Bankstown City Council v Paris

LEGISLATION CITED: Industrial Relations Act 1996

Bankstown City Council v Paris ( 1999) 93 IR 209 Bryne & Anor v Australian Airlines Ltd (1995) 185 CLR 410 CASES CITED: National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 Outboard World v Muir (1993) 51 IR 167 Sams v Contact Point International Pty Ltd [ 2001] NSWIRComm 18

APPLICANT: Mr D Cascio LEGAL REPRESENTATIVES: RESPONDENT: Mr P Managreve, General Manager.

DECISION: - 29 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Domenico Cascio and The Trustee for Elsa Trust trading as Anyware Computer Accessories

Application by Domenico Cascio re unfair dismissal pursuant to s.84 of the Industrial Relations Act

1 This is an application by Domenico Cascio against The Trustee for Elsa Trust trading as Anyware Computer Accessories for a remedy pursuant to s.84 of the Industrial Relations Act 1996. Mr Cascio was dismissed from his position of Storeman and Packer with the respondent on the 25 June 2009. He sought monetary compensation in lieu of reinstatement or re-employment. 2 The matter was set down for conciliation and directions before Commissioner Cambridge on the 4 August 2009 at which time conciliation took place. No settlement could be reached between the parties and Mr Cascio sought an adjournment to seek legal advice. The matter was re-listed for mention and directions on the 14 September 2009 at which time directions were issued as to the filing and exchange of witness statements pursuant to Practice Direction 17 and the file returned to the registry for allocation of a hearing date. 3 The matter was reallocated to the Commission as currently constituted and set down for hearing on the 20 November 2009. 4 On the 6 October Mr Fida Sabsabi filed a witness statement. He subsequently forwarded correspondence to the Industrial Registrar on the 8 October 2009 seeking to withdraw the witness statement filed and was advised in correspondence from the Industrial Registrar on the 12 October 2009 that such withdrawal could only be made on the day of the hearing and by decision of the Commission. 5 On the 11 November 2009, Mr Cascio filed and served a Summons to Give Evidence on the following employees of the respondent: Thomas Chau Badwi (Bob) Elaro Fida Sabsabi Christopher John Caracoglia 6 Also on the 11 November 2009 Mr Cascio filed and served a Summons for Production of some 12 categories of records or documents of the respondent on Patrick Managreve/Victor Lee for the date of the hearing. At the hearing the Commission ruled that a number of the categories so listed were not required to be produced. Other documents ruled admissible were produced by the respondent in response to the Summons. 7 On the 15 November 2009 Mr Cascio filed a s.90 Undertaking. 8 Prior to the hearing Mr Cascio forwarded to the Commission a number of documents concerned with an application he had made to the Chief Industrial Magistrate. Having considered that it was nether appropriate nor relevant that the Commission receive those documents, they were placed in an envelope, sealed and marked "confidential". Mr Cascio was advised of this at the commencement of the hearing. 9 At the hearing Mr Cascio appeared on his own behalf and gave oral evidence in addition to the witness statements he had filed (Exhibits 1, 2 and 3). 10 Mr Managreve, Operations Manager and General Manager, appeared as the authorised officer on behalf of the respondent and also gave oral evidence in addition to the witness statement he had filed (Exhibit 5). 11 The following persons appeared in response to the Summons to Give Evidence and had all filed witness statements: Christopher Caracoglia - former employee (Exhibit 4) Thomas Chau - Storeman and Packer and Assistant to Warehouse Manager (Exhibit 6) Bob Elaro - Warehouse Manager (Exhibit 7) 12 Mr Fadi Sabsabi also appeared and his physical distress and discomfort were very apparent. He was discharged by the Commission from further appearing in response to the Summons to Give Evidence, on health grounds, and given leave to withdraw. While Mr Cascio was not happy with this and said that he was "very relevant" to his claim, he also acknowledged that he didn't want to see him in that condition. The Evidence 13 It should be noted there were a number of allegations made by Mr Cascio against the respondent that the Commission did not consider in any way relevant to the consideration of the circumstances of his termination and whether or not it was harsh, and or unjust, and or unreasonable. These allegations have not been dealt with in the evidence below. Generally only that evidence that is considered relevant to the termination of Mr Cascio has been referred to.

