Mr Raahul Kumar v Evolution Marketing Services Pty Ltd

[2013] FWC 800

[2013] FWC 800

FAIR WORK COMMISSION

DECISION

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

Mr Raahul Kumar
v
Evolution Marketing Services Pty Ltd
(U2012/10877)

COMMISSIONER ASBURY DARWIN, 5 FEBRUARY 2013

Application for unfair dismissal remedy - arbitration - dismissal consistent with Small Business Fair Dismissal Code - application dismissed.

[1] Mr Raahul Kumar was employed by Evolution Marketing Services Pty Ltd (EMS) from 17 June 2010 as a Help Desk and Technical Consultant. Mr Kumar was dismissed on 15 June 2012 for serious misconduct described in a letter of 26 June 2012 confirming the dismissal, as:

● Threatening and intimidating behaviour towards EMS’ Managing Director in a meeting on 15 June 2012; and
● Failing to carry out a lawful and legitimate direction to leave EMS’ premises after engaging in that behaviour. 1

[2] Mr Kumar has made an application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy and contends that his dismissal was unfair because he was not given a warning or notice, and because no effort was made to assist him to return to work after an injury.

[3] With respect to the initial matters required to be considered by virtue of s.396, Mr Kumar’s application was made within the period required in s.394(2) of the Act and he was protected from unfair dismissal as provided in s.382. The dismissal was not a redundancy.

[4] It is not in dispute that EMS is a small business employer as defined in s.23 of the Act and that Mr Kumar was dismissed without notice or warning. EMS contends that Mr Kumar was dismissed for engaging in serious misconduct that breached its Termination Policy, and that his dismissal was consistent with the provisions of the Small Business Fair Dismissal Code (the Code) relating to summary dismissal.

Legislation

[5] By virtue of s.385 of the Act, a person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed;

(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.

[6] The Code relevantly provides:

“Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.

Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair, it is sufficient, though not essential, than an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.”

[7] In determining whether a summary dismissal on the grounds of serious misconduct was consistent with the Code, the Commission must first consider whether the employer believed that the employee’s conduct was sufficiently serious to justify summary dismissal. The Commission must then consider whether the employer’s belief was based on reasonable grounds. 2 It is not necessary for the Commission to be satisfied that there was a valid reason for the dismissal or to make a finding that the employee actually engaged in the misconduct.3 It is also not consistent with the requirements of the Code for the Commission to determine whether summary dismissal was warranted.4

[8] Consideration of whether the employer’s belief that an employee has engaged in serious misconduct was based on reasonable grounds, incorporates the concept that the employer has carried out a reasonable investigation into the matter, usually involving a discussion with the employee, rather than that the employer’s belief was correct. However, as a Full Bench of Fair Work Australia observed in John Pinawin T/A Rose Vi.Hair.Face.Body v Domingo 5:

“Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation and reached a reasonable conclusion in all of the circumstances. Those circumstances include the experience and resources of the small business employer concerned.”

[9] In addition to the examples of serious misconduct set out in the Code, s.12 of the Act and Regulation 1.07 of the Fair Work Regulations 2009 provide as follows:

serious misconduct has the meaning prescribed by the regulations.

1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.

[10] Serious misconduct is not confined to the specific matters listed in Regulation 1.07 but is defined to include those matters and retains its ordinary meaning. Such ordinary meaning includes the examples in the Small Business Fair Dismissal Code Checklist, which asks the person who effected the dismissal whether any of a number of statements apply including:

“The employee threatened me or other employees, or clients, with violence or actually carried out violence in the workplace.”

[11] If a dismissal is found to be consistent with the Code, the dismissal is withdrawn from the general operation of s.385 of the Act and FWC cannot find that the dismissal was otherwise unfair on the basis that it was harsh, unjust and unreasonable.

Evidence

[12] Mr Kumar gave evidence on his own behalf.  6 Evidence on behalf of EMS was given by Mr Darren Flood, Managing Director7 and Mr Ben Hamilton, Senior Technical Support Officer.8 The relevant evidence can be summarised as follows.

