Mr Peter Allen Townsend v Westralian Seafood Distributors
[2011] FWA 1889
•18 APRIL 2011
[2011] FWA 1889 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Peter Allen Townsend
v
Westralian Seafood Distributors
(U2010/15577)
COMMISSIONER CLOGHAN | PERTH, 18 APRIL 2011 |
Unfair dismissal remedy.
[1] On 24 December 2010, Mr Peter Townsend (“the Applicant”) made application to Fair Work Australia (FWA) alleging that he was unfairly dismissed from his employment with Westralian Seafood Distributors (“the Employer”).
[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (“the FW Act”).
[3] The Employer advised FWA that it did not wish to participate in conciliation and requested the matter proceed to arbitration. The application was subsequently referred to me for arbitration.
[4] Mr Townsend gave evidence in support of his application. Mr Lim and Mr De Bari gave evidence on behalf of the Employer.
[5] Procedural directions to assist in proceedings were issued on 1 February 2011. Both parties provided documentation. Having received this material and incorporated it into evidence, and having heard submissions and oral evidence, I reserved my decision at arbitration on 28 March 2010. In reaching this Decision, I have considered and given appropriate weight to all the evidence provided to the Tribunal.
RELEVANT BACKGROUND FACTS
[6] Mr Townsend commenced employment with the Employer on 1 July 2009.
[7] Mr Townsend was, according to his “Casual Employment Contract”, employed as a Grade 3 Casual Transport Worker and based in Ledge Point, Western Australia. Mr Townsend signed the employment contract on 1 November 2010.
[8] Mr Townsend reported to Mr De Bari in his capacity as Managing Director and Mr Lim as General Manager.
[9] Mr Townsend’s contract of employment provides that the Employer “reserves the right to terminate this contract on the provision of one (1) hour notice on you [the employee] being:
1. Guilty of an act of neglect or misconduct which has the direct or indirect effect of causing any damage or discredit to the company;
2. Neglecting your duties or failing to perform them professionally or efficiently;
3. Breaching any stipulation on this contract or committing any act of misconduct which, in the opinion of the Company is a serious persistent breach of this contract; or
4. Refusing or neglecting to comply with any lawful and reasonable direction or order given by the employer.”
[10] Mr Townsend’s Job Description Form lists:
• professional workplace attitude and integrity; and
• professional communication with management and staff,
as key performance indicators expected of the position.
[11] Further, Mr Townsend confirmed, as part of his employment, that he read and understood the details of the Employer’s Induction Form which provides, under the heading Workplace Environment and Other Staff:
• “you are required to be courteous, polite and respectful of other staff;
• racism, slander and degrading behaviour towards other staff will not be tolerated and may lead to termination of your position if management considers your actions to be inappropriate, misconduct or disrespectful;
• physical altercations at the workplace WILL NOT be tolerated and may lead to an immediate dismissal”. 1
[12] Mr Townsend was not provided with a letter of termination of employment. The only documented material relating to the dismissal is an Employment Separation Certificate which states that the reason for Mr Townsend’s dismissal was, “misconduct as an employee”, which is elaborated upon as follows:
“Not following directions from management, inappropriate language to abuse senior management and threatening to physically injure 2 executive directors.”
[13] The Employment Separation Certificate is dated 24 December 2010 and signed by Mr Lim.
[14] Mr Townsend disputes the reasons specified in the Employment Separation Certificate as grounds for his termination of employment.
APPLICANT’S CASE
[15] On 16 December 2010, Mr Townsend, as part of his duties, was required to pick up four (4) pallets of bait at the Bluwave Lobster factory in O’Connor. While loading the bait onto his truck, Mr Townsend became involved in an argument/altercation with Mr George Stavrianos, the owner of the Company.
[16] Mr Townsend telephoned Mr Lim at approximately 6:40pm. Mr Townsend gave evidence that Mr Lim advised “that him (sic) and Ron [Mr De Bari] had been in a directors’ meeting all afternoon and due to the incident that happened at Bluwave my [Mr Townsend’s] employment was terminated”. 2
[17] Mr Townsend conceded that he was very upset and he did “swear and curse”. 3
[18] However, he denies that he threatened Mr Lim or that he would “hunt him down”. 4
[19] Mr Townsend also concedes that he “hung up” on Mr Lim and telephoned Mr De Bari immediately. Mr De Bari, according to Mr Townsend, “backed Chris [Mr Lim] on what had happened and if Chris had said I was terminated” 5, Mr Townsend was terminated.
