Peter Taylor v Sota Tractors Pty Ltd T/A Sota Tractors

[2010] FWA 5144

[2010] FWA 5144

FAIR WORK AUSTRALIA

DECISION

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

Peter Taylor
v
Sota Tractors Pty Ltd T/A Sota Tractors
(U2010/6312)

COMMISSIONER ROE MELBOURNE, 13 JULY 2010

Unfair dismissal.

[1] The Applicant, Mr Peter Taylor, represented himself with the assistance of Ms L Taylor. Sota Tractors Pty Ltd T/A Sota Tractors (the Respondent), was represented by the Managing Director, Mr M. Cooper. The matter was heard on Tuesday, 6 July 2010 following unsuccessful telephone conciliation. The parties sought that the matter be arbitrated in a formal hearing. The following witnesses provided sworn evidence at the hearing:

• The Applicant: Peter Taylor (the Applicant)



• The Managing Director of the Respondent: Mr Martin Cooper (Mr M. Cooper)



• A Director of the Respondent: Mr Bruce Cooper (Mr B. Cooper)



• The General Manager of the Respondent and also a Director: Mr Steve Watt (Mr Watt)



• The Service Manager of the Respondent: Mr Festus Maramba (Mr Maramba)



• An employee of the respondent: Paul (Paul)

[2] There is no dispute about the following matters in these proceedings and I am satisfied concerning these matters:

• The Applicant was a full time employee engaged by the Respondent for approximately three years which is clearly a period of continuous service of greater than 12 months.



• The Applicant was dismissed at the initiative of the employer. The Applicant was allowed to resign but the Respondent told the Applicant that if he did not resign he would be dismissed. The Respondent does not contest that the Applicant was dismissed at the initiative of the employer.



• The Respondent is a national system employer.



• The dismissal occurred at a meeting between the Applicant and the three directors of the company on the afternoon of 10 February 2010. There were no other persons present at the meeting and the Applicant was given no prior advice or warning of the subject matter to be dealt with at the meeting. The Applicant was not invited to have another person present at the meeting.



• The Applicant was paid his entitlements and a two weeks ex gratia payment.



• The employer provided uncontested evidence that on the 11 February 2010 the employer engaged 14.74 equivalent full time employees. 1



• The Applicant received no written warning about any matters concerning his conduct or performance prior to his dismissal. The Applicant received a verbal warning one month prior to his dismissal but the subject matter of the warning is contested.



• The Applicant was unemployed for 14 weeks following the dismissal. He is now employed in a full time job which pays approximately $150 less per week than his job with the Respondent had paid. He actively looked for work and applied for between 30 and 40 positions during the period of his unemployment. He was not in receipt of any social security payments during the period of unemployment.



• The Applicant and Respondent both believe that the relationship between them has been so damaged by the incidents which led to the dismissal that reinstatement is not a realistic option.

[3] I am satisfied that the Applicant is protected from unfair dismissal under Section 382 of the Fair Work Act 2009. The Application was made within 14 days of the dismissal.

[4] The Respondent acknowledged that the Applicant was a diligent and competent worker throughout his period of employment. The Managing Director gave evidence that the Applicant “…Peter has got a lot of talents and he has given a lot to the company…”. 2 Only a month prior to the dismissal the Respondent agreed to a change in duties for the Applicant from warehouse manager to driver but in recognition of the valuable contribution he made to the company had not reduced his pay. The Applicant regarded the job with the Respondent as a great job and he clearly took pride in his work. The Respondent did not contest the accuracy of a number of character references provided, concerning the Applicant, including from former employers, which generally referred to the Applicant’s honesty, integrity and reliability.

THE BACKGROUND TO THE DISMISSAL.

The reasons for dismissal.