[13] On 5 May 2012, Mr Kumar was involved in a bicycle accident and his evidence was that he suffered concussion. Mr Kumar was absent from the workplace for almost four weeks and said that he was hospitalised for a period of almost three weeks. Mr Kumar did not provide any documentary evidence to support these assertions, and his evidence on the length of his hospitalisation was unclear. Under cross examination Mr Kumar said that he did not provide medical certificates to Evolution in relation to his absence from the workplace because he was not asked to do so. Mr Flood said that his only contact with Mr Kumar during his absence was through Mr Kumar’s wife, who provided limited information about Mr Kumar’s condition and prognosis. There is no evidence that Mr Flood sought any information from Mr Kumar about his injuries.

[14] On or around 31 May 2012, Mr Kumar’s wife informed Mr Flood that he was ready to return to work, and Mr Flood met with Mr Kumar on that date to discuss his return to work. Mr Kumar said that his arm was in a cast and he was suffering fatigue and loss of appetite and that he wished to return to work on a part-time basis. Mr Kumar did not give evidence as to whether he told Mr Flood about these matters. Mr Flood’s evidence was that Mr Kumar said that he was ready to return to work, and that it was Mr Flood’s suggestion that he return on a part-time basis. Mr Flood said that it was agreed that Mr Kumar would return to work for half a day on Monday 4 June 2012, and that his working hours thereafter would be discussed at that point.

[15] Mr Kumar worked for half a day on Monday 4 June 2012, but according to Mr Flood, left the workplace without having a discussion about his plans for the rest of the week. Mr Kumar agreed under cross-examination that he did not have a discussion with Mr Flood on that day, in relation to whether he needed to continue to work reduced hours. According to Mr Flood, Mr Kumar did not attend work on Tuesday 5 June 2012. Mr Kumar said that he did attend on that date but took time off on Wednesday 6 June 2012 to attend a Doctor’s appointment.

[16] Mr Kumar said he informed EMS’ Administration Manager that he would not be attending work on 5 June 2012 and had always notified of absences in this way, notwithstanding that the Company’s Policy required that he notify his manager.

[17] Mr Kumar said that he arranged a meeting with Mr Flood on 6 June 2012, to discuss his working hours and upcoming medical appointments. Under cross-examination Mr Kumar agreed that this meeting was in fact a telephone discussion and took place at some time between 12.00 Midday and 1.00 pm. According to Mr Kumar, during that discussion Mr Flood pressured him to return immediately to full time work and said that he needed Mr Kumar to be reliable.

[18] Mr Flood said that he contacted Mr Kumar on 6 June 2012 after he did not attend for work as expected, and was advised that Mr Kumar would not be attending on that day. According to Mr Flood, this was frustrating as Mr Kumar had said he would be attending work, and work with clients had been booked for Mr Kumar which would require rescheduling. Mr Flood said that he did tell Mr Kumar that he needed to be reliable and turn up when he said he would. Mr Kumar said that he would attend work on 7 June 2012 and said that he would send Mr Flood a list of dates when he would not be available to attend work.

[19] At 7.12 pm on 6 June 2012 Mr Kumar sent Mr Flood that list, which indicated that he would only work for half a day on 7 June 2012. Mr Flood responded by email stating that Mr Kumar was expected to be at work on 7 June 2012 in accordance with his earlier advice. Mr Flood said that he responded in this way because of the extremely late notice and lack of explanation provided by Mr Kumar, for the change in his previously advised availability for work on 7 June. Mr Kumar worked full days on 7 and 8 June 2012.

[20] Mr Kumar agreed under cross-examination that he was one of only three employees with a role that generated income for EMS, but maintained that it was unreasonable for Mr Flood to be concerned about attendance in his first week back at work following an injury that required hospitalisation. Mr Kumar also maintained that because he had informed the Administration Manager about his absence, it would not have been difficult for arrangements to be made for someone else to service clients.

[21] Evidence was given by Mr Hamilton about behaviour exhibited by Mr Kumar upon his return to work following the bicycle accident. Mr Hamilton said that this behaviour was unlike Mr Kumar’s normal behaviour and included walking around while on the phone to a greater degree than prior to the accident; gesturing emphatically; and talking over and interrupting the conversations of colleagues. Mr Hamilton said that he was worried that the knock to Mr Kumar’s head was causing this behaviour.