[20] Mr Townsend described how he felt, at the time, with evidence as follows:
“Don’t get me wrong, I was very upset. I’d just worked 11 hours”. 6
[21] On the following day, Mr Townsend went to his workplace to return his uniforms and gave evidence that Mr Lim’s immediate words were:
“We weren’t sacking you. We’re putting you on probation for a week without pay”. 7
[22] No further contact was made with Mr Lim until 24 December 2010. Mr Townsend had heard that the Employer “had been asking everybody if they had a B-class for my job”. 8 On 24 December 2010, Mr Townsend requested a separation certificate which Mr Lim provided. On receiving the certificate, Mr Townsend confronted Mr Lim as to what had been written regarding the details of the misconduct which led to his termination of employment. Mr Townsend gave evidence that Mr Lim responded by saying, “get another separation certificate and you can write what you want on it and I will sign it”.9 Mr Townsend did not take up that offer and subsequently made application alleging unfair dismissal.
RESPONDENT’S CASE
[23] Mr De Bari gave evidence of a telephone call on 16 December 2010 between himself and Mr Alex Fontura, General Manager, Bluwave Lobster. Mr Fontura described the incident between Mr Townsend and Mr Stavrianos. Following a lengthy conversation, Mr Fontura advised Mr De Bari that Mr Townsend could no longer return to the factory site. Mr De Bari contacted Mr Lim and informed him of the incident. 10
[24] Mr De Bari gave evidence that both he and Mr Lim agreed that it was necessary to better inform themselves of the incident at Bluwave Lobster, and Mr De Bari would go and see Mr Stavrianos for a face to face meeting. 11
[25] Mr Lim gave evidence that Mr Townsend telephoned him on 16 December 2010 and said, “I’ve discussed this with Ron [Mr De Bari] and we’re going to have to temporarily suspend you until we can work through what did happen”. 12 Mr Lim stated that the Employer wanted to hear “both sides of the story” and wished to resurrect the business relationship with Bluwave Lobster.
[26] Mr Lim gave oral evidence:
“Townie [Mr Townsend] got particularly upset, very angry and that’s when he became abusive and continued -- it’s the abuse and bad language I think I can handle, being in the industry...It was when Peter [Mr Townsend] threatened to come and track me down and smash me with a baseball bat I’ve realised that is not acceptable to the company. It was overheard at the public bar by another director. I’d discussed the conversation with another director at the bar and we'd both decided that it was just clear as day, plumb, gross misconduct to company policy and we were going to need to terminate Peter's position of employment.” 13
[27] The Employer provided a Statutory Declaration from Mr Garry Coleman who is a Director of Westralian Seafood Distributors. The Statutory Declaration states that Mr Coleman heard Mr Townsend, “abuse, curse, swear and threaten to track Chris [Mr Lim] down and ‘smash him’ over a work related incident at approximately 5:30pm on Thursday, 16th December 2010.” 14
[28] Subsequent to the telephone conversation with Mr Lim, Mr De Bari gave evidence of, not one, but three telephone conversations with Mr Townsend on the evening of 16 December 2010.
[29] Mr De Bari gave evidence that when he received the first call, Mr Townsend “was very loud and abusive...all over the place and it was probably hard to put it all in words. It was very abusive. It was lots of language”. 15
[30] Notwithstanding the context, Mr De Bari gave evidence that Mr Townsend asked whether he had been sacked. While Mr De Bari was confused, given his conversation with Mr Lim, he informed Mr Townsend that he would back Mr Lim’s actions. 16 Mr De Bari gave further evidence that, “...as managing director of the company, I didn't need to listen to one of my employees abusing me as his employer, so I hung the phone up.”17
[31] Mr Townsend immediately telephoned back and according to Mr De Bari’s evidence stated, “you wait until I’m facing you, buddy, I’m going to smash you”. 18 Mr De Bari hung up again. Mr Townsend immediately telephoned back a third time and Mr De Bari gave evidence of a short call in which Mr Townsend said, “You can stick your job up your fucking arse”.19 Mr De Bari hung up and put his mobile telephone on silent.
