Sabri Khan Yazgan v Australian Pharmaceutical Industries Limited

[2018] FWC 3973

[2018] FWC 3973

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sabri Khan Yazgan
v
Australian Pharmaceutical Industries Limited
(U2018/1943)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 4 JULY 2018

Application for an unfair dismissal remedy – violent and aggressive behaviour towards co-worker – damage to employer’s property – valid reason for dismissal – procedural fairness afforded to applicant – dismissal not unfair – application dismissed.

[1] On 26 February 2018, Mr Sabri Khan Yazgan (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (the FW Act) in relation to the termination of his employment by Australian Pharmaceutical Industries Limited (the respondent) on 5 February 2018.

[2] The letter of termination the respondent gave the applicant relevantly stated:

‘I am writing to advise that Australian Pharmaceutical Industries has now completed the investigation into the workplace incident on 31 January 2018 taking into account the written response provided on your behalf by Mr Daoud from Sydney City Lawyers an [sic] the 5 February 2018.

The findings have deemed that you have behaved in a way that is to be [sic] unacceptable in that:

1. Malicious Damage of property: You were observed to have broken a chair in the first aid room by throwing it. You also damaged first aid equipment and were observed to have punched two walls.

2. Threatening Behaviour: You were observed to have threatened Team Member Sesa Tefauni by making statements to the effect of “I’m going to kill you” and “I’m going to grab you by the hair”

3. Demonstrating harassing behaviour: You were observed by several people in the workplace to have raised your voice for a prolonged period, swearing at Team Member Sesa Tefauni and swearing at a number of managers. You also attempted to enter the women [sic] bathroom to extract Sesa when explicitly instructed by managers not to do so and forced your way into the first aid room to make further threats to Sesa Tefauni.

We consider that your actions constitute serious misconduct warranting summary dismissal with immediate effect. …’ 1

[3] I directed the parties to file written outlines of submissions and evidence. I heard this application on 18 and 29 May 2018. With permission, Mr S Hutchinson, solicitor, appeared for the applicant and Mr B Gee, solicitor, appeared for the respondent.

The evidence

[4] The following people filed written statements in these proceedings:

•  the applicant; 2

•  Mr John Ioane, the Manager of the respondent’s Camellia Distribution Centre, where the applicant worked; 3

•  Ms Juliana Carruthers, the respondent’s People Engagement Manager; 4

•  Ms Christine Farr, an employee of the respondent and the union delegate at the Camellia Distribution Centre; 5

•  Mr Allen Haddad, the applicant’s shift manager at the time of the incident that led to his dismissal; 6

•  Mr Dario Lopez, the applicant’s team manager at the time of the incident that led to his dismissal; 7 and

•  Mr Richard Tonna, another team manager employed by the respondent, who witnessed part of the incident that led to the applicant’s dismissal. 8

[5] All witnesses except Ms Farr gave oral evidence and were cross-examined at the hearing.

[6] The following documents were also in evidence:

•  the applicant’s contract of employment; 9

•  the pay slip recording the details of the applicant’s final (termination) pay; 10

•  a letter from DK Development Group about the applicant’s request for work, dated 9 May 2018; 11

•  a receipt and letter from psychologist Hugo Rodriguez from the applicant’s appointment with him on 4 May 2018; 12

•  the respondent’s Discrimination, Harassment and Workplace Bullying Policy; 13 and

•  a report from psychologist Bradley Jones about the applicant, dated 21 August 2017. 14

The facts

[7] The parties tendered an agreed statement of facts 15 during the hearing. The following facts were uncontested:

•  On 2 June 2014, the applicant commenced casual employment with the respondent in the position of Storeperson Grade 1 at the respondent’s distribution centre at Camellia.

•  In around December 2017, the applicant was informed that his mother was unwell.

•  On 30 January 2018, the applicant asked Ms Carruthers how he could apply for ‘stress leave’. Ms Carruthers advised the applicant he could access personal leave or annual leave, encouraged him to seek professional help from a doctor or psychologist and also advised him he could access the respondent’s Employee Assistance Program.

•  The applicant did not want to take annual leave as he was planning a holiday to Thailand later in 2018.

