Mr Sivarajah Vyramuthu v Challenger Cleaning Pty Limited

[2012] FWA 3403

[2012] FWA 3403

FAIR WORK AUSTRALIA

DECISION

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

Mr Sivarajah Vyramuthu
v
Challenger Cleaning Pty Limited
(U2011/13352)

VICE PRESIDENT WATSON SYDNEY, 3 MAY 2012

Application for unfair dismissal remedy -whether dismissal is harsh, unjust or unreasonable - - whether valid reason for dismissal - whether conduct justified dismissal - whether opportunity to respond to allegations - Fair Work Act 2009 ss.387, 394.

[1] This decision, edited from a decision on transcript on 17 April 2012, concerns an application for an unfair dismissal remedy by Mr Sivarajah Vyramuthu in relation to his employment with Challenger Cleaning Pty Limited (Challenger). The application is made under s.394 of the Fair Work Act 2009 (the Act).

[2] At the hearing on 16 and 17 April 2011, Mr Vyramuthu was represented by Mr P James, solicitor, and Challenger was represented by Mr M Easton, of counsel.

[3] Mr Vyramuthu was terminated from his employment by Challenger on 24 August 2011. There is no dispute that the dismissal occurred on that date. The essential question before me is whether the dismissal was harsh, unjust or unreasonable.

[4] Section 387 of the Act requires me to have regard to a range of criteria in considering whether a dismissal is harsh, unjust or unreasonable. I propose to consider the evidence and facts involved in this matter by reference to those criteria.

[5] The first factor is whether there was a valid reason for the dismissal related to the person's capacity or conduct. In this case the termination was based upon an investigation of circumstances and alleged conduct which occurred on 14 October 2011. There is detailed evidence in this matter concerning the conduct on 14 October 2011. Regrettably there is significant conflict in the evidence and it is necessary to make a finding as to the likely events which occurred on that day.

[6] The conflict in the evidence is significant. It is apparent that at least three persons witnessed relevant events on 14 October 2011. The three persons involved were Mr Vyramuthu, Mr Darren Leadbeater and Mr Ben Sutiono, who was allegedly the subject of aggressive behaviour from the applicant, including a physical assault. Having regard to the evidence of those three persons involved on that occasion, I am of the view that the conduct as described by Mr Leadbeater did occur and that Mr Vyramuthu physically pushed Mr Sutiono and used aggressive and abusive language, which included a swear word, in the course of requiring Mr Sutiono to perform his duties in a more expeditious manner.

[7] Other witnesses to events on 14 October 2011 appear to me not to have been present at the time of this conduct. They did describe other conduct on the day, but it appears to me to relate to a different event where Mr Vyramuthu raised his voice towards Mr Sutiono, but was some distance away when doing so. That appears to have been on a different occasion. The three persons, who were clearly present during that event, gave conflicting evidence. However, I am satisfied that the conduct occurred and that its nature was as described by Mr Leadbeater and Mr Sutiono.

[8] Related to the conduct was the interview conducted by Challenger on 24 October 2011. The evidence in relation to that interview is again in dispute. It is not clear precisely what was discussed and the nature of any concessions made by Mr Vyramuthu on that occasion. However, I am of the view that whichever version is accepted does not change the conclusion that I have reached. If there was an express denial of the conduct at that meeting, as alleged by Mr Vyramuthu, this gives rise to issues of credibility given the findings I have made as to the conduct which occurred. If there was no such denial, and if there was acceptance that the conduct occurred, then it supports the findings made by Challenger and the findings that I have made that the conduct as alleged did occur.

[9] I consider that the conduct in question amounts to a valid reason for the termination of Mr Vyramuthu’s employment, in that it was a sound, defensible and well-founded reason. It involved a breach of the Mr Vyramuthu’s contract of employment which expressly prohibited violent, aggressive or abusive behaviour. In my view it amounts to a valid reason for the termination.

[10] I find also that Mr Vyramuthu was notified of the reason for the termination of his employment by virtue of the meeting held between him and Challenger on 24 October 2011. That meeting was held for the purpose of putting the allegation to him and providing him with an opportunity to respond. I also find that he was given such an opportunity to respond and, although there was some dispute as to the nature of his response at the time, he nevertheless had and made use of that opportunity.

[11] I note that Mr Vyramuthu was not advised in advance of the reason for the meeting and was not expressly offered to have a support person present at the meeting. On the other hand, he also did not seek any adjournment of the meeting or request the presence of a support person. I am therefore of the view that Challenger has not unreasonably refused to allow Mr Vyramuthu to have a support person present at that meeting.

[12] I do not consider the matter to involve unsatisfactory performance. Rather, the termination was on account of misconduct of a serious nature and therefore s.387(e) is not relevant to the circumstances of this matter.

[13] I also do not consider that the matters dealt with in paragraphs (f) or (g) of s.387 bear upon the circumstances in this matter, as the employer is of a considerable size and has established human resources expertise within its establishment.

[14] I consider that there is a further issue relevant in this matter and that concerns whether the termination of employment was a proportionate response to the circumstances involved and the conduct that took place. The applicant was employed for approximately 17 years within the Four Seasons Hotel complex by different employers. It was said that the particular instance of behaviour which founded the termination was an exceptional instance, not a common state of affairs, and that in general Mr Vyramuthu had good relationships with other employees and was an effective supervisor. Challenger contends that to condone the activities would leave itself open to allegations of gross negligence. It also seeks, by virtue of the disciplinary action involved in this case, to uphold the standards of behaviour at its workplace which are dealt with in its employment contracts with Mr Vyramuthu and other employees.

[15] I have considered this matter generally, together with the other matters dealt with in s.387 of the Act, and in all the circumstances I am not satisfied that the dismissal was harsh, unjust or unreasonable. I consider that conduct of the nature I have found has occurred is inconsistent with the contract of employment and normal standards of employee behaviour. I also find that Challenger in this matter was entitled to uphold those standards by implementing disciplinary action in the form of dismissal in the circumstances of this case. Given the findings that I have made, the application for an unfair dismissal remedy is dismissed.

VICE PRESIDENT WATSON

Appearances:

Mr P James for Mr Vyramuthu.

Mr M Easton of counsel for Challenger Cleaning Pty Ltd.

Hearing details:

2012.
Sydney.
16, 17 April.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR522663>