Mr Thanh Ly v Coles Group Supply Chain Pty Ltd T/A Supply Chain
[2014] FWC 7744
•3 NOVEMBER 2014
| [2014] FWC 7744 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Thanh Ly
v
Coles Group Supply Chain Pty Ltd T/A Supply Chain
(U2014/850)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 3 NOVEMBER 2014 |
Application for relief from unfair dismissal.
[1] This decision arises from an application by Mr Ly for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act) against Coles Group Supply Chain Pty Ltd trading as Supply Chain (Supply Chain).
[2] Mr Ly represented himself in these proceedings. Until the day of the hearing he had been represented by Mr Nero from the National Union of Workers. On that day Mr Ly terminated that arrangement and conducted his own application. Having regard to the requirements of the act I decided to grant Supply Chain permission to be legally represented. Supply Chain was represented by Mr Napper of Lander and Rogers, Solicitors. I heard both parties’ evidence and submissions in Sydney on 10 and 11 September 2014.
[3] I have had regard to s.396 of the Act and have determined that this application was made within the period required by the Act, that Mr Ly is a person protected from unfair dismissal, that Supply Chain is not a small business employer and that there is no issue of genuine redundancy.
[4] It is necessary for me to determine whether or not Mr Ly's termination of employment was harsh, unjust or unreasonable having regard to the criteria which my attention is directed by s.387 of the Act. This section is set out below:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures for followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[5] Mr Ly was employed by Supply Chain from 2 July 2007 until 5 March 2014 at the Eastern Creek National Distribution Centre. Mr Ly’s employment was terminated for misconduct on 26 February 2014 against a background of what Supply Chain alleged to be multiple previous breaches of Supply Chain’s code of conduct and the applicable enterprise agreement.
[6] Having considered the evidence and submissions of the parties I have resolved various factual issues relevant to the criteria I am required to consider. Mr Ly's conduct at his hearing was difficult to manage and his evidence was not always relevant. I did not find Mr Ly to be a reliable and credible witness.
[7] Supply Chain called a number of witnesses who gave evidence regarding the conduct of Mr Ly. In resolving the factual background to this application, and any conflict in the facts presented by the parties, I have accepted the evidence of Supply Chain’s witnesses in preference to that of Mr Ly. I have set out key factual findings below.
Valid reason - s.387(a)
[8] Mr Ly was dismissed for conduct which it was alleged he engaged in on 26 February 2014. That conduct was described in the submissions of Supply Chain as follows:
“6. The conduct found to have been engaged in by the Applicant on 26 February 2014 was:
(a) aggressive and inappropriate behaviour towards another Team Member, Clint Hunt, where the Applicant said words to the effect of ‘what the fuck are you trying to bash me’ to Mr Hunt when he was in the DC’s ‘decanting’ section looking for a knife. After Mr Hunt explained what he was doing, the Applicant repeatedly said words to the effect of ‘no, you’re trying to bash me’.
(b) aggressive and inappropriate behaviour towards another Team Member, Shaun Vakai, when the Applicant squeezed and pulled Mr Vakai’s arm while giving him a handshake, to the extent that Mr Vakai almost fell off the pallet he was sitting on; and
(c) inappropriate behaviour amounting to sexual harassment causing another Team Member, Rachel Stewart, to feel harassed and uncomfortable when the Applicant made noises, raised his leg in a provocative manner while staring at her for extended periods of time and said to another Team Member of Ms Stewart, Mr Vakai, ‘She’s nice.’ (collectively, the Allegations).
[9] I am satisfied that the conduct alleged against Mr Ly occurred as described by the witnesses for Supply Chain. In particular, I accept the evidence of Mr Clint Hunt as set out below:
“5. On the night of 26 February 2014 I was working in the decant section, on Spur 1. The decant section is where team members remove stock from pallets and place them in totes, which are carried away by a conveyer system.
6. Between about 8.20pm and 8.40pm, Rachel Stewart approached me, and we had a conversation to the effect of:
Rachel Stewart: I’ve dropped my knife. Do you have a spare one?