[5] The reasons for dismissal given by the Respondent on the F3 Form in response to the Applicant’s Application for Unfair Dismissal remedy were “Multiple threats of physical violence were made, even after verbal warnings from the M.D.” and “Workplace bullying and intimidation of employee/colleague.” The Respondent referred in the proceedings and in the meeting at which the Applicant was dismissed to four incidents which justified the dismissal and which related to these reasons for dismissal. There were no other matters of substance or detail raised except that at the dismissal meeting it is alleged that the Applicant said words to the effect that if the Respondent was happy to send low standard products to customers then he would reluctantly accommodate this and this led the managers to lose confidence in his ability to represent the company with customers. I think that the context in which this may have been said and the fact that the Managing Director of the Respondent testified to the dedicated and competent work of the Applicant over three years means that this does not constitute a matter which I should take into account. The four incidents pressed by the Respondent are detailed below.

Incident 1

[6] Two years ago the Respondent submitted that in a conversation with the Managing Director, Mr M. Cooper, at an Elmore tractor show the Applicant complained about the behaviour of a fellow employee, Paul, and “…prophesise a ‘bloodbath’ between him and Paul” 3 if something was not done about Paul’s behaviour. At the time Mr M. Cooper told the Applicant that he did not approve of such language and would not tolerate it. The Applicant concedes that he may have said something to this effect. The Respondent concedes that the Applicant may have then apologised. There is no suggestion that the conversation was aggressive or angry.

Incident 2

[7] On 11 January 2010 the Respondent gave evidence that in a conversation with the Managing Director, Mr M. Cooper, the Applicant again complained about the behaviour of Paul and said again that there would be a “bloodbath” between him and Paul if something was not done about Paul’s behaviour. Mr M. Cooper gave evidence that at that time he told the Applicant that “…threatening, aggressive language like that would not be tolerated”. 4 He also submitted he “…asked him (the Applicant) to give Paul a chance.”5

[8] The context of the meeting on 11 January 2010 was that the Applicant had requested to be relieved of the responsibility of managing the warehouse. The evidence was that this was a friendly and constructive meeting between the Managing Director and the Applicant. The Applicant asked that if he was going to be the primary delivery truck driver “…changes would need to be made to the delivery side of things so that the procedures would work smoothly”. The Applicant submitted that Mr M. Cooper and Mr Watt agreed to this. During proceedings management witnesses conceded that this was correct. This was then confirmed in a letter dated the next day, 12 January 2010. 6 The letter included the following:

“I also confirm that on the basis of your undertaking that you will perform your duties in full cooperation and support of the new management structure, your current salary will remain the same, being significantly more than SOTA’s specified salary for a Driver T/A.

Thank you for your candour at yesterday’s meeting. I hope the new situation provides greater job satisfaction by reducing your stress levels and leads to increased harmony in the warehouse.”

There was no mention in the letter of any warning.

[9] Mr M. Cooper and another Director, Mr Watt, gave evidence in proceedings that Mr M. Cooper had made it clear that the employment of the Applicant was at risk if such statements were repeated. However, this was not included in the contemporaneous notes produced in proceedings and the evidence of Mr M. Cooper and Mr Watt suggested that it was unclear whether the warning was about actual violence or whether it was about further talks to managers about the danger of violence. Mr M. Cooper said that the warning was that “…further threats of violence would not be tolerated…”. 7 Mr Watt said that the warning was “…there was never going to be any bloodbath at Soto Tractors, and if there was, it didn’t matter who it was, there’ll be instant dismissal”.8 The Applicant accepts that he was warned that he “…had a problem with Paul, and to leave him alone”.9 Mr M. Cooper submitted that at the dismissal meeting the Applicant said that he used the term “blood letting” and not “bloodbath” on these occasions.10 The Applicant denies this.

Incident 3.

[10] On 10 February 2010 the Applicant was unhappy at the condition of the tractor which he was required to deliver that morning to a customer and at the fact that it was not ready on time for him to make the delivery. It was Paul’s responsibility to prepare the tractor. The relevant managers conceded that the Applicant was correct that the paint touch up job on the tractor was less than optimal, that it was dirty and with greasy smudges and that there was an oil leak. The managers agreed it was appropriate for the Applicant not to deliver the tractor in this condition but to raise the issue with managers seeking rectification. There were a number of mishaps which then compounded this situation over a number hours and this led to considerable and understandable frustration for the Applicant and a number of other employees.