[22] According to Mr Hamilton, Mr Kumar’s behaviour was more pronounced on 14 June 2012. On that day, Mr Kumar engaged in a number of “blunt” discussions with clients, and refused at short notice to do a job that was booked in with a particular client, walking out of the office and going to lunch 15 minutes after he was due to start the job. Mr Hamilton was required to deal with the client who called to enquire as to why he had not been contacted by Mr Kumar.

[23] The job that Mr Kumar refused to do on 14 June 2012 was for a client Company - J. Mr Hamilton said that the job was booked in for 1.30 pm with an employee - Mr A. According to Mr Hamilton, Mr Kumar had previously had an issue with the way that another employee of Company J - Mr S - had spoken to him, but had undertaken work for Company J since that time involving Mr A and employees other than Mr S. Mr Hamilton did not believe that this would be an issue given that Mr A was involved in the job booked with Mr Kumar for 14 June and Mr Kumar raised no objection to doing the job when it was discussed at a morning meeting on that date, at which Mr Kumar was in attendance.

[24] Mr Hamilton also gave evidence that the incident between Mr Kumar and Mr S occurred in December 2011, and that Mr Kumar had undertaken work where his contacts had been other employees of Company J, on some six occasions in late 2011 and 2012.

[25] Mr Kumar agreed under cross-examination that on 14 June 2012, he stated that he would not have any dealings with Company J or any of its employees because he had a negative experience with Mr S.

[26] On 14 June 2012 Mr Kumar also sent an email to a client which Mr Hamilton described as making no sense and rude. The email included a statement that the client should:

“Buy a decent accounting product, one that uses tech from 2010. Notice what year it is? The Accounting vendors think the saps who buy accounting products don’t know the difference between good and bad. We can sell them anything.”

[27] The client was upset by the email and had a discussion with Mr Hamilton about it. Mr Kumar said that his email was an appropriate response to a technical question, and was short and to the point.

[28] Mr Hamilton said that Mr Kumar’s behaviour got louder and more erratic throughout the course of 14 June 2012, and at 3.00 pm Mr Kumar asked Mr Hamilton to have a private discussion. During that discussion, Mr Kumar said that he would not be doing any more work for Company J and that this was not Mr Hamilton’s problem. Mr Hamilton suggested that Mr Kumar should discuss this with Mr Flood and the discussion ended. Mr Kumar then told another employee that:

“I will be having a conversation with Darren [Flood] on Monday. If I don’t hear what I want to hear it may well be my last day here because I’ll walk straight out.”

[29] Mr Hamilton also said that Mr Kumar told another employee that he would set boundaries and would be talking to Mr Flood on Monday and it would not be “pretty”. Mr Kumar agreed under cross-examination that he did state to colleagues that he would resign on Monday if he did not get a satisfactory response from Mr Flood with respect to his refusal to work with Company J and its employees. Mr Kumar maintained that it was appropriate for him to refuse to work with Company J or its employees. Further, Mr Kumar agreed that he did state that his discussion with Mr Flood would not be pretty.

[30] Mr Hamilton sent a number of emails to Mr Flood on the afternoon of 14 June 2012 reporting on Mr Kumar’s behaviour and expressing concern about it. Those emails also contain some references to the head injury sustained by Mr Kumar and that it might be affecting his behaviour. At 3.10 pm on 14 June 2012 Mr Kumar sent an email to Mr Flood and Ms Leon, Office Administrator, in the following terms:

“I will not work with J, S or anyone related to either of them. I will tell you on Monday - 10 mins when its convenient for both of you. I will set my boundaries clearly for you.”

[31] Mr Hamilton said that he arrived at the office on 15 June 2012 after Mr Kumar and before Mr Flood. Mr Kumar was pacing up and down the office and before Mr Hamilton could speak, Mr Kumar said: “I am not talking to you. It is not personal it is a matter between Darren [Flood] and myself. I will talk to you later if I am still here.” Mr Hamilton noticed that the air-conditioning had not been turned on by Mr Kumar as was the custom for the first person to arrive for the day, and the office was very cold. When Mr Hamilton queried this, Mr Kumar said that he had intentionally left it off so that the mood with Mr Flood would be absolutely clear. Mr Kumar said that if Mr Flood did not arrive within the next 30 minutes he would go outside and not come back.

