Mr Ray Shottle v Designer Windows Pty Ltd

[2011] FWA 2177

[2011] FWA 2177

FAIR WORK AUSTRALIA

DECISION

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

Mr Ray Shottle
v
Designer Windows Pty Ltd
(U2010/15139)

COMMISSIONER ROE MELBOURNE, 8 APRIL 2011

Termination of employment –summary dismissal.

[1] The matter arises from an application filed on 16 December 2010 under s 394 of the Fair Work Act 2009 (the Act) by Mr Ray Shottle (the Applicant) for relief in respect to the termination of his employment from Designer Windows Pty Ltd (the Respondent). The original application referred to the respondent as Designer Windows and Doors Pty Ltd. The employer advised that this was not the correct name of the employing company and on 24 March 2011 Senior Deputy President Acton made an Order that the respondent in this matter be amended to Designer Windows Pty Ltd.

[2] The dismissal took place following an incident on 9 December 2010. The Applicant says that the dismissal occurred on 9 December 2010 whilst the Respondent says that it occurred when termination pay was made up a day or two later. In any case the Application was clearly made within time.

[3] Following an unsuccessful conciliation conference the matter proceeded to arbitration. The parties elected to proceed to a hearing on 7 April 2011.

[4] At the hearing the Applicant represented himself and gave evidence. At the hearing the Respondent was represented by Mr Eugene Aggromito who is a partner and director in the company and is responsible for the day to day administration of the company. The Administrative manager Ms Marie McChrystal also gave evidence for the Respondent.

[5] The parties agreed and I am satisfied that:

• The Applicant was employed for approximately 13 months prior to the dismissal.



• The Applicant worked 38 hours per week and was paid $25 per hour prior to the dismissal plus $2.25 superannuation.



• The Applicant was dismissed by the Respondent on or about 9 December 2011.



• The Respondent employed 26 people at the time of the dismissal.



• The Applicant was employed as an estimator and he also performed related documentation and general duties.



• Prior to 9 December 2010 the Respondent had no concerns about the performance of the Applicant and there was no prior warning or prior issue of concern raised with the Applicant.



• The dismissal related only to the incident of 9 December 2010.



• The Applicant was dismissed without notice and no notice was paid. 1



• The dismissal was a summary dismissal without notice for alleged serious misconduct. The Applicant has not been employed since the dismissal.



• The Applicant has actively looked for work since the dismissal having applied for 8 to 10 jobs.



• The Applicant has been in receipt of social security payments but no income from employment since the dismissal.



• The Applicant was not made redundant.

[6] The Applicant is protected from unfair dismissal.

The incident of 9 December 2010.

[7] The Applicant gave evidence that an architect, Dale Fisher, who was a regular client of the Respondent, called him on 8 December 2010 and asked for help designing a skylight glazing. The Applicant gave unchallenged evidence that:

• The specification requested “was much higher than we had ever produced in my time at the company.” 2 The specification related to the degree of thermal and UV efficiency.



• The architect said that he had contacted the supplier Viridian Glass and that they had not been able to help.



• The architect also said that he had spoken to another director of the Respondent, Fabio, and that he had also been unable to find the required information.



• The Applicant says that he then spoke to Mr Aggromito about who the Applicant should contact to get the necessary technical assistance and was advised by Mr Aggromito to contact Viridian Glass.

[8] The Applicant gave evidence that on the morning of 9 December 2010 the architect, Dale Fisher, rang again and asked if he had any information yet. The Applicant says that he told the architect that he would get back to him as soon as possible. The Applicant then says that he rang Viridian Glass and spoke to a representative who told him that the specification would be very difficult but that they would check and get back to the Applicant. Mr Aggromito says that after the dismissal he spoke to Viridian Glass and they did not confirm that the Applicant had rang and asked for the information. I cannot be sure that Mr Aggromito spoke to the same person at Viridian Glass that the Applicant says he spoke to. In the absence of any direct evidence from employees of Viridian Glass I prefer the evidence of the Applicant in this matter. Mr Aggromito gave evidence that confirmed that the Applicant had told him that he was waiting on information from Viridian Glass.

[9] It is not contested that the Applicant then received an email from Dale Fisher at 11.30am asking for the Respondent to send a letter stating that the Respondent could supply the skylight to the requested specification. The Applicant gave evidence that he was concerned that he was not qualified to “design complex window combinations” and that he was concerned that Dale Fisher might use the letter to gain a building permit and that if the window did not then meet the performance specified he and the Respondent could be legally liable. 3 I am satisfied that the Applicant did in fact have these concerns because both Mr Aggromito and Ms McChrystal gave evidence under cross examination that the Applicant told Mr Aggromito that these were the main reasons why he had not and would not send the letter requested by Dale Fisher.