14 Mr Cascio had been employed with the respondent for some 7 months. His hours of work were 9 a.m. to 5.30 p.m. Monday to Friday. 15 Mr Cascio alleged that his dismissal was "unfair and unlawful" and was "a direct result of the accumulation and ongoing stress and tensions put towards me and my fellow workers in the previous seven months of employment." 16 He further alleged that he believed management had acted unlawfully and unfairly within the seven months and had conspired to deliberately make his time with them very difficult. He said he knew that, "in their eyes", he - "knew too much, caused too much trouble, disturbed their calm waters and was a bad influence to other employees". 17 He maintained that they were incompetent and failed to acknowledge or resolve any serious workplace issues raised, not only himself, but by other employees, including serious health and safety issues, workplace bullying and harassment. He maintained that he had in his possession evidence and witnesses of such a conspiracy. 18 Mr Cascio had no contract, letter of appointment or verbal agreement for his employment pay rate or duties. However he acknowledged that he obtained the job, after returning from overseas, as a result of his younger brother putting in a good word for him when Mr Elaro was looking for extra resources. He did not have to provide a résumé. 19 He was not given any warning, notification or opportunity to respond in regards to his dismissal nor was he ever told that his work performance was unsatisfactory. He was only "threatened, harassed and with foul language, insulted". 20 Mr Cascio deposed as to a number of specific issues concerning health and safety, management practices generally, and also specifically, in relation to the warehouse, and made certain other allegations. He considered the issues were serious. 21 There were also a number of issues raised in relation to other employees, in particular Mr Chau and the Warehouse Manager. 22 Mr Cascio asked for regular meetings to be held weekly. Mr Managreve told him that as far as he knew Mr Elaro had said there were regular meetings in the warehouse. Mr Cascio said this was not true and that Mr Elaro refused to have meetings. 23 Mr Managreve also said in his evidence that he had told Mr Elaro to have regular meetings and had been told by him that they were held every Friday afternoon after work at 5 p.m. One shift finishes at 5p.m. and the other at 5.30p.m. He had never been present at, nor had witnessed, those meetings. He had witnessed meetings in the past when Mr Elaro had been present but not this year. 24 Reference was made by Mr Cascio to a meeting held with Mr Managreve in February 2009 which had arisen as a consequence of complaints and issues that Mr Chau with another employee, however during the meeting Mr Chau did not raise any of those matters and it was left to Mr Cascio to raise those issues and the meeting became one about issues with the Warehouse Manager. He considered that he was blamed for raising the issues. Subsequently his relationship with Mr Chau changed. 25 Mr Managreve however, indicated that this meeting had been specifically about Mr Elaro and his management. 26 Mr Cascio also agreed that tensions developed after that meeting and the atmosphere in the warehouse changed. He said that the tensions developed because ..."Well, Tom for what he did and Bob for his inability to basically do his job as a manager and failure to notify the general manager on issues that I raised". 27 Mr Cascio deposed as to numerous occasions when he raised health and safety issues with the Warehouse Manager who was his first line of contact with management. He said he was basically told to mind his own business and to stop causing trouble. Nothing was ever done about any of those matters. The next step was to approach his general manager which he did many times and other employees could attest to that. 28 This was disputed by Mr Managreve. 29 Mr Cascio acknowledged that he never put any of those issues in writing. 30 Mr Cascio also generally deposed as to complaints and issues about Mr Chau. 31 On the day before his termination Mr Cascio's father had been telephoned at his business by someone (he did not know who the caller was) telling him that he (Mr Cascio) was going to lose his job, that he was talking too much and saying that "Bob" was stealing". That night at home his father approached him and verbally accused him, "went ballistic", asked him what was he doing, why did he receive this phone call, you're causing trouble, threatened to throw him out of home and told him he disowned him as a son. Mr Cascio deposed that this phone call caused a lot of stress in his family because his father was about to sign as guarantor of a bank loan he was about to take out. Mr Cascio maintained that the caller knew of this situation. 32 He said that when he went to work on the 25 June, he was angry because of the previous issues and the failure to act on those issues. He also felt threatened and intimidated as well. 33 When he arrived at work he spoke to Mr Caracoglia and told him "this has to end today, this is enough, it's gone personal" and he had "had enough of it". He then went upstairs to Mr Managreve's office to ask for an explanation of the telephone call and what he was prepared to do about the situation in the warehouse, not just the phone call, but all the issues he had been raising previously. 34 He then told him what had happened with the telephone call and that this issue had gone too far and said "this shit has got to stop now". Mr Managreve however told him he would not get upset if someone called his wife and insulted her. 35 Mr Managreve said "what do you want me to do, sack the manager?" Mr Cascio told him "yes" and Mr Managreve told him he needed evidence. Mr Cascio told him he had evidence and witnesses to all these issues but said he just went on with the same discussion - "I'm going to put you part-time, I'm going to dismiss you, I'm going to reduce your hours. 36 Mr Casio said that Mr Managreve "became very aggressive and angry", and said "I'm going to put an end to this once and for all, I've had enough of this shit". He started swearing and told him to follow him downstairs. He pushed aside chairs and other office objects "with force". 37 Once downstairs Mr Managreve called for some other employees to come and once they were gathered he told everyone present about the phone call that had been made to his family and then told them he was going to put them part-time or dismiss them and that they had to settle their differences and that the next thing he heard coming from the warehouse he would dismiss them. Mr Cascio said he was aggressive and threatening and using obscene language. Mr Managreve also said "look I don't give a fuck who rings who, if you don't like it here then fuck off". 38 Mr Cascio took this as a direct insult to his intelligence and as if Mr Managreve was acting against him and not resolving his issues. He got the impression that he wasn't going to do anything about this and "didn't give a damn." 39 Mr Cascio deposed that during this meeting Mr Elaro was looking at him in a "strange manner, almost smiling". He told him that someone had harassed his family and he was not happy about it and an argument followed but Mr Managreve told him to be quiet or walk, so he stopped. 40 Mr Elaro "verbally insulted" him stating "your (sic) always causing trouble, your (sic) stressing everyone out here, I told you to stop gossiping, I am sick of you". 41 Mr Cascio said that Mr Managreve then returned to his office and the warehouse staff resumed work as normal. 42 Mr Cascio said that about 10 or 15 minutes later he was packing an order and Mr Elaro then "instigated" an argument with him alleging that he had torn off signs from the cupboard. He was asked why he had taken the signs off and he was defending himself. Mr Elaro was using foul language and the "f" word. The argument proceeded in a heated way and with the situation already tense he retaliated to the "continual threats and verbal abuse" of Mr Elaro by yelling back at him. 43 Mr Cascio told him he didn't take the signs down and Mr Elaro said something like you don't have the right to tear them down. Mr Cascio said "what gives you the right to put up a sign like that?". He questioned that, but said that he didn't admit to pulling the signs down.

44 The signs in question were on the cupboards in Mr Elaro's office and said: STOP TOM & BOB ARE ONLY PERMITTED TO OPEN THIS CABINET