•  On 31 January 2018, the applicant attended work at the Camellia Distribution Centre at 6:00 am.

•  From 6:30 am that morning, he was highly agitated. He shouted and swore at other employees including Sesa Tefauni at various places, including outside the female toilets and inside the first aid room. He also punched a wall and broke a chair in the first aid room when he picked it up and threw it.

•  Later on 31 January 2018, Mr Ioane and Ms Carruthers advised the applicant by telephone of the allegations against him arising from his conduct. Ms Carruthers then emailed the allegations to him at around 3:30 pm that same day. 16

•  On 5 February 2018, the applicant (via his solicitor) provided a written response 17 to the allegations. Later that same day, the respondent gave the applicant a letter of termination.18

[8] The applicant gave evidence that when he met with Ms Carruthers on 30 January 2018, he told her that he had deliberately cut his neck because he was upset about his mother’s illness, and showed her the wound. He also said he had ‘tears welling in [his] eyes’ as he told Ms Carruthers about how his mother’s illness had negatively affected his mental health and that he had considered suicide. 19 Ms Carruthers’ evidence was that she ‘could not see any cut or scratch’ on the applicant’s neck, and that the applicant ‘remained calm’ and ‘appeared in control and thoughtful’ during their discussion.20 In cross-examination, she maintained that the applicant ‘… wasn’t angry, he wasn’t agitated. He was quiet and he was calm.’21

[9] I do not need to make a finding about precisely how upset the applicant was in the 30 January 2018 meeting. It is sufficient to say that I accept that the effect of the conversation was that the applicant told Ms Carruthers that his mental health had been affected by his mother’s illness, and she told him where help was available and urged him to seek it, but she did not get the impression that he was volatile or that self-harm was imminent at that point. It is also relevant to my consideration that there was no evidence at all that the applicant threatened to harm anyone else during the meeting. I will return to this issue below.

[10] The applicant said in his statement that when he went home on 30 January 2018, he attempted suicide, and subsequently had an argument with his mother. In the course of that argument, the applicant’s mother told him that Ms Tefauni had known about her illness for some time. 22 This led the applicant to be angry with Ms Tefauni for ‘hiding the knowledge of [his] mother’s ill health’.23

[11] In addition to what the applicant admitted in the agreed statement of facts, the respondent’s witnesses gave evidence that he did the following on 31 January 2018:

•  approached Ms Tefauni aggressively in the first aid room and stood over her, such that Mr Haddad felt the need to place his arm between her and the applicant; 24

•  shouted at Ms Tefauni ‘Get in your car. I’m going to crash your car and kill you’; 25

•  slammed a trolley across the first aid room, knocking it against other medical equipment in the room; 26

•  referred to Ms Tefauni as a ‘fucking whore’, 27 ‘dog’28 and ‘bitch’29;

•  re-entered the first aid room while Ms Tefauni was in there, despite Mr Haddad’s express direction not to do so; 30 and

•  threatened Mr Tonna by saying ‘You better get out [of the first aid room], or I will make you’. 31

[12] In cross-examination, the applicant denied standing over and threatening to kill Ms Tefauni, 32 threatening Mr Tonna33 or slamming the trolley.34 He stated that he did not remember Mr Haddad placing his arm between Ms Tefauni and himself.35 However, the applicant’s own evidence is that while he remembered saying ‘so much [sic] violent and angry things in the First Aid room’, he could not remember precisely what he said.36 This is understandable, but also suggests that the applicant may have denied doing certain things not because he did not do them, but because he was too angry to remember clearly that he had done them. On the balance of probabilities, and especially given that the evidence of Mr Haddad, Mr Lopez and Mr Tonna was both contemporaneous with the incident (as they wrote down what they observed only hours after the incident)37 and broadly consistent, I find that the applicant did engage in the conduct outlined at [11] above.

[13] The applicant did not apply for any kind of leave at or following the 30 January 2018 meeting. 38 There is no evidence that he went to see a doctor or psychologist after the 30 January 2018 meeting, until 4 May 2018,39 a fortnight before the hearing of this matter began.

Consideration

[14] It is not in dispute that the applicant is a person protected from unfair dismissal. 40 I am satisfied that he is so protected.

[15] Section 385 of the FW Act provides:

‘385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.’

