Trevor Mills v Architectural Ceiling Systems Pty Ltd T/A Ceiling Manufacturers of Australia

[2014] FWC 2450

[2014] FWC 2450

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Trevor Mills
v
Architectural Ceiling Systems Pty Ltd T/A Ceiling Manufacturers of Australia
(U2013/12663)

COMMISSIONER WILLIAMS PERTH, 17 APRIL 2014

Termination of employment.

[1] This matter involves an application made by Mr Trevor Mills (Mr Mills or the applicant) under section 394 of the Fair Work Act 2009 (the Act). The respondent to this application is Architectural Ceiling Systems Pty Ltd T/A Ceiling Manufacturers of Australia (ACS or the respondent).

[2] ACS specialise in the design, manufacture and distribution of a range of specialised metal and acoustic tiles and sealing systems.

[3] Mr Mills was first employed by ACS in October 2008. He was employed as a Storeman. The business usually employs somewhere between 20 and 30 employees.

[4] On 6 August 2013 ACS sent Mr Mills a letter of termination advising he had been terminated effective from that date. The letter explained the reasons for termination were due to ongoing behavioural matters most recently involving him screaming at other employees on 4 July 2013 and making threats to staff on 5 July 2013.

[5] The letter also said that he had been offered the opportunity to attend a meeting to discuss these issues in detail but he had refused to attend as directed. The letter also referred to verbal warnings and a series of written warnings of various dates in 2011, 2012 and 2013.

[6] ACS paid Mr Mills four weeks wages in lieu of notice.

[7] At the hearing of this matter Mr Mills gave evidence and the following witnesses were called by the respondent and gave evidence, Mr Head the Owner of ACS, Mr Jones the General Manager, Mr Boyd the Logistics Manager, Mr Lewis the Assistant Warehouse Manager and Mr Sallie the Sales Manager.

Factual matters

[8] Mr Mills is 50 years of age and commenced working for ACS as a Storeman in October 2008. Mr Mills in this role directly serves customers at the warehouse counter, loads goods into customers’ vehicles, unloads sea containers and operates a forklift truck as required. There are three forklifts which storemen including Mr Mills use.

[9] Mr Patrick Boyd the Logistics Manager was Mr Mills’ direct supervisor.

[10] On 18 January 2012 Mr Mills sent an 11 page hand written letter 1 to Mr Head. The opening paragraph of the letter explained that Mr Mills wished to inform Mr Head of the incidents that had happened that day and of previous incidents he believed involved “...serious misconduct of senior management.” The letter detailed a number of incidents in the workplace some involving Mr Mills and some involving other employees. The letter focused largely on Mr Boyd’s interaction with various employees. Mr Mills described Mr Boyd as acting to “...bully, intimidate, harass and abuse employees.”

[11] The letter included the following explanation of events that occurred on that date 18 January 2012:

“On 18/1/ 2012, I was assaulted by Pat in John’s office. I'd pulled a job with Phil, and I was returning the paperwork to John's office, when I entered he said something to John like, “What would you know, you’re black?” and roared out laughing. I could see by John's face, even though he grinned, I don't think he appreciated it. As a joke, I said, “ I heard that John ! ” Pat turned to face me, I was standing in the doorway, pretending Pat was bashing my head against it. Pat put his hand on the back of my head and pushed twice, the second push hitting my head on the door frame, on my temple and left eyebrow this was on the pointy edge, and it didn't tickle. Even though it was in fun, he has still assaulted me, even if he never pushed my head, the moment he's laid his hand on me, he's assaulted me.”

Note: In this passage Pat refers to Mr Boyd and John to Mr Lewis.

[12] In his evidence in this matter Mr Mills repeated what he said in this letter; that Mr Boyd on this occasion had pushed his head onto the door frame.

[13] I note the way Mr Mills explained what occurred in his letter written to Mr Head the day it happened was that it was Mr Mills who, as part of his own joke, was pretending to have his head bashed against the doorway and on his own version what Mr Boyd then did by pushing his head “...was in fun ...” . This context is indicative of skylarking that at worst went too far.

[14] In these proceedings however Mr Mills now characterises this event as a serious assault on him by Mr Boyd. His witness statement does not mention he first was pretending to hit his own head against the door frame or that Mr Boyd’s act “was in fun”. Mr Mills’ evidence in these ways is inconsistent with the way he explained what occurred at the time this event happened, over two years ago and my conclusion is his evidence about these events in these proceedings is an exaggeration of the seriousness of what occurred.