[32] Mr Hamilton also noticed that all of the chairs in Mr Flood’s office had been piled up in the administration area, and rang Mr Flood to advise him that it looked as though Mr Kumar was after a stand up argument. Mr Hamilton said in his evidence that he did not place the chairs from Mr Flood’s office in the administration area, and thought it was so strange that he took a photograph of the position of the chairs on his i-Pad. That photograph was appended to the Form F3 Employer’s Response to Application for Unfair Dismissal Remedy.

[33] Mr Hamilton agreed under cross-examination that it is possible that a person other than Mr Kumar moved the chairs, but maintained that staff vacuum the office and there are no external cleaners. Mr Hamilton also said that it would have been extremely odd if some other staff member had moved the chairs between when Mr Hamilton left the office on Thursday night and when he arrived on Friday morning.

[34] Mr Flood’s version of events was that Mr Kumar left a message demanding that Mr Flood and Ms Leon attend a meeting with him. Mr Flood said that Mr Kumar called him again at 8.35am and was using a forceful and agitated tone of voice, causing Mr Flood to be concerned that Mr Kumar was going to be confrontational. Mr Flood was also concerned because Mr Kumar had asked that Ms Leon be present at the meeting and she did not usually work on Fridays.

[35] On arrival at the office, Mr Flood said that he found Mr Kumar in his office, standing inside a door with the other door closed. Mr Flood said that because of where Mr Kumar was standing, he could not enter the office and maintain a normal personal space. Mr Flood said that Mr Kumar had an aggressive tone and was “wild eyed”. Mr Flood also noted that the chairs from around the meeting table in his office had been removed and piled up in the administration office. According to Mr Flood, when he asked what had happened to the chairs, Mr Kumar said that he had moved them because he wanted the meeting to be held standing up so there would be no misunderstanding about what was said.

[36] Mr Flood said that as a result of the removal of the chairs from his office, he formed the view that Mr Kumar was going to become physically aggressive and he asked Mr Kumar whether this was the case. Mr Kumar did not answer the question but instead said that if he did not get the answers he wanted, he would be deciding whether he would continue working for EMS. Mr Flood suggested that they move outside to continue the discussion and told Mr Kumar that he was not feeling himself and should go home for the day. Mr Kumar responded by saying that he had never felt more himself and continued to talk about setting things straight.

[37] Mr Flood said that he continued to be concerned that Mr Kumar would get physically violent and held his hands open palm up to try to show Mr Kumar that he did not want this to occur. Mr Flood told Mr Kumar to go to his desk and get his lunchbox and then go home for the day. When Mr Kumar again stated that he wanted to set things straight and would then decide whether he would continue working for EMS, Mr Flood said: “At this point you no longer work for Evolution Marketing.” At that point, Mr Kumar turned and stormed off.

[38] Under cross-examination, Mr Flood maintained that he felt intimidated by Mr Kumar’s conduct and said he was concerned for two female employees who were due to arrive at work. Mr Flood agreed that he had not contacted the police about Mr Kumar’s behaviour and said he had chosen not to do so, despite feeling threatened, because Mr Kumar had not physically attacked him. Mr Kumar put the proposition to Mr Flood that Mr Floods’ failure to make a police report indicated that he did not really think Mr Kumar was a threat, particularly given that Mr Kumar still had keys to the office. In response to that proposition Mr Flood said he had changed the locks on the office at some cost, because of Mr Kumar’s failure to return the office keys.

[39] Mr Hamilton said that he heard much of the conversation between Mr Kumar and Mr Flood and that Mr Kumar’s voice was getting louder and louder. Mr Hamilton heard Mr Flood ask Mr Kumar: “let’s talk about this outside” and tell Mr Kumar to go home for the day and they would talk about things another time. Mr Hamilton said that he heard Mr Kumar say that they will talk now and he is going to set some boundaries and decide if he is going to stay or not. Mr Hamilton also said that he heard Mr Flood say that he felt threatened by Mr Kumar’s behaviour and that he should go home, and saw Mr Flood standing with his palms open and fingers up. Further, Mr Hamilton heard Mr Flood ask Mr Kumar whether he had anything at his desk that he needed and Mr Kumar said he did not and left.