[16] Section 385(a) of the FW Act is satisfied. It is not in dispute that the applicant has been dismissed.

[17] Section 385(c) of the FW Act does not apply in this case, as the respondent is not a small business.

[18] Section 385(d) of the FW Act is satisfied. Neither party contended that the applicant had been made redundant.

[19] I must therefore consider whether the applicant’s dismissal was harsh, unjust or unreasonable. Section 387 of the FW Act provides:

‘387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.’

Valid reason: s.387(a)

[20] The applicant did not dispute that his actions in the morning of 31 January 2018 constituted serious misconduct. 41 I find his conduct was aggressive, unacceptable and a breach of the respondent’s Discrimination, Harassment and Workplace Bullying Policy. There was a valid reason for his dismissal on the grounds of serious misconduct.

Notification of that reason and opportunity to respond: ss.387(b) and (c)

[21] The respondent notified the applicant of the reasons it was considering dismissing him and particularised the allegations in writing on the same day as the incident occurred. 42 The applicant was not only given an opportunity to respond, but took it; his solicitor provided a lengthy written response43 to the respondent on 5 February 2018.

[22] I do not accept the applicant’s submission that ‘he was not in a rational state to effectively comprehend the allegations against him and further was not in any position to effectively demonstrate within 24 hours why he should not be summarily dismissed’. 44 First, the evidence does not support a finding that the applicant did not understand what he was alleged to have done wrong or the potential consequences of his conduct. The applicant was able to instruct his solicitors to provide a fulsome response to Ms Carruthers’ email. That response contained a detailed recollection of the events of 31 January 2018, admissions that the applicant shouted and swore at Ms Tefauni and followed her into the women’s bathroom and first aid room, and an offer to pay for the property he damaged. I also accept Ms Farr’s unchallenged evidence that the applicant sent her a message on 31 January 2018 after the incident that said, inter alia, ‘I am going to look for another job and take API to court!’45 This strongly suggests the applicant knew that his conduct could lead to his dismissal. I can readily accept that the applicant was upset, even ‘anguish[ed]’,46 to borrow his own description, but to suggest that his emotional state was such that he was denied a genuine opportunity to respond to the respondent’s allegations is disingenuous in light of the comprehensive response he ended up providing.

[23] Secondly, the applicant ended up having considerably more than 24 hours to respond upon request; his solicitor responded on 5 February 2018, five days after the incident.

Unreasonable refusal of support person: s.387(d)

[24] The only meeting that occurred between the 31 January 2018 incident and the applicant’s dismissal was via telephone in the afternoon of 31 January 2018. The applicant submitted that ‘[i]t is significant that API did not offer Mr Yazgan a support person given that authoritative members had actual knowledge of the Applicant’s severely ailed mental health’. 47 However, this is not what the legislation requires. Section 387(d) of the FW Act states that I must take into account ‘any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal’. This subsection does not require or imply that an employer must actively offer an employee at risk of dismissal the opportunity to have a support person.

[25] I am satisfied on the evidence before me that the respondent did not at any point in the process unreasonably refuse to allow the applicant to have a support person. In particular, I note and accept Ms Farr’s evidence that she would have acted as the applicant’s support person had she been asked, but the applicant did not approach her about this. 48 Neither Ms Farr nor the applicant suggested that the respondent would have refused to allow Ms Farr to be present in the telephone discussion, had the applicant requested that.

Warnings about unsatisfactory performance: s.387(e)

[26] This criterion is not applicable to this application. The applicant was dismissed for misconduct, not poor performance.

Size of employer’s enterprise and absence of human resource management expertise: ss.387(f) and (g)

[27] The employer is a national business with a dedicated human resources manager located at the distribution centre at which the applicant worked, Ms Carruthers. I am satisfied that the employer’s processes in the lead-up to the applicant’s dismissal reflect what would be expected of such an employer.

Other relevant matters: s.387(h)

[28] The applicant submitted that there was a ‘direct causal link’ 49 between his conduct on 31 January 2018 and his mental state at the time. He submitted that the dismissal was harsh because the respondent should have considered his mental illness as a mitigating factor50 and decided on disciplinary action less severe than dismissal. However, apart from the fact that the outcome of the respondent’s investigation was evidently not what the applicant had hoped for, he seemed unable to elaborate on how the respondent had failed to take his mental illness into account – that is, what it should have done that it did not do.