[15] Mr Boyd in his evidence denied this incident in January 2012 occurred and Mr Lewis in his evidence also denied this incident had occurred.

[16] In his evidence in chief Mr Mills says that he did nothing about this first “assault” by Mr Boyd because he wanted to keep his job and so he just swallowed this alleged bullying by Mr Boyd. This statement however is obviously not correct. Mr Mills did not do nothing, quite to the contrary on his own evidence the same day 18 January 2012, he wrote a lengthy letter to Mr Head detailing what Mr Mills said was Mr Boyd’s serious misconduct. I do not accept that this was the action of someone doing nothing because they wanted to keep their job. Mr Mills’ evidence in these proceedings about these 2012 events was a self-serving reconstruction of past events.

[17] As I have noted above there are clear examples where the evidence of Mr Mills in these proceedings is inconsistent with information he has previously supplied about past events. This casts a shadow over the credibility of Mr Mills’ evidence in this matter.

[18] Also in 2012 Mr Mills says he had noticed that the reversing beeper on a forklift was not working. He brought this to the attention of ACS’s management and although a forklift mechanic attended several times the problem continued notwithstanding he reminded management from time to time. I note the respondent’s witnesses however say that the forklifts were serviced regularly and defects were fixed as required.

[19] On 1 July 2013 Mr Mills sent a letter 2 to the Western Australian Industrial Relations Commission, the Department of Commerce - Occupational Health and Safety Division and to the Fair Work Ombudsman. The eight-page letter detailed a number of complaints about ACS and incidents that allegedly had occurred at ACS. Much of the content dealt with similar complaints and incidents to those contained in the letter sent to Mr Head one and a half years earlier on 18 January 2012.

[20] Approximately one page of the letter is focused on alleged forklift defects and lack of maintenance.

[21] On 1 July 2013 Mr Mills also sent a four-page letter to Mr Jones. The letter details complaints about defects with the forklifts and accuses Mr Boyd of negligence in maintaining the forklifts. The letter also complains that the forklifts are being operated by people who have not been properly trained and about other employees not wearing appropriate personal protective equipment.

[22] The letter complains about Mr Boyd’s treatment of Mr Mills and of other employees.

[23] Mr Mills also complains about how he is required to do his banking within his lunch break and is docked pay if he is away for longer than his lunch break but Mr Boyd leaves the premises for personal reasons.

[24] Mr Mills’ queries what Award is applicable to him, whether he should have received any pay rises and what other employees are being paid.

[25] The evidence is that Mr Jones drafted a response to Mr Mills letter which was authorised by Mr Head. That letter was dated 3 July 2013 and I accept the evidence of Mr Jones and Mr Head that it was drafted that day. However I also accept the evidence of Mr Mills that this letter notwithstanding its date of 3 July 2013 was not handed to him until the morning of Friday, 5 July 2013.

[26] The letter responds to some of the issues Mr Mills had written to Mr Jones about however as Mr Mills says in his evidence the letter is strongly critical of him. This is significant because the letter was drafted on 3 July 2013 which was before the events of 4 and 5 July 2013 which as will be seen below are central to this application.

[27] The letter to Mr Mills from Mr Jones, which is also signed by Mr Head, complains that Mr Mills makes rash claims continually about safety but he will not himself follow safety rules that are in place. The letter complains about Mr Mills’ non-compliance with policies such as keeping mobile phones in lockers and wearing bright company jumpers. The letter refers to customers complaining about Mr Mills.

[28] The letter accuses Mr Mills of constantly having a bad attitude and a manner which is unbearable and speaking angrily and inappropriately to Mr Jones.

[29] In Mr Jones’ closing words are as follows:

“...the great thing about ACS is that most people like working here and that makes it an enjoyable place to work and why a lot of people stay with the company's several years. As I've said before if you don't like the conditions or how we pay you are always free to leave. This is your choice.

You seem to constantly look at other issues without ever trying to fix your own.

It's up to you where you go from here but if you don't solve your personal issues you will never be happy working anywhere. As we have told you, concentrate on your job rather than worry and annoy everyone else. I'm sick of hearing from you “sorry Rod it won't happen again”.”