[40] Mr Hamilton maintained that he was very concerned about Mr Kumar’s behaviour for the safety of the female staff due to arrive in the workplace. Mr Hamilton said that he felt responsible for the safety of those staff members and Mr Flood, and stayed in the workplace notwithstanding his concerns about Mr Kumar’s behaviour. Under cross-examination, Mr Hamilton agreed that he was not in the room in which the discussion between Mr Flood and Mr Kumar took place but maintained that he could hear loud voices for the first part of the conversation, during which Mr Hamilton was on the phone. Mr Hamilton said that he disconnected the call from a blue tooth device and walked towards the office and was behind the door with Mr Flood in view, for the rest of the conversation.

[41] Mr Hamilton also maintained that he was concerned that Mr Kumar was going to engage in physical violence because of his demeanour and behaviour that morning and the tone of his voice while talking to Mr Flood. Further, Mr Hamilton agreed that the discussion between Mr Kumar and Mr Flood lasted for between thirty and forty seconds before Mr Kumar left.

[42] Mr Kumar said that he arrived at the office at around 8.00 am and telephoned Mr Flood at 8.30 am to ask whether he would be in the office that day. Mr Kumar said that he greeted Mr Flood when he arrived and Mr Flood told him that he wanted to talk outside the office. Mr Kumar walked outside with Mr Flood and Mr Flood dismissed him by stating: “Don’t come back to Evolution Marketing”. Mr Kumar said that he left immediately and took the next available bus. Mr Kumar disputed the assertions in the letter setting out the reasons for his dismissal.

[43] Mr Kumar gave no evidence in chief about the position of the chairs but when cross-examined about this matter, denied moving them. Mr Kumar said that he did not mention the chairs in his witness statement or during his evidence in chief because he thought that he would be asked about this matter during the hearing. Mr Kumar also denied that he told Mr Flood that he had moved the chairs because he liked to have meetings standing up, but said that it is the case that he likes to have meetings standing up.

[44] Mr Kumar also denied that he stated that he wanted to set things straight and decide whether he was going to stay at EMS. Mr Kumar said that he was angry and letting off steam and did not know whether he would have resigned or not, but did not want to work with Mr S again. Mr Kumar could not remember whether he emptied his desk before the meeting but said that it was possible he did so. Mr Kumar also maintained that Mr Flood did not tell him to go home for the day but rather told him to get lost.

[45] Mr Kumar said that he has not obtained other employment following his dismissal. His attempts to gain employment have been that he has joined “LinkedIn” a social networking site which has a job-seeker site; looked at positions on the CareerOne site and has undertaken a number of training courses.

Submissions

[46] Mr Kumar submitted that his dismissal was based on a single incident, lasting for forty seconds, which did not constitute misconduct. Mr Kumar also said that the grounds for the dismissal were without merit because he had recently been released from hospital; his arm was in a cast; he did not move furniture; and did not yell or scream. Further Mr Kumar submitted that the fact that the air-conditioning was not turned on was irrelevant.

[47] In his submissions on behalf of EMS, Mr Flood said that Mr Kumar’s conduct was sufficiently serious to justify summary dismissal and that he believed on reasonable grounds that Mr Kumar was going to assault him on the morning of 15 June 2012. Mr Flood referred to the definition of assault and said that he apprehended that Mr Kumar would batter him and the apprehension was reasonable. In relation to apprehension, Mr Flood submitted that it has three elements: he knew of the threat and Mr Kumar appeared to have the ability and the intent to carry it out.

[48] Mr Flood also submitted that Mr Kumar had created an environment that made him feel apprehensive about the meeting on Friday and Mr Flood had received two emails warning him about Mr Kumar’s erratic, hostile and aggressive behaviour, and a call from Mr Kumar who had spoken to him in an aggressive tone. When Mr Flood arrived at the workplace his office had been cleared as if it was a boxing ring, and Mr Kumar was aggressive, wild-eyed and speaking loudly.

Employer’s belief that conduct sufficiently serious to justify immediate dismissal

[49] I am satisfied that Mr Flood believed that Mr Kumar’s conduct was sufficiently serious to justify summary dismissal. I generally accept the evidence of Mr Flood and Mr Hamilton in preference to that of Mr Kumar. Much of the evidence of Mr Flood and Mr Hamilton was not contested by Mr Kumar. Mr Kumar’s denials that he had engaged in certain conduct were not convincing and his evidence on a number of significant points was improbable and demonstrated a lack of perception about the likely impact of his behaviour on colleagues and clients. Further, Mr Kumar refused to concede that he had engaged in inappropriate and aggressive conduct, in circumstances where it was patently obvious that this was exactly what he had done.