[10] It is not contested that shortly after the email was received that Mr Aggromito in a loud voice told the Applicant to “stop everything” he was doing and write the requested email letter to Dale Fisher. Ms McChrystal tended to confirm the evidence of the Applicant that Mr Aggromito “yelled out”. There is some conflict in the evidence as to how loud and aggressive this instruction was. It is not disputed that the Applicant then responded that he was waiting for Viridian to ring him back and that he would not send the email and that he also raised the concerns he had about illegality or liablity. There is some conflict as to how aggressive or harsh the response of the Applicant was. Mr Aggromito says that the Applicant spoke aggressively and swore. There was no suggestion of any assault. Mr Aggromito again insisted that the Applicant send the email.

[11] The Applicant then returned to his office and slammed the door of his office upon entering it. Mr Aggromito says that this followed a direction that he gave to the Applicant for him to return to his own office.

[12] Mr Aggromito then told the Applicant to open the door several times. The door was then opened. The Applicant says that he opened it and Mr Aggromito says that he opened it. I do not regard this detail as of any great consequence. The argument then continued. The Applicant says that Mr Aggromito then instructed him to “send the email or turn your computer off and go”. 4 The Applicant understood this as a termination of his employment. Ms McChrystal and Mr Aggromito say that the Applicant asked “do you want me to leave?” and the Applicant responded “Yes”.5

[13] The Applicant then says that Mr Aggromito went outside and that he followed him and continued to try to explain why he did not believe it was appropriate for him to send the email. Mr Aggromito agrees with the Applicant that in response to these explanations, on a number of occasions Mr Aggromito said that he “did not care”.

[14] The Applicant then left the premises and did not return.

[15] Mr Aggromito says that it was not his intention to dismiss the Applicant on 9 December but that he accepts that the situation got heated and that the Applicant “mistook this for being dismissed”. Mr Aggromito says that “however, through his attitude and failure to show up the next day or apologise for his conduct, we decided to make up his entitlements. It was the result of Ray’s unsatisfactory professional conduct for failure to comply with the task I set forth and his manner of communication with me as his employer.” 6

[16] On the F3 Employer Response Form submitted after the dismissal the Respondent described the reasons for dismissal as “refusal to carry out basic instructions, raising of employee’s voice, argumentative, determined not to fulfil duties and slamming of the door in the face of the employer.”

[17] The Applicant was never provided with any letter setting out the reasons for his dismissal. The Applicant was not given an opportunity to respond to the reasons for his dismissal.

[18] Ms McChrystal gave evidence that Mr Aggromito did not ask other employees apart from herself to send emails for him. The Applicant says that Mr Aggromito could have sent the email requested by Dale Fisher himself, or instructed Ms McChrystal to do it on his behalf. If Mr Aggromito did not share the concerns that the Applicant had about the legal liabilities then the Applicant says this would have been a reasonable response if he did not wish to wait for Viridian Glass to get back to the Applicant. Mr Aggromito says that he was subsequently able to get the information required from Viridian Glass in a short phone call.

[19] The Applicant and Ms McChrystal gave evidence that Mr Aggromito “had a temper”. Mr Aggromito disagreed with this.

Conclusions

[20] I have no doubt that the communications between Mr Aggromito and the Applicant on 9 December 2010 concerning the sending of an email to Mr Dale Fisher about the ability to comply with specifications for a skylight were heated. I have no doubt that both participants were aggressive and angry and refused to move from their respective positions. I have no doubt that it was reasonable for the Applicant to conclude that when Mr Aggromito told him or agreed with him that he should go he was being dismissed from his employment. It was reasonable for the Applicant to understand that the payment of his entitlements a day or two later was confirmation of this.

[21] There is no evidence to contradict the position of the Applicant that he was not qualified to make the judgments required to send the letter to Dale Fisher testifying that the specifications could be met. There is also no evidence to contradict the position of the Applicant that this was not a specification that he had dealt with during his employment with the Respondent. I am satisfied for the reasons discussed earlier that the Applicant had rung Viridian Glass and was waiting for them to ring him back with advice concerning the ability to meet the specifications. The Applicant made this call on the same morning and hence was not unreasonably delaying a response to the customer. I am also satisfied for the reasons stated earlier that the Applicant told Mr Aggromito why he would not send the letter to Dale Fisher and those reasons included his concerns about legal liability and that he was waiting for Viridian Glass to ring him back.

[22] The instruction of Mr Aggromito was very clearly that the email letter to Dale Fisher must be sent by the Applicant immediately. It was not an instruction that it be sent as soon as possible or within a set time frame or that it be sent as soon as there was confirmation from Viridian Glass. Such instructions would have been reasonable instructions. For this reason the submission of Mr Aggromito that he was able to get confirmation from Viridian Glass concerning the capacity to achieve the specification relatively quickly does not make the refusal of the Applicant to immediately send the email letter to Dale Fisher unreasonable.

[23] In all of the circumstances the behaviour of the Applicant in refusing to immediately send the email letter to Dale Fisher cannot be described as an unreasonable refusal to carry out a lawful and reasonable instruction.

