Richie John Adair v Gasweld Pty Ltd
[2024] FWC 1277
•16 MAY 2024
| [2024] FWC 1277 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Richie John Adair
v
Gasweld Pty Ltd
(U2024/1077)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 16 MAY 2024 |
Application for relief from unfair dismissal – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.
Introduction
Mr Richie Adair was employed by Gawseld Pty Ltd (Gasweld) in the position of Sales Team Member until his dismissal on 12 January 2024. Mr Adair contends that his dismissal was harsh, unjust and unreasonable. Gasweld contends that it had a valid reason to dismiss Mr Adair and the dismissal was not harsh, unjust or unreasonable.
I heard Mr Adair’s unfair dismissal case against Gasweld on 6 May 2024. Mr Adair gave evidence in support of his case. Gasweld called evidence from Mr Giovanni (John) Perricone, Store Manager Gasweld Gosford, Mr Jayden Carter, Sales Team Member Gasweld Gosford, Mr Neville Turner, 2IC Gasweld Gosford, and Mr Mathew Delaney, Store Operations Coordinator.
Initial matters to be considered
Section 396 of the Fair Work Act2009 (Cth) (Act) sets out four matters which I am required to decide before I consider the merits of the application.
There is no dispute between the parties and I am satisfied on the evidence that:
(a)Mr Adair’s application for unfair dismissal was made within the period required in s 394(2) of the Act;
(b)Mr Adair was a person protected from unfair dismissal;
(c)the Small Business Fair Dismissal Code did not apply to Mr Adair’s dismissal; and
(d)Mr Adair’s dismissal was not a genuine redundancy.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Adair’s dismissal was harsh, unjust or unreasonable. I will address each of these matters in turn below.
Valid reason (s 387(a))
General principles
It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal.[1] In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”[2] and should not be “capricious, fanciful, spiteful or prejudiced.”[3]
The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[4] The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).[5]
In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.[6] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.[7]
The question of whether there was a valid reason must be assessed by reference to facts which existed at the time of the dismissal, even if they did not come to light until after the dismissal.[8]
The employer bears the evidentiary onus of proving that the conduct on which it relies took place.[9] In cases such as the present where allegations of serious misconduct are made, the Briginshaw standard applies so that findings that an employee engaged in the misconduct alleged are not made lightly.[10]
A reason will be ‘related to the capacity’ of the applicant where the reason is associated or connected with the ability of the employee to do his or his job.[11] The appropriate test for capacity is not whether the employee was working to their personal best, but whether the work was performed satisfactorily when looked at objectively.[12]
Outline of contentions on valid reason
Gasweld contends that it had a valid reason to dismiss Mr Adair because he was verbally abusive and aggressive towards Mr Perricone on 12 January 2024. Mr Adair contends that he did not engage in any conduct which could have warranted his dismissal. Instead, Mr Adair contends that he was dismissed to avoid having to make his position redundant and pay him a redundancy payment.
Relevant facts
In December 2023, Mr Adair had a discussion with Mr Perricone. One of the matters discussed was Mr Adair’s health and the impact it was having on his ability to perform his role with Gasweld. Mr Perricone asked Mr Adair to think about whether he would be able to continue working in a job that demands so much time being spent on his feet. Another matter discussed was the fact that Gasweld’s Gosford store had struggled with sales for the month of December. Mr Perricone discussed with Mr Adair that he was worried about the sales projections for the Gosford store, and he did not want management looking at the store with the idea that they may put off any employees working in the store.
Mr Adair contends that in his discussions with Mr Perricone in December 2023, Mr Perricone said that poor turnover would result in Gasweld laying off staff, and because Mr Adair was the last person to join the store and his age meant that he had the least future with the company, he would be the one to go from the Gosford store. Mr Adair also contends that Mr Perricone said that Mr Delaney would be coming into the Gosford store in the third week of January 2024 to give him his notice, so Mr Adair should consider resigning, in which case he would be paid out his entitlements, or he could wait until Mr Delaney came in and put him off, in which case he would not get any entitlements. Mr Perricone denies that he told Mr Adair to resign or that he would be made redundant or that management were coming in the new year to lay him off.
On 4 January 2024, Mr Adair called the Fair Work Ombudsman for advice on his redundancy entitlements in the event that his employment was terminated on the grounds of redundancy. Mr Adair was told that, in the event of his redundancy, he would be entitled to three weeks’ notice and six weeks’ redundancy pay.