[11] The Applicant complained about the situation and the performance of Paul in particular to one of the directors of the company, Mr Watt, and it is alleged by Mr Watt that the Applicant said “…that it does not matter what Martin said the other week, that there maybe be [sic] a blood bath if this is not sorted out.” 11 The Applicant gave evidence that he did complain about the situation but denies that he said that there may be a “blood bath”. Mr Watt said that this conversation was witnessed by the service manager, Mr Festus Maramba.12 However, Mr Maramba gave clear evidence that he was not present and did not hear any such conversation.13 Mr M. Cooper, in the notes he made the day after, confirms that Mr Watt told him that “…this was said in front of Steve and Festus”.14 Mr Watt conceded that the Applicant may not have agreed during the dismissal meeting that he used the term “blood letting” on the three alleged occasions (Incidents 1, 2 and 3) but may in fact only have been referring to one of the alleged occasions.15

[12] Mr Watt told Mr M. Cooper about the discussion between the Applicant and himself. There was no suggestion that Mr Watt or Mr M. Cooper feared that the Applicant was likely to engage in violent acts following the comments made by the Applicant to Mr Watt. They did nothing to stop continued interaction between the Applicant and Paul following this incident and over the next hour or so further interaction occurred between Paul and the Applicant in finalising the tractor package for delivery. Mr Watt and Mr M. Cooper left the premises and went to the bakery during the period following the Applicant’s complaint to Mr Watt and during the time when there was further interaction between Paul and the Applicant. Mr M. Cooper gave clear evidence that the Applicant did not “…exhibit aggressive behaviour towards any other employees.” and that he was not “an innately violent or aggressive person”. 16

Incident 4.

[13] On 10 February 2010, following the conversation with Mr Watt, the Applicant was still not happy with the condition of the tractor but was told by Mr Maramba and Mr Watt that it was to be delivered and this was reluctantly accepted by the Applicant. Once the tractor was finally loaded and ready for delivery some three hours later the Applicant gave evidence that:

“…I jumped down from the truck and walked up to Paul and said ‘I just want you to know that if you don’t get your shit together, I’ll be picking the shit out of it till you do’.” His response was throwing his arms up and to say, ‘back up’. Knowing what he was going to say about not being responsible, I said ‘no Paul, I want you to know how it is.’ I looked at Festus and then walked off. I didn’t look back - I then went to the kitchen to wash my hands and get a drink.” 17

[14] Mr M. Cooper gave evidence that at the dismissal meeting he “…advised Peter that I was very unhappy about his threatening, aggressive interaction with Paul earlier that day and that is was totally unacceptable”. 18 Mr Cooper said that Mr Maramba told him that “…Peter had yelled expletives in an aggressive manner at Paul and that he had to intercede by raising his hand in close proximity (between Peter and Paul), to quieten Peter down” and that Peter had told Mr Maramba “…that he was covering for Paul as he always does”.19

[15] Mr B. Cooper and Mr Watt who were the other directors who were present at the dismissal meeting and who made the decision to dismiss the Applicant along with Mr M. Cooper also gave accounts of what they understood had happened. Neither of them were present at the altercation. Mr B. Cooper confirms that at the dismissal meeting the Applicant said that what he had said to Paul were words to the effect that “…If you are going to do this kind of shit work, I am going keep hounding you till you fix the shit” 20.