[30] It is quite evident from this letter that immediately prior to 4 and 5 July 2013 Mr Jones and Mr Head were very dissatisfied with Mr Mills’ attitude and behaviour in general.

The events on 4 and 5 July 2013

[31] Mr Mills’ evidence is that on the morning of 4 July 2013 he wrote out by hand a letter addressed to Mr Boyd complaining about a malfunctioning forklift.

[32] This letter 3 in summary says that despite:

• showing Mr Jones the forklift which has no reverse beeper and giving him a letter about it on 1 July 2013



• and advising Mr Boyd and Mr Lewis after the forklift mechanic had looked at the forklift on 3 July 2013 that the reversing beeper was still malfunctioning



• and advising Mr Boyd that this left Mr Boyd open to prosecution for violating occupational health and safety laws



• and after advising Mr Boyd and Mr Jones to ring WorkSafe

that Mr Boyd had still refused to tag the forklift out of service and continued to use it.

[33] Mr Mills took his letter to Mr Lewis’s office and askedto see Mr Boyd.

[34] Mr Boyd came to Mr Lewis’s office.

[35] In the office at this time were Mr Mills, Mr Boyd, Mr Zimdahl, Mr Lewis and Mr Sallie.

[36] The evidence is Mr Lewis’s office is approximately three metres by three metres.

[37] Mr Mills then read out his letter that was addressed to Mr Boyd so everybody could hear.

[38] Mr Mills’ evidence is that after he had finished reading the letter Mr Boyd said “Who the fuck do you think you are? Give me that letter! I’ll rip it up!” and that Mr Mills refused to hand over the letter.

[39] Mr Mills’ evidence is that at that point Mr Boyd raised himself to his full stature, puffed his chest out in an aggressive manner and walked towards him. Mr Mills says he backed off to the rear wall. When Mr Boyd was about two meters away from him he moved faster towards Mr Mills and crashed his chest into Mr Mills’ sternum causing Mr Mills acute chest pain because he suffers from a hernia which is known to Mr Boyd. Mr Mills says the back of his head was forced back onto the rear wall causing him considerable pain.

[40] Mr Mills’ evidence is that Mr Boyd then raised his right arm and clenched his right fist to within a foot of his face as if to punch Mr Mills.

[41] Mr Mills says that he then said to Mr Boyd “go ahead - hit me. Get another assault charge on you. You have just blown your job.” Then Mr Zimdahl and Mr Lewis wrapped their arms around Mr Boyd and pushed him backwards away from Mr Mills. At this stage Mr Boyd was yelling at him “You’re not wanted here.”

[42] Mr Mills says that Mr Boyd broke free from Mr Zimdahl and Mr Lewis and rushed towards Mr Mills with his right fist raised as if to punch him in the face but when he was about one foot from Mr Mills Mr Zimdahl and Mr Lewis grabbed Mr Boyd again.

[43] Mr Mills’ evidence is that then Mr Lewis and Mr Sallie led Mr Boyd into Mr Boyd’s office which adjoins Mr Lewis’s office.

[44] With respect to this confrontation between Mr Mills and Mr Boyd the evidence of the respondent’s witnesses being Mr Boyd, Mr Lewis and Mr Sallie is somewhat different to that of Mr Mills.

[45] These three witnesses agree with Mr Mills, albeit with some minor differences in their evidence, that whilst in Mr Lewis’s office Mr Mills read his letter out loud. Mr Lewis says Mr Mills then repeatedly demanded Mr Boyd sign his letter and Mr Boyd repeatedly said “no” he would not sign it and that Mr Mills and Mr Boyd got into a heated argument and were yelling at each other.

[46] Mr Boyd concedes he got angry because the forklift defect Mr Mills was again pursuing had already been looked at by the mechanic and he was going to return to fit a necessary part.

[47] Contrary to the evidence of Mr Mills these three witnesses say that the two men came face-to-face, toe to toe but physical contact was limited to them touching chests in this position and Mr Lewis then pushed in between to separate them.

[48] Mr Boyd’s evidence was the clearest on how they came to be touching chests and that was that both he and Mr Mills stepped towards each other at the same time.

[49] The evidence of Mr Boyd, Mr Sallie and Mr Lewis was that Mr Boyd had not moved quickly or rushed towards Mr Mills and at no time did Mr Boyd crash into Mr Mills or cause Mr Mills to be forced against the wall.