45 Mr Cascio said he had no problem with Mr Elaro having his name on the sign. His problem was with Mr Chau's name being there as Mr Chau would refuse to open the cupboard for him and he would have to go and get Mr Elaro to come and do it. 46 Mr Cascio acknowledged that he was shouting and using bad language but they were both shouting at each other. 47 Mr Managreve heard all this and came down the stairs and was yelling something at him from the staircase, but he didn't hear what he said because he had Mr Elaro "in my face" continuing to intimidate him and even touching him. It was "nose to nose", it was that close. Mr Cascio maintained that when Mr Managreve was standing next to them he was not trying to break up the argument at all, in fact he was encouraging Mr Elaro to continue "by his participation". Mr Cascio said that at one stage he had both managers "in my face". 48 He also saw Victor Lee, the Managing Director, come down the stairs but go straight back up and he did not intervene seeing his managers in an argument. 49 He couldn't recall what was said but there was "aggressiveness, yelling and swearing". 50 When asked by the Commission what happened next, he went on to say in evidence: A: Then as I said, Bob touched me, I touched him back. Bob said to me, "Don't touch me." I said, "I won't touch you I'll rip you apart". And then there was Pat's sudden, "That's it you're terminated as of now, fuck off, get lost". So - and I really - to that I was shocked because concentrating on Bob and the argument it was a sudden--" Q: But what did you mean by "I'll rip you apart"? I mean, was that a threat? Were you going to do physical violence? A: Well it's an answer to his, "Don't touch me. It's like "Don't touch me. It's like well after everything we've done, okay, don't touch you. You touched me first for starters, okay, and yes, it can be classified, it can be classified, because - well, it can be, I don't know. It was a heated moment." 51 Mr Cascio couldn't recall if that was the moment that Mr Managreve stepped in and terminated him. 52 He could recall Mr Elaro saying "It's okay, it's okay, leave it, leave it" but thought that was after he had been terminated. 53 There was also an exchange in cross-examination about exactly where Mr Cascio and Mr Elaro were in the warehouse and in relation to each other, which is not considered of particular relevance given Mr Cascio's evidence. There appears to be no issue that they were standing facing each other in very close proximity and that Mr Elaro had come across to challenge Mr Cascio about the signs. 54 Mr Cascio said he had never had a heated argument like that before, either with the Manager, or anyone in the workplace. But it was not the first time Mr Elaro had threatened him in his job in front of other people. 55 Mr Cascio said that Mr Managreve allowed the argument to continue until "I retaliated". When Mr Managreve told him he was terminated as of now, he told him he thought that was unfair and Mr Managreve replied "fuck off, get lost, get off the premises now or do I have the call the police to throw you off?" . Mr Managreve also told him "Bob has been here longer than you." 56 When he told him he couldn't afford to lose his job and tried to explain the situation, that he thought it was unfair and that he had raised all these issues and he had done nothing about it. That was when Mr Managreve answered him and said, "now you're questioning my authority". 57 He had since made other applications for jobs, gone to job interviews but was still unemployed. He had appealed Centrelink's decision to initially withhold benefits as the Employment Separation Certificate gave the reason for dismissal as misconduct. He had had those benefits restored due to this application, but he was without income for a while and that was not pleasant and he had a newborn baby. 58 He had never received any verbal warnings apart from being told "Mind your own business, you're always causing trouble". He didn't know if that was considered a warning. 59 Mr Cascio acknowledged there was a time (around March) when he had had an aggressive argument with Mr Chau and raised his voice. He was defending himself and he didn't instigate it. He agreed that there was a meeting straight afterwards with Mr Managreve after Mr Elaro intervened. He also agreed that Mr Managreve said he didn't care if you were Italian or Muslim or whatever, "we need to resolve this amongst ourselves as a team as mature adults not kids". 60 However Mr Cascio also said that Mr Managreve said "I don't have time for this shit", which he took offence at and an insult as well as he (Mr Managreve) was aware of the situation. 61 Mr Cascio acknowledged that at this meeting no OH&S, safety or discrimination issues were raised. 62 Mr Caracoglia had been an employee of the respondent. He had been made redundant at the end of January 2009 and returned in May for a period at the request of Mr Elaro. He was employed and present in the warehouse on the 25 June 2009. He has since left the respondent's employment to take up a position with another employer. 63 Mr Caracoglia deposed as to the events of the morning of 25 June and in general his evidence confirmed what Mr Cascio (and also Mr Managreve and Mr Elaro) said occurred. 64 He deposed that when Mr Managreve came down the stairs calling for all the warehouse staff he said "that if we don't get along he will cut all our hours if we don't shut it and just work". 65 In relation to the subsequent argument between Mr Cascio and Mr Elaro he deposed that, ... "Bob turned to Dom and enquired why some signs (stating the (sic) Tom & Bob are only to open the Cabanets (sic)) were torn down Dom and bob (sic) disagreed about the fact that Dom torn them down with or without the right reasons". 66 He then deposed that Mr Managreve "stormed" downstairs and "warned Dom and asking him to go home and cool off and come back tomorrow with a clear head, Dom continued to argue and Patrick told him to leave permanently." He indicated that Mr Cascio wouldn't leave until Mr Managreve asked him to leave and said he would get someone to escort him out. 67 Mr Caracoglia deposed that Mr Cascio's dismissal was "fueled" by management not acting on complaints. 68 Mr Caracoglia was asked a number of questions by Mr Cascio, many of which were not particularly relevant to the actual termination of Mr Cascio but related some of the various issues of concern that Mr Cascio maintained he had raised with management during his employment. 69 Mr Caracoglia said that he did not consider that management were doing their job correctly because they didn't know how to solve an issue. He went on to explain that Mr Cascio was raising "fairly understandable issues", ...operational heath and safety issues, just issues in the warehouse generally". No one was doing anything about them. Someone would just turn and say "shut up" and they basically had to just stand there and work. If you went to speak to Mr Elaro he would say "okay I'll do something about it". Then he wouldn't. He'd say "go and speak to Patrick", but he wouldn't do anything about it either. 70 Prior to being made redundant in January he had no issues. There was no change in policies that he noticed because there were no policies ever written. He did have concerns about the use of the forklift (an issue also raised by Mr Cascio) for lifting employees to take items from the shelves. 71 In relation to the altercation between Mr Cascio and Mr Elaro he also indicated in cross examination: (a) ... Patrick started to calm or try to calm the situation down. ..(not transcribable).. that as well, Patrick turned to him and said, listen, just go home and come back tomorrow and we will deal with it tomorrow. And he kept saying, he said about three times, "calm down, go home, come back tomorrow". Dom didn't listen, he said, you know, " something has got to be done about this, this is just stupid if it's going to be like this". And Patrick basically just turned around and said, "listen, just go and don't come back". 72 He could not recall whether Mr Managreve was yelling at this stage. 73 Mr Managreve deposed generally as to the nature of the business, that it was a small one and they were trying to survive the economic times. Management had multiple roles. They had a policy of openness and fairness and encouraged feedback. They had little turnover and had many employees who had several years service. They had flexible workplace policies and an approachable management team. 74 Mr Managreve deposed that on the morning of the day the incident (25 June), Mr Cascio entered his office requesting that he stop or resolve matters once and for all that were affecting staff members in the warehouse. During this conversation he raised the issue of a member of the company calling his father and threatening his (Mr Cascio's) employment due to various factors relating to issues raised by him. At this point there was no substantial or credible evidence provided to support his allegation, however his father recalled mention of the name "Bob" (the Warehouse Manager). 75 Mr Managreve then told Mr Cascio that without credible evidence in any allegation he would not be in a position to consult with, or dismiss any employee. This was deemed to be unacceptable by Mr Cascio and he then proceeded downstairs to address the whole warehouse team, as he had done before, to try and resolve what he believed were personality conflicts that existed in the warehouse. 