Travis Boardley v Warrungup Pty Ltd T/A Capel Fresh IGA

[2013] FWC 8577

[2013] FWC 8577

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Travis Boardley
v
Warrungup Pty Ltd T/A Capel Fresh IGA
(U2013/9537)

COMMISSIONER WILLIAMS PERTH, 5 NOVEMBER 2013

Termination of employment.

[1] This matter involves an application made by Mr Travis Boardley (Mr Boardley or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Warrungup Pty Ltd T/A Capel Fresh IGA (the respondent).

[2] The matter was the subject of a conciliation conference before a Fair Work Commission conciliator however the matter was not resolved and has been referred to me for determination.

Background

[3] The applicant was employed by the respondent as a Butcher/Meat Manager in 2007.

[4] The respondent dismissed the applicant on 13 May 2013.

[5] The respondent is a medium sized supermarket which at the time of the applicant’s dismissal employed 5 full-time staff and approximately 40 casual staff.

[6] At the hearing of this matter the applicant was self represented and the respondent was represented by the Owner and Director Mr Robert Smith (Mr Smith).

[7] The applicant gave evidence on his own behalf and called two other employees of the respondent, one of whom had provided witness statements at the request of both the applicant and the respondent.

[8] Mr Smith gave evidence for the respondent as did Mr Palumbo the respondent’s Manager, along with another four employees and the respondent’s Bookkeeper.

The evidence

[9] Whilst a total of ten witnesses gave evidence the manner in which both parties have presented their cases has made it somewhat difficult to clarify all the pertinent matters.

[10] Considering the evidence I make the following findings of fact.

[11] The applicant was first employed in 2007. In January 2010 the previous owner of the business gave the applicant a written warning regarding his unsatisfactory conduct and performance 1. The issues raised related to insufficient quantity of meat being prepared and that when this issue was raised with the applicant he responded “...using inappropriate language toward your colleagues and violent conduct by punching a wall. We also note that this is not an isolated incident and you have been verbally warned previously in relation to similar conduct.”

[12] The current owners purchased the business in November 2010.

[13] In early September 2012 an employee of the respondent made a written complaint 2 regarding the applicant’s behaviour which they referred to as involving regular abusive language. The written complaint gave examples of this. The complaint also referred to the applicant accusing the complainant of damaging his apron. The complainant explained that they no longer found the workplace to be a safe working environment and if this matter was not dealt with they would resign.

[14] On 15 September 2012 Mr Smith gave the applicant a warning letter 3 which formally notified him regarding his misconduct and interference with other employees. The letter says the respondent expects the applicant to manage the meat department and let other employees do their jobs without his interference. If further warnings are necessary, the letter says, and there is still no improvement there may be no alternative but to dismiss the applicant.

[15] The applicant in his oral submissions referred to all of the problems that led to his dismissal having begun in September 2012 which I take to be a reference to the matters raised by the respondent with the applicant and notified to him in this warning of 15 September 2012.

[16] On 11 February 2013 another employee of the respondent made a written complaint 4 regarding the applicant’s behaviour. This complaint was that when leaving work the complainant was confronted by the applicant who, in front of another staff member, abused and threatened the complainant who had consequently felt unsafe at work. The complainant explained that if the applicant’s behaviour continued the complainant would take the matter further and would be forced to look for other employment.

[17] At the request of the applicant and specifically because he had indicated to Mr Palumbo he was looking to gain other employment Mr Palumbo provided the applicant with a positive reference dated 12 March 2013.

[18] The applicant was on annual leave for approximately 2 weeks in April 2013.

[19] Mr Smith’s evidence, which I accept, was that before the applicant proceeded on holidays there was a meeting between the applicant, Mr Smith and Mr Palumbo where it was agreed that if things did not work out the applicant would seek employment somewhere else or otherwise the respondent would have no choice but to terminate the applicant’s employment and the applicant accepted that was the case. The applicant at this time also requested a reference.

[20] During his absence Mr Watson, the second year Apprentice Butcher whom worked alongside the applicant, was effectively left in charge of the meat department. During the applicant’s absence the respondent provided day to day support and assistance for Mr Watson given that he was under some pressure due to the applicant being away. Over this period other staff viewed that Mr Watson was coping well with the situation and appeared to be enjoying, in his own way, the absence of the applicant because the workplace was more peaceful. The management team of the respondent held a morning tea to thank Mr Watson for his additional efforts over this period.

[21] The applicant returned to work on 29 April 2013 and berated Mr Watson for not keeping the meat cabinet up to the applicant’s exacting standards. Mr Watson felt this was unfair because he is not a fully qualified butcher. Mr Watson was upset as he had been trying his best to keep that the meat department going in the applicant’s absence under difficult circumstances.

[22] Mr Watson then went on ‘stress related leave’.

[23] Mr Watson’s evidence which I accept was that this was one of a series of incidents over the past few years in which the applicant had been aggressive and verbally abused Mr Watson.