On 4 and 5 January 2024, Mr Turner saw Mr Adair lying down on the floor in the Gasweld Gosford store. Mr Turner says that Mr Adair was lying down looking at his phone during work hours. Mr Adair does not dispute that he was lying down, but says he was doing so during his lunch break. Mr Turner took a photo of Mr Adair lying down on 5 January 2024.
On 8 January 2024, following Mr Perricone’s return from leave, Mr Turner showed Mr Perricone a photo of Mr Adair lying down at work. Mr Turner told Mr Perricone that this was the second day in a row on which Mr Adair had been caught lying down during work time.
On 9 January 2024, Mr Adair spoke again to Mr Perricone. Mr Adair alleges that Mr Perricone asked if he had come to a decision regarding whether he would resign or wait for Mr Delaney to put him off, to which he answered that he would wait for Mr Delaney. Mr Adair says that Mr Perricone asked him why he would wait for Mr Delaney, and in response Mr Adair told Mr Perricone about what the Fair Work Ombudsman said were his entitlements on redundancy. Mr Adair contends that Mr Perricone said that what the Fair Work Ombudsman had told him was untrue. Once again, Mr Adair called the Fair Work Ombudsman for their advice. Mr Perricone says that on 9 January 2024 he asked Mr Adair on his thoughts about their discussion prior to Christmas, to which Mr Adair said that he was happy to wait until he was made redundant. Mr Perricone says that he asked Mr Adair why he thought he was going to be made redundant, and in response Mr Adair told him what the Fair Work Ombudsman had advised him to do.
On 10 January 2024, Mr Perricone told Mr Adair that Mr Delaney would be in on 11 January 2024 and would conduct a performance review on Mr Adair. Mr Perricone was given directions from management to organise this review in light of the report that Mr Adair had been lying down during work hours. Mr Adair was asked if he wished a support person to attend the performance review. Mr Adair says that he declined with such short notice.
On 11 January 2024, Mr Adair participated in his performance review with Mr Delaney and Mr Perricone. Mr Adair was told that he had been caught lying down during work hours looking at his phone when he should have been working. Mr Adair claimed that he was still on his lunch break when he was lying down at work. He explained that he was often disturbed during his 30 minute lunch break, with the result that he had to pause his lunch break so that he could attend to a work task, after which he would resume his lunch break. As a further example of wasting company time, it was put to Mr Adair that he had attended to personal tasks while making deliveries in work time. These examples were from about a year earlier and Mr Adair could not remember many of the details of what he was doing on the days in question, but Mr Adair was able to remember one day on which he attended a customer site, which he says explained the time taken to undertake particular tasks on the day in question. Mr Adair said that Gasweld was only raising these issues to get rid of him and avoid making him redundant. Mr Perricone and Mr Delaney asked Mr Adair where he got the idea that he was going to be made redundant. Mr Adair allegedly responded by saying that Mr Perricone told him that he was going to be made redundant and that Mr Delaney was going to come down and sack him. Mr Perricone claims that he says he never told Mr Adair that he would be made redundant or that Mr Delaney would be coming down to sack him. Mr Perricone then says that Mr Adair began attacking his faith by saying that he was a liar and a man of God who was lying before God. Mr Perricone says that Mr Adair was asked to stop saying this on the basis that he was discriminating against Mr Perricone. Mr Delaney says that Mr Adair said that he did not think that Mr Delaney would be capable of coming up with these accusations. Mr Delaney considered this comment to be derogatory in nature because it effectively accused Mr Delaney of acting in a dishonest manner. Mr Adair ultimately signed the warning letter issued to him on 11 January 2024, but did so on the express basis that he disagreed with the issues raised with him.[13]
On the morning of 12 January 2024, Mr Turner says that Mr Adair told him to “watch your back, as they will stab you in the back as well” and “they (Mr Delaney and Mr Perricone) are just telling lies, I thought better of Matt (Delaney) but not anymore, just watch yourself”.
During his lunch break on 12 January 2024, Mr Carter says that Mr Adair told him that Mr Delaney and Mr Perricone were “bastards” and they were trying to get rid of him. Mr Carter told Mr Adair that he would have to speak to Mr Perricone about the issue, to which Mr Adair responded by saying, “I’m not speaking to that lying prick”.
On 12 January 2024, Mr Adair says that Mr Perricone tried to provoke him into an argument by taking away a seat and sorting boxes which Mr Adair used to undertake his work. Mr Perricone says that in light of the issues raised about employees not working when they should be working, he did not want anyone sitting down when they should be doing their job, so he removed the chair formerly used by Mr Perricone.