76 Mr Managreve referred to a previous meeting in March that he organised with the whole team after three employees approached him raising issues about the warehouse and Mr Elaro. He requested that they openly discuss all issues and resolve any issues and differences as a team. 77 In the meeting of 25 June he demanded that they resolve their differences (whatever they might be) amongst themselves without his direct involvement. He said he had given them an opportunity to do this once before, and reiterated that this was their last chance before he would become directly involved. He then proceeded to indicate the possible changes including changing/shortening of work hours, recruitment of new warehouse personnel for other shifts/days to ensure personality clashes between particular individuals employed currently would not exist as they would be on separate shifts/days. 78 Mr Cascio raised his allegation about his father. An argument started between Mr Cascio and Mr Elaro which he demanded they stop immediately so he could continue and conclude the meeting. He reiterated the points raised earlier, concluded the meeting and went back to his office upstairs. 79 He deposed that not long after this he heard a heated exchange of words coming from the warehouse which continued for a little while longer than to his liking. From the voices he could ascertain that the argument was between Mr Elaro and Mr Cascio. He headed downstairs to "cool off" the heated argument with the intention of letting Mr Cascio go home for the rest of the day, cool off and return to work the next day. Upon reaching the warehouse he voiced his intention directly to him, however he deposed that this seemed to infuriate him even more, probably because he thought that he was being vilified, and the other party should be sent home instead. 80 Mr Managreve deposed that Mr Elaro had been with the company for over six years as the Warehouse Manager, had a proven track record of reliability, hard work and team supervision and in his opinion had earned the status/respect of being a Manager - this in turn required his support first and foremost. Mr Cascio was only employed for 7 months (yet demanding the respect of someone who was employed as 7 years) and who required immediate resolution for his allegations with no substantial evidence. 81 Mr Cascio continued to exchange heated words with Mr Elaro and approached within less than a metre of him. Mr Managreve said that he continued to raise his voice and stated at least 4 or 5 times for him to calm down and go home, without any effect. 82 At this point he decided to terminate Mr Cascio "due to the aggression he displayed and the potential violent outcome of the situation". If he was unable to heed instructions from management for his benefit, due to his temper, anger or aggression, then he considered that he could be potentially a threat to the welfare of the rest the team members in the company - that was certainly a position he did not want any of his team members to be put under, either then or in the future 83 Mr Managreve deposed that in the few weeks prior to this incident Mr Cascio had shown that he possessed a "hot temper" with frequent arguments/heated words with both Mr Elaro and Mr Chau on separate occasions disputing how they should be working and how the warehouse should be run. These arguments would continue despite numerous requests from Mr Elaro for Mr Cascio to perform his role as a storeman in rather than "trying to run the warehouse". These requests went unheeded. 84 Mr Managreve also deposed that as Mr Cascio had admitted in his statement that he was in a heated argument and therefore could not hear directions from his supervisors, this implied in fact that he possesses a hot temper that would prevent him from listening to his supervisors. 85 Mr Managreve also deposed that it was unfortunate that what was "a peaceful and good-humoured warehouse team had been embroiled in all this manipulation and turmoil causing unwanted tension between team members and turning the warehouse department into an undesirable workplace". 86 Mr Managreve generally "strongly refuted" allegations made by Mr Cascio in his witness statements. 87 Mr Managreve said that he had not been aware of any of the issues that Mr Cascio said he had been raising with the Warehouse Manager. If those issues had been raised with him they would have been addressed and he would have given warnings (in the case of the improper use of the forklift). The reason why the business had spent $15,000 on a motorised stock picker was because of OH&S issues so they could access the stock without climbing on the pallets. They had made mistakes in the past and probably the guys were still making those silly mistakes today. 88 Prior to that day (25 June) there were no issues in Mr Managreve's mind that led him to contemplate Mr Cascio as someone he would let go. There was no reason to let him go. 89 When Mr Cascio came into his office that morning he wasn't angry or aggressive, but he would describe him as "tense". There was obviously something on his shoulders he wanted to get off. He explained about the phone call to his father and Mr Managreve asked him if he had any evidence and when he said he didn't, he told him that he couldn't reprimand or address someone in regards to that allegation. Whether it came to stealing or bullying in the workplace he couldn't really address it unless he had evidence given to him. 90 The sort of evidence he had in mind was a picture of something happening or the father coming to the office to tell him or if he had written a letter or another employee gave him a report about what they saw etc,. 91 Mr Managreve acknowledged that he pushed a chair under a desk, but no-one was sitting there, and he did swear. Mr Elaro had been with the organisation for 7 years and he was giving him the benefit of doubt in the absence of any evidence. 92 He acknowledged that he was quite angry at this point. He called the whole team together and mentioned to them that they needed to resolve it as a team otherwise he would put measures into place that they wouldn't like and that included ensuring that they didn't work together by changing their shifts. There were tensions between Mr Cascio and Mr Elaro and Mr Chau and between Mr Sabsabi and Mr Chau. So he told them if they didn't address it he would put measures into place and he did say that there were people out there actually looking for work. He agreed he mentioned reducing hours. It was a heated discussion with the whole team not to anyone in particular. 93 Mr Managreve also said that "Dom did mention something, I don't recall what he actually mentioned to Bob, and that's when Bob actually said , "why would I do such a thing", first of all, where would we get the phone numbers for his dad's work to ring up the dad. So I stopped the two of them, basically whether I used the words "Shut up and if you don't like it walk out", I may have used those words". 94 He was trying to stop the argument and get his point across to the whole team to resolve the issues or he'd get directly involved. He hoped it would actually wake them up that if they didn't sort it out amongst themselves management would. 95 He had only returned to his office upstairs for a minute or two when he heard a heated exchange of words. 96 In relation to that heated exchange between Mr Cascio and Mr Elaro his evidence was that he actually said "Dom, calm down, go home and come back tomorrow". That seemed to "just inflame the whole situation". He could not exactly hear what they were saying to each other but he specifically heard Mr Cascio actually saying "I will rip you apart". That was when he said, "Okay you are terminated at this point in time". He did state with quite a loud voice, "Dom, shut up, calm down and go home" But it just went on deaf ears, so he basically terminated him. 97 Mr Managreve said there was only one way you could take what was said by Mr Casio. Mr Elaro said "Don't touch me' and he said "If I touch you, I'll rip you apart". You could only take that one way that there was going to be a violent outcome. That was the basis of the judgement he made on that day because of the "violence that he actually - or the aggression that Dom showed." He couldn't condone violence in the workplace or bullying or intimidation. 98 He acknowledged that he did swear at Mr Cascio and that he threatened to call the police as he had asked him to leave the premises and he had stayed there for a while so he said, " well if you don't leave the premises I'll call the police." 99 In cross examination Mr Managreve agreed that both Mr Cascio and Mr Elaro were in a heated argument but rejected the suggestion that he was also showing aggression. He wasn't showing aggression if he came downstairs and said "calm down, go home". 100 He did what he did to resolve the argument, he told him to calm down and actually said "Shut up and go home". That was his action to resolve the argument. 101 Mr Managreve denied that the dismissal of Mr Cascio was pre-planned. He acknowledged that there had been an earlier discussion (overheard by Mr Cascio) about Mr Elaro wanting another worker but that had been back in May. 102 In relation to issues that had been raised in the hearing and that he had heard for the first time Mr Managreve generally indicated that he would take no action without evidence and pending enquiries, and warnings would be issued if necessary. 103 Much of the cross examination of Mr Managreve by Mr Cascio concerned matters and events that I do not consider relevant to the issue of the reason for Mr Cascio's dismissal and whether or not it was unfair. 104 However there are three matters that I will refer to for the benefit of the parties and which may be summarised as follows: · When Mr Caracoglia was made redundant in January it was because one person was not needed at that time. Both Mr Cascio and Mr Caracoglia were within their probationary periods but Mr Cascio was a "hard worker" and the decision was made to retain him and make the other redundant. The business did not have a policy of "last on, first off". · There had been no threats made to the employment of the Mr Cascio's younger brother. Mr Managreve essentially indicated that he had said that he understood if he wanted to resign in the circumstances "blood being thicker than water") but had no problem with him. He had been there for three years. He had no difficulty with him being present in the courtroom during the hearing. · Mr Managreve acknowledged that he had shown Mr Cascio's letter (Exhibit 2) to the Warehouse Manager and discussed the contents with him. However he had not appreciated that it had been filed as part of Mr Cascio's evidence. It had also been sent by Mr Cascio to Melbourne to a different trust but one that traded under the same name and shared resources. · It should also be noted that until the day of the hearing and it being raised by Mr Cascio the Commission had not realised that that document was part of his evidence. It had been forwarded to Commissioner Cambridge prior to the filing of witness statements in accordance with the directions issued and was attached to correspondence dated 21 September 2009 and placed on the file but not marked as "filed". 