[32] In terms of evidence, the following exchange took place between Mr Townsend when cross examining Mr De Bari.
“Just with the phone calls, Ronnie, on the second phone call, when you said I was abusive, I asked you if I'd been sacked. Is this true?---Yes.” 20
“And you said you didn't know?---That's correct.” 21
“When I asked you why you didn't know and, ‘Why have I been sacked?’ you said you couldn't tell me. Is this true?---That's correct.” 22
“Why is this true?---As I explained, Commissioner, the previous conversation I had, Chris [Mr Lim] - was a decision between Chris and I that we would suspend Peter Townsend. Peter, you actually said to me, "Am I sacked?" I said I didn't know.” 23
“You obviously didn't know either that I was sacked, did you?---No, as I said - - -“ 24
“As you said - yes?---As I said, the previous conversation with Chris was that we decided to suspend you on the grounds of the incident at Bluwave. If there was a sacking after that, all I said was, "I would be fully supportive of my general manager because it's his employment, it's his gig." I fully supported you. I wasn't aware of what had happened between the conversation I had with you - - -“ 25
“MR TOWNSEND: He did sack me?---I wasn't aware of that. What I was aware of was that we'd suspended you. As far as I was concerned, that was the situation until I'd spoken to George and I'd got my head around what had actually happened on site...My intention was to suspend you - agreed with Chris and myself - until we reconciled something with this regard...It was a very serious incident and until we found out exactly what was the ramifications of it, it was decided that we suspended you.” 26
“...However, you did say to me, "Am I sacked?" I said I didn't know and that's how I'm going to leave it because that's the case.” 27
[33] Mr De Bari contacted Mr Lim and both relayed the telephone conversations each had with Mr Townsend.
[34] On the following day, 17 December 2010, Mr Lim met with Mr Townsend. Mr Lim gave evidence of the conversation with Mr Townsend as follows:
“If you hadn't threatened to smash me, you would have been suspended and we would need to go and deal with the situation and then we would more than likely put you back on."...So I've tried to explain, "This is the situation: you weren't terminated for what went on at Bluwave, you were suspended temporarily." The termination came about when he [Mr Townsend] lost his temper, fired up, became extremely abusive and threatened me. I can't, as a general manager, have employees working in the company, in the business, abusing, terminating (sic) senior management and directors. It's just completely unacceptable. I can't continue to be at work, being scared that this guy is going to come and smash me.” 28
[35] On the evening of 17 December 2010, Mr Lim emailed all directors advising them that Mr Townsend had been dismissed for “abusing and threatening to physically harm 2 of the company’s executive directors”. In the email it states that, due to the incident at Bluwave Lobster, it was intended to suspend Mr Townsend but when advised of this, he “blew up off the rails, became very aggressive, abused and threatened to physically harm me”.
[36] On 24 December 2010, Mr Lim and Mr Townsend had a further conversation regarding the separation certificate which is essentially agreed. According to Mr Lim, Mr Townsend called him a liar and a “bunch of other words” but did invite him to write reasons on the separation certificate leading to his termination of employment. In response to this information, Mr Lim gave evidence that he “stormed off” with the words “I’m going to see you in court”. 29
STATUTORY FRAMEWORK
• Section 385 of the Act relevantly provides:
“385-What is an unfair dismissal
A person has been unfairly dismissed if FWA 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.”
• Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable 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.”
DISCUSSION AND CONCLUSION
What was the reason for dismissal?
[37] Mr Townsend contended that his employment was terminated because of the incident at Bluwave Lobster. 30
[38] The Employer gave evidence that its intention was to suspend Mr Townsend for a period to enable it to investigate the incident at Bluwave Lobster. It was only after telephone calls between, firstly, Mr Lim and Mr Townsend, and secondly, three telephone calls between Mr De Bari and Mr Townsend, that the Employer decided to terminate the Applicant.
