Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - valid reason - serious misconduct - summary dismissal - opportunity to respond - application dismissed.

[1] This decision concerns an application made by Mr George Talevski (applicant) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy.

[2] The applicant commenced employment with Chalmers Industries Pty. Ltd. (respondent) in or about 1986. The applicant was initially employed by the respondent as a mechanics trades assistant and yard hand before he moved into the role of handyman/maintenance operator.

[3] The applicant was summarily dismissed on 6 November 2017 for serious misconduct, which was said in these proceedings to include inappropriate touching of a staff member, failure to follow reasonable and lawful directives, threatening and abusive behaviour towards the respondent's Chief Financial Officer, and failure to provide a response to the allegations of serious misconduct.

[4] The applicant contends that his dismissal was unfair and seeks reinstatement or compensation.

[5] The matter was heard before me on 26 and 27 March 2018. The applicant was represented by Mr Rohan Millar of counsel and the respondent was represented by Mr Chris Gianatti. Permission for the parties to be represented was granted pursuant to s.596 of the Act.

[6] The applicant gave evidence on his own behalf. He required a Macedonian interpreter. The respondent led evidence from Ms Margaret Bult, Ms Amber Jordan, Mr Steve Allen, Mr Frank Rosini and Mr Kane Harnden.

[7] In Selvachandran v Peteron Plastics Pty Ltd[1], Northrop J said:

'... In its context in s 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must "be applied in a practical, commonsense way to ensure that" the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.'[2]

[8] In Briginshaw v Briginshaw[3], Dixon J said:

'... Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences'.[4]

Initial matters to be considered before merits - s.396

[9] I have considered s.396 of the Act and I am satisfied that the applicant's application was made within the 21 day period required by s.394(2) of the Act; that the applicant was, on 6 November 2017, protected from unfair dismissal within the meaning of s.382 of the Act; that the respondent is not a small business for the purposes of the Act; and the dismissal was not a case of genuine redundancy.

Was the dismissal unfair? - s.385

[10] For the dismissal to be unfair, I must be satisfied that the dismissal was harsh, unjust or unreasonable as the other requirements of s.385 of the Act are all satisfied in the present case.

[11] The ambit of the words 'harsh, unjust or unreasonable' in the context of a dismissal was explained in Byrne & Frew v Australian Airlines Ltd[5] by McHugh and Gummow JJ as follows:

'... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.'[6]

[12] I will now deal with each of the matters set out in s.387 of the Act, which determines this matter, having regard to these and other authorities.

Valid reason - s.387(a)

[13] The applicant had some English language skills, but was not fully proficient. He could, for example, read and comment on his payslip.[7] I was unable to assess whether or not he could read English because on the first day of hearing he advised me that he had forgotten to bring his reading glasses, and on the second day that he had broken them,[8] which was an unfortunate coincidence. However, he had access to an interpreter at all times, and used the interpreter to assist him. There was no reason why he would not have been able to understand and answer questions.

[14] Mr Harnden gave evidence that:

'Mr Talevski then started to become very abusive towards me, thumping my desk and accusing me of harassment. The interaction between [us] was as follows:

Mr Talevski: I'm not feeling well, climbing the stairs was very hard.

Me: You don't look well George, I've asked you here because both Steve and Frank told me that when they saw you that you looked terrible and I want you to go home and rest up.

Me: George you don't look great, you just complained that you were feeling unwell. When Steve saw you this morning he said you were sweating.

Mr Talevski: I was not swearing, you weren't there, you don't know what I was saying.

Me: George, I didn't say you were swearing, I said sweating, perspiring. I need you to go home George. You're not being suspended or stood down. I need for you to go home and rest up.

Mr Talevski: You're not my boss, you don't tell me what to do [Mr Talevski then started to [thump] my desk].

Me: I'm sorry you feel that way George, but I can tell you what to do, and as I said for your own good, please go home. You don't even have to use your sick leave. Just go home.

Mr Talevski: Fuck off, you don't tell me what to fucking do. You're not my fucking doctor. My doctor said I can work.

Me: Don't swear at me George, do not bang my desk and do not raise your voice.

Mr Talevski: You are bullying me, you are treating me like a terrorist. I'm going to sue you, not Chalmers but you. I own lots of houses in Yarraville, I'm going to sue you, you will have fucking nothing. I'm suing you, you will have nothing.

Me: George, I'm going to be clear you cannot talk to me like this, you can't talk to anyone like this. Banging my desk is not on. I'm going to be very clear George, I'm giving you a directive to go home and leave the workplace. Go home George.