[16] Mr Maramba, Paul and the Applicant were the three persons present at the altercation. Mr Maramba is adamant that there was no physical contact at all between the Applicant and Paul. Mr Maramba gave evidence that the Applicant did not yell and did not use expletives contrary to the claims of Mr M. Cooper in the notes he made the day after the incident. Mr Maramba submitted he moved between Paul and the Applicant. Mr M. Cooper, in contrast submitted that Mr Maramba told him that he raised a hand to discourage the Applicant. Mr Maramba gave evidence that the Applicant was pointing with his index finger and speaking aggressively. Mr Maramba gave evidence that the Applicant said things to the effect that “…Paul should watch his step from then on as he will be watching his every move and that if he ever produced another poor quality tractor, he would be on him and he would make him deliver that particular tractor.” 21

[17] Paul gave evidence that “…He came up close to me and started poking me in the chest with his index finger while telling me in a very aggressive way that if I ever presented a tractor like that again that he wouldn’t deliver it and that he would be watching everything I do from now on and wouldn’t let me get away with ‘it’ again.” 22 Paul conceded that he wasn’t very good at “touch up” painting and that the tractor was dirty and that it did have an oil leak. He conceded that he repaired the oil leak using the wrong sized O ring which was why the tractor developed the leak again at the time the Applicant delivered the truck and it had to be subsequently repaired.23 Paul gave evidence that Mr Maramba raised two hands wide in order to separate Paul from the Applicant. This is not consistent with the account of Mr Maramba or Mr M. Cooper. Paul said that he did not feel threatened by the Applicant before the incident although they had had a number of disagreements about how to perform the job.

THE INVESTIGATION AND THE DECISION TO DISMISS.

[18] A short time after Incident 4 the Managing Director, Mr M. Cooper, investigated what happened by speaking to Mr Watt and Mr Maramba. He then met with Mr Marmaba, Mr Carlton (who is second in charge but did not give evidence) and Paul. Paul had the opportunity to give his version of events. 24 Mr M. Cooper apologised to Paul and advised him that workplace harassment was unacceptable. He also advised Paul that it was important for him to improve the cleanliness of tractors prior to delivery. The three directors, Mr M. Cooper, Mr B. Cooper and Mr Watt then had a meeting which lasted a considerable time to consider the issue and they came to the conclusion that the employment relationship with the Applicant needed to end. Mr M. Cooper said that this was 95% definite and that it would only have been if the Applicant had been abject in his apologies that there might have been some possible reconsideration.

CONSIDERATION.

[19] The investigation by the Managing Director, Mr M. Cooper, of Incidents 3 and 4 on 10 February 2010 was clearly inadequate. He failed to get the Applicant’s version of events and to test the accuracy of his version of events. 25 The dismissal interview was clearly not such an opportunity as he and the other directors had made up their mind about what had happened. The Applicant was not given the opportunity to have a support person present. He was effectively denied that opportunity as he was not properly aware of the nature and purpose of the meeting and once the meeting was underway the evidence was that he found the situation distressing and confronting such that he would not have been able to gather his thoughts. The investigation by the Managing Director did not assess the inconsistencies in the version of events and possible alternative interpretations for the events. The evidence of Mr B. Cooper reinforces my conclusions about the inadequacy of the investigation. Mr B. Cooper confuses and conflates various of the alleged events in his statement.26 Mr B. Cooper did not witness the events but he was one of the three directors who made the decision to dismiss the Applicant and who participated in the dismissal meeting.

[20] I found that the Managing Director Mr M. Cooper and the Applicant shared a very strong commitment to integrity and quality service. The Staff Induction Manual 27 prepared by Mr M. Cooper includes a number of statements like the following:

• “…SOTA works hard to add value for its customers by providing expert advice and quality service delivery and support.”



• “…Our whole company structure is based on customer service, both internal and external and we believe it is a foundation stone of our competitiveness in the industry.”



• “.…if we think customer in everything we do, we will be differentiated for the better, from approximately 98% of Australian businesses.”

The Applicant took this very seriously.

