Mr Van Tran v G.J. & K. Cleaning Services Pty Limited T/A GJK Facility Services

[2012] FWA 9604

[2012] FWA 9604

FAIR WORK AUSTRALIA

DECISION

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

Mr Van Tran
v
G.J. & K. Cleaning Services Pty Limited T/A GJK Facility Services
(U2012/8449)

COMMISSIONER GREGORY MELBOURNE, 24 DECEMBER 2012

S.394 application for unfair dismissal.

Introduction

[1] This is an application alleging unfair dismissal brought by Mr Van Tran (the Applicant), under s.394(1) of the Fair Work Act 2009 (the Act). The Applicant was employed by GJK Facilities (the Respondent) from April 2009 until May 2012.

[2] The Applicant appeared on his own behalf and was assisted by a Vietnamese interpreter. Mr Eberhard was granted leave to appear on behalf of the Respondent.

[3] It was agreed at the outset the matter be adjourned into conference to explore possible options to resolve the application, however, despite protracted discussions the matter was ultimately not able to be resolved on this basis.

[4] The Applicant was employed by the Respondent as a cleaner at the Collingwood and Richmond Office of Housing. He was terminated on 22 May 2012 for the following reasons set out in a letter of termination from his Manager.

“On the 30th March 2012 you were allegedly abusive and aggressive towards a third party contractor. CCTV Footage shows animated gestures as viewed on the 3rd of May, 2012. Statements also provided support this allegation. This is a breach of GJK’s Code of Conduct. Refer to your signed Employee Induction Brochure attached.

On the 30th March you allegedly spent excessive time during your work hours loitering in the foyer area at 110 Elizabeth Street Richmond. On the 3rd May 2012 you advised that you entered that area to report an issue, however, CCTV footage shows you there for 13 Minutes with animated gestures. This is a breach of GJK’s Code of Conduct. Refer to your signed Employee Induction Brochure Attached.”

[5] The letter also indicated “the Organisation is satisfied that the ... allegations ... have, on the balance of probabilities, been substantiated.”

[6] The Applicant subsequently filed an application for unfair dismissal with Fair Work Australia on 28 May 2012 and Directions were issued. The matter was heard on 7 September.

Evidence and submissions

[7] The Applicant submitted a statutory declaration to Fair Work Australia on 14 August which stated in part:

“Over 3 years I was working in Richmond, for no reason that I am aware of, I was accused by the Manager, Mr Greg Waterman, that I was a drug dealer and part of a gang there. After I made a complaint to GJK Facility Services, the matter was then resolved. I also forgave Mr Greg Waterman. Again for no reason that I am aware of, Mr Greg Waterman and Nat (I am not sure of his surname), the team leader often gave me hard time at work. The team leader threatened to kill me saying that ‘Be careful. If you don’t listen to me I’ll kill you in the carpark.’ I reported this incident to the supervisor.

Another incident was the team leader, Nat pulled and squeezed the collar of my shirt and made a fist and targeted at my face. I notified the Company and the Manager of the incident. I am not sure for that reason the matter has been resolved.”

[8] He also provided copies of correspondence and statements which related to earlier incidents during his period of employment with the Respondent including details about an underpayment claim and a report about a violent incident he witnessed in 2011. These materials were not directly related to the circumstances concerning his termination of employment. He stated in the proceedings he didn’t understand the reasons why he had been dismissed and denied the allegations made in regard to abusive language and threatening behaviour, and stated in any case similar language had been used by his managers in other meetings. He also denied he had wasted time and stated on a number of occasions he had worked additional time when necessary, without claiming additional payment. When questioned in relation to the claims in the letter of termination about the allegation he was abusive and aggressive towards a third party and CCTV footage showing animated gestures the Applicant responded:

“So in regard to that CCTV footage I have explained to my company so many times about the gestures that I used that was part of the sign language and due to my limited English I just demonstrated to the third party contractor that the security is not - wasn’t doing a proper job in terms of many people outside waiting to come in and then they didn’t even know the potential entrance of those people. So that was part of my sign language but I wasn’t abusive, I wasn’t aggressive. Using my hand on the my [sic] finger to point at something and they have explained to my company so many times about that.” 1

[9] He also indicated the threatening gestures complained about were part of the sign language he used to try and express himself given his limited English speaking ability.

