Mr Peter Mar v Laser Wizard Pty Ltd
[2011] FWA 4853
•27 JULY 2011
[2011] FWA 4853 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Peter Mar
v
Laser Wizard Pty Ltd
(U2010/2098)
COMMISSIONER CARGILL | SYDNEY, 27 JULY 2011 |
Termination of employment.
[1] This decision arises from an application from Mr P Mar (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by Laser Wizard Pty Limited (the respondent or the company). The applicant’s dismissal occurred on 10 December 2010, backdated to 8 December 2010. The application was lodged with Fair Work Australia (FWA) on 21 December 2010.
[2] The matter was dealt with by an FWA Conciliator but did not settle. It was heard by me in Sydney on 13 July 2011. The matter proceeded by way of hearing as I considered that it was appropriate to do so in the circumstances.
[3] The applicant was represented by Mr De Mattia, solicitor and the respondent by Mr Grassi, solicitor. Both representatives appeared by permission.
[4] The applicant gave evidence. His affidavit of evidence was marked Exhibit Applicant 1. His oral testimony is at PN 24-113 of Transcript.
[5] The following witnesses gave evidence on behalf of the respondent:
Mr M Thomson | Occupational Health and Safety Manager of the respondent. His affidavit of evidence was marked Exhibit Respondent 1 and his oral testimony is at PN 123-283 of Transcript; |
Mr J Allen | Factory Manager with the respondent. His affidavit of evidence was marked Exhibit Respondent 2 and his oral testimony is at PN 289-426 of Transcript; |
Mr R Thomson | Managing Director of the respondent. He is also the father of Mr M Thomson. His affidavit of evidence was marked Exhibit Respondent 3 and his oral testimony is at PN 432-738 of Transcript. |
FACTS AND EVIDENCE
[6] The respondent is a cutting specialist company which produces template components by means of various pieces of machinery including laser and bending machines. The applicant was employed by the respondent from 25 June 2009 until the termination of his employment in December 2010. He was employed as a storeman.
[7] The applicant states that he injured his right ankle at work on 16 July 2010. As I understand it, Mr R Thomson does not necessarily accept that the injury was work related, (PN455). However, that is not an issue to be decided in this matter.
[8] The applicant lodged a workers’ compensation claim. He was off work for a period of time and when he returned to work he was placed on light duties in accordance with a return to work plan. This plan was developed and facilitated by 4c Risk, a risk management company appointed by the respondent’s workers’ compensation insurers.
[9] 4c Risk also undertook a workplace assessment report. That report is Annexure A to Exhibit Respondent 3. I note that it is dated 10 December 2010 although it appears that the assessment was carried out on 30 November. The report contains some references to telephone discussions with the applicant and Mr R Thomson on 9 December.
[10] The applicant’s light duties included the operation of a press brake folding or bending machine which is operated with one foot. It can be operated whilst seated which was a requirement of the return to work plan. Although this machine is not included in the list at page 4 of the 4c Risk Report, Mr R Thomson’s evidence is that it was approved by the return to work consultant. The applicant’s evidence is that he kept aggravating his injury whilst at work.
[11] About six weeks prior to the applicant’s dismissal there was a discussion between him and Mr R Thomson. Mr Allen was also present. Mr Thomson’s evidence is that the meeting was about getting the applicant back to work. Although he was unsure at first, Mr Thomson ultimately agreed under cross examination that he had probably asked the applicant what was wrong with his ankle and why it was taking so long to heal. The applicant’s evidence is that Mr Thomson’s comments were made in an angry manner and hurt and insulted him.
[12] Shortly after Mr M Thomson arrived at work on 8 December 2010 there was a discussion between him and the applicant. There is a difference between them as to what was said. The applicant’s evidence is that Mr Thomson questioned him about why he was not at his work area and why he was turning up for work. The applicant says he was offended and humiliated by being spoken to in this manner.
[13] Mr Thomson’s evidence is that he asked the applicant how he was going. He denies that he questioned the applicant about why he was turning up for work. Mr Thomson agreed that he suggested that the applicant should go home but testified that this comment was in fact made after the further incident between them later that morning.
[14] About an hour or so after the discussion referred to in the preceding two paragraphs, the applicant’s mobile phone rang. It was his physiotherapist calling to arrange an appointment. Mr M Thomson approached him and told him not to use his phone at work. The applicant says he was not aware that there was a company policy that mobile phones were not to be used during work hours. Somewhat confusingly, he did however agree that he was present at a meeting when the policy was indicated to him. I assume that this might be the meeting of 3 September 2010, the minutes of which are at Annexure A to Exhibit Respondent 1.