Me: No. But people hide them away in workstations. We’ll go and have a look for one.
7. Rachel and I then went from spur to spur looking for a knife. As I arrived at each workstation I would say to the person working on it words to the effect of, ‘Hi, I’m just looking for a knife in the hidey spot.’ The ‘hidey spot’ is a little slot behind the bench that the computers sit on. People often put knives in there because otherwise others pick them up to take and use.
8. I then arrived at the Applicant’s workstation. To the best of my recollection he was on Spur 4. Rachel Stewart was standing behind me. I said to the Applicant words to the effect of, ‘Excuse me’. I estimate I would have been a distance of 4 - 6 feet when I spoke to the Applicant.
9. The Applicant then jumped back and put his hands up in a fighting position and said words to the effect of, ‘What the fuck, are you trying to bash me?’
10. I was startled by the Applicant’s behaviour. I replied with words to the effect of, ‘No, I’m just looking for a spare knife.’ I did not raise my hands when I said this, and backed away slightly.
11. The Applicant and I then exchanged words to the effect of:
Applicant: No, you’re trying to bash me.
Me: I don’t know what you’re talking about. I’m looking for a knife. I’ll show you where it is.
12. As I said this I reached my hand into the hidey hole to show him what I was trying to do. Because of where we were standing, I did not have to reach past or across the Applicant to do this. I kept my eyes on the Applicant as I was reaching into the hidey hole, as I was concerned he might actually hit me.
13. The Applicant repeated words to the effect of, ‘You’re trying to bash me.’
14. I said words to the effect of, ‘Whatever, man’ and walked off to check the next spur.
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25. After the 9.30 break, Rachel Stewart approached me and said words to the effect of, ‘I’m concerned that An might wait for me after the shift, or follow me home. Would you mind following me home in your car tonight?’
26. I replied with words to the effect of ‘Yeah, that’s not a problem.’
27. I then returned to work, and finished my shift.
Experience working with the Applicant
28. Although not formally documented, I have seen the Applicant acting strangely a number of times. For example, I often have seen the Applicant taking extended toilet breaks and staring into space for long periods.
29. I have also seen and heard the Applicant talking to himself, and struck me as strange behaviour.” 1
[10] As to the tension between Mr Ly and other workers I accept the evidence of Mr Hunt.
“39. I disagree with the Applicant. There is no ‘tension’ between the Applicant and his colleagues. I believe that everyone has a right to work, and it doesn’t matter if someone doesn’t interact with others. If the Applicant’s colleagues have an unfavourable opinion of him, I believe it is because he is often unpredictable, and does not work hard. For example, I have observed the Applicant taking extended toilet breaks and staring into space for long periods. This behaviour, I believe, adversely affects his performance.” 2
[11] As to the applicant’s relationship with other workers I accept the evidence of Mr Hunt.
“15. I do not think I startled the Applicant when I first said ‘Excuse me’, because I think he would have seen me approaching, going from spur to spur. When he spoke to me he looked and sounded very aggressive. Rachel Stewart witnessed the incident and I believe she was quite scared by his behaviour.
16. After I walked away from the Applicant’s workstation, I saw him walk past me into the mechanisation office (Office).” 3
[12] Mr Zanganeh gave evidence of an incident on 21 October 2013. His evidence was that Mr Ly unzipped and zipped his fly whilst facing Mr Ferrierre and himself. I accept the evidence of Mr Zanganeh in this respect. Mr Ly’s explanation of these events was not credible.
“4. At about 9.00pm on 21 October 2013, I was having my six-monthly review with my team manager, Chase Ferriere, in the mission control office (Office). The Office has four clear glass walls, through which people can see both in and out.
5. While I was sitting at the desk in the Office, I saw the Applicant walk up and stop in front of the wall closest to me. The desk of the Office is positioned against one of the glass walls, and the Applicant stopped on the other side of the glass to the desk. I would estimate the Applicant was about 1 metre from me and Chase Ferriere.