[29] In essence, the applicant seemed to suggest that it was Ms Carruthers’ or more broadly the respondent’s fault that he engaged in misconduct on 31 January 2018. He attributed it to her ‘poor judgment’. 51 In his cross-examination, he suggested that the respondent should somehow have known from the discussion in the 30 January 2018 meeting that he would act in the way he did and therefore should have stood him down following the meeting:

‘I started to open up, started to take advice and go to see people, which I didn't get no - like, answers or any help.  So I should have just kept my mouth shut, not get any help from there, because I was not getting any.  It would have just took her to say, “Look, take the day off, go sort out everything at home”, none of this would have happened, none of this.  “Go get a clearance letter from a psychiatrist”, whatever, if I had to come back to work, I would have done that, but don't send me back to work.  What happens if I killed someone? I'm trying to hurt myself, what happens if I hit something off of the top of those pallets and it landed on me, just trying to kill myself then, how the way my thoughts go through my head, what then?  Who's liable for that?  I just wanted to go home, sort out my mum, sort out myself.  So you're telling me they can't just say, “Okay, look, he's suffering, he's got some issues, go see a psychiatrist, go see a psychologist, or whatever it is, fix your mum and yourself”, that should be the priority there.

You know, if I'm not a hundred per cent mind ready for work how can you send someone to work knowing that they've got something like this, especially coming to work with a slash on his neck, knowing that it's just dry blood and still bleeding out, where everyone's asking, I'm there trying to cover it up.  How do you send someone to work?  I went into the office upset, really upset.  I didn't know if I should just say it or not.  I actually took that chance and told her and she wanted me to turn and see my negotiator.  You can't hide something like that.  It was worse when I actually showed her, I had to walk out, man.  Go back to work?  No worries.  But something like this was to happen and someone took off work, what happens if he killed someone?  What happens if he killed himself?  Then what?  So safety there is a joke.’ 52 [my emphasis]

[30] I am not unsympathetic to the fact that the applicant is clearly troubled, but I do not think it is reasonable to expect the respondent to have anticipated from his behaviour in the 30 January 2018 meeting that he would threaten any of his colleagues or damage property in the way that he did on 31 January 2018. Indeed, Ms Carruthers’ impression of that meeting was that the applicant was calm and not aggressive. The applicant disclosed his previous attempts at self-harm to Ms Carruthers. She informed him of the options to take paid and unpaid leave and encouraged him to seek help from a psychologist or doctor or the respondent’s Employee Assistance Program. There was no indication at that meeting that he was at imminent risk of further self-harm, and definitely no hint that he might have hurt others. Nor was there any indication that the applicant was not fit to perform his usual duties; indeed, his own evidence is that he continued working after the meeting concluded. 53 In these circumstances, I do not accept that the respondent was obliged to direct the applicant not to return to work until he produced a medical clearance,54 as he submits.

[31] The applicant did not end up seriously contending, either in his letter to the respondent before his dismissal or in his evidence and submissions at the hearing, that he should not be held responsible for his conduct on 31 January 2018 because his mental health issues caused him not to be in control of his actions. 55 He conceded that his actions constituted serious misconduct.56 The highest it is put is that ‘the dam… burst’ on the applicant’s emotions, that his actions were ‘fuelled by his own mental health issues’ and those issues ‘clouded his better judgment’.57 These phrases were all in the applicant’s written response of 5 February 2018, which I am satisfied the respondent took into account when deciding whether to dismiss him.

[32] There was very limited evidence before the Commission concerning the applicant’s mental illness. Mr Rodriguez’s letter 58 refers to the applicant’s depression and anxiety. It does not suggest at all that the applicant is incapable of controlling his actions or emotions because of his illness.

