Mr Troy Irwin v Woolstar Pty Ltd
[2010] FWA 1705
•4 MARCH 2010
[2010] FWA 1705 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
Woolstar Pty Ltd
(U2009/11314)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 4 MARCH 2010 |
Termination of employment.
[1] This decision arises from an application made pursuant to s394 of the Fair Work Act 2009 (the Act).
[2] Mr Irwin represented himself with the assistance of his school aged daughter, another daughter and his partner. Woolstar Pty Ltd (Woolstar) was represented by Ms Kate Hennessy, solicitor, of Herbertgeer solicitors. Mr Irwin was given assistance by myself whenever he required it in relation to the conduct of his application and Ms Hennessy provided assistance by not taking unnecessary legal points during the course of the hearing.
[3] I have given consideration to the matters to which my attention is directed pursuant to s396 of the Act.
[4] The issue for determination in relation to this application is whether or not the termination of Mr Irwin’s employment was, in all the circumstances of this application, harsh, unjust or unreasonable.
[5] Woolstar allege that Mr Irwin engaged in misconduct which was a breach of its policies. He was dismissed for that misconduct.
[6] The relevant extract from Mr Irwin’s letter of termination is set out below:
“I refer to the meeting we had on 30 July 2009 regarding our investigation of several incidents, which happened on 23 and 24 July 2009. During the meeting we established that you breached Woolworths Limited Code of Conduct due to your aggressive and threatening behaviour towards other employees.
At that meeting we also advised that your employment with Woolworths will be terminated. This will be effective 30 July 2009. Your outstanding annual leave entitlements will be paid into your nominated bank account.
Please find attached a copy of the Record of Formal Counselling Session for your information.” 1
[7] The events which led to Mr Irwin’s dismissal involved a Mr Pemberton and a Mr Bassington. Mr Irwin observed Mr Pemberton in an incident involving a pallet and some spilt cans. Mr Irwin reported Mr Pemberton’s conduct. He submitted that he told the relevant manager that Mr Pemberton was “off his chops”. The relevant manager, not unreasonably, thought that Mr Irwin might be suggesting that Mr Pemberton was on drugs. That manager investigated the allegation. Later Mr Pemberton came into contact with Mr Irwin. Woolstar investigated and relied on Mr Irwin’s conduct on this occasion to dismiss him. Mr Pemberton said in his interview with management that:
“……Troy was there staring at him and he noticed that Troy only had half the order done. Lee said he felt Troy went looking for him and noticed he was staring at him. Lee said that he laughed at Troy and said ‘Do you have a problem. You just reported me for taking drugs. I have never spoken to you. I don’t know who you are. I don’t know what your problem is.’ Lee explained that Troy jumped off his BT and got right in Lee’s face and started screaming ‘What are you going to do about it. Do something about it.’
Lee replied to Troy with ‘You’re an idiot. I can’t talk to you.’
Troy replied ‘What’s your fucking name’ and according to Lee he repeated this four times. Lee said he replied every time with ‘I don’t have to give you my name’ and then ended up walking away since Troy kept repeating himself.” 2
[8] Mr Babbington also had contact with Mr Irwin. Woolstar also investigated and relied on this incident to dismiss Mr Irwin. He said:
“Mark indicated that he was in the CLS aisle around 9.30 am on 24 July 09 doing put away. Troy Irwin was already in the aisle. Mark said that Troy came flying around the corner in his BT and nearly hit Mark. Mark explained that Troy had to stop for Mark and Mark said to Troy ‘3 bay rule mate’. Mark said that Troy then went off. Mark said that Troy got off his BT and came up to him. Mark indicated that when the conversation got heated Troy came up to 10cm away from his face.
Mark explained that Troy started talking about what happened the day before with Lee Pemberton.
Mark explained that Troy said ‘This place is fucked’ and ‘Fucking this and that’.
Mark said he told Troy Irwin ‘You got to stay out of trouble. You’re causing nothing but trouble.’
According to Mark Troy went off and was 10cm away from his face and said to Mark ‘I’ll take you out after work and will give you a flogging’.
Mark said he replied ‘That’s the least of my worries’.
According to Mark Troy kept going and Troy said to Mark ‘I’ll kill you’. Mark said he felt threatened and was very upset by the conversation. Mark indicated that before he would do something he would regret, he left the area, but Troy was still going on whilst he was leaving.” 3
[9] Mr Irwin submitted that when he reported Mr Pemberton’s conduct to management he was indicating that Mr Pemberton was behaving like someone who was on drugs. He did not intend to indicate that Mr Pemberton was actually on drugs. When he said he was “off his chops” he meant that he was angry, speeding and behaving recklessly and unreasonably.
[10] Mr Irwin’s evidence was that Mr Pemberton initiated contact with him on 23 July 2009 concerning his report. This was one of the occasions concerning which he was found to have engaged in misconduct and for which he was dismissed. Mr Irwin said that he was trying to explain his position to Mr Pemberton. He was not abusive. He was trying to explain that he had not said that Mr Pemberton was on drugs.
[11] There were various witnesses to these events. Not all of their evidence is supportive of Mr Pemberton’s recollection of his conversation with Mr Irwin or of the incident which caused Mr Irwin to report his conduct to management - neither is all of their evidence supportive of Mr Babbington’s recollection of his conversation with Mr Irwin. However, overall, the evidence of the witnesses for Woolstar is corroborative of Mr Pemberton and Mr Babbington’s version of events.
[12] I have watched the CCTV coverage of the contact between Mr Pemberton and Mr Irwin. There is nothing about that CCTV coverage that adds to my understanding of the issues.
[13] Having considered the evidence of Mr Irwin and the evidence of the various witnesses for Woolstar I am persuaded that there was a valid reason for the termination of Mr Irwin’s employment.
[14] I have given consideration to the criteria set out in s387 to which my attention is drawn for the purpose of satisfying myself as to whether or not a dismissal is harsh, unjust or unreasonable.
[15] In this case I have had regard to ss387(a). I have determined there was a valid reason for the dismissal of Mr Irwin relating to his conduct.
[16] I have had regard to ss387(b). I have determined that Mr Irwin was notified of the reason for his dismissal.
[17] I have had regard to ss387(c). I have determined that Mr Irwin was given an opportunity to respond to the reason for termination of his employment relating to his conduct.
[18] I have had regard to ss387(d). I have determined that there was no unreasonable refusal to allow Mr Irwin to have a support person present to assist in his discussion.
[19] I have considered the matters referred to in ss387(e), (f) and (g). They are not relevant to my determination of this matter.
[20] I have had regard to Mr Irwin’s conduct in the course of the investigation into these matters. I find that he was unco-operative. I consider that the conduct of Mr Irwin adds weight to the version of events presented by the witnesses for Woolstar in relation to Mr Irwin’s alleged misconduct.
[21] I have separately considered the question of whether or not the termination of Mr Irwin’s employment should have proceeded by way of summary termination of employment or by way of termination with notice. Had the alleged misconduct related solely to Mr Irwin’s contact with Mr Pemberton I would have not been satisfied that there was a valid reason for the summary termination of Mr Irwin’s employment. However, I am persuaded that the physical threats to Mr Babbington which I am satisfied were made, elevated Mr Irwin’s conduct to misconduct which provided a valid reason for summary termination of Mr Irwin’s employment.
[22] The application is dismissed.
SENIOR DEPUTY PRESIDENT
1 Exhibit Woolstar 3 Attachment Y
2 Exhibit Woolstar 3 Attachment H
3 Exhibit Woolstar 3 Attachment I
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