6. While the Applicant was facing us, he started unzipping and zipping the fly on his shorts. To the best of my recollection he did this once or twice.
7. The Applicant was looking at Chase Ferriere and me while he unzipped and zipped up his fly.
8. Chase Ferriere and I were both shocked at what the Applicant was doing.
9. Chase Ferriere then got up and went to speak to the Applicant. They had a conversation to the following effect:
Chase Ferriere: Mate, what are you doing? This is harassment.
Applicant: I didn’t do anything wrong. What are you going to do?
10. I cannot recall what Chase Ferriere replied.” 4
[13] Ms Rachel Stewart gave evidence regarding the attitude of the applicant towards her. 5 I accept that the applicant's conduct was inappropriate and highly likely to be intimidating to Ms Stewart.
[14] I accept the evidence of Supply Chain’s witnesses that Mr Ly had been counselled as to his attitude and performance and that on balance his attitude and performance were unsatisfactory.
[15] I am satisfied and find that Supply Chain had a valid reason for the termination of Mr Ly's employment which included misconduct on more than one occasion and significant performance issues. I am satisfied that Supply Chain’s reasons for the termination of Mr Ly’s employment were sound, defensible and well founded. 6
Notification of Reason - s.387(b)
[16] I am satisfied that regular meetings occurred between Mr Ly and his supervisors and managers during the course of his employment and that these meetings provided adequate direction to Mr Ly.
[17] Following his misconduct on 26 February 2014 Mr Ly was asked to attend a formal discussion meeting on 5 March 2014. He had a support person with him. He was provided with the witness statements which were relied upon by Supply Chain. At the conclusion of the meeting Supply Chain decided to terminate the employment of Mr Ly on the basis of its conclusion that the alleged misconduct had occurred, that Mr Ly had an extended history of unacceptable behaviour and poor performance, despite counselling, and because of the adverse effects of his behaviour on other team members and its business. As a result the applicant's employment was terminated with notice and payment of all outstanding entitlements. I am satisfied that Mr Ly was aware of the reason that a meeting had been called with senior management and the likely purpose of that meeting in compliance with s.387(b).
Opportunity to Respond - s.387(c)
[18] I am satisfied, having considered the inconsistencies in the evidence and submissions of the parties, that there was an opportunity provided to Mr Ly to discuss Supply Chain’s concerns regarding his conduct and performance prior to its decision to terminate his employment. I am satisfied that the performance issues between the parties were on the table between Supply Chain and Mr Ly for almost all of the period of Mr Ly's employment and that the significance of these issues for the continuance of his employment were, or should have been, apparent to Mr Ly. I am satisfied that he had an adequate opportunity to respond to those issues. I am satisfied that the issue of misconduct arising from the events of 26 February 2014 were apparent to Mr Ly and that he had an opportunity to respond to them.
Support Person - s.387(d)
[19] Mr Ly had a support person present at the meeting of 5 March 2014.
Unsatisfactory Performance - s387(e)
[20] I have already found that both Mr Ly’s attitude and performance were unsatisfactory.
Procedures for implementing dismissal - s.387(f) and (g)
[21] I am satisfied and find that the procedures adopted by Supply Chain were appropriate. The level of coaching and management time invested in Mr Ly was generous. The size of Supply Chain’s business and the availability of Human Resources professionals were relevant to the procedures.
Any other relevant matters – s.387 (h)
[22] I have considered the financial and social consequences to Mr Ly of termination of employment. They are very significant.
Conclusion
[23] Having considered the requirements indicated in s.387 of the Act I am satisfied that the dismissal of Mr Ly was not harsh, unjust or unreasonable.
[24] The application is dismissed.
SENIOR DEPUTY PRESIDENT
1 Exhibit Supply Chain 1 paras 5 - 14 and paras 25 - 29
2 Exhibit Supply Chain 1 para 39
3 Exhibit Supply Chain 1 paras 15 - 16
4 Exhibit Supply Chain 4 paras 4 - 10
5 Exhibit Supply Chain 7
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