[39] In relation to the evidence concerning Mr Townsend’s dismissal, I find the Employer’s version of evidence consistent with the email of 17 December 2010 to all directors of the Company, and the stated reason in the Separation Certificate of 24 December 2010.
[40] Further, and importantly, in an interjection by Mr Townsend when Mr Lim was giving evidence, he stated:
“Excuse me, your Honour. I was never told that I was terminated. I was told I was on probation.” 31
[41] This interjection is consistent with the evidence given by Mr Lim that it was Mr Townsend’s abusive and threatening telephone call that led to his termination of employment and not the incident at Bluwave Lobster. Further, in an exchange with Mr Lim on the following day, Mr Townsend’s evidence was:
“On the 17th I went into work. I took my clothes in, my uniforms, to hand back. I wanted to sort my pay and get my separation certificate. On arrival at the yard I couldn't find Chris in the office. He was out in the yard. I walked up to him. His immediate words were that, "We weren't sacking you. We're putting you on probation for a week without pay." With this I was very confused, I took my clothes and went home. I accepted the week and went home.” 32
[42] I find that Mr Townsend was terminated for abusing and threatening his Employer in four telephone discussions on 16 December 2010.
What was the content of the telephone calls between Mr Townsend and Mr Lim and Mr De Bari on 16 December 2010?
[43] It is uncontested that there was an incident at Bluwave Lobster between Mr Townsend and Mr Stavrianos. For my purposes, the only person who could give direct evidence on the incident was Mr Townsend. Mr De Bari’s evidence on the incident was from a third party and he was unsure if that person was present.
[44] Mr Townsend’s evidence was minimal about the incident in which he kept his “p’s and q’s”. 33
[45] In view of my finding as to the reason for the dismissal, it is not necessary to make any finding as to what actually happened during the incident at Bluwave Lobster.
[46] With respect to the context of the telephone call with Mr Lim, Mr Townsend conceded he was “very upset” 34, he “did swear and curse”35and had “just worked 11 hours”36. Further, that if Mr Lim came to him, he would “throttle” him. However, Mr Townsend denies that he threatened Mr Lim with a baseball bat37.
[47] Similarly, Mr Lim gave evidence that Mr Townsend was “fired up”, “extremely abusive” and “if you hadn’t threatened to smash me...we would more than likely put you back on” 38.
[48] While not best evidence, Mr Lim provided a Statutory Declaration from a director of the Company who overheard the conversation who stated that Mr Townsend abused, swore at and “threatened to track Chris [Mr Lim] down and smash him over the incident at Bluwave”. 39
[49] In addition, Mr Lim provided his diary entry for 1 November 2010 in which he discussed with Mr Townsend his “aggressive behaviour” and “that he has to be calm at work and manage his aggressiveness” 40 as evidence of his disposition while at work.
[50] Mr Lim, in a concession, not normally heard in these proceedings, acknowledged that he could handle the abuse and bad language as it was part of the nature of the industry - but not the threat to be tracked down and smashed. 41
[51] The context of Mr De Bari’s telephone conversation is different but overall similar. While he was at the disadvantage of not knowing the content of Mr Lim’s discussion with Mr Townsend, Mr De Bari was led to believe by Mr Townsend that he [Mr Townsend] had been sacked. 42 Mr Townsend’s assertion that he was “sacked” was contrary to the position that both Mr De Bari and Mr Lim had agreed upon which was to temporarily suspend Mr Townsend until they could properly investigate the incident at Bluwave Lobster.
[52] Notwithstanding the confusion, Mr De Bari gave evidence that as the Managing Director of the Company employing Mr Townsend, he was not going, after three telephone calls, to tolerate any further abuse and threats from an employee.
Did the Employer have a valid reason to terminate Mr Townsend’s employment?
[53] From the evidence, I accept that Mr Townsend did his “job well” 43 and “properly”44. The picture I obtained from the evidence is that Mr Townsend is not a person to “shy” away from a situation if he thought he was right, and that he put 100% into his job. However, this could not excuse him from flaws in his workplace behaviour.