[24] Mr Watson accepted the applicant’s behaviour as intended by the applicant to be for his, Mr Watson’s, benefit in learning his trade.

[25] At the applicant’s request on 1 May 2013 there was a meeting between himself, Mr Smith and Mr Palumbo. The applicant’s intention was to discuss his working hours and his wish to reduce these so that he could have every second Saturday off and the possibility of a pay rise. During the meeting however Mr Smith and Mr Palumbo took issue with the applicant’s behaviour and called him a trouble maker.

[26] On 3 May 2013 the applicant left a note for the respondent’s management which included some calculations. The note proposed that if the respondent paid the applicant an amount for pro rata long service leave (which had yet to accrue) along with payments for accrued sick leave and holiday pay then in the applicant’s words:

“I’ll give you two weeks notice.”

[27] Another note with similar calculations said that if he was paid these amounts:

“I’m gone.”

[28] On at least two occasions the applicant told the respondent’s Manager Mr Palumbo that he was looking for other employment but was finding it difficult due to the fact that other employers were not paying as much as he was currently being paid by the respondent.

[29] The applicant provided the respondent with a series of medical certificates dated 24 April 2013, 30 April 2013, 3 May 2013 and finally 7 May 2013. These medical certificates combined said the applicant was unfit to work from 24 April 2013 through to 11 May 2013. The medical certificates did not state any reason for the applicant being unfit to work.

[30] The applicant rang the business on Friday, 3 May 2013 and spoke to Jane. The applicant advised that he was sick and would not be in to work until the following Wednesday, 8 May 2013.

[31] On Sunday, 5 May 2013 Mr Smith and Mr Palumbo attended a football match where they watched the applicant umpiring the game.

[32] On Monday, 13 May 2013 at approximately 4.50 a.m. the applicant accompanied by Mr Watson approached the workplace where they saw Mr Palumbo standing at the door. Mr Palumbo asked the applicant for his keys and then informed him that his services were no longer required and as a result he was not allowed into the store. The evidence of the applicant and Mr Watson which I accept is that the applicant then asked Mr Palumbo the reason for his termination and the reply was that Mr Smith would be arriving later with the paperwork and no reasons were given to the applicant at that point.

[33] When Mr Smith arrived the applicant and he went into his office. Mr Smith provided him with a payslip. The applicant gave Mr Smith a letter he had written previously outlining concerns he had about a range of issues in the business. The applicant did not receive a letter of termination nor a separation certificate.

[34] During his period of employment with the respondent he had been nominated five times for the Blackwood award which is for the best meat department in the South West of Western Australia.

[35] On 9 June 2013 the respondent received a statement from another staff member that summarised their belief that the applicant would commonly be abrupt and intimidating to other staff and sometimes customers. Whilst it was observed that the applicant did take pride in his work and that his meat department was always well presented they found his attitude to be negative and hostile at times. The statement noted that Mr Watson got the worst of the applicant’s behaviour and staff at the front of the store could often hear the applicant yelling at Mr Watson who was at the back of the store 5.

[36] One employee in their evidence explained that they felt they were verbally and personally attacked by the respondent employer which led to their resignation. They viewed the approach of Mr Smith as a form of workplace bullying 6.

[37] Another employee who has since left the business explained during their period at the business they never experienced any wrongdoing or bullying or any other mistreatment by the management however they found the applicant would regularly complain and bad mouth other staff 7.

[38] The applicant had on a number of occasions refused to sign the respondent’s policy documents such as their code of conduct agreement, stating he would not do so because they could in future be used against him.

[39] The applicant had told Mr Smith that he was smoking too much marijuana which was causing him to have mood swings and to be angry. At the time Mr Smith told the applicant to stop using the substance because it was having bad effects on his work and his fellow employees through his outbursts of anger and bad language.

[40] When Mr Smith received the letters from individual staff members complaining about how the applicant behaved towards them Mr Smith discussed these matters with the complaining staff however he did not directly advise the applicant of the content of these letters because the staff members were fearful of the applicant’s reaction.

[41] The applicant had on occasions verbally abused sales representatives and couriers coming into the store.

[42] The applicant had repeatedly ignored the direction of the respondent to take his ‘smoko’ and lunch breaks.

[43] Mr Smith had a number of formal and informal meetings with the applicant about his behaviour and conduct.

Consideration

[44] The Act details the criteria the Commission must consider when deciding whether a dismissal was harsh, unjust or unreasonable. These are set out below.

“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.”

[45] The evidence in this instance demonstrates that for an extended period of time the manner in which the applicant interacted with other employees was such that a number of employees felt sufficiently intimidated that they were considering leaving the respondent’s employment.

[46] Separately the applicant’s day-to-day treatment of the Apprentice Butcher was aggressive and verbally abusive to the point where this was upsetting this employee and could be heard throughout the premises. Indeed because of the applicant’s behaviour towards this employee when the applicant returned from annual leave this employee took time off work feeling stressed. The fact that the applicant maintained high standards which he expected the Apprentice to achieve is no excuse for the applicant’s conduct.