[50] Mr Boyd in his evidence was open to the point where he accepted at the height of the argument in anger it was possible that he may have raised his arm but denied that he did so with a closed fist poised to strike Mr Mills.

[51] Having had the opportunity to view the witnesses give their evidence Mr Boyd in my opinion did so in an open manner. Whilst not having a complete memory of the fine details of these events which occurred eight months ago he readily acknowledged fault in that that he had become angry. Mr Sallie and Mr Lewis were also open and genuine in their evidence and I have no reason to doubt their credibility.

[52] Having reviewed the evidence and noting the conflict between the evidence of Mr Mills and the respondent’s witnesses on some important details as to what happened in Mr Lewis’s office I am satisfied that on balance it is more likely that the events occurred as explained by Mr Sallie, Mr Lewis and Mr Boyd than as was described by Mr Mills in his evidence.

[53] Mr Mills later that afternoon attended the local police station and made a statement generally in the same terms as his evidence above about these events in Mr Lewis’s office.

[54] The following day on Friday, 5 July 2013 Mr Mills’ evidence is that Mr Boyd that morning kept goading him by pointing at him and laughing at him from his office. Mr Mills says he then approached Mr Boyd in his office and asked for a meeting but Mr Boyd refused to meet with him.

[55] Twenty minutes later Mr Mills says as Mr Boyd was descending the stairs Mr Mills again approached Mr Boyd and asked for a meeting and Mr Mills says Mr Boyd, under his breath, then swore at him to get out of his way.

[56] Mr Mills’ evidence was that after smoko he again asked Mr Boyd about resolving the issues between them and that Mr Boyd bumped past him forcefully and again swore at him in a low voice but in a threatening manner.

[57] Mr Mills says that he then said in a loud voice to Mr Boyd words to the effect that if Mr Boyd ever laid hands on him he would knock Mr Boyd’s “head into an outer space”.

[58] Mr Lewis and Mr Boyd reject Mr Mills’ version of events, that on the morning of 5 July 2013 Mr Mills and Mr Boyd had moved close together such that Mr Boyd could have sworn at Mr Mills under his breath. Rather their evidence was that Mr Mills had been shouting out to Mr Boyd from a distance. Mr Lewis specifically says it was when Mr Mills walked past Mr Boyd’s office, that Mr Mills shouted that he would knock Mr Boyd into “outer space” or something similar 4.

[59] Regarding these events I prefer the evidence of Mr Boyd and Mr Lewis over that of Mr Mills.

[60] Mr Mills then sought a meeting with Mr Lewis, Mr Jones and Mr Boyd but neither Mr Lewis nor Mr Jones would agree to that. Mr Mills then approached Mr Head in his office. In discussion with Mr Head and Mr Jones Mr Mills raised all of the concerns he had set out on his letter of 1 July 2013.

[61] Mr Head and Mr Jones then gave him their response to that letter which was their letter dated 3 July 2013.

[62] Mr Head then advised Mr Mills that he was to be stood down on pay until he was contacted by the company.

[63] Mr Mills’ evidence was that having been stood down between 8 July 2013 and 7 August 2013 he had three or four meetings with Mr Head in an attempt to resolve issues and at one of those meetings, on 18 July 2013, Mr Head asked Mr Mills to sign a Deed of Release (the Deed) proposing a mutual agreement to end Mr Mills employment and the payment to him of an agreed amount.

[64] Mr Mills did not agree to sign the Deed.

[65] The evidence is Mr Head sent a text message to Mr Mills on 30 July 2013 explaining they needed to meet to finalise issues the following day.

[66] That meeting did not occur and on 4 August 2013 Mr Head, according to Mr Mills, sent the following text message to him:

“Trevor we will be sending you a letter inviting you to attend a meeting here on Wednesday 10 AM to finalise our situation. If you cannot attend we can arrange another time. Please keep in touch with me regards Neil.”

[67] The text was apparently referring to a proposed meeting on Wednesday, 7 August 2013. A letter to the same effect dated 5 August 2013 was sent to Mr Mills by Mr Head however it is unclear on what date Mr Mills received this.

