here, the men are not hunters of vulnerable women. They are mostly hunters of pigs:” [Exhibit 17- 23 June 2010 – The Applicant claimed that this had been written by his son, Daniel West to Mr De Mesa]

[23] Mr West, in his e-mails to Ms Faraon, says that the Respondent was of the view that what each employee did in their own private time was their business alone. [Applicant to Ms Faraon – dated 16 May 2010]

[24] On June 4, 2010, the Applicant asked Mr Piet Groot [Assistant Poultry division Manager] that until the situation was resolved between Ms West and Mr De Mesa, that Mr De Mesa should not be permitted to work in the same work place as the Applicant. This request was granted by the Respondent. [PN1029]

[25] While Ms West had not made a formal complaint to the Respondent, she had communicated with Mr Henrick [Poultry Site Manager] asking that she not have to work with or near Mr De Mesa. [Correspondence – 4 June 2010]

[26] Ultimately, no formal complaint was ever made by Ms West to the Respondent.

[27] The Applicant states that the manner in which he sought to address the issue was brought about by the Respondent’s failure to act appropriately.

[28] The Applicant was concerned that the Respondent had not sought to cross-examine Ms West thereby claiming that she had been denied the opportunity to fully express her views. Unfortunately, Ms West’s Affidavit merely stated that she supported the views expressed by her father. It was entirely the prerogative of the Respondent whether it wished to cross-examine Ms West. It chose not to and there is nothing unfair in it adopting that position.

The Respondent’s Response

[29] The Respondent says that under its Workplace Health and Safety obligations, it has a duty to ensure the workplace health and safety of all employees.

[30] The Applicant had made threats of violence towards another employee of the company (Mr De Mesa) via e-mail. It is not in contention that the Applicant wrote those e-mails. As well, the Applicant admitted to making such threats on numerous occasions during the course of the various discussions regarding the issue surrounding his daughter and Mr De Mesa.

[31] Mr May states that on 7 June 2010, the Applicant had sought a meeting with him to discuss the relationship entered into between Ms West and Mr De Mesa.

[32] Mr May advised that he would interview Mr De Mesa upon his return from annual leave.

[33] Mr May stated that the Respondent had in place well documented policies and procedures relating to Workplace Harassment and Bullying and a Grievance Committee.

[34] Upon viewing e-mails sent from the Applicant to Mr De Mesa, on 24 June 2010, Mr May organised an independent review of the allegations and threats made by the Applicant to be conducted by Quinlan Resources. All relevant employees were interviewed. This occurred because the Applicant would not refrain from continuing to make threats against Mr De Mesa.

[35] Mr De Mesa confirmed that he had feared for his safety after receiving threatening e-mails from the Applicant. During this period, Mr May says that “Due to Lemuel’s mental state during the interview and fears for his safety, Lemuel was removed from his accommodation in Millmerran and transferred to accommodation in Toowoomba on the 25^th June” [Exhibit 24 – point10]

[36] Based upon the seriousness of the threats being made against Mr De Mesa by the Applicant, the Respondent contacted a Senior Officer of the Queensland Police for advice. The advice received by Mr May was “to contact the local Police (Steve Ryan) and lodge the documents. He also indicated potential state and federal legal criminal issues could arise from the threats. He also advised me to record the interview with Mal West the following day”. [Exhibit 24 – point 11]

[37] A meeting was held on 28 June 2010 with the Applicant. Mr May said that the Applicant confirmed that he had been threatening Mr De Mesa.

[38] Upon that admission being made, the Respondent determined to terminate the services of the Applicant immediately for serious misconduct.

Findings

S.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:

[39] (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)

• There was a valid reason for the summary dismissal of the Applicant for serious misconduct.

• This is not a case where there is a dispute about what was written and said by the Applicant to another employee of the Respondent. The documents and admissions speak for themselves.

• The Applicant became embroiled in a situation which did not, and could not, have been resolved in the manner which he thought was appropriate.

• The Applicant’s daughter became involved in a consensual relationship with a fellow employee. Ms West is 28 years of age and, apart from suffering from Dyslexia, held a responsible position with the Respondent – a position she still holds. The Applicant acknowledged on many occasions that the relationship between his daughter and Mr De Mesa was consensual but that, at some point, his daughter sought not to continue the relationship.

• A formal complaint was never made by Ms West to the Respondent alleging sexual harassment by Mr De Mesa, notwithstanding that Ms West was aware that she could make a complaint and had discussed the possibility of so doing with the Respondent.

• The Applicant did not accept the Respondent’s views that it did not wish to involve itself in investigating a consensual relationship between two adult employees, adhering to the view that what people did in their private lives was their own business. This sentiment is encapsulated in the following comments made by Mr May to the Applicant at the last meeting with the Respondent:

“It was a relationship. It was a relationship between two people and it was a consensual relationship, you’ve admitted that it was a consensual relationship, so why is it, it’s not Hall’s business at that point in time, you’ve brought it into Hall’s business when you started to threaten an existing employee”. [Exhibit 22 – HP 1]

• The Applicant took matters into his own hands. There is little question that the e-mails sent to Mr De Mesa and others at the workplace contained extremely serious threats to Mr De Mesa’s well being. The threats were made to an employee of the Respondent by another employee. The threats continued over time and the Respondent would have been derelict in its duty had it not reported those threats to the appropriate authorities.

[40] (b) whether the person was notified of that reason

• The Applicant was notified of the reason for the termination of his employment.

[41] (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

• The Applicant had, on many occasions, opportunity to respond to the Respondent’s concerns. It was the case, however, that the Applicant could not get beyond his personal hurt and disappointment in his daughter and his anger towards Mr De Mesa. His reaction was such that he was unable to refrain from sending Mr De Mesa threatening e-mails.

[42] (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

• The Applicant did not seek to have any support person with him.

[43] (e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

• This was a summary dismissal. However, it should be stated that the Respondent had advised the Applicant on many occasions to refrain from acting inappropriately. The Applicant, however, was unable to let the matter go. The Applicant was adamant that he could not get over the issue.

[44] (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;

• There were no submissions made around this point.

[45] (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

• The Respondent employed a dedicated human resources management team.

[46] (h) any other matters that FWA considers relevant.

• There are no other matters to be addressed.

[47] I dismiss the application.

DEPUTY PRESIDENT

Appearances:

Mr West was self represented

Mr D Pratt for the Respondent

Hearing details:

2010
Toowoomba
25-26 November

Printed by authority of the Commonwealth Government Printer

<Price code C,PR507312>