[10] The Applicant also submitted he recorded a conversation he had around 22 June 2012 with the person who had made the original complaint against him and requested the Tribunal listen to the taped version which was on a USB. He submitted the USB:

“. . . could prove that the company used that ground are based on the ground to sack me and then that was all the accusation and the false allegation, because if the Tribunal listen to that USB they can identify very clearly who said what in that conversation and I didn’t use any “f” word, I didn’t swear in terms of the obscene, abusive language.” 2

[11] A copy of the USB had not been provided to the Respondent. A short adjournment was provided to enable the Respondent’s representative to listen to the conversation on the USB. The Respondent subsequently submitted it was uncertain if there was one or two conversations taking place but what they had heard was a female who was “...exceedingly defensive...” 3 and the pre-eminent words heard were “...Not supposed to talk. If you don’t mind not supposed to talk...”4 repeated on a number of occasions.

[12] The Respondent went on to submit the female voice made mention of “...he knows that too...” 5 and presumed the voice was the Applicant. He also submitted that at a later stage there did seem to be another person around. The Respondent went on to submit:

“I think that the female on the recording was exceedingly defensive and was exceedingly concerned that Mr Tran was seeking to do things that he should not have been trying to do. We had intended at some stage today or we had hoped at some stage today to put Ms Abdul -Aziz in the witness box but through her supervisor we have been advised she doesn’t want to appear in the proceedings. If she is the lady in the tape that Mr Tran says is the person in the tape, you can get an indication of why she is concerned to appear before the Tribunal today because she is exceedingly defensive in that, she’s been belittled in one way. It would appear as though Mr Tran has been overly aggressive sourcing or seeking to source an outcome that the female voice on the tape doesn’t want to give him, but he continues on in that particular process.

[13] The Respondent stated the Applicant was employed in April 2009. It submitted he went through an induction process at the time of engagement which emphasised, in part, the expected obligations in regard to occupational health and safety, sexual harassment and personal abuse. The Respondent provided a copy of an acknowledgement that had been signed by the Applicant at the time confirming his attendance at that induction briefing.

[14] It submitted a complaint was received from the Collingwood Office of Housing on 18 April that, in its words, raised serious issues regarding the conduct of the Applicant. The complaint alleged the Applicant had threatened and used abusive language toward Ms Husna Abdul-Aziz. She was employed by the Brotherhood of St Laurence as a Community Contact Services Officer at the Collingwood Office of Housing. Her role is to greet and allow visitors, guests, and residents to come in and out of the building by opening the security door. She completed an Incident, Injury, Hazard Report, which was tendered in the proceedings. It stated:

“Cleaner was abusive towards me claiming that I do not do my job. He also claimed that security don’t do theirs either. Security heard this while I was on the phone to them. This cleaner is constantly abusing me, this has occurred previously.” 6

[15] The Respondent stated it subsequently conducted an investigation in relation to the complaint by interviewing and collecting statements from all parties involved. It was initially investigated at a meeting on 3 May 2012 attended by Ms Nicole Poulos, GFK Payroll Manager, Mr Eddy Reyes, GFK Office of Housing Supervisor, and Mr Richard Menk, GFK Manager and the Applicant. The Applicant’s daughter assisted by telephone with translation. A record of the interview entitled “Incident Investigation, Interview with Van Tran” was subsequently sent to the Applicant for him to read and respond to concerning whether he believed it was a true and accurate reflection of the interview.

[16] On 7 May 2012 the Respondent also received a formal report from a Security Officer that had been communicating with Ms Abdul-Aziz by intercom at the time the incident she complained about occurred. It included a copy of an incident report he provided at the time to his employer, Wilson Security. The Security Officer, Mr David Bruggink, was in conversation via the intercom with Ms Abdul-Aziz at the time. He was also viewing the area in which she was working on a CCTV screen. He confirmed the comments made and indicated he considered it to be unprovoked and extremely aggressive behaviour and was very concerned about what he had seen and heard.

[17] The Respondent stated the Applicant subsequently injured himself at work on 7 May and was off work until 17 May. On his return the Respondent asked the Applicant about the record of interview, which was then returned with several handwritten notes on 20 May. A further meeting was then held on 22 May with Ms Poulos, Mr Menk, the Applicant and the Applicant’s daughter, where the Applicant continued to deny the accusations in the record of interview. A decision was then made to terminate the Applicant based on the Respondent’s view the allegations against him had, on the balance of probabilities, been substantiated. He was terminated with five weeks pay in lieu of notice with the final payment being made on 23 May.