[68] Mr Mills’ evidence was that he did not attend the meeting on Wednesday, 7 August 2013. His evidence was that he sent a text message to the respondent, although he did not say whom, saying he could not attend because his mother was unwell and that he would have a meeting with them at a later date and that the police had said that because their investigation was not finished it would be unwise to attend because it could jeopardise the investigation and that at a future meeting he would have an independent witness and someone from either the Fair Work Commission or the Western Australian Industrial Relations Commission as an impartial third party.

[69] Mr Mills’ evidence was that his text message regarding the meeting, which the employer on 4 August 2013 had advised by text message would be held on 7 August 2013, was not sent to the respondent until after the meeting was held, probably on 8 or 10 August 2013 5.

[70] Some time later Mr Mills says he noticed a large deposit of money into his bank account and consequently sent a text message to Mr Head on 9 August 2013 6 asking whether this meant he had been terminated and Mr Head replied that yes that was the case.

[71] The evidence is the respondent made the decision to dismiss Mr Mills on 6 August 2013 due to his ongoing behavioural problems specifically screaming at other employees on 4 July 2013 and making threats to staff on 5 July 2013 on the background of the numerous prior written and verbal warnings.

[72] Mr Mills challenges the basis for a number of those prior written warnings he has received. Those four written warnings specify the complaints the respondent had with Mr Mills as including verbal outbursts in February 2011 7, customer complaints, carrying on at customers, sitting around when there is work to be done and taking extended lunch breaks in November 20118, swearing and abusing fellow workers, screaming in front of customers in February 20139 and finallynot notifying when taking time off work in March 201310.

[73] The letter drafted by Mr Jones and Mr Head dated 3 July 2013 which was handed to Mr Mills on 5 July 2013 details the respondent’s complaints about the applicant as being that he makes rash claims about safety while not following simple safety rules himself, has requested a pay rise when he is having to be constantly spoken to about his attitude and performance, has not followed policies regarding mobile phones and wearing fluro jumpers, that he has a constantly bad attitude and manner and has spoken angrily and inappropriately to Mr Jones and that he has raised matters about other employees which was not his business.

[74] The evidence is that this letter was drafted by Mr Jones and Mr Head the day before the incidents on 4 and 5 July 2013.

The legislation

[75] The relevant sections of the Act 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.”

“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.”

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) 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 reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

“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.”

Submissions

[76] On behalf of the applicant it is submitted that the matters raised in the various previous written warnings given to the applicant and any verbal counselling do not amount to valid reasons for the applicant’s dismissal.

[77] With respect to the events on the 4 and 5 July 2013 it is submitted that it is clear that there was a poor working relationship between the applicant and Mr Boyd. The applicant was goaded by Mr Boyd’s inaction over an extended period of time with respect to safety concerns the applicant had about a forklift truck.

[78] It is submitted on behalf of the applicant that the events on 4 July 2013 that occurred in Mr Lewis’s office should be understood as an assault by Mr Boyd upon the applicant and that in effect it was the applicant’s reporting of this assault to the police that led the respondent to stand the applicant down and later to terminate his employment.

[79] To the extent that the Commission might accept that the applicant’s dismissal was because of his behaviour or conduct on the 4 and 5 July 2013 it is submitted that the applicant was not given an opportunity to respond to the reasons for dismissal. The text message of Mr Head on 4 August 2013 did not constitute an opportunity for Mr Mills to respond to the reasons for the dismissal.

[80] It is submitted that the respondent is not a small employer with Mr Head’s evidence being that the business has 25 employees and there is no suggestion that the business is not prospering.

[81] Significantly the applicant had been employed for a reasonable period of just short of five years.

[82] In the circumstances the applicant submits the Commission should conclude that what occurred was the unfair dismissal of Mr Mills and appropriate compensation should be ordered.

[83] The respondent denies what occurred was an unfair dismissal.

[84] The reasons for the dismissal of Mr Mills were his screaming and shouting at staff that had occurred over a period of time and on occasions at customers and in addition having made verbal threats to staff. These reasons in the circumstances were valid reasons for his dismissal.

[85] The applicant was notified of these reasons in the respondent’s letters and at the meeting on 18 July 2013.

[86] The applicant was given the option is respond to these matters as they had occurred over the course of his employment. He was invited to attend a meeting on Wednesday, 7 August 2013 to discuss the events that had occurred on 4 and 5 July 2013.

