Xiao Qing Wu and Australian Concessions Management

[1995] IRCA 468

Industrial Relations Court
of Australia
New South Wales District Registry  NI 95/1400

Between:                 Xiao Qing WU
  Applicant

AND:  Australian Concessions Management
  Respondent

Place:  Sydney
Date:  27 July 1995
Before:  Tomlinson JR

Revised Reasons for Decision delivered Ex-Tempore

This is an application under section 170EA of the Industrial Relations Act for compensation and reinstatement. The applicant, Xiao Qing Wu, by my calculations is some 33 years of age and has been in Australia, coming from China in excess of five years. The applicant has broken English and these proceedings have been conducted with the help of a Mandarin interpreter at all times. The applicant was represented by Mr Barry from his union and the respondent by Mr Henderson from his employer group.

The respondent is a subsidiary of Ansett Transport Industries and is responsible for food and beverage at Sydney Airport.  By affidavit filed and dated 26 July 1995 and admitted into evidence, the applicant stated that he had been employed by the respondent for some 4½ years and that he was unlawfully terminated on Monday, 6 February 1995.

An issue arose as to the date of the last day worked by the applicant and for the purposes of these proceedings I find that date to be Monday, 6 February 1995.  The affidavit of the applicant stated, inter alia, that on Saturday, 4 February 1995 he refused a direction from his supervisor, Mrs Monica Pender to remove empty bottles from the kitchen area.  Under cross-examination the witness agreed he had refused to obey orders.  Apart from the fact that he felt the job should have been performed by the previous night shift, to my mind no satisfactory explanation was given for this refusal.

Thereafter, an altercation followed and the applicant's version of events that occurred differed from the version attested to by witnesses on behalf of the respondent.  On the separation certificate provided by the respondent to the applicant, the reason given for the termination was misconduct.

Section 170DB of the Industrial Relations Act deals with the amount of notice to be given to an employee on termination. Section 170DB subsection (b) provides:

An employer must not terminate an employee's employment unless required notice is given, or -

subsection (b):

the employee is guilty of serious misconduct, that is, misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period.

Subsection DB(2) sets out the table of the required period.  The question necessary to be determined by this court is whether the conduct of the applicant at work on Saturday 4 February 1995 fell into the category of serious misconduct warranting instant dismissal or whether that conduct was such that the applicant, within the meaning of section 170DE and 170DC should have been - should have been counselled, warned and further given adequate and reasonable opportunity to defend himself against the allegations and whether additionally the effect of that termination was harsh and unjust.

It was conceded as common ground between the parties that the applicant point blank refused to follow a lawful direction.  As an isolated one off incident I do not find that to be misconduct per-se.  On behalf of the respondent various exhibits were tendered.  Exhibit C and MFI 1 which subsequently I believe became exhibit E were provided in the form of previous written warnings.  For the purposes of these proceedings, I place very little weight on those pieces of documentary evidence at all.  In exhibit C, the matters occurred so long ago as not to be relevant to the dismissal and indeed it could be argued that the respondent given the problems arose so long ago was prepared to tolerate the conduct complained of.

I am of the view that for a warning to be relevant in that it forms part of a valid reason for a current termination it should, or has to be, within a reasonable period of time and as indicated I fix that as 12 months but that is just by way of guide, nothing much hangs on it.  On behalf of the respondent, the court heard evidence from Mrs Monica Pender, Mr Raymond Benson, Ms J. Jayaram, Mr Adam Gerondis and Mrs Doloris Heaslip.  In his oral evidence to the court, the applicant stated he had worked on the 4th, 5th and 6 February and that when he reported for work on Monday, 6 February his bundy clock card had been removed from the bundy clock.

The applicant categorically denied that he abused the manager, Mr Adam Gerondis subsequently in his office when discussions were taking place about the incident involving Mrs Monica Pender.  The applicant agreed that during his verbal exchange with the supervisor he had used the word "fuck" and that it was not directed at Mrs Pender personally.  In addition he had called her a "stupid bitch".  The applicant admitted to the word "stupid" but he denied the use of the word "bitch".  Against the applicant the allegation was made by the respondent that in the office of Mrs Pender on Saturday, 4 February 1995, after a verbal exchange he spat and that his conduct towards Mrs Pender at that time was physically threatening and abusive.

In his oral evidence the applicant stated that at time he pursed his lips and that his native country, China, such a facial grimace meant that the parties had a dispute, that that dispute was now finished and that everyone should go back to work, that that was what he meant by that facial expression.

Mr Gerondis and Mr Benson both attested to the fact that both language and union assistance was offered to the applicant at the time the matter was investigated by the respondent.  The affidavit of Mr Adam Gerondis, filed 20 July 1995, and signed 20 July 1995 was admitted into evidence.  That affidavit in detail set out the inquiry and the investigation made by Mr Gerondis as manager of Australian Concessions in that capacity having learnt of the dispute which had taken place on the previous Saturday.