[54] From evidence, both Mr Lim and Mr De Bari tolerated Mr Townsend’s robust and challenging communications, most probably because of his closeness and convenience to work and, by and large, he performed his job well.
[55] However, on 16 December 2010, Mr Townsend’s verbal discussions with Mr Lim and Mr De Bari went beyond their tolerance threshold. In this case, I accept that the Employer has established, and to a certain extent corroborated by Mr Townsend, that the telephone discussions went beyond what was reasonable and were a valid reason to terminate his employment.
[56] In concluding, I find that the Employer’s intention was to temporarily suspend Mr Townsend from his employment to investigate the incident at Bluwave Lobster, and had made no decision to terminate him for the incident.
[57] Mr Townsend frankly admitted how he was feeling during his telephone calls with Mr Lim and Mr De Bari and, unfortunately for him, he communicated these feelings instantaneously when he might have been better to show some restraint and listen to what was being said by his Employer.
[58] As part of these proceedings, the Employer provided Mr Townsend’s contract of employment, job description and induction form. These documents outline, in part, expectations or requirements how employees of the Employer are to conduct themselves. While some would consider “degrading behaviour to other staff will not be tolerated” as a self evident requirement in any workplace, it is based on the essential requirements of any contract of employment where the employee must display competence, care, obey instructions and act in good faith. In these proceedings, Mr Townsend’s conduct was inconsistent with his duty to the Employer. Unfortunately for Mr Townsend, in the space of four telephone calls, his behaviour led directly to dismissal from his employment. If he had not embarked on such abuse and threats towards his Employer, he may have, subject to the investigation at Bluwave Lobster, remained in employment. While there may have been confusion in Mr Townsend’s mind as to whether he had been suspended or sacked, the nature of the telephone calls was of sufficient gravity to undermine the continuation of the employment relationship.
[59] I am satisfied, pursuant to s.387 of the Act, the Employer had a valid reason to dismiss Mr Townsend due to his conduct.
[60] With respect to s.387(b)-(h) of the FW Act, I am satisfied that Mr Townsend became aware of the reasons for his dismissal verbally on 17 December and in written form on 24 December 2010.
[61] While there may have been confusion in Mr Townsend’s mind as to whether he was suspended or dismissed, he did have a discussion and the opportunity to respond to the Employer on both 17 December and 24 December 2010 when given the invitation to write out the reasons for termination of employment.
[62] The Employer is a very small business and does not have either directly or indirectly access to human resource management specialists. Although the process may have been conducted differently in larger organisations, the Employer considered Mr Townsend’s conduct so direct, immediate and serious enough to warrant dismissal immediately without the necessity of a disciplinary process; in these circumstances, I accept what the Employer did as appropriate.
[63] Finally, in the circumstances, I am satisfied that there are no other matters, other than what I have considered above, which are relevant regarding Mr Townsend’s dismissal.
CONCLUSION TO APPLICATION
[64] I am satisfied that there was a valid reason to terminate Mr Townsend’s employment and that, in the circumstances, his dismissal was not harsh, unjust or unreasonable.
[65] In conclusion, the application will be dismissed and an Order issued accordingly.
COMMISSIONER
Appearances:
Mr Townsend, the Applicant.
Mr Lim with Mr De Bari, for the Employer.
Hearing details:
2011:
Perth:
28 March.
1 Exhibit R5
2 PN 51
3 PN 51
4 PN 51
5 PN 51
6 PN 52
7 PN 54
8 PN 54
9 PN 54
10 PN 155
11 PN 155
12 PN 210
13 PN 210
14 Exhibit R8
15 PN 159
16 PN 155
17 PN 155
18 PN 155
19 PN 155
20 PN 173
21 PN 174
22 PN 175
23 PN 176
24 PN 179
25 PN 180
26 PN 187
27 PN 189
28 PN 217
29 PN 219
30 PN 93
31 PN 234
32 PN 54
33 PN 45
34 PN 52
35 PN 51
36 PN 52
37 PN 60
38 PN 217
39 Exhibit R8
40 Exhibit R6
41 PN 210
42 PN 176
43 PN 163
44 PN 162
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