[18] Witness statements were provided by Ms Poulos and Mr Menk. Mr Bruggink, a security guard who was to be called as a witness for the Respondent subsequently advised he now had concerns appearing at the Tribunal to give evidence because he was concerned about being identified as an individual who may well have caused Mr Tran to lose his job. In response to a question about the allegations concerning the Applicant Ms Poulos indicated in cross examination:

“We had two witness statements that came with a complaint and CCTV footage which Mr Tran has viewed. I am of the belief that he understood everything that happened in the interview on 3 May because his daughter was interpreting on the phone and we did go over questions when he seemed not to have understood them and did always ask, ‘Did you understand, Mr Tran?’ and he repeated ‘Yes’.” 7

[19] Ms Abdul-Aziz did not provide a witness statement but her report in relation to the complaint, submitted through her employer, the Brotherhood of St Lawrence, was included in the Respondent’s written submissions. 8

The Legislation and law to be applied

[20] Section 385 of the Act states, in part, a person has been unfairly dismissed if Fair Work Australia is satisfied the person has been dismissed and the dismissal was harsh, unjust or unreasonable. Section 387 details the matters to be taken into account in considering whether the dismissal was harsh, unjust or unreasonable. It indicates as follows:

“S.387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.”

[21] The obligation imposed by s.387 is clear. It was simply stated by a Full Bench of Fair Work Australia in the matter of L. Sayer v. Melsteel Pty Ltd  9 in the following terms:

“Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging must be taken into account.”

[22] The Applicant in the present matter was working in a difficult and at times trying environment. A security presence was in place and encounters with people involved in drug taking and violent behaviour were referred to in the proceedings. It also appears the Applicant’s limited grasp of the English language could have contributed to the issues that occurred in regard to these proceedings.

[23] At the same time the Applicant provided a very limited amount of evidence and made only brief submissions in support of his application. Copies of correspondence and other statements were provided in relation to incidents that occurred at an earlier point in his employment. Their relevance to this matter were not made clear. The Applicant also provided a recording of a conversation on a USB but it was at best indistinct and no evidence was provided to substantiate when it occurred or who was involved. Again its relevance to the current proceedings was not made clear. Against this background I now turn to consider the matters I must take into account in this matter in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.

(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)

[24] I am satisfied the Respondent had a valid reason for the dismissal of the Applicant. Details of the complaint made by the employee of the Brotherhood of St Lawrence, Ms Abdul-Aziz, concerning the abusive language and aggressive behaviour towards her have been referred to already. The statement from the Security Officer who heard and saw the incident via intercom and CCTV supports that account about what occurred. The Applicant denied that his behaviour should be viewed in this way but provided no evidence in support of that view. The Respondent also appears to have gone through a thorough process of investigation in terms of satisfying itself about what occurred.

(b) Whether the person was notified of the reason

[25] The various meetings at which the Applicant was notified of the reason have been detailed. The initial meeting on 3 May 2012 in which the alleged incident was discussed was also conducted with the assistance of his daughter as an interpreter,. A record of interview was sent the Applicant and a further meeting was held on 22 May where he was informed that he was being terminated.

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[26] The Applicant was given the opportunity to respond at the initial meeting on 3 May. A record of those discussion was subsequently forwarded to him and he was provided with a further opportunity to respond which he did by making some additional notes on the record of interview.

(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;

[27] The Applicant’s daughter attended both meetings and the Applicant had the opportunity to seek advice before returning the record of interview. No submissions were made suggesting the ability to have a support person present had been denied.

(e) If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal;

[28] No evidence was led in relation to this.

(f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures following in effecting the dismissal;

[29] The Respondent employs over 900 people and no evidence or submissions were made about the relevance of this matter.

(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 followed in effecting the dismissal.

[30] The Respondent did not have a dedicated Human Resources specialist at the time of the Applicant’s dismissal, however, no submissions were made about the relevance of this matter in the current proceedings.

(h) Any other matters that FWA considers relevant.

[31] The Respondent noted that the Applicant had received induction training including details about the Respondent’s code of conduct which detailed the type of behaviour considered to be appropriate and suggested this was an appropriate additional matter to have regard to. However, it was also not clear whether this information had been conveyed to the Applicant at the time in a way that would have been understood given his limited English language skills.

[32] In conclusion, taking into account all of the submissions and evidence presented in this matter, and each of the considerations contained in s.387, I am not satisfied that the Applicant’s dismissal was harsh, unjust or unreasonable. The application is dismissed.

COMMISSIONER

Appearances:

Mr V. Tran appeared on his own behalf.

Mr P. Eberhard appeared on behalf of G. J. K. Cleaning Services.

Hearing details:

2012:

Melbourne

7 September.

 1   Transcript PN82.

 2   Transcript PN39.

 3   Transcript PN123.

 4   Transcript PN123.

 5   Transcript PN124.

 6   Exhibit E1 at paragraph 7.

 7   Transcript PN

 8   Exhibit E1.

 9   [2011] FWAFB 7498 at [20].

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