Mr Gerondis learnt of the dispute through a verbal report, to my mind, made virtually immediately Mrs Pender reported for duty on the Monday. The evidence of Mr Raymond Benson was admitted into evidence.  That was a written statement signed 20 July 1995 and filed 20 July.  Similarly, that statement dealt in detail with Mr Benson's involvement with the matter and noted that Mr Benson was employed as head chef by the respondent.  I find the actions of Mr Gerondis and Mr Benson in offering union and language assistance to the applicant at the time the investigations were conducted on 6 February to be procedurally fair.

Mr Gerondis very firmly stated that the warnings given to the applicant previously were not considered arising out of trivial matters and I find that in conducting an investigation on behalf of the respondent the matter would have not been taken lightly.  Mr Gerondis gave evidence that in dealing with the complaint by Mrs Pender and investigating the conduct of the applicant he examined the personnel file of the applicant.  I am of the view that the 1991 conduct, as indicated earlier, is not relevant and I confirm my earlier remarks during the course of this hearing, however, that I find the management practice generally adopted by Mr Gerondis to be sound and of merit.

Mr Gerondis was asked why he did not, at the interview, seek for the applicant to apologise.  I agree with the answer of the witness that an apology would not have had the effect of negating the answer - the actions of the applicant.  In justification of the language used by the applicant and his conduct towards his supervisor the applicant told the manager, Mr Gerondis, that he had just lost his temper.  I find that the personally abusive and threatening conduct towards a fellow employee which, on admission, arose out of loss of temper to fall into the category of misconduct.

In support of that finding I draw upon the evidence of Mr Gerondis that the work of the applicant was good and the applicant was not terminated for unsatisfactory professional conduct.  With regard to accepting an account of the evidence on the day in question I prefer the evidence of Mr Gerondis to that of the applicant.  The Court heard before the last meeting with the applicant Mr Gerondis caused a final warning letter to be prepared and, further, that the applicant's pay be made up.  It should be pointed out that the only admitted acknowledged evidence that the applicant acted as he did through loss of temper was presented to this Court by the applicant.

That admitted evidence, in my view, was not available to the respondent at the time these incidents occurred, but I am of the view the respondent could have reached that conclusion of his own volition.  Employers have responsibilities at law to protect employees from co-workers who cannot control their actions and their insults.  In failing to protect co-workers, Mr Gerondis could have in the future been found to have been remiss.  I find the actions of the respondent in making up the letter and the pay to be correct in the circumstances of this case.

I draw the attention now to paragraph 12 of the statement of Mr Gerondis in that he asked Mr Wu what action he thought should be taken against his behaviour.  I find that paragraph appropriate in regard to the conducting of an inquiry in determining whether the conduct fell into poor professional conduct or serious misconduct.  To my mind the respondent, after interviewing other staff members, was on notice of the fact that something very serious, possibly misconduct, warranting instant dismissal had occurred.  The respondent treated the matter seriously, the respondent conducted appropriate adequate inquiry, the respondent placed all its information that it had gathered before the applicant.  As stated earlier, at this point I prefer the evidence of Mr Gerondis.

The applicant did not behave appropriately and to my mind that something serious in the thoughts of the respondent was correctly categorised as misconduct.  It was in fact the further, unreported and unprovoked and personally abusive conduct of the applicant that confirmed the opinion of the respondent in the form of Mr Gerondis that the applicant was not a suitable employee who should be dismissed summarily.  Mr Raymond Benson, as head chef of the respondent gave evidence on behalf of the respondent.  Mr Benson confirmed the evidence of Mr Gerondis.  I found Mr Benson to be a most credible and reliable witness.

I place no weight on the discrepancy in the evidence between Mr Gerondis and Mr Benson as to their differing recollections concerning physically abusive gestures made to Mr Gerondis by the applicant upon termination in the office.  What is clear that a gesture of some kind was performed insultingly by the applicant at that time.  Mr Benson gave evidence that at the request of Mr Gerondis he removed the bundy clock card of the applicant so that the applicant would know to come to the office straight away of management to discuss serious matters.

I find the sensitive treatment accorded by Mr Benson to the applicant in the change room to be correct and appropriate in the circumstances as Mr Gerondis was in charge of dealing directly with the allegations and not Mr Benson.  It should be noted that Mr Gerondis and Mr Benson stated the removal of bottles from the kitchen to be a proper and correct task for the applicant in his capacity of a kitchen hand.  Mr Benson indicated in cross-examination that the applicant at the interview with Mr Gerondis displayed a total disregard for the seriousness of the situation and, further, that he, Mr Benson, did not tolerate the words "fuck" and "stupid bitch" in his kitchen to be used against members of his staff.

Mr Benson stated he had in the past counselled other staff members against the use of strong and foul language.  Apart from the incident of 4 February 1995 Mr Benson's evidence was the applicant was not an unsatisfactory employee and Mr Benson satisfactorily demonstrated to the Court the manner in which Mr Wu mimed what he did in retaliation to the spitting directed at Mrs Pender.  I have to say the action as produced in Court would have caused the recipient, Mrs Pender, at whom it was directed to experience feelings of total affront which would fall into the category of being completely unacceptable in any situation.  I find the spitting incident did occur.