[24] I accept that both the Applicant and Mr Aggromito felt that the other person was being inflexible, aggressive and unresponsive. I am satisfied that there was some reason for this feeling on both sides. It was of course inappropriate for the Applicant to slam the office door. Despite what was stated on the F3 Employer Response Form there was no evidence that the Applicant slammed the door in the face of the employer. None of the evidence suggests that Mr Aggromito was near the door when it was slammed. However, given it was an isolated incident and that Mr Aggromito was also aggressive and unresponsive to the issues being raised by the Applicant, I do not find that the argumentative behaviour of the Applicant could constitute misconduct let alone serious misconduct. When things calmed down it may have been appropriate to counsel the Applicant about more appropriate and calm behaviour.

[25] The reasons given by the Respondent in their submissions do not constitute valid reasons for dismissal. I conclude that there was no valid reason for dismissal related to the person’s capacity or conduct. There was certainly no valid reason for summary dismissal for serious misconduct.

Notification of reasons for dismissal and opportunity to respond.

[26] The Applicant was not notified of the reasons for dismissal. However, the Applicant was aware that the dismissal was related to the refusal to send the email letter to Dale Fisher as instructed by Mr Aggromito. Given the heated atmosphere which was contributed to by both parties there was not an effective opportunity to respond to the reason for dismissal. The Applicant was not given notification prior to the dismissal being carried out and was not given an opportunity to respond.

Was the Applicant refused a support person?

[27] There was no opportunity to respond to the dismissal and hence there was no opportunity for the Applicant to have access to a support person. There was no unreasonable refusal to allow a support person.

Unsatisfactory performance?

[28] There was no warning concerning unsatisfactory performance. The dismissal did not relate to unsatisfactory performance.

Was the size of the employer’s undertaking and or the lack of human resource management specialists likely to impact on the procedures followed?

[29] The Respondent is a small business and it does not have access to human resource management specialists. I believe that this did have an impact on the procedures followed. However, the size of the employer and the lack of human resource management specialists does not mean that an employee does not have the right to a fair go. The Applicant was still entitled to fair treatment including notice and an opportunity to respond.

Other relevant matters.

[30] The fact that the dismissal was a summary dismissal in circumstances where the actions of the Applicant could not be regarded as actions which prevent employment during a period of notice is a relevant factor.

Was the dismissal harsh, unjust or unreasonable?

[31] As there was no valid reason for the dismissal and in addition to that the dismissal was not in accordance with the basic requirements of procedural fairness I am satisfied that the dismissal was harsh, unjust and unreasonable.

Remedy

[32] The Applicant does not seek reinstatement. In all of the circumstances I do not consider reinstatement would be appropriate or practical. The relationship of trust is not able to be restored. In all of the circumstances I find that an order for compensation is appropriate.

[33] The factors I take into consideration in determining compensation are:

• The uncontested evidence of the Applicant that he has been unemployed since the dismissal. The Applicant has made reasonable efforts to seek further employment. I am satisfied that the Applicant has made all reasonable efforts to mitigate his loss.



• The fact that the Applicant did not receive the two week’s notice to which he would have been entitled if the dismissal had not been a summary dismissal. I have found that there was no proper basis for summary dismissal.



• The Applicant and his partner have been in receipt of the social security payments since shortly after the dismissal but it is not appropriate to deduct these payments from any award for compensation. Income from any award for compensation may well affect eligibility for social security payments. 7



• The Applicant was employed for 13 months. I find that the relatively short length of service is a relevant consideration in the circumstances of this case.



• There is no evidence or reason to believe that any order I might make would affect the viability of the Respondent.



• In all of the circumstances I do not believe that the Applicant’s own behaviour significantly contributed to the situation in which he found himself. I make no discount for misconduct by the Applicant.



• I have not considered the hurt caused to the Applicant in evaluation of the appropriate compensation.



• The Applicant is not likely to earn any significant income between the hearing and the making of this order nor between the time of the making of this order and the payment of any compensation other than his social security payment.

[34] In estimating the time the Applicant would have remained in employment with the Respondent if the events of 9 December 2010 had not occurred I take into account that the Applicant had only been in employment for 13 months, that there had been no issues with the performance of the Applicant, and that the building and construction industry is competitive and subject to significant fluctuations in activity. For these reasons, I estimate that the Applicant would have remained in employment with the Respondent for four months.

[35] The period between the dismissal and the date when an order for the making of compensation would apply is four months or 17 weeks. The Applicant would have earned $17,603.50 (17 weeks pay x $27.25 per hour x 38 hours) in that period. I make no deduction for earnings during this period. The total compensation to be awarded is therefore $17,603.50 less taxation as required by law. This amount should be paid within four weeks of this decision. The Respondent is at liberty to apply for a variation to this time period.

COMMISSIONER

Appearances:

Mr Shottle appeared on his own behalf.

Mr Eugene Aggromito, a partner and director in the company, represented the Respondent.

Hearing details:

2011

Melbourne

7 April

•  1   Evidence of the Applicant and Ms McChrystal.

 2   Exhibit S-1.

 3   Exhibit S-1 and Exhibit S-2.

 4   Exhibit S-1.

 5   Exhibit A-2.

 6   Exhibit A-1.

 7   Sprigg vs Paul’s Licensed Festival Supermarket 24 December 1998 Munro J, Duncan DP, Jones C Print RO235, and this decision has been followed in many subsequent cases.

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