[33] The applicant also tendered a report from a forensic psychologist, Bradley Jones. This was prepared on 21 August 2017 for a criminal matter unrelated to the applicant’s dismissal. The report included the following:

‘Evident throughout [the applicant’s] life is an unresolved depression, that when exacerbated by situational or environmental conflict results in impulsive and unstable emotional and behavioural functioning. Results of assessment are consistent with Mr Yazgan suffering a longer term chronic depressive disorder, with a current major depressive disorder with impaired cognitive functioning.’ 59

[34] Mr Jones’ report recommended an appropriate treatment program, which, unfortunately, there is no evidence that the applicant undertook. 60 Mr Jones also indicated that there was a ‘low to moderate risk’61 of the applicant committing future violent offences relative to other offenders.

[35] The applicant did not put Mr Jones’ report before the respondent in the lead-up to his dismissal; he does not even mention it in his written response of 5 February 2018. Indeed, the respondent was not aware of the report until it was filed as evidence in these proceedings.

[36] On the evidence before me, I do not accept that the respondent’s duty of care to the applicant extended to anticipating that the applicant might behave in the way that he did on 31 January 2018 and therefore directing him not to attend work. Both Ms Carruthers and the applicant’s direct manager, Mr Lopez, urged him to seek medical help to deal with his depression. 62 I am not sure what more they could reasonably have been expected to do. On the other hand, the respondent certainly has a duty of care to its other employees to curtail violence and threatening behaviour in the workplace.

Conclusion

[37] Having taken into account all the factors set out in s.387 of the FW Act, the applicant’s dismissal was not harsh, unjust or unreasonable. While I have sympathy for the applicant’s situation, I must dismiss his application.

SENIOR DEPUTY PRESIDENT

Appearances:

S Hutchinson, solicitor, for Sabri Khan Yazgan.

B Gee, solicitor, for Australian Pharmaceutical Industries Limited.

Hearing details:

Sydney.

2018.

May 18, 29.

Printed by authority of the Commonwealth Government Printer

<PR608733>

 1   Exhibit 1 annexure E.

 2   Exhibits 1 (statement in chief) and 2 (statement in reply).

 3   Exhibit 8.

 4   Exhibit 9.

 5   Exhibit 10.

 6   Exhibit 11.

 7   Exhibit 13.

 8   Exhibit 14.

 9   Exhibit 3.

 10   Exhibit 4.

 11   Exhibit 5.

 12   Exhibit 6.

 13   Exhibit 12.

 14   Exhibit 15.

 15   Exhibit 7.

 16   Exhibit 9 annexure JC-1.

 17   Ibid annexure JC-2.

 18   Ibid annexure JC-3; exhibit 1 annexure E.

 19 Exhibit 1 [11].

 20   Exhibit 9 [3]-[4].

 21   PN586.

 22 Exhibit 1 [13].

 23   Ibid.

 24 Exhibit 11 [13].

 25 Ibid [14].

 26 Ibid [20].

 27   Ibid annexure AH-1.

 28   Exhibit 13 annexure DL-1.

 29   Ibid.

 30   Exhibit 11 [16]-[17], annexure AH-1; exhibit 13 annexure DL-1.

 31 Exhibit 14 [13].

 32   PN256-PN261.

 33   PN291.

 34   PN293.

 35   PN250-PN252.

 36   Exhibit 1 annexure D.

 37   Exhibit 11 [11], annexure AH-1; exhibit 13 [16], annexure DL-1; exhibit 14 [20], annexure RT-1.

 38   PN167-PN177; PN214-244.

 39   Exhibit 6.

 40   Fair Work Act 2009 (Cth) s.382.

 41 Applicant’s closing submissions [7].

 42   Exhibit 9 annexure JC-1.

 43   Ibid annexure JC-2.

 44 Applicant’s submissions [31].

 45 Exhibit 10 [13].

 46   Exhibit 9 annexure JC-2.

 47 Applicant’s submissions [31].

 48 Exhibit 10 [14].

 49   Applicant’s submissions [25], [40].

 50   Ibid [21]-[28].

 51 Exhibit 2 [9].

 52   PN328-PN329.

 53 Exhibit 1 [12].

 54 Applicant’s submissions [40].

 55   PN919-PN934.

 56 PN928; applicant’s closing submissions [7].

 57   Exhibit 9 annexure JC-2.

 58   Exhibit 6.

 59   Exhibit 15.

 60   PN1074.

 61 Exhibit 15 [39].

 62 Exhibit 1 [8].