In his oral evidence Mr Benson confirmed that Mr Wu showed no contrition or regret or remorse for the incident.  To my mind that lack of remorse was also demonstrated in the applicant's evidence as he demonstrated no willingness to make amends either for failing to follow lawful direction and, secondly, for his conduct towards Mrs Pender.  In my view that evidence all accords with the finding that through bad temper the applicant caused his fellow employees to be afraid of him physically and to my mind that is clearly serious misconduct.

The Court heard evidence from Mrs Monica Pender whose statement of 20 July 1995 was read onto the record.  It is clear from this statement and from the oral evidence of Mrs Pender that she felt physically threatened by the applicant.  Similarly, I found Mrs Pender to be a most reliable witness and I prefer her version of events in question to that of the applicant.  In cross-examination Mrs Pender confirmed she felt threatened by the displayed conduct of the applicant towards her on Saturday, 4 February, in her office.  The witness, Mrs Pender, presented as a young person of slight build and I find her actions in inviting him either to perform his allotted task or to go home should he not choose to so perform, quite appropriate in the circumstance.

The severe situation, in the words of the witness, was handled well and it is of no consequence that a warning as to termination was not issued by her on the spot.  Clearly, it was indicated that that was not her role.  I place no weight on the evidence that the duty manager did not enter the incident in the incident book and accepted the witness would have reported the incident to Mr Adam Gerondis personally, which in fact happened.

It is clear to me the witness sustained a severe shock at the conduct of the applicant.  On behalf of the respondent, the Court heard from Mrs Jayshree Jayaram, a trainee supervisor, who stated in cross-examination that she felt similarly threatened by the applicant when she was present at the interview in the office on Saturday, 4 February.  She felt the applicant was close to being out of control.  I found Ms Jayaram to be a most credible witness.  There was a slight discrepancy between the evidence of the two women and I place no weight on the discrepancies at all.

In considering the language used by the applicant, it is my experience that people new to Australia adopt swear word on occasion without fully comprehending the meaning of those words.  There was no expert evidence given to the Court that the applicant fully comprehended the words he used.  However, I am satisfied the physical gestures used by the applicant against Mrs Pender, coupled with the spitting incident and the vocabulary, were calculated to offend and to specifically insult.  That conduct in the workplace is not acceptable.

I have dealt with the log book.  It is noted with regard to the log book that an alternate title accorded to it is the "Manager's Daily Diary", and in that regard it assumes a different stance.  The Court heard evidence from Mrs Doris Heaslip, a duty supervisor with the respondent.  A statement was filed by this witness but it did not relate to any of the incidents which occurred around February of 1995 and as I confine my remarks for the reason for termination to that time, I am unable to place much weight on the evidence provided by this witness.

It is noted that the statement of the respondent signed by Mr Gerondis in making the applicant a special employee was similarly dated 17 December. Accordingly, in the way we have dealt with cancellings out, I find neither that statement of approval nor the statement of Mrs Heaslip to be of much use to these proceedings.  It is noted that Mrs Heaslip stated the applicant called her a "bitch" in December 1994 and, to my mind, this incident did not cause fear in the witness that the similar conduct caused in Mrs Pender. The witness told the Court her shifts were changed so she did not have to work with the applicant.  I also found Mrs Heaslip to be a most credible and reliable witness.

The respondent argued that everything that could have been done on behalf of the applicant concerning the union and language difficulties were done. I agree with that contention.  The respondent argued the written warnings given to the applicant were relevant and, for reasons I have outlined earlier, I find not much weight to be accorded to these written warnings.

The Court heard no evidence as to the practicability of reinstatement from the applicant.

On behalf of the applicant, it was argued notice payment should be paid in the situation of serious misconduct by an applicant.  I do not agree with that contention and find no termination payment should be paid.  Often when a worker is terminated, either lawfully or unlawfully, an employee is given the alternative either to work out the notice period or take the prescribed payments in lieu but, to my mind, that position does not pertain to serious misconduct.

The Court heard there was a management book in existence with regard to rules governing employees but as that book was not before the Court I am unable to place much weight on it.  On behalf of the applicant, it was argued that the applicant was terminated because he would not apologise.  I do not agree with that contention.  I find the applicant was summarily dismissed for serious misconduct.  Accordingly, I dismiss this application. I was invited to make a finding that the application was vexatious. However, I find the applicant brought his application bona fides and so I decline to make a finding that the application was vexatious.  However, I make no order as to costs.

I certify that this and the preceding seven pages are a true copy of the reasons for judgment of Judicial Registrar Tomlinson delivered ex-tempore and revised from the transcript.

Associate

Date:  15 September 1995

Appearances

For the Applicant:    Mr Barry

ALHMWU Representative

For the Respondent:   Mr Henderson

Employers Federation