[15] Mr M Thomson then approached Mr Allen and asked him to speak to the applicant about the use of his phone. Mr Allen’s evidence is that he told the applicant that he should make sure the phone was only used outside working hours. He testified that the applicant didn’t have a problem with that.
[16] The applicant’s evidence is that for the next 10 minutes Mr M Thomson kept questioning him about why he was there at work and about his injury. His evidence is that he was offended and humiliated at this provocative and harassing behaviour towards him by Mr Thomson.
[17] Mr Thomson’s evidence is that the applicant approached him in a threatening manner and asked if Mr Thomson had a problem with him. He agreed that the applicant asked why he was harassing him but denied that the applicant had asked him to stop doing so. Mr Thomson agreed that both he and the applicant were speaking with raised voices. Mr Allen became aware of the discussion at this stage and went to see what was happening. His evidence is that the applicant told Mr Thomson to stop harassing him and “get off his case”.
[18] It is the evidence of both Mr M Thomson and Mr Allen that the applicant told Mr Thomson that he would knock his head off, that he should “come outside” and also that he, Mr Thomson, wouldn’t last one round in the ring with him. I note that it was not put to the applicant that he had made these comments. However his evidence is that he “challenged” Mr Thomson about the way he had spoken to him and he regretted his comments. The applicant stated that he didn’t make a direct threat of violence to Mr Thomson and didn’t intend to harm him. It is Mr Thomson’s evidence that he felt extremely threatened by the applicant’s comments to him.
[19] There was no further incident between the applicant and Mr M Thomson. It is Mr Allen’s evidence that, as far as he knew, there had been no previous incidents between them. The applicant went home an hour early on 8 December as he was unwell. This was authorised by Mr Allen.
[20] Mr R Thomson was not at the factory on 8 December. His evidence is that his son telephoned him that day and reported that he had been abused by the applicant and threatened with violence. He attended the factory on 9 December and heard reports of the incident from both Mr Allen and Mr M Thomson. The applicant was not at work on that day having reported in as being sick.
[21] The evidence of both Mr R and Mr M Thomson is that, on 9 December, the latter made a report about the previous day’s incident to the New South Wales police. The applicant’s evidence is that he was never contacted by the police to make a statement, nor was he ever charged in relation to the incident.
[22] Mr R Thomson’s evidence is that he sought advice about the situation from the employer organisation of which the respondent is a member. Following that advice, he decided that it would be appropriate to terminate the applicant’s employment subject to the proviso that the applicant had 24 hours to respond with any justification for his actions on the previous day.
[23] The applicant did not attend work on 10 December. Mr R Thomson prepared what he describes as a “termination letter” and personally delivered it to the applicant’s home letterbox. The letter is Annexure A to Exhibit Applicant 1. In it Mr Thomson refers to the incident on 8 December and informs the applicant that, unless he could justify his actions within 24 hours, there was no alternative but to terminate his employment immediately on the grounds of “serious misconduct by making threats of physical bodily harm to employees”.
[24] The letter goes on to inform the applicant that, if he is unable to justify his actions, the termination date would be from when he left work on 8 December. It noted that he had not attended work on 9 and 10 December. In the letter Mr Thomson informs the applicant that he is not aware of the reason for his absence on those days. The letter sets out the commencement date of the applicant’s employment and notes the termination date as being 8 December 2010.
[25] Mr R Thomson denied that he had already decided to dismiss the applicant. His evidence is that he had not interviewed the applicant as he was not at work, however, he gave the applicant an opportunity to justify his actions.
[26] After he received the letter on 10 December, the applicant telephoned Mr R Thomson. There is a difference between them as to the tenor and contents of the ensuing conversation. The applicant’s evidence is that Mr Thomson yelled at him, telling him his employment had been terminated and then hung up on him.
[27] In contrast, Mr Thomson’s evidence is that the applicant was rude, offensive and aggressive toward him. The applicant told Mr Thomson that he would be hearing from his solicitor. Mr Thomson denies losing his temper with the applicant or hanging up on him. His evidence is that because of the applicant’s behaviour during the telephone call there was no opportunity to ask him for his version of the incident on 8 December. Further, the applicant did not ask to come in and discuss the issue.
[28] A document from the applicant’s personnel file headed, Personnel Training Record, was tendered into evidence and was marked Exhibit Applicant 2. It includes a note dated 10 December 2010 which is in the following terms:
“Peter terminated after not turning up for work on 9th and 10th Dec. 2010 (see report).”
