Mr Tony Josevski v Qube Logistics (Vic) Pty Ltd

[2015] FWC 4892

[2015] FWC 4892

FAIR WORK COMMISSION

DECISION

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

Mr Tony Josevski
v
Qube Logistics (Vic) Pty Ltd
(U2015/3414)

COMMISSIONER ROE MELBOURNE, 17 JULY 2015

Application for relief from unfair dismissal.

[1] Mr Josevski was employed as a casual employee on a regular and systematic basis with an expectation of on-going employment from December 2010 until at least 3 February 2015. Mr Josevski referred to the employer as Cube Transport. This is an obvious error and the employer agrees that the application should be varied to correct the name of the employer to Qube Logistics (Vic) Pty Ltd (Qube) which is a wholly owned subsidiary of Qube Holdings Limited. I consider it appropriate to correct the name of the Respondent.

[2] Mr Josevski was involved in an accident on 23 December 2014. Mr Josevski told Qube that stress as a result of workplace bullying was a cause of the accident. Mr Josevski said that “I was looking at the board and I crashed into it.” Qube investigated both the accident and the bullying allegations. No one was injured in the accident but Qube say that there was $9000 worth of damage to the vehicle. Mr Josevski was stood down with pay whilst the matter was investigated. Mr Josevski was involved in several meetings as part of this process. Qube found the bullying allegations unsubstantiated. Qube also found that Mr Josevski had not reported the concerns about his treatment or about the stress which might affect the safe performance of his duties prior to the accident. Mr Josevski was then advised on 30 January 2015 that Qube was considering disciplinary action and that a meeting to discuss his on-going employment would be held on 3 February 2015. This was also put in writing.

[3] The meeting on 3 February 2015 was attended by two managers, Ms Link and Mr Chislett, and by Mr Josevski. Towards the end of the meeting on 3 February 2015 Qube say that Mr Chislett asked Mr Josevski to wait in the foyer for a few minutes whilst management discussed the matter. It is reasonable to assume that following this a decision as to the outcome of the meeting or the next steps to be taken would have been announced. However, according to Ms Link, Mr Josevski said “Just give me a call”. Ms Link says that in response Mr Chislett asked “Are you walking away?” Ms Link says that Mr Josevski made no response and left.

[4] There was no further correspondence or communication until the unfair dismissal application on 23 February 2015. Qube therefore argues that it did not dismiss or discipline Mr Josevski.

[5] Mr Josevski says that the company told him to leave at the 3 February 2015 meeting. He also maintains his view that the accident was due to stress as a result of workplace bullying and being managed by intimidation. Mr Josevski agrees that there was no further correspondence or communication until he lodged the unfair dismissal application on 23 February 2015. Mr Josevski did receive pay for the period of stand down and a pay slip reflecting the pay for that period.

[6] The Application for unfair dismissal remedy was made within 21 days after the dismissal. Qube is a national system employer, is not a small business employer, there is no suggestion that redundancy is involved and Mr Josevski was employed for more than six months. If Mr Josevski was dismissed at the initiative of the employer then he is protected from unfair dismissal.

[7] It is necessary to first determine if Mr Josevski resigned or abandoned his employment or whether he was dismissed. If Mr Josevski was dismissed then I will need to determine if the dismissal was unfair.

[8] I heard further evidence from Mr Josevski and Ms Link concerning what occurred at the 3 February meeting. Mr Josevski says that at the end of the meeting Mr Darren Chislett said “I think it best if you just leave”. Mr Josevski says that he did not want to leave so he waited about 10 or 15 seconds at the door in the hope that he might say something more. He said that Ms Link was looking down and did not intervene. He then left. After further questioning Mr Josevski said that in fact Mr Chislett said “You’re dismissed; you can leave now.”

[9] Ms Link stood by the accuracy of the handwritten notes that she took during the meeting. She said that at no stage did Mr Chislett say that Mr Josevski should leave or that he was dismissed. She said that she had been involved in other dismissals in her time at QUBE and that employees received written notification of any dismissal. She said that Mr Chislett did not have the authority to dismiss an employee. She said that no conclusion had been reached about the cause of the accident, any disciplinary consequences or Mr Josevski’s fitness to return to work. She said that had the discussion been allowed to occur the outcome would not have been dismissal at that stage as she was not satisfied that Qube had a proper understanding of all the issues.

[10] I accept Ms Link’s evidence. Having observed Mr Josevski giving evidence I consider that Mr Josevski may have been confused and upset. The inconsistency in his version of what was in fact said on the day illustrates this point. I do not consider that Mr Josevski has been dishonest.

[11] I am not satisfied that Mr Josevski was dismissed at the initiative of the employer. The actions of the employer did not cause Mr Josevski to leave. The actions of the employer were not directed at ending the employment relationship and did not cause an end to the employment relationship.

[12] As there was no dismissal the application for unfair dismissal remedy cannot proceed. The application is dismissed.

COMMISSIONER

Appearances:

Mr T Josevski appeared for himself.

Mr D Coulton and Ms E Link appeared for the Respondent.

Hearing details:

2015

Melbourne

July 9

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