105 Mr Chau deposed that the signs on the cabinets were implemented as company policy 6 years ago. 106 On the 25 June he was despatching an order and Mr Elaro asked him what had happened to the signs. He told him he didn't know and continued with the despatches. Mr Cascio interjected and said it was he who took the signs down and what was he (Bob) going to do about it. He replied "I'm the warehouse manager and who are you to be taking down these signs." This "argy-bargy" continued for a minute or so longer with both voices raised, the argument got heated with Mr Cascio using profanities. 107 He saw Mr Managreve come downstairs, and he asked what's the problem. The argument was getting heated and there were profanities all the time. Mr Chau maintained these were all on Mr Cascio's side. Mr Managreve asked him to go home, to settle down and go home and come back tomorrow but he didn't listen and continued with the argument. Mr Managreve then asked him to leave again but he didn't listen to him and it just continued from there. Mr Managreve was trying to resolve the issue. As a Manager that was his job. 108 Mr Chau also maintained that Mr Elaro held regular meetings in the warehouse on Friday afternoons at about 10 to 5 . 109 He also indicated that before there were no issues in the warehouse before the February meeting. Things slightly changed after the meeting and since Mr Cascio had left things had gone back to normal. He had been with the company for 6 years and didn't enjoy the time when Mr Cascio was there. 110 Mr Elaro deposed that he had hired Mr Cascio out of respect for his brother who works at the company and also he knew his mother who was very nice and came in from time to time. 111 He deposed that "this complication" all started when Mr Cascio and another colleague got together and started to tell his boss lies and incorrect information to get him sacked. Then Mr Cascio and this other colleague began arguing about what happened and blaming each other for what went on and it became "intense" for a while. They were warned numerous times to work it out by both he and his manager but it wasn't going anywhere. 112 He deposed that "day by day I would have Dom in my face telling me to sack him and blaming the other person" Mr Elaro said he wouldn't have someone else telling him how to do his job as he was in charge of the warehouse. He said he told Mr Cascio time and time again "to keep quiet and come to work to work, but he wouldn't listen." 113 The day before the incident happened he notice that someone had taken the signs off the cupboard that had been there for many years. He asked but no-one knew who did it but he "had a feeling it was Dom". He made new signs and put them up and they were ripped off again. 114 There were many signs in the warehouse which required all to respect and do as the signs suggested. No-one in the warehouse had the authority to change the signs to suit themselves. 115 After the meeting outside with Mr Managreve he went inside, realised the signs were torn off and he "wasn't happy and was furious". He asked the warehouse staff who did this because he knew he could find out from the camera who did it. Mr Cascio said he did it and that he didn't have the right to put up a sign like that. Mr Elaro thought it was because it had "Tom" on it and he was the one who he was arguing with all the time. 116 Mr Elaro deposed that "there was a big argument going on & i (sic) told Dom & warned him that he was on his last warning & he was very abusive & got into my face". Mr Managreve then ran down quickly to see what was going on and told Mr Cascio to take the day off and calm down but he kept going. He then deposed that "when he approached me & and touched me with his hand. Patrick then stepped in & asked him to go and not come back". 117 Mr Elaro deposed that Mr Cascio was a "very influential manipulative kind of person who has no respect for people above him in the workplace..". He "really ruined the feel of the company especially in the workplace where we were all getting on very well until he came along & had some workers conned in sticking by him & making trouble for the other worker." 118 Mr Elaro gave further detail in oral evidence about the signs on the cupboard, their nature and how long they had been there. 119 When they were ripped off a second time he wasn't happy about that and called all the guys in and asked what was going on here. That was when Mr Cascio sort of approached him and said "I did, who are you?" . Mr Elaro replied " Excuse me, what do you mean who am I, I'm your boss, don't talk to me like that". It then became a heated argument. 120 Mr Mangreve heard it and came down and told him to calm down a bit. Mr Elaro said he just kept going and "verbally abusing me" and it got into a "bad argument and then he touched me. He said "don't touch me again", and he goes "I'll snap you in half" or something like that". 121 That was when Mr Managreve told him, "right, go, you're no longer wanted here". He just kept going on and swearing and abusing him. 122 Mr Elaro maintained was it was the manager's right to put signs up and it didn't matter whose name was on there, the whole company had to abide by it. At the end of the day they were the rules and had been the rules for 3 or 4 years and Mr Cascio couldn't just come in and tell him he couldn't put that sign up. 123 Mr Elaro acknowledged that he didn't feel threatened in any way during this confrontation but it was just abusive sort of language between them. He was upset that he ripped the signs off again after he'd done them again so everyone could abide by the rules. To him that was childish and he didn't have the right to do that. 124 Mr Elaro also agreed that he told Mr Managreve after he terminated him that, "It's okay Pat". He also said that to Mr Cascio's brother. He even told Mr Managreve during the argument "don't approach let it go" but Mr Cascio just get kept screaming at him and shouting. He was told to go home and Mr Elaro told Mr Managreve "Don't worry about it". He just kept getting abusive. 125 Mr Elaro confirmed that he had meetings on Fridays but not every week. They had them whenever they needed to. They only went for about ten minutes. He'd bring it up on a Friday "Is there anything to talk about, fellas? Do we need to have meetings. Yes, yes, no, no." We'd have it that day. And every time they had a meeting, he always told them, "please sort out your problems, sort out your differences, because you know at the end of the day, someone is going to lose their job. You're affecting everyone at their pay slip." 126 Mr Elaro confirmed that the "other colleague" he had referred to in his witness statement was Mr Chau. He also confirmed some matters to do with the February meeting and issues raised about him as Warehouse Manager such as Mr Cascio saying he respected him and his only problem was that he wanted him to be more present. Mr Elaro's response was that he said that "if you want me to baby-sit you 24/7 that's what I'll do". 127 There were also a number of matters raised with Mr Elaro in cross-examination by Mr Cascio that are not considered relevant by the Commission to the issue to be determined in this matter and they will not be the subject of further reference. 128 Mr Elaro acknowledged that he had been approached by Mr Cascio in regards to issues he was raising about OH&S safety standards and regulations and other workplace issues. 129 When asked if he had referred them to Mr Managreve, he said that he was the manager and he would speak to everyone in the meeting if there were any problems. He didn't refer them because he didn't need to. 130 He did not agree that they only had three meetings the whole time Mr Cascio was employed. 131 He also indicated that he had the authority to hire and fire but would run it through Mr Managreve first. He had hire Mr Cascio and he had dismissed an employee but that was because Mr Managreve asked him to. 132 There were also a number of questions about touching employees in inappropriate areas. He said everyone did it, it was a "guy thing" and "they muck around because they laugh." He did not see it as a sexual thing. He was not aware of anyone complaining to Mr Managreve. 133 Mr Elaro said that Mr Cascio's dismissal was not pre-planned. He said "I gave warnings every week to sort it out or something was going to happen to one of you guys but you just didn't care." 134 Mr Elaro agreed that Mr Cascio's work performance was fine but he just kept coming every day telling him how to do his job and he wasn't very happy about that. He was there to do what he asked him to do but he was always in his ear to get rid of Mr Chau. He told him "just come to work, that's what we're here to do, don't worry about the politics, go home, get paid, go to your family that's it." 135 Mr Elaro said he didn't know anything about the issues Mr Cascio raised about Mr Chau. He couldn't remember what he complained about but there were always problems between the two, he didn't know if it was true or not. Mr Elaro maintained that Mr Chau didn't refuse to open the cupboard for Mr Cascio but that Mr Cascio said he didn't want to talk to him. Submissions