[50] The evidence establishes that on 14 and 15 June 2012, Mr Kumar engaged in behaviour which was both unreasonable and aggressive. On 14 June 2012 Mr Kumar unreasonably failed to perform a scheduled job for Company J at or around 1.30 pm, in circumstances where Mr Kumar had known since that morning that he would be required to undertake that job. EMS is a small business with three employees who undertake work of the kind that Mr Kumar refused to perform on that date, and Mr Kumar should have known that his refusal would cause disruption and inconvenience, particularly at such short notice.

[51] Further, Mr Kumar had no reasonable basis to refuse to perform the job in question. Mr Kumar refused to undertake the job because of the way an employee of Company J - Mr S - had spoken to him or because Mr S had made a complaint about Mr Kumar. However the contact person for the job on 15 June 2012 was another employee, Mr A. Mr Kumar’s unreasonable refusal was compounded by the fact that the incident with Mr S occurred in December 2011 and he had performed work involving other employees of Company J on some six occasions since that time.

[52] The email Mr Kumar sent to a client about MYOB software was also rude and totally inappropriate. Mr Kumar’s insistence that there was nothing inappropriate about that email and that is short and to the point, is indicative of his general lack of perception about the impact of his conduct on EMS, and its employees and clients.

[53] I also accept that Mr Kumar made a number of comments throughout the course of the afternoon of 14 June 2012 which were aggressive and inappropriate. These included comments that his discussion with Mr Flood on 15 June 2012 would not be “pretty” and that he intended to resign if he did not get satisfaction from that discussion. Mr Kumar conceded that he made these comments. Further, I accept Mr Hamilton’s evidence of other comments made by Mr Kumar and behaviour exhibited by him on 14 June 2912, and that this caused concern on the part of Mr Hamilton. That concern is reflected in the emails sent by Mr Hamilton to Mr Flood on 14 June 2012. The emails are contemporaneous and in my view, reflect genuinely held concerns on the part of Mr Hamilton.

[54] Mr Kumar’s assertion in cross-examination that he did not move chairs from Mr Flood’s office before the meeting on 15 June 2012, and his attempts to suggest that another person or persons moved the chairs, was entirely unconvincing and I do not accept that it is correct. In its Response to Mr Kumar’s application, EMS asserted that Mr Kumar moved the chairs, and appended a photograph taken by Mr Hamilton on the morning of 15 June 2012, of the chairs piled in another area. It was also asserted in the evidence in chief of Mr Flood that Mr Kumar stated that he had moved the chairs because he wanted to have a meeting standing up, and so there could be no misunderstanding of what he was going to tell Mr Flood.

[55] Mr Kumar gave no evidence in chief to dispute these assertions and agreed that he did prefer meetings where the participants were standing. When all of the evidence is considered, I am unable to accept Mr Kumar’s evidence on this point, and conclude that he did move the chairs for the reasons that he gave Mr Flood.

[56] Having received emails from Mr Hamilton on 14 June 2012 reporting the behaviour of Mr Kumar, and an email and two telephone calls from Mr Kumar about the meeting on 15 June 2012, Mr Flood arrived at the office to find the chairs moved. It is not surprising that Mr Flood was concerned that Mr Kumar would become violent. I also accept the evidence of Mr Flood and Mr Hamilton that Mr Kumar was aggressive and speaking in a loud voice, causing Mr Flood to ask whether Mr Kumar was going to get physical, and that Mr Flood was endeavouring to calm the situation.

[57] Mr Kumar’s evidence that he did not assault Mr Flood, and could not have done so because he had a cast on his arm, misses the point. Serious misconduct does not require assault but can include a threat of violence. For the reasons set out above, I am satisfied that Mr Flood believed that Mr Kumar was threatening violence and had a genuine concern for his own safety and that of other employees.