[21] The Applicant wanted to be able to run things in a manner which was consistent with what he believed was necessary for good customer service and was genuinely upset about what he perceived as poor practices which undermined his efforts. This was clearly a major cause of Incidents 3 and 4. The Applicant thought he had an agreement with the management from the meeting on 11 January that practices would be changed to meet the standards and the events of 10 February did not seem to be consistent with this as things were not well organised, the tractor wasn’t ready and the tractor was not in a suitable condition. The Applicant felt undermined by management’s decision to let the tractor go out even though he did not believe it was in a suitable condition.

[22] There was clear evidence that there was some basis for the Applicant’s frustration with the performance of Paul. It was uncontested evidence that a meeting had taken place not long before the dismissal of the Applicant in which Paul received a final warning. Several witnesses for the respondent conceded that the Applicant was not the only one who found it difficult to work with Paul. It was undisputed that Paul in applying for a different job within the company had put forward detailed proposals about how the Applicant’s job at that time as warehouse manager could be done by Paul and how it should be done in a different manner than the way it was organised by the Applicant. The Applicant understandably was upset and annoyed about this.

[23] Paul and other witnesses for the Respondent conceded that the main complaint raised with Paul by the Applicant was that Paul allegedly did not meet high enough standards in preparing the vehicles for customers.

[24] I take particular note of the fact that the witnesses for the Respondent accept that the vehicle presented to the Applicant early on 10 February by Paul did not meet the company’s standards and it was not just a question of a vexatious complaint by the Applicant. The evidence was very clear that the Applicant was passionate about maintaining good standards and therefore I cannot accept the suggestion made by the respondent that the problem was purely a personal animosity between the Applicant and Paul.

[25] Mr M. Cooper agreed with the Applicant that the tractor should have been ready the day before, a day when the Applicant was not rostered for work, given that the delivery was scheduled for the morning. Furthermore, the tractor in question, when finally delivered to the customer by the Applicant, started leaking oil and stopped working. The Directors, Mr M. Cooper and Mr Watt in evidence said that they did not know whether or not the cause of this was something that was a known fault with the tractor prior to delivery or whether it was something that only developed or revealed itself upon delivery. 28 This is a relevant question since if the cause of the problem was the poor preparation and checking of the tractor then this would give weight to the legitimacy of the Applicant’s concerns. Paul in evidence confirmed that the cause of the failure of the tractor upon delivery was that one of the matters the Applicant had complained about early in the day had been an oil leak and that he had fixed this with the wrong sized O ring and this had led to the oil leaking again upon delivery. 29Either the directors did not conduct a proper inquiry or they were not telling the truth when they said that they did not know about the cause of the problem with the tractor delivered by the Applicant.

[26] I found that some of the expressions commonly used by the Applicant in evidence were rather difficult to understand. For example I have some difficulty in understanding exactly what is the meaning of the expression “I just want you to know that if you don’t get your shit together, I’ll be picking the shit out of it till you do”. 30 For the same reason I think that there is some doubt about what was meant by the use of the term “bloodbath” even it was accepted that the Applicant used that term in talking to Mr M. Cooper and Mr Watt. It is important to note that there was no suggestion from any witness that the Applicant ever said anything to Paul which suggested that he would be violent towards Paul or anyone else. There is no evidence that he ever yelled or swore at Paul. The evidence suggests that he did no more than angrily allege that Paul’s work was not good enough and that he wasn’t going put up with this or let this go. In this context I believe that it is possible that the Applicant’s talk of a “bloodbath”, if in fact it did occur, was no more than a poor way of expressing to the senior management of the company that the Applicant believed the performance of Paul was a serious problem and it was going to cause ongoing conflict and that the Applicant wasn’t going to give up on the issue. It is one thing to tell a fellow employee that there is going to be a “bloodbath”; it is quite another thing when an employee uses this expression to senior management of a company in requesting them to do something about a perceived problem.

[27] I am not convinced that the management had good reason in the circumstances to believe that the Applicant’s use of the term “bloodbath”, if it was used, was an actual threat that the Applicant would be violent towards Paul or anyone else.