136 Mr Cascio said that basically everything he wanted to say he had put in his statements. He felt disadvantaged that his witness had not given evidence. Mr Cascio's three statements dealt extensively with various issues, both general and specific, that he had with OH&S issues, the WorkCover Inspection following his dismissal, complaints about Mr Chau and Mr Elaro both as to his management and allegations about particular work issues. He essentially considered that he had been dismissed because of the issues he had been raising. He also considered that he had been treated differently to other employees and had been treated unfairly by being dismissed. 137 His main issues were the safety of himself and other employees. He saw wrong and incorrect things and things that were just dangerous. There were also pressures put on them in the workplace and bullying and behind the scenes tactics. He didn't agree with that and stood firm on those issues he had brought up in the past. 138 He believed the situation couldn't be judged just on what happened that day and just because he said "I'm going to rip you apart". It was all in his statements. 139 Mr Managreve reiterated the retention rate in the company that he had referred to in his statement. More that ¾ of the staff had been there over 2 years including Mr Elaro, Mr Chau and Mr Sabsabi. Whilst it wasn't a perfect workplace it was "bearable". He tried to run the business "on a good heart" and ensure workplace policies that were fair and reasonable. They tried to run the business so that people looked forward to coming to work. 140 It was unfortunate that the situation with Mr Cascio developed. He used common sense in dealing with the situation on the day and asked him several times to go home. He pointed out that it could be witnessed from the proceedings that he was strong minded and had interrupted the Commission several times. "When he latches onto something he's not going to let go and just keeps hammering on the point". 141 Mr Managreve stood by his decision. He confirmed that prior to that day there was no thought in his mind in any way of terminating Mr Cascio. He was a hard worker and he was intelligent. They had no reason to terminate him. Mr Elaro had never come to him and said he couldn't work with him. 142 He acknowledged that there were conflicts in the workplace and tensions, which he considered were personality clashes. The situation seemed to deteriorate after the first meeting. They were personality issues, not performance issues. Performance issues he could fix, he couldn't fix personality issues. 143 He confirmed that Mr Elaro had not raised OH&S issues with him, not specifically. 144 The only reason he had terminated Mr Cascio on that day was because of the aggression he had showed. He didn't believe that team members should be out under that sort of aggression. While he may have seen it as unfair that he took the side of Mr Elaro, but as one of his managers and one who had been there for close to 7 years, that was who he supported. But most important was the aggression he displayed and that the fact that it could have turned violent. 145 The issue of questioning management's authority came up after he had terminated him and he refused to go. Consideration 146 I have very carefully considered all of the evidence including the documents tendered as exhibits and the transcript in this matter. Whilst it was not considered relevant to refer to all of the issues raised by Mr Cascio in his documentation, nevertheless they have all been carefully considered. 147 As I indicated to Mr Cascio on more that one occasion during proceedings, those issues only became relevant if the raising of those issues, as he says he did, were the reason in any way for or contributed to, Mr Managreve's decision on the 25 June to terminate Mr Cascio, or alternatively it was in some way a retaliation for Mr Cascio being perceived as a troublemaker or a maker of complaints. 148 Having carefully considered the evidence and having had the opportunity of hearing Mr Cascio give evidence, I am satisfied that Mr Managreve did not have any premeditated plan to dismiss Mr Cascio, the dismissal only arose as a consequence of Mr Cascio's aggression in the altercation with Mr Elaro and in particular the threat he issued when he said "I'll rip you apart". Words that Mr Cascio fully acknowledges that he said. 149 However I also acknowledge, again as I indicated to Mr Cascio during proceedings, that the issues he was raising and his belief that nothing was being done and his clear and apparent frustration with that, together with the phone call to his father the day before and what had resulted, obviously contributed to his state of mind and in turn how he reacted that morning. 150 Having said that, the issue then becomes firstly whether that leads to there being any justification for how Mr Cascio conducted himself that morning in the altercation with Mr Elaro and the threat he made and secondly did what occurred warrant dismissal and was that dismissal harsh and/or unjust and/or unreasonable and sufficiently so as to warrant the intervention of the Commission?