After lunch on 12 January 2024, Mr Adair approached Mr Perricone, who was talking to Mr Carter. A discussion then ensued between Mr Adair and Mr Perricone, at the end of which Mr Adair was dismissed. Half an hour after the discussion, Mr Perricone typed up his recollection of his discussion with Mr Adair. That account states:[14]
“Notes taken 12/01/2024
Incident with Richie Adair
12:45pm
Witnesses: Jayden CarterRichie approached me at the counter (Jayden and I were talking) and the following conversation happened.
Richie: Why did you take my stool (shop stock) away from out the back (warehouse).John: Because I do not want to see people sitting down on the job.
Richie: But I use that to sit down when I have my lunch.
John: But you can use the lunchroom to sit down and have your lunch.
Richie: But Jayden does not want me to sit in the lunchroom while he is in there.
Jayden: No, I’m ok with you being in there, its just when I’m having my lunch and watching a
video, you keep talking to me and disturbing me. I’m not stopping you from eating in there.John: Well there you go you can sit in there and have your lunch from now on.
Richie: Ok then. But this is a form of bullying. This is work place bullying.
John: This is not workplace bullying. I do not want to see people sitting around on the job any longer.
Richie: This is work place bullying and you know it.
John: it is not workplace bullying, if I don’t want to see people sitting around during work than I have a right to move it.
Richie: no, you are bullying me.
John: Sorry Richie but this is not bullying. Who else sits down on that chair during work or while checking off stock?
Richie: Jayden does.
John: Exactly, I don’t want anyone sitting down while working. Everyone is doing it. So, does that mean that I’m bullying everyone in the branch? No! this has been raised as an issue in our meeting, so I removed the issue (chair).
Richie: Your bullying and you know it.
John: So just like you are bad mouthing me to the staff. Calling me a prick?
Richie: You are a prick and you are a lying prick!
John: Than you go on to tell Jayden that we are Bastards?
Richie: Who are Bastards?
John: You said to Jayden that Matt (Stores Coordinator) and I are bastards for what we did
yesterday.Richie: Well I got spoken to for nothing I’ve done wrong.
John: Then you again said something discriminative about my faith to Jayden. That I’m a man of God and I’m lying in front of God. That is three times in the kitchen with Matt and I, now to staff members. Mate you have to stop that, that is discrimination and you shouldn’t do that.
Richie: well you lied about what you said before Christmas.
John: I did not lie about anything regarding our conversation before Christmas. But What does that have anything to do with what you did wrong. Richie, take the conversation out of the picture. What you did was wrong and it had to be addressed. You can not just lay around when you are meant to be working.
Richie: I was not laying around on work time, I was on lunch.
John: Again Richie, you were not on your lunch break. You were recorded to have gone to lunch at 12:10. That gives you half an hour for lunch, but yet you took longer. Then at around 1:30 you were caught lying down on the job.
Richie: AHH John, that’s a lie. I was lying down in my Lunchbreak.
John: It wasn’t in your lunch break. Should I get Neville in here to join in on the conversation. To prove to you that you did.
Richie: You can do that! But it won’t prove anything. Neville wouldn’t have known anything I did up there (warehouse). He wouldn’t have known if I went on a lunch break or receiving a delivery or cleaning up. He would have no idea.
John: Neville knew exactly what time you went to lunch and what time he caught you lying down on the job.
Richie: You are so low John and you are meant to be a man of God.
John: Ok, I have had enough. You discriminate me in the meeting yesterday, you discriminate me and bag me out to my staff and again you are discriminating me again. Mate you are going to have to leave. I think it’s time for you to pack your things and leave. I can no longer have this abuse in the store. You need to leave and go now.
Richie: Would you like me to clock out.
John: Yes please. We will get the termination paperwork to you next week.
During the next 10 mins he clocked off, gathered his things from the kitchen. Then walked down to the back of the shop. (I followed Richie around)
Richie: Why are you following me around.
John: Because I don’t want to see you steal or grab anything that’s not yours to take with you.
Richie: I’m not the dishonest and lying person here John. You are!
John: Mate I have not lied about anything and its about time you left.
Richie: You have, you lied about me laying around outside my lunchbreak.
John: Oh, my goodness Richie, we have clear evidence that you did so. And you cannot admit that you have done something wrong.
Richie: What just a photo of me sitting at my desk on my phone.
John: No! of you Lying around during work time.
Richie: Yeah whatever, this company is going to owe me lots of money. I’ve already been speaking to a lawyer.
John: That’s fine mate. We have all the evidence. Do you have all your things?
Richie: Yep, I’ll head out the back door here.
John: Great.
Richie now has left the branch.”