[28] Following Incident 3 the General Manager, Mr Watt, took no action to warn or counsel the Applicant or to prevent further interaction between the Applicant and Paul or to warn Paul of any threat. In fact Mr Watt left the premises to go to the bakery with Mr M. Cooper and they waved to the Applicant when he went past the bakery in the truck on the way to deliver the tractor following Incident 4. This does not suggest that Incident 3 was regarded at the time as a serious threat that was likely to lead to violent action by the Applicant.

[29] Notwithstanding this, it is clearly appropriate for management to take any talk of violence in the workplace very seriously and if in fact the expression was used by the Applicant in Incident 2 on 11 January 2010 the verbal warning given was quite appropriate. Strong action to monitor the situation was then appropriate. I think it more likely than not that the term “bloodbath” or “blood letting” was used by the Applicant in Incident 1 and 2 However, I do not believe that the Respondent’s investigation of the situation of 10 February 2010 was adequate for them to be convinced that there was a real threat of violence or danger of violence sufficient in itself to give a valid reason for dismissal.

[30] In my view it is clear that all the participants in the incidents on 10 February 2010, especially the Applicant, had understandable reasons for becoming frustrated and annoyed.

[31] I believe that the actions of the Managing Director were motivated by a concern to maintain harmony in the workplace and a sincere belief that Paul was not getting a fair go and that the relationship between the Applicant and Paul had become bad for the efficient operation of the business. Perhaps more importantly it is clear that the Applicant had failed to adapt to the changed role over the month since he relinquished the role of warehouse manager. The Applicant wanted to run things. He wanted to be able to decide whether the tractor was in a fit state to go out. He wanted to be able to direct the work of Paul. He did not seem to accept management’s decision to continue Paul’s employment and that he should be given a fair go.

[32] In my view the Applicant had no authority to direct the work of Paul and once the Applicant’s managers had decided that the tractor was OK to go and that the Applicant should deliver it the Applicant should not have continued to take this up with Paul. The confrontation with Paul was not acceptable. Even though I have some doubts as to the nature of the verbal warning given on 11 January 2010 (Incident 2) and similar doubts that there was a further incident where the Applicant talked of a “bloodbath” on 10 February (Incident 3), there is no doubt that there was a verbal warning given on 11 January 2010 that the Applicant should leave Paul alone. Furthermore I think it more likely than not that there was a general warning to the Applicant about not participating in violent or aggressive behaviour. This makes the behaviour of the Applicant towards Paul on 10 February 2010 more serious.

[33] The evidence of the alleged victim, Paul, taken together with the evidence of the other managers did not clearly establish that the Applicant was bullying or intimidating Paul. Paul did not raise any complaint about bullying or harassment. 31 Certainly the relationship between them was poor. Certainly the Respondent had good reason to believe that the Applicant had not accepted the direction from the Managing Director that he should leave Paul alone. If this situation persisted it may well constitute a valid reason for dismissal. However, the Applicant cannot be held solely responsible for the complex circumstances and poor behaviour of the 10 February 2010.

[34] There was a set of unfortunate circumstances which made the level of the Applicant’s frustration on that day understandable. He loaded the tractor onto a small truck only to find that there were other items in the order which required the use of a larger truck and he had to unload and reload. He had difficulty finding the other items to be included in the order. He was correctly dissatisfied with the condition of the tractor and went through a difficult process seeking to rectify this.

[35] I am not satisfied that there was any physical contact between the Applicant and Paul. 32 Certainly at the time the employer made the decision to dismiss him the employer did not believe that there had been any physical contact.33 Paul has only recently raised the allegation that the Applicant in pointing his finger at him poked his chest two or three times.

[36] The evidence from all those actually present at the incidents is that there was no yelling or swearing. 34 The victim, Paul, did not believe he was being threatened with physical violence.35 There is no suggestion that Paul was ever directly threatened with violence. During the proceedings the Applicant cross examined Paul and there was no atmosphere of menace or violence. However, I do not rely too much on this observation given the artificiality of the circumstances. There were suggestions from Paul that the Applicant had lost his temper before but despite the opportunity he did not give any examples and neither did any of the other witnesses. However, I do note the Applicant asked Mr Watt “It would be fair to say that you knew how far I would go when I blew my fuse?…”36. This suggests that there was some truth in the allegation that the Applicant had previously “blown a fuse”.