151 At the outset I indicate that I consider that a threat was made to Mr Elaro and clearly made in an angry and aggressive manner.

152 It was reasonably obvious to me that Mr Cascio is a very well intentioned and intelligent man. However it is also equally obvious that he can also become very intense and focused and indeed single minded on an issue or issues. It takes very little imagination to see how very wound up and angry he could become in a situation, particularly if he felt he was under pressure or his concerns were not being addressed. 153 I also get the impression of a fairly easy going, informal workplace without a strict adherence to rules and regulations until Mr Cascio came on the scene. 154 Mr Cascio may well have been quite right about the OH&S issues he was raising. Some of the management issues may also have had some substance. I do not know. However I have no doubt that a very new employee coming along and complaining about management issues and criticising managers about how they do their job as well as raising all manner of other issues, some of which were fairly technical, was bound to be a recipe for disharmony and tension in that workplace. It would probably not have gone down well in any workplace given the manner in which I imagine Mr Cascio may have raised matters. He did not strike me as an easy going person but someone who frankly could be prickly and difficult to deal with. 155 It is also obvious that there were tensions amongst certain employees in the workplace which included Mr Cascio. 156 I state quite plainly that Mr Elaro did have the right, as Warehouse Manager, to place a sign on the cabinets indicating who was authorised to open them. If Mr Cascio had a problem with that he should have taken that up directly with Mr Elaro and if not satisfied with the response with Mr Managreve, but in a respectful and appropriate way. Unfortunately Mr Cascio does not seem to have acknowledged Mr Elaro's rights as a manager. 157 Similarly it is clear that he had little respect for, and did not like, Mr Chau. Whether that was warranted I do not know, however this also could not have made things easy in a small workplace. 158 It is clear from all the evidence that on the morning of the 25 June, both men ended up yelling at each other and were essentially "in each other's faces" in that confrontation. Mr Elaro certainly contributed to the heat in the exchange and was obviously angry about what had happened. However the difference between the two men is the lack of control displayed by Mr Cascio as evidenced firstly by his total inability to hear and take in Mr Managreve's attempts to tell him to calm down, go home and come back tomorrow, and secondly, his escalation of the aggression to the threat that he made to Mr Elaro. 159 All witnesses, including Mr Caracoglia, heard Mr Managreve attempt to send him home to calm down. That this just did not register with Mr Cascio indicates the intensity of his reaction and outburst and the potential seriousness of the outcome of the altercation. 160 Mr Cascio has complained that Mr Managreve was also shouting and angry. I imagine that he would have had to shout just to make himself heard and to register with either of the two men, but particularly with Mr Cascio and I'm not surprised that he was angry after he had just had a meeting and essentially told employees to sort out their differences and work together or he would take steps to sort them out and now there was another clash between employees. 161 Mr Cascio has also complained that Mr Managreve did not do more to control or contain the situation. I really don't know what else Mr Managreve could have done at that point. Mr Cascio would not listen to him. What else was he supposed to do, attempt to physically grab hold of Mr Cascio and/or Mr Elaro and drag them away from each other? That would have been the worst thing he could have done and would undoubtedly have escalated the situation into an actual physical confrontation and violence that would quite probably have involved Mr Managreve as well. 162 The threat Mr Cascio uttered to Mr Elaro, even if it was said in the heat of the moment, was totally inappropriate and unwarranted. What Mr Cascio overlooks is that Mr Elaro had every right to raise with him the issue of the torn down signs. According to the evidence of Mr Elaro, which I accept although it was refuted by Mr Cascio, he had admitted to taking the signs down and essentially challenged Mr Elaro's right to put them up. It is of course extremely unfortunate that this occurred so soon after the earlier meeting. 163 Mr Cascio was also upset at the outcome of his complaint to Mr Managreve about the phone call, but Mr Managreve was correct in that he couldn't accuse any particular individual without proof even if Mr Cascio had every right to raise what happened with Mr Managreve. It is totally inappropriate for employees to contact another employee's family member and gossip in such a malicious way. 164 Mr Elaro made a valid point and one which I endorse, and that is that employees should go to work to work, not to gossip about each other. Unfortunately in my experience such gossip happens all too frequently in workplaces and is often the cause of disharmony, erodes teamwork and indeed, in extreme cases, causes absolute dysfunction. 165 The unresolved issues that Mr Cascio had and his dissatisfaction with what had occurred in the meeting earlier that day however does not excuse Mr Cascio or justify his action in issuing a threat of physical violence towards his supervisor. Particularly after Mr Elaro had told him specifically not to "touch" him. Whilst Mr Cascio has said in his evidence that Mr Elaro touched him first and then he touched him back, there was no clear evidence as to what exactly was meant by touching or how this occurred. However it is clear from Mr Cascio's own evidence that Mr Elaro, his supervisor, told him not to touch him, to which Mr Cascio replied "I won't touch you. I'll rip you apart". In uttering this threat to his supervisor, Mr Cascio stepped way over the line. That resulted directly in the decision of Mr Managreve to terminate him. 166 Mr Managreve made it clear that if Mr Cascio had responded to his direction to calm down and go home and had returned the next day, then he would not have been terminated. I imagine that he may well have been issued with some sort of warning, but he would have kept his job. 167 It was also made clear that Mr Cascio was considered a hard worker. It is unfortunate that his inability to control his temper on that day led to his termination. 168 I do not consider that the termination can in any way have arisen as any kind of pay back for the issues he was raising. It was the tearing down of the signs that caused Mr Elaro to confront Mr Cascio. Although I also acknowledge that Mr Elaro's obvious anger and reaction fuelled the situation. The reality is that Mr Cascio was essentially a fuse waiting to be lit. He cannot shove all the blame onto management and must accept responsibility for his actions. 169 Notwithstanding what I have indicated above, if he was not responsible for tearing down the signs, he had the opportunity to simply say so, keep his cool (to put it colloquially) and turn away or seek the intervention of Mr Managreve if he thought it was warranted rather than becoming as aggressive as he did which was quite out of proportion to the incident. 170 Mr Cascio was also an employee of very short duration, just some seven months. It may have been a different situation, and Mr Managreve may have exercised his judgement differently, if Mr Cascio had been a longer term employee, where as a long serving employee, if it was considered that it was a one off, out of character incident, that may have resulted in a different disciplinary outcome. 171 I should also indicate that I accept and acknowledge the undertakings given by Mr Managreve that there would essentially be no adverse consequences because a person had given evidence in these proceedings nor in relation to Mr Cascio's brother who was still employed by the respondent and had been present in the Court room (but did not give evidence). I also note the relevant provisions of the Act in this regard. 172 I turn now to the well established authorities upon which I am required to rely in exercising my discretion to determine whether the termination of Mr Cascio was harsh, unjust or unreasonable and warrants the intervention as sought. 173 In relation to procedural fairness Byrne & Anor v Australian Airlines Ltd (1995) 185 CLR 410, has also been relied on in numerous decisions of this Commission including Wang v Crestell Industries Pty Ltd (1997) 73 IR 454; Rapp v Wauchope RSL Club (1998) 81 IR 434; Burke v McGirr (1998) 87 IR 54; Busways v Johnson (1994) 55 IR 255 and Antonakopoulos v State Bank (1999) 91 IR 385.