Mr Adair only takes issue with the following parts of Mr Perricone’s account of their discussion on 12 January 2024:
Mr Adair cannot recall Mr Perricone making the following comment but accepts that he may have done so:
“John: So just like you are bad mouthing me to the staff. Calling me a prick?”[15]
Mr Adair says that he may have called Mr Perricone a liar but he denies calling him a “prick” or a “lying prick”;[16]
Mr Adair cannot recall the following part of the alleged conversation:
“John: Than [sic] you go on to tell Jayden that we are Bastards?
Richie: Who are Bastards?
John: You said to Jayden that Matt (Store Coordinator) and I are bastards for what we did yesterday.”[17]
Mr Adair denies saying to Mr Perricone, “Yeah whatever, this company is going to owe me lots of money. I’ve already been speaking to a lawyer.”[18]
Mr Carter gave the following relevant evidence in relation to the contested parts of the discussion he witnessed between Mr Perricone and Mr Adair on 12 January 2024:
Mr Adair called Mr Perricone a “lying prick”; and
Mr Adair attacked Mr Perricone’s faith by saying, “You are lying in front of God” and “You are so low, John … you are meant to be a man of God”. In response, Mr Carter says that Mr Perricone said to Mr Adair, “Okay, I think its time for you to go, you are abusing me and attacking my faith to me and my staff members, you need to leave”.
I prefer Mr Perricone’s account of his discussion with Mr Adair on 12 January 2024 over the evidence given by Mr Adair about this discussion. First, Mr Perricone’s account is supported by the contemporaneous notes he made about half an hour after the discussion. Mr Adair did not make any such notes and accepted in his evidence that he could not recall a number of parts of the discussion. Secondly, a number of the contested parts of Mr Perricone’s account are supported by the evidence given by Mr Carter, both as to what was said on 12 January 2024 in the discussion which ended with Mr Adair’s dismissal and what Mr Adair said to Mr Carter in their discussion during lunch time on 12 January 2024, particularly in relation to Mr Adair referring to Mr Perricone as a “bastard” and a “lying prick”. Thirdly, Mr Adair accepts that he was extremely angry on 11 and 12 January 2024 about the way he was being treated. This angered state increases the likelihood that Mr Adair did call Mr Perricone a “lying prick” and a “bastard”.
I do not accept Mr Adair’s contention that Gasweld was attempting to remove him from the business in such a way as to avoid having to make a redundancy payment to him. Although I accept that Mr Adair believed he may be made redundant, hence his call to the Fair Work Ombudsman for advice as to his entitlements, I do not accept that Mr Perricone told Mr Adair that his position was going to be made redundant or that he would lose his entitlements if he did not resign before being laid off by Mr Delaney. I consider that Mr Perricone did discuss with Mr Adair his potential resignation, but he did so in a context where Mr Adair was struggling with his knee injury to undertake the requirements of the job. Mr Perricone also discussed with Mr Adair the poor financial performance of the Gosford store. However, the idea that an experienced manager such as Mr Perricone would tell Mr Adair that he would lose his entitlements if he did not resign before being made redundant is most unlikely. I accept the uncontested evidence given by the Gasweld employees that no employees of Gasweld have been made redundant since at least November 2023. If redundancies within Gasweld’s stores are to happen, the human resources team are involved and a process is put in place to deal with them. No such steps were taken in the present case.
I accept that the trigger for the performance review with Mr Adair on 11 January 2024 was the fact that Mr Turner observed Mr Adair lying down on the floor at work on 4 and 5 January 2024. It was reasonable for Gasweld to raise this concern with Mr Adair at a performance review meeting on 11 January 2024. I do not make any findings as to whether or not Mr Adair had finished his lunch break on 4 and 5 January 2024 at the times that Mr Turner observed him to be lying on the floor. Gasweld expressly disavowed any reliance on this matter as any part of the reason for Mr Adair’s dismissal. It says that it dismissed Mr Adair by reason of his conduct during his discussion with Mr Perricone on 12 January 2024. I do, however, have some sympathy for Mr Adair having to address time wasting allegations from about a year earlier in the performance review meeting on 11 January 2024. These issues should have been raised with Mr Adair well before 11 January 2024, so that he could have a reasonable chance of remembering the trips in question in order to respond to the serious allegation that he was misusing company time on these trips. In any event, Gasweld did not dismiss Mr Adair for this reason.