[29] Mr R Thomson was the author of the note. He denied that it meant that the applicant’s employment had been terminated because of his absence from work. His evidence is that the dismissal was because of the applicant’s conduct as set out in the letter of 10 December.
[30] Mr R Thomson’s evidence is that the applicant had made no complaint of harassment in respect of Mr M Thomson prior to lodging his claim. He says that these issues are totally unfounded.
[31] The applicant seeks reinstatement. His evidence is that he has tried to find other employment but that it is difficult whilst on workers’ compensation. The applicant’s evidence is that about two months ago he received medical clearance to return to his pre-injury duties. His evidence is that he has no animosity towards anyone at the respondent’s business and, in particular, could continue to work with Mr M Thomson.
[32] Mr R Thomson’s evidence is that he would not re-employ the applicant due to the possible threat of further violence towards the remaining employees. He states that he has a responsibility to employees to ensure that the workplace is safe. The business is well run with great employees and he wants to keep it that way.
SUBMISSIONS ON BEHALF OF THE APPLICANT
[33] A written outline of submissions on behalf of the applicant was provided prior to the hearing. A further written outline was handed up at the hearing. Mr De Mattia also made oral submissions.
[34] Mr De Mattia submitted that the evidence of the applicant about the incident on 8 December 2010 should be preferred to that of Mr M Thomson. That evidence established that Mr Thomson had been provoking and harassing the applicant before the applicant challenged him. Mr De Mattia noted that there had been no actual physical violence or fight, both the applicant and Mr Thomson had continued to work after the confrontation and there had been no further mention of the incident that day. He also noted that the incident was an isolated one in the course of the applicant’s employment.
[35] Mr De Mattia noted that, despite the issue of notices to produce, no evidence had been provided that the incident had actually been reported to the police. He further noted that the applicant had not been interviewed by police.
[36] Mr De Mattia submitted that there had been no proper investigation of the incident and the applicant had been denied procedural fairness. He submitted that the applicant had not been given an adequate opportunity to respond to the reason for the dismissal or argue against the penalty of termination. Further, there had been differential treatment as between the applicant and Mr M Thomson.
[37] It was submitted that, contrary to the respondent’s assertion, there was no valid reason for the dismissal. There was no actual violence and the applicant’s challenge was in response to Mr M Thomson’s behaviour. Mr De Mattia referred to the following decisions as being relevant: AWU-FIME Amalgamated Union Queensland Alumina Limited (1995) 62 IR 385 @ 392 and Yew v ACI Packaging Pty Limited (1996) 71 IR 201. He submitted that, on the basis of these authorities, the applicant’s conduct did not give rise to serious misconduct or a valid reason for dismissal.
[38] Mr De Mattia noted that the excerpt from the applicant’s personnel file, Exhibit Applicant 2, actually recorded a different reason for his dismissal, namely the applicant’s absence from work on 9 and 10 December.
[39] Mr De Mattia submitted that, if there was a valid reason for the dismissal, nevertheless it was harsh, unjust and unreasonable in all of the circumstances. There had been no previous warnings; a denial of procedural fairness and inadequate investigation; the applicant was on restricted duties and workers’ compensation at the time of the dismissal and has found it difficult to obtain alternative employment. Further, other options were available such as the recommendation by the 4c Risk consultant that mediation could be useful. Alternatively, a warning could have been issued.
[40] Mr De Mattia submitted that, contrary to the respondent’s outline of submissions, the Small Business Fair Dismissal Code did not apply to the matter because the respondent had 20 full-time employees at the relevant time. He noted that there had been nothing to suggest that the viability of the respondent’s business would be affected by any order made.
[41] Mr De Mattia submitted that the applicant sought reinstatement, continuity of employment and lost wages. The evidence was that the applicant had no animosity towards Mr M Thomson and was happy to return to work. Mr De Mattia referred to and relied upon the decision of Zoumas v TNT Australia Pty Ltd t/as TNT Express[2010] FWA 2605.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
[42] A written outline of submissions on behalf of the respondent was provided prior to the hearing. Mr Grassi also made oral submissions.
[43] Mr Grassi submitted that the only evidence that the applicant had been harassed by Mr M Thomson had been that which was provided by the applicant in the witness box. He noted that the 4c Risk assessment report made mention that the applicant had complained to the consultant about the issue. Mr Grassi submitted that, if that was the case, the applicant had complained to the wrong person. He should have raised it with Mr R Thomson, the company’s Managing Director.