174 As I have indicated above I do not consider that the termination of Mr Cascio was pre-planned. It occurred in response to a serious incident of aggression against another employee who was also Mr Cascio's immediate supervisor, and followed management's attempts to defuse the situation by sending him home to calm down. That direction was not followed and his aggression escalated to a physical threat. Mr Managreve, given his knowledge of Mr Cascio, was rightly concerned about the welfare of other employees in the workplace. I consider that the incident was so serious that an immediate response, and decision to terminate, was not unreasonable, and in those circumstances, in my view, no issue of procedural fairness arises.

175 The expression "harsh, unjust or unreasonable", was also considered in Byrne. The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 at p.182. Essentially, those cases hold that is not necessary that a termination be found to be harsh, and unjust, and unreasonable. It can be one, or any, or all, of those three.

176 The meaning of those individual terms was been considered in detail in Sams v Contact Point International [2001] NSWIRComm 18 and that decision has been applied in numerous other decisions of this Commission. I also adopt those considerations.

177 Bankstown City Council v Paris (1999) 93 IR 209, is authority for the necessity of the Commission making a positive finding as to whether the termination was harsh, or unjust, or unreasonable (or any combination thereof) and the grounds upon which the Commission so finds. 178 This approach was reiterated by the Full Bench in National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at paras [64] and [65]: 64 Finally, we stress the importance of a Member of the Commission at first instance in s 84 proceedings dealing expressly and specifically with the tripartite statutory test. As the Full Bench observed in Outboard Marine Pty Ltd T/As Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183, in order to avoid the possibility of misunderstanding or error, the tribunal should state explicitly the basis upon which it is considered that a dismissal was unfair or not unfair. That is to say, with the dismissal was or was not harsh, unreasonable or unjust. 65 In the present case, Cambridge C found that the dismissal of the applicant was not harsh, unreasonable or unjust and we consider an examination of the Commissioner's reasons support his conclusion. It would have been preferable, however, if the Commissioner had spelt out in clear terms why, under each limb of the tripartite test, the dismissal was not an "unfair dismissal". 179 In this matter, based on the evidence and submissions before me and my consideration of that evidence and those submissions, I am unable to find that the termination of Mr Cascio was unjust and unreasonable. It was an appropriate response from management to a serious confrontation after attempts to send Mr Cascio home were unsuccessful. 180 Whilst it was harsh because of the consequences for Mr Cascio, given the circumstances of the incident and the short time that he had been employed, I do not consider it appropriate to intervene in management's right to terminate Mr Cascio's employment.

181 The application is therefore dismissed and this matter concluded accordingly.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.