Mr Talevski had become very aggressive and threatening towards me by this point. As I feared that he may become violent towards me, I left Mr Talevski alone in my office and went outside to get Mr Rosini, for support and to be witness. Mr Rosini joined me in my office with Mr Talevski and the interaction between us continued as follows:

Me: George I'm asking you to go home, you are not being suspended, but for your own good, I'm sending you home.

Mr Rosini: Come on George, it's for your own good. Go home.

Mr Talevski (directed at me): I am not going home, you treat me like shit, you treat me like a terrorist. You are not a doctor you are not my boss.

Me: George, I've had enough of this. I do not need to be subjected to this kind of behaviour, I don't need to be threatened. The yelling, the banging on my desk. I'm going to call the union George. This is not on. You need to leave my office and you need to go home.

Me: George, I'm going to ask you again, please leave my office [Mr Talevski did not respond].

After several failed attempts by myself and Mr Rosini to direct him to leave my office, Mr Talevski finally left my office.'[9]

[15] Mr Harnden was cross-examined about this evidence, and was convincing in his insistence that it was a true account.[10] The applicant was cross-examined about this evidence and about the different account of the conversation that he gave in evidence. He eventually admitted that Mr Harnden's description of the conversation was 'basically the passage of the conversation'[11], rather than his version, which was much shorter and of a different nature,[12] and one more favourable to his case. The applicant claimed that he did not yell in the meeting,[13] and then admitted that he did yell.[14] He appeared to eventually agree that the meeting ended with him being directed to go home, and only after a while following that direction[15] but claimed that he did not swear[16] or bang the desk loudly[17]. The applicant did not mention that Mr Rosini came into the room during the conversation in his witness statement then admitted that Mr Rosini did enter the room during the conversation he had with Mr Harnden,[18] and other matters. I had the opportunity to observe him giving evidence, and the applicant's evidence was unsatisfactory and unreliable at best. It was not a candid account of what happened and who said what but was self-serving. I note that he was ill and taken home by ambulance, and claims in his witness statement that he was 'very distressed'[19]. However, he was not distressed when giving evidence before the Fair Work Commission, and his evidence was unsatisfactory.

[16] Mr Rosini corroborated Mr Harnden's statement that the applicant was yelling, that there was a commotion, and that the applicant was angry and non-cooperative.[20] I found that he and other employer witnesses were convincing in their evidence. I accept their evidence in preference to that of the applicant.

[17] Mr Millar submitted that:

'One shouldn't become, in my submission, too precious about what happened in a meeting like this. It's a truck depot effectively, as I understand it.'[21]

[18] In my view, actions and words have to be considered in context, including the nature of the workplace, which may on occasions be somewhat rough and tumble. However, there is a limit. An employer is entitled to a certain standard of conduct from employees, including during disciplinary meetings. This was also a meeting in the management building not the shop floor, where different standards may apply. In my view, the conduct of the applicant at the meeting held on 9 August 2017 with Mr Harnden constituted a valid reason for termination of his employment. The applicant swore, raised his voice, and banged the desk loudly and in a threatening manner, and made threats to sue while referring to his alleged wealth. This was inappropriate conduct in the circumstances.

[19] The question was raised of whether or not this was a response to disciplinary proceedings against him. It is well established that the act of disciplining an employee does not constitute an acceptable reason for abusive or defiant or otherwise inappropriate conduct, such as swearing, raising the voice, or banging the desk.[22] In any event, this was not a disciplinary meeting. Mr Harnden was attempting to assess the welfare of the applicant, consistent with the duty of care owed by the employer.[23]

[20] In addition, Mr Harnden and Mr Rosini gave evidence that the applicant was directed by Mr Harnden to leave his office and go home and the applicant refused to leave for a time, and did not go home until an ambulance was called.[24] This was a lawful and reasonable direction and is also a valid reason for termination of his employment.

[21] Ms Jordan gave evidence that:

'Mr Talevski often stopped at reception to speak with me. Although I did not believe it was ever sexual in nature, Mr Talevski often invaded my personal space. This made me feel uncomfortable. For example, he would regularly engage in uninvited touching of my shoulders and hair and would give me unwelcome hugs. I believe Mr Talevski thought there was nothing wrong in the way he treated me, similar to how he might treat his daughter, but it made me feel uncomfortable. I don't like anyone touching me and although I don't believe Mr Talevski had any ulterior motives, his actions were too much for me and I wanted him to stop. I had told some of my co-workers, Margaret Bult, Payroll Manager, Anette Bolger and Booie about Mr Talevski's invasion of my personal space and that it made me feel uncomfortable.'[25]