[37] Given these circumstances I do not believe that the incidents provide a valid reason for dismissal. They were certainly serious enough to warrant disciplinary action. If similar aggressive behaviour towards an employee occurred again then it may well constitute a valid reason for dismissal. If the Applicant continued to fail to accept the instruction to leave Paul alone then this may also constitute a valid reason for dismissal.

[38] One of the most important considerations in this case is the nature of the warning given on the 11 January 2010 (Incident 2). If there had been a clear warning given on that day that the Applicant was not to give other employees instructions, that he was to accept management judgments about the suitability of tractors for delivery, that he was not to give instructions to Paul, and that he was to cooperate with Paul and leave him alone then the actions of the Applicant on 10 February 2010 may have been sufficient to give a valid reason for dismissal. However, if such a clear and understood warning had been given the Applicant may well have acted differently on 10 February 2010. Having heard the evidence I am satisfied that the Applicant certainly did not believe that he had received such a clear warning and that it was reasonable in the circumstances for him to hold that belief. In fact he continued to believe that management supported his zealous pursuit of high standards in the preparation of tractors for delivery and his insistence that tractors should be ready on time for delivery. He was unaware of management’s irritation at his desire to set the standards and take charge of the situation.

[39] The respondent submitted and the evidence they led suggested that the Applicant was warned that violence or threats of violence would not be tolerated and nothing more than that. 37 The reasons given for dismissal were “Multiple threats of physical violence were made, even after verbal warnings from the Managing Director” and “Workplace bullying and intimidation of an employee/colleague.” I am not convinced that this was the main reason for the dismissal. There was a warning about leaving Paul alone but it is not clear that the Applicant understood that this put his job at risk if it was repeated. The incidents of 10 February 2010 did not constitute workplace bullying and intimidation. I am not satisfied there were multiple threats of physical violence.

[40] This case reinforces the wisdom of putting a clear warning in writing or in a manner where it can be clearly demonstrated that it was received and understood by the employee prior to any dismissal on the grounds of conduct or performance.

SMALL BUSINESS CODE.

[41] I am not satisfied that the requirements of the Small Business Code have been met. I did not receive any submissions from either party in respect to this matter. There was no written warning or completed check list. There were witness statements provided. The dismissal was not a summary dismissal. I have found that the employer may have given the Applicant a reason why he was at risk of being dismissed but the warning was not clear and was not clearly understood and did not clearly relate to the actual reasons for dismissal. This is inconsistent with the requirements of the code. Furthermore I do not believe that the Applicant had a realistic opportunity to have another person present at the meeting when the dismissal took place and this is required by the code.

CRITERIA UNDER SECTION 387

[42] I have considered earlier the question as to whether or not 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 have concluded that on balance there was not. The reason given for the dismissal was not valid because there was clearly insufficient evidence to establish that “Multiple threats of physical violence were made, even after verbal warnings from the Managing Director” and that there was “Workplace bullying and intimidation of an employee/colleague.” However there were other possible reasons for disciplinary action such as a failure to follow the direction to leave another work colleague alone, behaving aggressively towards that colleague and seeking to give directions to that colleague when not authorised to do so. In the circumstances however these were insufficient to provide a valid reason for dismissal.

[43] I have considered the question as to whether the person was notified of the reason for the dismissal and have concluded that the Applicant was notified of a reason for the dismissal but that reason was probably not the actual basis for the dismissal.

[44] I have considered the question as to whether or not the Applicant was given an opportunity to respond. I am required to consider this since the dismissal clearly related to the capacity or conduct of the Applicant. I have concluded that the Applicant was not given an adequate opportunity to respond because the employer had effectively concluded their investigation of the incidents which led to the dismissal without getting the Applicant’s side of the story and without considering factors relevant to the Applicant’s side of the story.