Conclusion re valid reason
I am satisfied on the evidence that Gasweld had a valid reason to terminate Mr Adair’s employment on the basis that he engaged in inappropriate behaviour at work on 12 January 2024, particularly when he called his manager, Mr Perricone, a “prick”, “lying prick” and a “bastard”, and he criticised Mr Perricone by accusing him of “lying in front of God”. It is one thing to have a different recollection of a conversion or even to believe that somebody is being dishonest, but there was no good reason for Mr Adair to launch a personal attack on Mr Perricone by accusing him of “lying in front of God”.
That Gasweld had a sound, defensible and well-founded reason to terminate Mr Adair’s employment weighs against Mr Adair’s contention that his dismissal was harsh, unjust and unreasonable.
Notification of reason (s 387(b))
I am satisfied on the evidence that Mr Adair was notified of the valid reason for his dismissal during the meeting on 12 January 2024. Mr Perricone told Mr Adair that his verbal abuse was the reason he was being asked to leave. The reason was also confirmed in writing in a termination letter dated 29 January 2024.
This factor (s 387(b)) weighs in support of Gasweld’s argument that Mr Adair’s dismissal was not harsh, unjust or unreasonable.
Opportunity to respond (s 387(c))
Mr Adair was not given an opportunity to respond to the reason for his dismissal at any time before Mr Perricone made the decision in the meeting on 12 January 2024 to terminate his employment.
This weighs in support of Mr Adair’s argument that his dismissal was harsh, unjust and unreasonable.
Unreasonable refusal to allow a support person (s 387(d))
Mr Adair did not request to have a support person present in his discussion with Mr Perricone on 12 January 2024. No doubt this was because he did not think that this discussion would result in the termination of his employment.
I am satisfied on the evidence that there was not any unreasonable refusal by Gasweld to allow Mr Adair to have a support person present to assist in any discussions relating to his dismissal. This is a neutral consideration in my assessment as to whether Mr Adair’s dismissal was harsh, unjust or unreasonable.
Warnings of unsatisfactory performance (s 387(e))
Mr Adair was not dismissed for unsatisfactory performance. This factor is not relevant to my assessment of the fairness of Mr Adair’s dismissal.
Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g))
Gasweld is part of a group of companies which has a reasonable size. Gasweld has human resource management specialists and expertise. In all the circumstances, I am satisfied that neither the size of Gasweld’s enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in effecting Mr Adair’s dismissal.
Other relevant matters
Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
Mr Adair was employed by Gasweld for a period of about two and a half years prior to his dismissal. Other than the circumstances addressed with Mr Adair on 11 and 12 January 2024, there is no suggestion that Mr Adair was not other than a hard-working contributor to the Gasweld team at its Gosford store. The length and quality of his employment record provides support for Mr Adair’s contention that his dismissal was harsh.
I accept that Mr Adair’s dismissal has been very difficult for him personally and financially. He has not been able to obtain alternative employment, which he considers will be extremely difficult at his age. He and his wife are attempting to support their son at university. Without ongoing employment this will be very difficult and may result in Mr Adair and his wife having to move to alternative accommodation. These matters add weight to Mr Adair’s argument that his dismissal was harsh.
I have already considered, and rejected, Mr Adair’s contention that his dismissal was an unjustified attempt to avoid the obligation to make him a redundancy payment.
Although Mr Adair’s employment was brought to an end on 12 January 2024, he was subsequently paid three weeks’ pay in lieu of notice. Accordingly, I do not need to consider whether Mr Adair’s conduct justified summary dismissal.
Conclusion
After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that Gasweld’s dismissal of Mr Adair was not harsh, unjust or unreasonable. Although Mr Adair’s dismissal has been harsh on him personally and financially, and he was not given an opportunity to respond to the notion that he might be dismissed on account of his inappropriate conduct in the workplace on 12 January 2024, his conduct on that day was serious and gave Gasweld a valid reason for his dismissal. Further, I consider that it was untenable for Mr Adair to continue to work at the Gosford store after he verbally abused and attacked the store manager, Mr Perricone, to his face and to other employees in the store on 12 January 2024.
Mr Adair’s unfair dismissal application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr R Adair, Applicant
Ms K Cole, for the Respondent
Hearing details:
2024.
Newcastle
May 6
[1] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8
[2] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
[3] Ibid
[4] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
[5] Ibid
[6] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]
[7] Ibid
[8] Newton v Toll Transport Pty Ltd[2021] FWCFB 3457 at [99]
[9] Ibid
[10] Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J
[11] Crozier v Australian Industrial Relations Commission [2001] FCA 1031 at [14]
[12] Crozie v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport (2000) 98 IR 137 at [62]
[13] Ex R8
[14] Ex R2
[15] Court Book at p 91
[16] Ibid
[17] Ibid
[18] Court Book at p 93
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