[22] Ms Jordan's evidence was balanced and fair, and even protective towards the applicant. Ms Jordan said that she did not want to make a formal complaint or get the applicant in any trouble, and that his touching of her was non-sexual in nature. Ms Jordan simply wanted the applicant's conduct to stop.[26] These statements are to her credit. Ms Jordan was cross-examined about her evidence and was convincing in her replies.[27]

[23] The applicant claimed that he only stroked her hair when she asked him, that she gave him a kiss and he never did, that she hugged him and then he hugged back.[28] The applicant's evidence was unconvincing at best, and I prefer the evidence of Ms Jordan.

[24] I also note that the applicant's witness statement did not contain any description of his alleged touching of Ms Jordan. This is despite the fact that he knew that there was a problem from 8 August 2017, as shown by his repeated approaches to Ms Jordan on that day. The applicant was also given details of his alleged conduct in correspondence from the employer dated 16 October 2017[29] and 26 October 2017[30], and the termination letter alleged that he engaged in 'touching and invasion of personal space of Ms Amber Jordan'[31]. This failure to provide an explanation until cross-examination is odd given his repeated claims that he was not given the opportunity to put his case, and the fact that he did put a case to his colleagues in early September 2017 but not to his employer.[32]

[25] While Ms Jordan was protective of the applicant, the applicant did not show any real contrition or only minimal contrition about his conduct towards her, or about the way in which he had distressed and upset her at work. The applicant apologised on perhaps one occasion only.[33] There was no further expression of contrition, including during these proceedings. During these proceedings, the applicant was defiant and continually denied allegations, sometimes contradicting himself and admitting that they were true.

[26] On 8 August 2017, after learning that management wanted to speak with him, the applicant repeatedly came to speak with Ms Jordan about whether or not she had made a complaint about him, even following her when she retreated to Ms Bult's office to get away from him. Ms Jordan had become distressed again because of the applicant's continual visits. She went to the ladies toilets and cried.[34] In the circumstances, this appears to be inappropriate pressuring of a fellow employee, and a much younger employee.

[27] Mr Millar quite properly raised a number of issues, including the respondent's lack of sexual harassment training, Ms Jordan's failure to tell the applicant to stop, Ms Jordan's reference to the touching being non-sexual in nature and other issues. Mr Millar submitted that there was mutuality in the conduct, that Ms Jordan needed to say something to the applicant, and other matters.[35]

[28] However, Ms Jordan made it clear that the applicant initiated the hugging, and she only responded, and that the applicant touched her on the shoulders and hair.[36] There was not mutuality in the touching in the manner suggested, and I have accepted Ms Jordan's evidence. Ms Jordan apparently did not feel able to tell the applicant to stop, and instead told some female and possibly older co-workers, Ms Bult and Ms Bolger. Ms Jordan is young in age, and it is understandable that she would not feel able to tell a much older man, the applicant, to stop. There is no question that she wanted the applicant's touching to stop. Ms Bult corroborated Ms Jordan's evidence about being told of the issue and the way in which the applicant pursued Ms Jordan on 8 August 2017 so that she became distressed,[37] as did Mr Rosini.[38] As to the touching being allegedly non-sexual in nature, this may be protective on Ms Jordan's part, and it is not clear how she knew this. In any event, for the purposes of these proceedings, I accept Ms Jordan's statement on this. Mr Harnden gave evidence that the respondent required each employee to sign off that they have read and understood a book of policy statements each year.[39]

[29] In my view, in all of the circumstances, the touching of Ms Jordan constitutes a valid reason for termination of employment. The respondent owed a duty of care towards Ms Jordan to protect her against such conduct, and behaved appropriately.

[30] Mr Allen gave evidence in re-examination that on 2 August 2017 he directed the applicant to not enter the main building. Mr Allen contradicted the statement he made that he directed the applicant to not enter the main building except for work purposes and not to have chats with other employees.[40] It is unfortunate but understandable that in some cases, details such as this are not entirely clear in the mind of a witness. In any event, the applicant breached that direction by entering the main building repeatedly on 8 August 2017 to question Ms Jordan, which led to her becoming distressed. No acceptable justification for his entry to the main building was given. This was a lawful and reasonable direction, and I find that this is also a valid reason for termination of his employment.