[45] The employer did not refuse a request to allow a support person to be present at the dismissal meeting. However, in the circumstances of this case the Applicant was given no reasonable opportunity to have a support person present since he was not aware that the meeting was to discuss his dismissal. I therefore believe that this constitutes an unreasonable refusal to allow the Applicant to have a support person present.

[46] I have found that the Applicant was not warned prior to his dismissal about important aspects of what the employer believed were unsatisfactory performance and which were part of the decision to dismiss the Applicant. The Applicant was however warned about leaving his colleague Paul alone and he was probably warned that violence and aggression would not be tolerated and these were factors in the dismissal.

[47] I believe that the small size of the employer and the lack of industrial relations expertise may have had some impact on the procedures which were followed in this case. However, the Managing Director is strong advocate for having good policies, values and procedures in the company and there is no reason why natural justice and procedural fairness should not be expected and achieved in this case.

[48] I therefore find that the dismissal was harsh, unjust and unreasonable.

REMEDY

[49] I am satisfied that the reinstatement of the Applicant would not be appropriate and that an order for payment of compensation is appropriate.

[50] I take into account that:

• The Applicant received an ex-gratia payment of two weeks pay.



• The Applicant did contribute to the situation that led to his dismissal.



• Any compensation order I make in this matter is unlikely to impact on the viability of the Respondent and I received no submission to the contrary.



• The Applicant was employed for a considerable period with the respondent so I will not discount the amount of compensation on account of the length of service.



• The Applicant has found satisfactory alternative employment albeit at a lower rate of pay than that applicable with the Respondent.



• The Applicant did actively seek to find alternative employment during the period following the dismissal.



• The Applicant was not likely to have continued in his employment with the Respondent for much longer given that the relationship was fraying and I think it is highly likely that the problem between Paul and the Applicant would have continued and would have eventually led to a valid reason for termination.

[51] Taking these factors into consideration and the principle of a fair go all round I order a payment of four weeks compensation. Evidence was given that the average gross weekly wage of the Applicant prior to dismissal was $962.00. This amounts to $3,848.00 gross. The amount should be paid within two weeks of this decision. The Respondent is at liberty to apply for a variation to this time period.

COMMISSIONER

Appearances:

P. Taylor, appearing on his own behalf, with the assistance of L. Taylor.

M. Cooper appearing for Sota Tractors Pty Ltd

Hearing details:

2010

Melbourne

February 5.

 1   Exhibit MC6.

 2   Transcript [PN1061].

 3   Exhibit MC2.

 4   Exhibit MC2.

 5   Exhibit MC2.

 6   Exhibit MC4.

 7   Transcript [PN391].

 8   Transcript [PN612].

 9   Exhibit PT1.

 10   Exhibit MC2.

 11   Exhibit SJW1.

 12   Transcript [PN697-699].

 13   Transcript [PN787-785].

 14   Exhibit MC2.

 15   Transcript [PN721].

 16   Exhibit MC3.

 17   Exhibit PT1.

 18   Exhibit MC2.

 19   Exhibit MC2.

 20   Exhibit BRC1.

 21   Exhibit FCM1.

 22   Exhibit PM1.

 23   Transcript [PN979-952] and [PN1034-1038].

 24   Transcript [PN356].

 25   Transcript [PN357].

 26   Exhibit BRC1

 27   Exhibit MC5

 28   Transcript [PN979-982]

 29   Transcript [PN328-334] and [PN979-982]

 30   Exhibit PT1

 31   Transcript [PN486]

 32   Transcript [PN 784 -786].

 33   Exhibit MC2 and Transcript [PN544-549] and [PN486].

 34   Transcript [PN880].

 35   Transcript [PN944-945].

 36   Transcript [PN709].

 37   Exhibit MC1 point 5.

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