Shan Ali v Toll In2 Store

[2010] FWA 7426

[2010] FWA 7426

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shan Ali
v
Toll In2 Store
(U2010/9293)

COMMISSIONER BISSETT MELBOURNE, 24 SEPTEMBER 2010

Application for unfair dismissal remedy.

[1] This is an application by Mr Shan Ali (the Applicant) under s.394 of the Fair Work Act 2009 (the Act) for a remedy against his dismissal.

[2] Mr Ali was employed by Toll In2 Store (Toll, the Respondent). He commenced his employment on 8 September 2008. His employment was terminated on 21 May 2010. At the time of the termination of his employment Mr Ali worked as a team leader.

[3] The matter was referred for conciliation where it was not resolved. It was subsequently referred for arbitration.

Background

[4] On Friday 14 May Mr Ali verbally raised issues with the conduct and language of Mr Mark Popallis with Mr Popallis’ manager (Darko). Mr Ali believes Mr Popallis got upset that he, Mr Ali, had made such a complaint about him. Mr Popallis then approached Mr Ali’s shift manager (Mr Paul Motta) and complained about Mr Ali. Mr Motta told Mr Popallis that he should put such a complaint in writing. 1

[5] Mr Popallis did put the complaint in writing but it was not seen by the Operations Manager (Mr Mark Jones) until later in the day after Mr Ali had finished work and gone home. Mr Ali was not advised on 14 May 2010 that a written complaint had been put in against him.

[6] On Saturday 15 May 2010 Mr Ali commenced work at 6.00am. Very soon after commencing work he asked Darko if he was aware that Mr Popallis had submitted a complaint against Mr Ali. Darko responded that he wasn’t sure. At this point Mr Ali said words to the effect that ‘if that’s how he wants to play the game... I will play it too because I will clear my name no matter what it takes.’ 2

[7] It is this event on 15 May 2010 that led to the termination of Mr Ali’s employment.

[8] Mr Popallis apparently heard of the comments made by Mr Ali and lodged a further verbal complaint with management. 3

[9] On Tuesday 18 May 2010 Mr Ali was called into a meeting with his shift manager (Mr Motta) and Mr Matthew Smith. 4 At this meeting Mr Ali was informed of an allegation against him which related to what he had said on the Saturday and was stood down.5 Mr Ali agrees that he was told at this meeting that a complaint had been made against him and that he was being stood down (on pay) while it was being investigated.6

[10] On Thursday 20 May 2010 Mr Ali had a further meeting with management. He was asked about the events on Saturday 15 May 2010 and advised of the content of statements made by staff who had witnessed those events. 7 These statements indicated that Mr Ali had sworn and/or threatened Mr Popallis.8 Mr Ali disputed the statements.9

[11] On Friday 21 May 2010 Mr Ali was called to another meeting attended by Mr Smith, Mr Jones and Mr Mashu (HR coordinator). Again the events of Saturday were discussed and Mr Ali given an opportunity to put his side of the story. Mr Ali believed the statements by witnesses to what was said on Saturday morning were fabricated. Following a brief adjournment Mr Ali was then advised that his employment was terminated.

Submissions and evidence

[12] Very little evidence was called during the hearing of the matter. Mr Ali relied on his statement and the Respondent relied on the material it filed. Mr Ali did not dispute the contents of the reports of his interviews with management over the course of their investigation.

[13] Mr Ali strongly asserted that management had erred in not investigating the complaint he made about Mr Popallis on 14 May 2010 and in not advising him of the written complaint made by Mr Popallis on the same day.

[14] Mr Ali believes that the statements of those interviewed were false. He believes that the issue stems back to a performance warning he gave to one of his team members who is a friend of Mr Popallis.

[15] Mr Ali believes that his behaviour on 15 May is no worse than others in the workplace and that while he was angry at the time he does not believe he was aggressive.

[16] Under questioning Mr Ali agreed that he did not know about the written complaint Mr Popallis is alleged to have made on 14 May at the time he made his comments on 15 May.

[17] Mr Ali has received training in Toll’s Inappropriate Behaviour Policy. 10

[18] Material tendered by the Respondent in this matter includes a number of statements from witnesses to the exchange on Saturday 15 May 2010. These statements, gathered as part of management’s investigation into the matter, suggest that Mr Ali, in the comments he made, also said (of Mr Popallis) ‘he’s a prick’ or ‘he’s a fucking idiot’ or some other swearing. 11 Whatever the words were, Mr Popallis was made aware of the comments of Mr Ali, leading to him making the second complaint against Mr Ali that led to the investigation and subsequent termination of Mr Ali’s employment.