[87] The applicant was never refused to have a support person to participate in any discussions.

[88] The applicant had been warned about his performance and behaviour on a number of prior occasions.

[89] The respondent submits the procedures followed by it complied with the requirements of procedural fairness notwithstanding the employer has no human resource expertise within the business.

[90] In terms of other matters is relevant to note that for the last two and a half years of the applicant’s employment he has been under a consistent performance management process of warnings and counselling.

[91] Accordingly the respondent submits the Commission should reject this unfair dismissal application.

Consideration

Valid reason for the dismissal

[92] It is obvious given the factual findings above that it was the events of 4 and 5 July 2013 that led to Mr Mills’ dismissal.

[93] On 4 July 2013 I accept Mr Mills had a genuine safety concern about the forklift and felt frustrated at what he interpreted as inaction by Mr Boyd to fix this. What is important is that Mr Mills did have every right to raise with the respondent the concern he had about the hazard as he saw it of the reversing beeper on the forklift not working. Mr Mills characterised the situation as a serious breach by the respondent, and by Mr Boyd in particular, of occupational health and safety legislation.

[94] What is to be determined is whether the manner in which he raised and continued to pursue this concern was acceptable or not in all the circumstances.

[95] The evidence of Mr Boyd and others is that some days later when a WorkSafe Inspector attended the premises in response to complaints by letter from Mr Mills the Inspector did not view a forklift’s reverse beeper not working as a particularly serious issue and mentioned it could be operated with a driver shouting out when reversing which would have the same warning benefit as the beeper. Separately I note that Mr Mills says on 5 July 2013 that he worked to unpack a sea container and chose to use a forklift other than the one with the faulty reversing beeper. Objectively then the fault with the forklift that Mr Mills raised on 1 and again on 4 July 2013 was not such that a delay in fixing it created an imminent threat to the safety of Mr Mills or other employees.

[96] It was also the case that Mr Mills had on 1 July 2013 raised his concern about the forklift with Mr Boyd who had positively responded by arranging for the mechanic to inspect the forklift, which he did, and the facts of the matter were that the forklift mechanic would be returning with the required part to resolve the defect in the near future. It is also relevant as context for what happened on 4 July 2013 that Mr Mills had on 1 July 2013 escalated his general concerns in writing, including the specific concern about the forklift, to Mr Boyd’s manager Mr Jones.

[97] It is on this background that Mr Mills’ actions on the morning of 4 July 2013 should be considered. Mr Mills that morning drafted his letter worded in the particular way he chose and then required a meeting with Mr Boyd. Mr Mills then read this letter which was highly critical of Mr Boyd, out loud to Mr Boyd in front of all those in the office at this time. Mr Mills’ actions in this way were a deliberate attack on Mr Boyd apparently designed to denigrate and embarrass him in front of other employees.

[98] In circumstances where Mr Mills concern about the forklift was being reasonably addressed by Mr Boyd and where he had only three days earlier written to Mr Boyd’s manager Mr Jones about this particular issue, amongst others, to then persist in pursuing this matter directly with Mr Boyd in this particular way was both unwarranted and unacceptably confrontational.

[99] I conclude Mr Mills’ decision to pursue his concern about the forklift with Mr Boyd in the way he did on 4 July 2013 was taken because of his simmering animosity towards Mr Boyd. His conduct in Mr Lewis’s office was highly inappropriate and was not justified in the circumstances.

[100] Whilst Mr Boyd’s behaviour in responding angrily to Mr Mills publicly provocative criticisms and demands in Mr Lewis’s office may have been understandable as a supervisor as difficult as it may have been he should not have participated in what all parties agree became a heated argument. However this heated argument was provoked by Mr Mills’ actions.

[101] On Friday, 5 July 2013, the day after Mr Mills had had the heated argument with Mr Boyd he says he approached Mr Boyd requesting a meeting to resolve the issues. Apparently he requested this not once but three times each time ignoring Mr Boyd’s prior rejection of his suggestion they have a meeting. Having been told three times by Mr Boyd that he would not meet with him Mr Mills continued to pursue his wish to have a meeting by next asking Mr Lewis and Mr Jones to sit down with him and with Mr Boyd, something they did not agree to do. Having now been told four times that his supervisor and the respondent’s managers were not willing to meet with him that day he then approached Mr Head in his office and raised all of the concerns he had written in his letter of 1 July 2013 in that discussion 11.