Notice of valid reason - s.387(b)

[31] The applicant was notified of the valid reasons for termination before the termination took effect, for example, in the letter sent by the respondent on 16 October 2017[41] and in the email sent by the respondent's legal representatives to the applicant's legal representatives on 26 October 2017[42]. The applicant was also notified in the termination letter.[43]

Opportunity to respond - s.387(c)

[32] The applicant could have responded and justified his conduct towards Ms Jordan on many occasions after 8 August 2017. The applicant did not. The applicant was sick for a period but on 28 August 2017, his union representative was advised of the nature of allegations against him.[44] The applicant was able to respond with a detailed written response on 5 September 2017 to his 'fellow colleagues at Chalmers Transport'.[45] The applicant said in this response that the allegation of serious misconduct was 'completely false and has been fabricated by the management of Chalmers transport'.

[33] The applicant chose to respond by an appeal to his fellow employees. The applicant chose not to respond to the respondent although he knew or should have known roughly what some of the allegations were, as indicated by his repeated discussions with Ms Jordan on 8 August 2017, and discussions with his union representative. This makes his claims of not having the opportunity to respond somewhat fanciful. The applicant did have an opportunity to respond, and did in fact respond, although not to the respondent. The applicant could presumably have done the same thing at a later stage, after more details of the allegations against him were provided on 16 October 2017 and 26 October 2017. The applicant chose not to.

[34] It is true that the applicant's legal representatives attempted to negotiate a time for a meeting, and eventually the respondent simply terminated his employment. It was probably incumbent on his representatives to respond and they did not, even taking account of the public holiday.[46] Even if I am wrong on this, he could have responded in writing as he had in September 2017.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[35] The applicant was offered a support person in the various letters sent to him attempting to arrange a meeting.[47]

Size of enterprise and absence of dedicated human resource management specialists/expertise on procedures followed - ss.387(f)(g)

[36] This is a larger enterprise and while there is no specialist Human Resources staff, the respondent had access to legal advice. There is no discount of expected standards of behaviour on account of these factors.

Other relevant matters - s.387(h)

[37] Mr Millar raised a number of issues including the applicant's long service of 31 years, his poor English skills, and limited work experience, his age, and his limited prospects of finding new work.[48] I have taken these factors into account.

[38] Mr Millar also raised the alleged absence of any training, and the alleged absence of any prior warnings.[49] In relation to the alleged absence of any training, I have already noted Mr Harnden's evidence that the respondent required each employee to sign off that they have read and understood a book of policy statements each year.[50] It may be that more could have been done, but it appears that sufficient was done for present purposes.

[39] In relation to warnings, Mr Harnden gave evidence that the applicant had a disciplinary history. There was little evidence for much of this, which appeared to be denied by the applicant, and was in any event not recent except for Ms Jenny Winkler. The applicant admitted that Ms Winkler made a complaint against him, and claimed that she touched him and kissed him, and he never did anything wrong.[51] In any event, there was only hearsay evidence concerning a complaint by Ms Winkler in August 2016 that the applicant invaded her space and touched her and gave her unwelcome hugs. Mr Allen gave evidence that Ms Winkler advised him of this inappropriate touching, and was advised that the applicant was warned about the incident.[52] Given its hearsay nature, the evidence is of limited, if any, weight.

[40] I have taken account of all submissions and evidence, and the findings I have made above, including that this is a summary dismissal. In my view, the termination of employment was not harsh, unjust or unreasonable. The conduct of the applicant was serious misconduct. It is not appropriate for an employee to continually touch a young female employee in the manner that he did. It is not appropriate to angrily confront an employee in the manner that he did, and to breach directions to leave the employee's office or go home, and not to enter the management building. The applicant has shown no or minimal contrition or insight into his behaviour and limited, if any, concern for the distress that he caused Ms Jordan. The applicant's evidence was unreliable and self-serving at best, and could not be described as candid disclosure of what he actually did. This counterbalances to some extent his age, long service, difficulty in finding a job, limited English language skills, and the other matters which weigh in his favour.

[41] Taking into account all of the circumstances and the considerations in s.387 of the Act, I consider that the applicant's dismissal was not harsh, unjust or unreasonable and therefore, his dismissal was not unfair.

[42] Accordingly, I dismiss the application. An order giving effect to this decision is separately issued in PR601539.

[1] (1995) 62 IR 371.

[3] [1938] HCA 34; (1938) 60 CLR 336.

[22] See Mrs Saloshna (Vanessa) Naicker v Epworth Foundation [2017] FWC 4928.

[24] Exhibit C6 at [28]; Exhibit C5 at [22]-[24].

[33] Exhibit C2 at [12]; Exhibit C1 at [9].

[40] Exhibit C4 at [16]; Transcript PN1621-1622.

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