[44] Mr Grassi submitted that there was a valid reason for the applicant’s dismissal. The applicant had threatened Mr M Thomson with violence. In the circumstances the threat should be deemed to be violence. Mr Thomson feared for his safety. Mr Grassi noted that the respondent has an obligation to maintain a safe workplace for its employees.
[45] Mr Grassi submitted that the applicant had been treated fairly. The applicant had been notified in writing of the reasons for his dismissal. Mr Grassi submitted that, in the circumstances, the respondent was entitled to have summarily dismissed the applicant but had in fact given him an opportunity to put his case as to why his employment should not be terminated. It was the applicant himself who had failed to take advantage of that opportunity.
[46] It is submitted that, because of the applicant’s failure in that regard, the question of any support person did not arise. It is also submitted that the other remaining factors in section 387 of the Act are not of particular relevance or did not have any impact on the dismissal in this matter.
[47] Mr Grassi submitted that the applicant’s dismissal was not harsh, unjust or unreasonable. The written outline makes reference to compliance with the Small Business Fair Dismissal Code.
[48] Mr Grassi submitted that reinstatement was not appropriate. It would create difficulties in the workplace for other employees. Mr R Thomson’s evidence of his concerns for the safety of those employees is important in this regard. Mr Grassi submitted that there was no longer any trust between the respondent and the applicant.
[49] Mr Grassi submitted that the application should be dismissed.
CONCLUSIONS
[50] Section 396 of the Act sets out four matters which must be decided in applications of this type before the merits of a claim are considered. Those matters are:
“(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[51] The application in this case was lodged within the period required in section 394(2). There is no issue that the applicant was a person protected from unfair dismissal within the meaning of section 382. The Small Business Fair Dismissal Code is not relevant to this matter. In the Form F3 - Employer’s Response Mr R Thomson states that the respondent had 20 full time employees when the applicant was dismissed. Paragraph (d) of section 396 has no relevance in this case.
[52] Section 385 provides that 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.”
[53] Paragraph (a) is clearly met. Paragraphs (c) and (d) have no relevance in this matter.
[54] In order to decide whether the applicant’s dismissal was harsh, unjust or unreasonable it is necessary to turn to section 387 which sets out the factors which must be taken into account by FWA. Those factors are as follows:
“(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.”
[55] I shall address each of these factors in turn.
[56] In this case it is the applicant’s alleged conduct which led to his dismissal. The allegation is that the applicant told Mr M Thomson that he would “knock his head off”, that he should “come outside” and further, that he wouldn’t last one round in the ring with him. I note that the applicant was not questioned under oath as to whether he had made those particular comments. Nevertheless, his evidence is that he had “challenged” Mr Thomson. In addition, I note that, at the time he gave his evidence, he was aware that it was alleged that he had made the comments set out above. He did not deny that he had made them. In the circumstances I accept the evidence of Mr Allen and Mr Thomson that the applicant did make the comments.
[57] I accept the applicant’s evidence that he made the comments in response to Mr Thomson harassing him about his injury. I note in this regard that Mr Thomson didn’t deny having done this. He only denied being asked to stop. However in my view, such a degree of provocation did not warrant the applicant’s response. I accept that the applicant did not intend to cause actual physical harm to Mr Thomson, however, it was not unreasonable in the circumstances that Mr Thomson felt threatened by the comments.
[58] I am satisfied that the applicant’s behaviour amounted to misconduct which gave rise to a valid reason for the termination of his employment. However, the applicant was dismissed without notice for serious misconduct. In the circumstances I am not satisfied that his conduct was serious misconduct within the meaning of the phrase in Regulation 1.07 of the Fair Work Regulations 2009. The applicant’s comments amounted to a threat of assault however, as earlier indicated, I am satisfied that he had no intention of following through on the threat. Consequently, there was no imminent risk to Mr Thomson’s health or safety. Further, I am not satisfied that the applicant’s behaviour comes within the description of serious misconduct in sub-regulation (2)(a).
[59] I consider that the applicant’s misconduct amounted to a valid reason for dismissal with notice but not for summary dismissal without notice.
[60] It should be noted that I accept that the dismissal was not related to the applicant’s absence from work on 9 and 10 December.