[47] The applicant’s aggressive approach to others was not limited to his fellow employees but also extended to visiting sales representatives and couriers whom the applicant had sometimes abused or been aggressive toward.

[48] There is also evidence that the applicant at times treated customers in a manner which was inconsistent with what would be expected of an employee in a retail environment.

[49] The applicant had refused to obey the respondent’s reasonable directions to take his ‘smoko’ and lunch breaks.

[50] The applicant’s aggressive, abusive and intimidating behaviour towards other employees was the subject of a written warning in September 2012 however the evidence is this behaviour continued throughout 2013.

[51] I am satisfied then that there was a valid reason for the applicant’s dismissal to do with his conduct, that being the inappropriate manner in which he interacted with other employees which had been ongoing for an extended period of time and which had adversely affected a number of other employees.

[52] Separately the applicant’s poor behaviour at times towards customers, visiting sales representatives and couriers and his refusal to take ‘smoko’ and lunch breaks as directed, whilst individually being perhaps less serious matters taken together do in my view amount to a valid reason for the applicant’s dismissal.

[53] The respondent viewed the fact that the applicant had umpired a football game on a Sunday, after advising on the Friday he was ill and could not work and had not worked the days immediately after that Sunday, as proof the applicant had misled the respondent about his state of health. The respondent was rightly entitled to have grave doubts about the applicant’s honesty in this regard however the respondent did not properly investigate this matter and the applicant was not given an opportunity to explain his actions. Consequently I am not satisfied that the applicant’s actions in this regard was also a valid reason for his dismissal.

[54] The respondent did not notify the applicant of the reason for his dismissal.

[55] The respondent did not provide the applicant with an opportunity to respond to the reason for his dismissal.

[56] The reason for dismissal did not relate to unsatisfactory performance.

[57] The applicant had been employed for approximately five years and the respondent had been generally appreciative of the quality of the applicant’s work over that time.

[58] The respondent is a small to medium sized business which has no human resource management specialist or expertise and there is no doubt that this explains why the procedure in effecting the dismissal was deficient in terms of the lack of notification of the reason and the lack of an opportunity for the applicant to respond to the reason for the proposed dismissal.

[59] Whilst as I have said above there was a valid reason for dismissing the applicant I accept that the procedural deficiencies in this case mean that the dismissal was unjust.

[60] The respondent should have explained to the applicant the reasons it was considering dismissing him and allowed him to respond to these, and considered his response before making the final decision to dismiss him.

[61] Consequently my determination is that the applicant was unfairly dismissed.

Remedy

[62] The relevant provisions of the legislation are set out below.

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[63] In this case a number of employees who have worked with the applicant have given evidence as to the applicant’s aggressive and intimidating behaviour towards themselves and other employees. I have accepted that evidence and as I have determined above that behaviour of the applicant was a valid reason, amongst others, for his dismissal. Given this factual background I am satisfied that this is not a case where it would be appropriate to reinstate the applicant to his former position.

[64] This is a case where I accept it is appropriate that in order for payment of compensation be determined.

[65] The applicant has been employed for approximately five years.

[66] If the applicant had not been dismissed as he was but instead the respondent, perhaps having taken proper advice, dealt with its concerns in a procedurally sound manner then I believe the dismissal would still have occurred. The applicant would have remained employed for a short time longer for the dismissal to be properly effected. This period would have been no more than a further two weeks. As Mr Smith and Mr Palumbo explained the situation had become intolerable and if it was not resolved the business would suffer 8.

[67] Therefore the remuneration the applicant would have received if he had not been dismissed is the amount of two weeks wages.

[68] The efforts of the applicant to mitigate his loss have been somewhat limited. The applicant says for the first couple of months after his dismissal he did little to get another job because he found it hard to get motivated. As of 2 October 2013 the applicant has commenced work as a landscaper.

[69] In this case there is no doubt that the applicant’s inappropriate behaviour over a period of time did contribute to the respondent’s decision to dismiss him. The only reason the dismissal has been judged to be unfair was because the procedure the respondent followed was deficient.

[70] Consequently in this case it is appropriate for the amount of two weeks wages which I would otherwise have ordered be paid to the applicant as compensation be reduced by one weeks wages because of the applicant’s misconduct.

[71] I have no reason to believe that an order of compensation of one weeks wages will have a negative effect on the viability of the employer’s enterprise.

[72] I will now issue an order that the respondent pay to the applicant the equivalent of one weeks wages as compensation for unfair dismissal from which tax according to law will be deducted.

COMMISSIONER

Appearances:

T Boardly on his own behalf.

R Smith on behalf of the respondent.

Hearing details:

2013.

Bunbury:

October 21.

 1   Exhibit R2, Attachment 2

 2   Exhibit R5

 3   Exhibit R2, Attachment 3

 4   Exhibit R6

 5   Exhibit R7

 6   Exhibit A3

 7   Exhibit R8

 8   Transcript at PN312 to PN317

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