[102] A large part of Mr Mills’ working morning on 5 July 2013 was therefore occupied with him persistently requesting that he meet with Mr Boyd and other managers and refusing to accept at that stage that they did not wish to meet with him. It seems Mr Mills’ approach to resolving matters in dispute between him and others is to persist relentlessly with whatever course of action he believes to be appropriate.

[103] The evidence importantly is that on this day 5 July 2013 Mr Mills at some point in the morning shouted the threat to knock Mr Boyd’s head into “outer space”. However there is no evidence to support Mr Mills’ explanation that he made this threat in response to verbal threats by Mr Boyd spoken quietly so no one else could overhear.

[104] However positively Mr Mills may describe his motivations his conduct in many ways over the two days of 4 and 5 July 2013 was unacceptable and his actions caused much upset in the workplace.

[105] Mr Mills argues that his behaviour on these days was a consequence of what he alleges to have been a long period of bullying at the hands of Mr Boyd. My factual findings above however are that Mr Mills has at times negatively exaggerated the past actions of Mr Boyd.

[106] I accept there is evidence that supports Mr Mills’ view that Mr Boyd has at times acted towards him and others in an inappropriate manner. However considering all the evidence my conclusion is not that Mr Boyd’s behaviour was that of regularly bullying Mr Mills, as Mr Mills has argued, but rather that the warehouse is a workplace where swearing and a certain amount of verbal aggression regularly occurs involving staff and even some customers at times. As I found above I do not accept that Mr Boyd had at any time assaulted Mr Mills in the way he described.

[107] Mr Boyd in his position of authority should have been more measured in how he spoke to employees including Mr Mills at times, however it is also clear that Mr Mills would also at times act inappropriately towards Mr Boyd and towards others in the workplace. Mr Mills had been formally warned about his outbursts and swearing in front of customers and at other employees. I do not accept that Mr Mills was a victim of Mr Boyd’s abusive behaviour as he has characterised his experience, certainly their relationship was poor but this was a result of bad behaviour by both men at times towards each other.

[108] Quite clearly in my view the behaviour of Mr Mills on 4 July 2013 and separately on 5 July 2013 was highly inappropriate and amounted to misconduct and that was a valid reason for his dismissal.

Notification of that reason

[109] I have no doubt that Mr Mills understood and was aware that his conduct on 4 and 5 July 2013 was the reason he was dismissed. He was advised that it was the respondent’s concern about these incidents that led them to stand him down with pay on 5 July 2013.

[110] Whilst there is some doubt as to when he received the letter dated 5 August 2013 from Mr Head which expressly explained they wanted to discuss his actions on these days and the possibility of his termination I am satisfied that this was quite clear to Mr Mills as a consequence of the prior meeting with Mr Head where they discussed the deed of settlement.

Opportunity to respond

[111] With respect to providing Mr Mills’ with an opportunity to respond to the reason for his dismissal, clearly this was the respondent’s intention as can be seen from their letter dated 5 August 2013 inviting Mr Mills to attend a meeting at their office on 7 August 2013. As noted there is some doubt as to when Mr Mills received this letter. What however is agreed by Mr Mills is that he received a text message from Mr Head advising that they were arranging a meeting on 7 August 2013 to discuss his situation.

[112] Mr Mills however did not attend that meeting and I accept his evidence, although Mr Head did not confirm this, that he sent a text message explaining why he had not attended the meeting on 7 August 2013 albeit after the date had passed.

[113] In any event the facts are that the employer acted to dismiss Mr Mills on 6 August 2013 not wishing to wait any longer because he had not replied to their letter on 5 August 2013 and so it apparently believed he was not going to attend the meeting on 7 August 2013.

[114] Whilst there was some confusion surrounding these events I think it is fair to say that what occurred was that Mr Mills did not have an opportunity to respond to the particular reasons for his dismissal before the respondent made the final decision to dismiss him.

Refusal to allow a support person to be present at discussions

[115] There was no unreasonable refusal by the respondent to allow Mr Mills to have a support person present on any occasion where there were some discussions about these matters.

Warnings about unsatisfactory performance before dismissal

[116] The reasons for Mr Mills dismissal was not unsatisfactory performance so this matter is not relevant on this occasion.