Reasonableness of employer’s belief that conduct sufficiently serious to justify instant dismissal

[58] I have a number of concerns about whether Mr Flood had reasonable grounds for believing that Mr Kumar’s conduct was sufficiently serious to justify instant dismissal. Mr Kumar had recently returned from an absence of some four weeks, as a result of injuries sustained in a bicycle accident, and had been hospitalised during his absence because of those injuries. Mr Kumar said that he sustained a concussion. Mr Flood knew that Mr Kumar had been injured in a bicycle accident. The comments in Mr Hamilton’s emails about the possibility that Mr Kumar’s injury was affecting his behaviour, also indicate that Mr Flood and Mr Hamilton were aware of the nature of Mr Kumar’s injury.

[59] I am also of the view that Mr Flood cannot complain of lack of knowledge about Mr Kumar’s injury and a failure on the part of Mr Kumar to provide him with medical certificates, in circumstances where he had not raised this issue with Mr Kumar. There is also some evidence that suggests that Mr Flood told Mr Kumar that he was required to work on Thursday 6 June 2012 when Mr Kumar wanted to take half a day off work. 9 Further it appears from the evidence that Mr Kumar did leave the workplace on 15 June when he was told to do so.

[60] On the other hand, it is clear from the evidence that Mr Flood met with Mr Kumar prior to Mr Kumar’s return to work and that there was acceptance on the part of Mr Flood that Mr Kumar may need to work part time after his return to work and to have time off for medical treatment. Mr Flood refused Mr Kumar’s request to work part time on Thursday 6 June 2012 - one week before the events that lead to Mr Kumar’s dismissal occurred. I am of the view that it was reasonable for Mr Flood to require Mr Kumar to work a full day on Thursday 6 June 2012, given the late notice Mr Kumar gave of his intention to work only for part of that day.

[61] Mr Kumar has not put any evidence before the Commission in relation to whether his behaviour on 14 and 15 June 2012 was affected by his injury. To the contrary, Mr Kumar stated in his email of 6 June that he would switch to full time work in the week commencing Monday 11 June. Mr Kumar maintains that he did not behave in an aggressive or threatening way. For the reasons set out above, I do not accept that this is the case. Further, Mr Hamilton has no medical qualifications and his views about the possibility that Mr Kumar’s behaviour was related to his injury are not relevant.

[62] In light of the events of 14 and 15 June 2012, I am satisfied that Mr Flood’s belief that Mr Kumar’s conduct was sufficiently serious to justify summary dismissal, was reasonable. Mr Flood was faced with an employee who had indicated that he was able to work on a full time basis, and who had behaved in an aggressive and unreasonable manner in the workplace. After demanding a meeting with Mr Flood on 15 June 2012, Mr Kumar removed chairs from Mr Flood’s office giving the impression that he was clearing the room in readiness for a physical altercation. Prior to and throughout the meeting on 15 June 2012, Mr Kumar was aggressive and spoke with a raised voice.

[63] In light of Mr Kumar’s behaviour on 15 June 2012, and the consistency of that behaviour with that reported by Mr Hamilton on 14 June 2012, it was not necessary for Mr Flood to conduct an investigation. Mr Flood witnessed Mr Kumar’s behaviour, and I accept his evidence, and that of Mr Hamilton, about that behaviour. Accordingly, I am satisfied that Mr Flood believed that Mr Kumar had engaged in conduct that justified immediate dismissal on reasonable grounds.

[64] It follows that the termination of Mr Kumar’s employment was consistent with the Small Business Fair Dismissal Code, and is withdrawn from the operation of the provisions of the Act dealing with unfair dismissal. Mr Kumar’s application for an unfair dismissal remedy is dismissed, and an Order to that effect will issue with this Decision.

COMMISSIONER

Appearances:

Mr R. Kumar on his own behalf.

Mr S. Clayer and Ms J. Carroll on behalf of the Respondent.

Hearing details:

2012.

Brisbane:

October 17.

 1   Exhibit 1 Statement of Raahul Kumar Annexure B.

 2   John Pinawan t/a RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359.

 3   Khammaneechan v Nankhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe [2010] FWA 7891.

 4   John Pinawan t/a RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359

 5   [2012] FWAFB 1359 .

 6   Exhibit 1 Statement of Raahul Kumar.

 7   Exhibit 4 Statement of Darren Flood.

 8   Exhibit 6 Statement of Ben Hamilton.

 9   Exhibit 5.

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