[19] Ultimately the Respondent says it lost confidence in Mr Ali’s capacity to fulfil his role as a team leader. 12 Toll argues that Mr Ali knew the policies and procedures operating in the workplace.13 Crucial to these is the ability of all employees to have confidence that they can raise matters/complaints in the workplace if they feel they need to14 and that these will be dealt with by management appropriately and promptly. Toll believes it is imperative that employees can make a complaint without fear of retribution or retaliation. Mr Ali’s behaviour on 15 May 2010 was contrary to such a culture and, from both a workplace and health and safety perspective, was not acceptable.15

Was Mr Ali’s termination unfair?

[20] Section 385 of the Act states:

385 What is an unfair dismissal

A person has been unfairly dismissed if FWA 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.

[21] There is no question that Mr Ali has been dismissed. Toll In2 Store is not a small business and the dismissal was not a redundancy.

[22] The question to be determined is if the termination was harsh, unjust or unreasonable.

[23] Section 387 of the Act states:

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.

[24] In determining if Mr Ali’s dismissal was harsh, unjust or unreasonable I must consider each of the above matters (as relevant).

A valid reason

[25] Mr Ali’s employment was terminated for gross misconduct and inappropriate behaviour on the morning of 15 May 2010 in contravention of Toll’s Inappropriate Behaviour Policy.

[26] Toll’s Inappropriate Behaviour Policy is a comprehensive document which establishes what is inappropriate behaviour in the workplace including sexual harassment, discrimination, bullying etc. It further outlines responsibilities of employees and managers, notification procedures and issue resolution processes. The issue resolution process states that ‘[i]f you have a genuine concern that you, or someone else, are being behaved towards in an inappropriate manner, you should report this immediately. Toll will work with you to resolve your concerns.’ 16

[27] The intent of the policy is to firstly establish inappropriate (and by extension unacceptable) behaviour at work and provide a mechanism for resolution of these. It is clear that any actions by an employee to stop another employee from exercising their rights under the policy is to hinder the application of the policy in the workplace and would therefore be treated with the utmost concern. To hinder a person from exercising their rights under the policy is also, inevitably, a breach of the policy itself.

[28] By making statements to the effect that he, Mr Ali, would get Mr Popallis with ‘everything I’ve got’ could be construed as intimidating Mr Popallis to take or not take actions under the policy. 17 It is also alleged that Mr Ali swore when making the statements on 15 May 2010, adding to the seriousness of the threat.

[29] I find that Mr Ali did say on 15 May 2010 that he would do anything necessary to clear his name, that he would get Mr Popallis with everything he’s got and that he swore whilst making the statement. I accept the statements of employees who heard the comments. I reject Mr Ali’s assertion that these were fabricated.

[30] Mr Ali has been trained in the inappropriate behaviour policy. His actions however are contrary to the wording and the clear intent of the policy.

[31] I find therefore that there was a valid reason for the termination of Mr Ali’s employment.

Notified of the reason

[32] Mr Ali was notified of the reason for the termination of his employment in the meetings he had with management on Tuesday 18 May 2010, Thursday 20 May 2010 and Friday 21 May 2010.

Opportunity to respond

[33] Mr Ali was given an opportunity to respond to the allegations against him at each of the meetings.

[34] I find that management provided him with every opportunity to respond in a real sense, with time for him to consider the matters. He was not rushed or pressured to respond on the spot. Mr Ali was given every opportunity to consider the issues.

Support person

[35] Mr Ali was given the opportunity to have a support person with him at each of the meetings. Mr Ali declined to do.

[36] I find that Mr Ali was not denied the right to have a support person present.

Size of employer’s undertaking/absence of human resource expertise

[37] These are not relevant in this matter.

Any other matters

[38] At various times Mr Ali suggested that his termination was caused by the complaint he had made against Mr Popallis and/or that it stemmed from a performance report he conducted on another staff member. He also suggested that union members were ‘out to get him’ and that management gave more weight to statements from union members than himself. 18

[39] I find that there is no basis for Mr Ali believing that he was terminated either because he performance counselled another employee, made a complaint against Mr Popallis or because he was or was not in the union.

Conclusion

[40] On the basis of the material filed and the submissions and evidence in this matter I find that Mr Ali’s dismissal was not harsh, unjust or unreasonable.

[41] The application is dismissed.

COMMISSIONER

Appearances:

S. Ali, on behalf of himself.

K. Luu and M. Smith, for the Respondent.

Hearing details:

2010.

Melbourne:
10 September.

 1   Transcript PN19.

 2   PN19.

 3   PN186-197.

 4   PN47.

 5   PN48-9.

 6   PN50-51.

 7   PN63; PN236-241.

 8   See notes of meeting of 20 May attached to Toll’s written materials.

 9   Transcript PN64.

 10   PN85.

 11   Written submission of Toll.

 12   PN166.

 13   PN207.

 14   PN87, see also ‘Inappropriate Behaviour Policy’ - ‘Issue resolution’ attached to written submission of Toll.

 15   PN203.

 16   Inappropriate Behaviour Policy’ - ‘Issue resolution’ attached to written submission of Toll.

 17   See written submission of Toll. Mr Ali did not deny this.

 18   Transcript PN76.

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