The size of the enterprise impact on the procedures followed

[117] The respondent is a medium-size business with approximately 25 employees and this in part explains some of the procedural deficiencies in this matter.

The degree to which the absence of dedicated human resource management specialists or expertise impacted on procedures followed

[118] The respondent does not have any dedicated human resource management specialists or expertise in the enterprise and I have no doubt that this explains why the procedural deficiencies occurred in terms of communicating with Mr Mills that the respondent wanted to meet with him to discuss whether his employment would be terminated and how they responded to the confusion surrounding the letters that were delivered but returned and from their perspective his apparent failure to confirm he would attend the meeting on 7 August 2013.

Other matters considered relevant

[119] The applicant had received a number of formal written warnings over his approximately five years of employment. The evidence is that there were also a number of verbal discussions that were held with Mr Mills where the employer raised other concerns with him. Whilst the applicant contests the detail of some of those warnings and counselling I am satisfied that Mr Mills has on a number of occasions had angry outbursts which he directed towards other employees, including Mr Jones, and to customers and had sworn at other employees.

[120] Importantly this tendency has previously been identified by the respondent in those warnings as being unacceptable. The written warning of misconduct dated 4 February 2013 12 dealt with swearing and abusing fellow workers and screaming in front of customers. That warning explained that his attitude had to change, that the matters were serious and failure to satisfactorily address these problems may result in his termination.

[121] This behaviour that Mr Mills was warned about has some similarity with his behaviour on 4 and 5 July 2013.

Conclusion

[122] I am satisfied the respondent did have a valid reason to dismiss Mr Mills and he had been notified of that reason before he was dismissed. However Mr Mills was not given a clear opportunity to respond to those reasons before the respondent made its final decision to dismiss him. Only to that limited extent was the dismissal of Mr Mills unjust and so I find he was unfairly dismissed.

Remedy

[123] I am satisfied that reinstatement in this instance would be inappropriate due to the clear friction in the workplace and the historically poor relationship between Mr Mills and Mr Boyd. I do consider that an order for payment of compensation would be appropriate in the circumstances.

[124] There is no evidence that the order for compensation in this case could affect the viability of the respondent.

[125] Mr Mills has been employed for a little less than five years.

[126] If Mr Mills had not been dismissed it is apparent from the facts of this matter that it is unlikely his employment would have continued for very long. Mr Mills was clearly dissatisfied with the respondent and had been so for an extended period of time and equally the respondent’s management had become frustrated with Mr Mills. My assessment is that Mr Mills at most would have remained in employment for only a further 12 weeks had he not been dismissed as he was.

[127] Mr Mills was dismissed on 6 August 2013 and paid four weeks wages in lieu of notice covering the period up until 2 September 2013.

[128] Since his dismissal Mr Mills has worked for another employer and was being paid the same rate that he was earning whilst employed with the respondent. The relevant Employment Separation Certificate says that Mr Mills was employed in this job from 2 September 2013 until 5 December 2013.

[129] Mr Mills’ evidence was that he resigned from this employment because it was a “...full time job but with casual conditions...”

[130] Other than that he has been in receipt of Newstart Allowance and has actively been seeking work elsewhere however has only been to one interview.

[131] As I have found above there was a valid reason for Mr Mills to be dismissed and so it would be appropriate on this occasion because of his misconduct to reduce the amount of any compensation that might otherwise be ordered.

[132] Mr Mills received four weeks wages in lieu of notice and gained employment four weeks after his dismissal where he remained until he resigned on 5 December 2013. Consequently he has suffered no financial loss for the 12 week period I have determined he would have received remuneration for had he not been dismissed.

[133] Accordingly I do not order any compensation be payable.

COMMISSIONER

Appearances:

B Stokes, representative for the applicant.

L Mehravari, representative for the respondent.

Hearing details:

2014.

Perth:

March 25 and 26

 1   Exhibit A2

 2   Exhibit A1 at attachment TGM2

 3   Ibid., at attachment TGM4

 4   Transcript at PN1906 to 1916

 5   Ibid., at PN816 to 826 and PN840

 6   Exhibit A4

 7   Exhibit R5

 8   Exhibit R6

 9   Exhibit R14

 10   Exhibit R15

 11   Exhibit A1 at paragraph 48 to 52

 12   Exhibit R14

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