[61] The applicant was informed of the reason for his dismissal. However I am not satisfied that the applicant was provided with a proper opportunity to respond. At the very least Mr R Thomson had an obligation to hear the applicant’s version of what had happened on 8 December. Mr Thomson testified that the applicant didn’t ask to come in and discuss the incident. However it is not up to the applicant to facilitate such an opportunity but the obligation of the respondent to provide it. Naturally, if the applicant had refused to meet with Mr Thomson to discuss the issue there would be little else Mr Thomson could have done.
[62] I do not accept Mr Thomson’s evidence that the applicant’s behaviour during the telephone conversation on 10 December somehow removed the respondent’s obligation. Mr Thomson’s evidence is that the applicant was rude and aggressive towards him, however, it appears that the extent of this rudeness and aggression was the applicant’s statement that he didn’t think Mr Thomson could sack him and then, in response to Mr Thomson’s reply that he had received legal advice that he could, the applicant stated that Mr Thomson would be hearing from his solicitor. In my view this was not an unreasonable response in the circumstances.
[63] As there were no proper discussions with the applicant relating to the dismissal the issue of the presence of a support person does not arise.
[64] Although the respondent is not a small business employer within the meaning set out in the legislation it is not very large. There was no evidence that the company had any dedicated human resource management specialists or expertise. In my view these factors had a negative impact on the procedures which were followed in effecting the applicant’s dismissal.
[65] There is no other particular matter which I consider to be relevant in this case.
[66] In all of the circumstances and having taken account of each of the factors in section 387 and my findings thereon I have determined, on balance, that the termination of the applicant’s employment was harsh. It follows from this and other matters addressed in paragraphs 52 and 53 above, that the applicant’s dismissal was unfair.
[67] Sections 390, 391 and 392 of the Act deal with remedies for unfair dismissals. I am satisfied that the provisions of section 390(1) and (2) have been met in this case. Subsection (3) provides that an order for compensation must not be made unless FWA is satisfied that reinstatement is inappropriate.
[68] I have carefully considered all of the material which was put on the question of remedy and, in particular, whether reinstatement is appropriate. I have decided, on balance, that reinstatement is inappropriate in this case.
[69] In arriving at this conclusion I have paid particular regard to the applicant’s workers’ compensation situation and the difficulties which he has had, and may very well continue to have, in finding employment. However, my observations of the witnesses leads me to the view that the necessary relationship of trust and confidence could not be restored, especially between the applicant and Mr R Thomson.
[70] Pursuant to section 390(3)(b) I consider that, in all of the circumstances of this case, it is appropriate to make an order for the payment of compensation. Section 392(2) requires that, in determining an amount for the purposes of such an order, FWA must take into account all the circumstances of the case including:
“(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.”
[71] There was nothing before me as to the effect of any order for compensation on the viability of the respondent’s business. I am satisfied that the order which I propose to make would not have an adverse effect on such viability.
[72] The length of the applicant’s service with the respondent was about 18 months.
[73] There is always a speculative element involved in assessing the remuneration that a person would have or would have been likely to have received had it not been for the dismissal. In this case I consider that any likely period of continued employment would have been minimal especially in view of my finding that there was a valid reason for dismissal with notice. This would have had a commensurate effect on any remuneration the applicant would have received.
[74] The applicant’s unchallenged evidence is that he had tried to find work but that it was difficult whilst he was on workers’ compensation.
[75] The evidence is that the applicant had not been in receipt of any remuneration from employment or other work during the period between the dismissal and the making of any order for compensation. I am unsure whether the applicant continued to receive any workers’ compensation payments following his dismissal.
[76] There is no evidence on which I could make any finding in relation to paragraph (f). There is no other matter which I consider to be relevant under paragraph (g).
[77] Having taken all of these matters into account as well as all of the circumstances of the case, I would have determined that I should make an order for six weeks compensation. Section 392(3) requires that, if I am satisfied that the applicant’s misconduct contributed to the decision to dismiss, then I must reduce the amount to be ordered by an appropriate amount. In this case I consider that the appropriate reduction is two weeks. That leaves a period of four weeks compensation. The applicant’s unchallenged evidence is that he earned $780 gross per week. Consequently the order will be for an amount of $3,120.00, less appropriate tax. An order to this effect accompanies this decision.
[78] Finally, I indicate that, in deciding this matter, I have given consideration to the need to ensure that a “fair go all around” has been accorded to both the applicant and the respondent as provided in section 381(2) of the Act.
COMMISSIONER
Appearances:
P De Mattia, solicitor, for the applicant.
J Grassi, solicitor, for the respondent
Hearing details:
2011.
July 13.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR512491>
3
0