Fair Work Act 2009_

s.394 - Unfair dismissal

Application for relief from unfair dismissal - valid reason - serious misconduct - dismissal not harsh, unjust or unreasonable - application dismissed.

[1] On 30 March 2016, Mr Lyndon John Kube applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against his former employer, Dominelli Group Pty Ltd T/A Rockdale Nissan (the respondent).

[2] The matter was heard today, 24 October 2016. Mr Kube represented himself. Mr Sykes of counsel appeared with Ms Skaltsounis, solicitor, for the respondent. Mr Kube gave evidence on his own behalf and was cross-examined on that evidence. The respondent tendered evidence from four of its employees:

• Mr Jonathan Puttick, Chief Operating Officer; and

[3] Of the respondent's witnesses, Mr Kube chose only to cross-examine Ms Semkoska.

[4] I gave my decision on transcript at the conclusion of the hearing. This is an edited version of that decision.

[5] Mr Kube was dismissed on the grounds of serious misconduct on 11 March 2016.

[6] Mr Kube commenced employment with the respondent in August 2015 as a Sales Consultant. His wife, Kristy Kube, was the respondent's General Sales Manager.

[7] Having examined all the evidence, and having regard to the failure of the applicant to cross-examine the respondent's witnesses, with the limited exception of Ms Semkoska, I am satisfied of the following facts.

[8] On Tuesday 8 March 2016, the applicant and his wife were both on a rostered day off. They had not left any instructions to anyone from the respondent not to be contacted. In any case, Ms Kube exchanged text messages with other staff that day.

[9] A body repairer had shown up on site and said to Jonathan Puttick (the respondent's Chief Operating Officer) that he been instructed by Ms Kube to touch up a small paint defect on a stock vehicle in the yard which was due for delivery soon by the applicant. He said it could not be done as a touch up and would need a more time-consuming spray repair.

[10] At approximately 10:40 am, Mr Puttick asked Lisette Sfeir (Stock Controller) to call Kristy Kube to find out if they should alert the customer about a delay if the vehicle was due for immediate delivery.

[11] Ms Sfeir then rang Ms Kube, in accordance with Mr Puttick's instructions.

[12] Kristy answered her phone, and upon recognising the call was from Ms Sfeir, she said 'I can't talk, I'm sick'.

[13] Ms Sfeir sent a text message to Ms Kube at 10:50 AM which stated:

'sorry I know you are sick but when you get the chance Jonathan said Eddie was here to fix scratch but it can't be fixed by him it needs panel shop. What do you want done?'

[14] Ms Kube then rang Mr Puttick and resolved the situation with the contractor.

[15] I am satisfied that Ms Sfeir made no other call to Ms Kube that morning.

[16] At approximately 11:15 AM, Ms Sfeir received a call from the applicant on her private mobile. He began to abuse her using words such as 'don't fucking call us ever' and 'we are busy'. When Ms Sfeir said that she had called at the request of Mr Puttick the applicant said 'let Jonathan call her not you' to which she responded 'I'm sorry Lyndon, I'm not a mind reader you should have told me the previous day you both didn't want to be disturbed'. The applicant then responded by yelling at Ms Sfeir 'you stupid cunt' and then hung up.

[17] Ms Sfeir immediately went into Mr Puttick's office, visibly shaken, and told him that the applicant had yelled at her and called her a stupid cunt.

[18] I am also satisfied that the applicant had on a number of occasions in the months leading up to this event ridiculed Ms Sfeir in front of her colleagues, and insulted her. Mr Puttick had had cause to speak to him about this behaviour on several occasions.

[19] After Ms Sfeir's complaint to him, Mr Puttick rang the applicant and asked him to confirm what Ms Sfeir had told him. He said it was okay as it was his day off when the event occurred. Mr Puttick told the applicant that he would be disciplined and possibly dismissed. He said that he was not prepared to leave the applicant on the same site and proximity to Ms Sfeir.

[20] Mr Puttick sought advice from the respondent's Human Resources Manager, Ms Semkoska. They agreed to meet with the applicant to discuss his phone conversation with Ms Sfeir.

[21] On the morning of 11 March 2016 the applicant met with Puttick and Ms Semkoska. The applicant did not deny speaking to Ms Sfeir in the manner alleged, nor did he seek to defend his behaviour. He was then advised that he was being dismissed on the grounds of serious misconduct.

[22] I am satisfied that the respondent had a valid reason for dismissing the applicant. His actions in speaking to Ms Sfeir were utterly unacceptable and constituted serious misconduct. Moreover they were the latest in a series of unacceptable actions directed at Ms Sfeir.

[23] I am also satisfied that the applicant was notified of the reason for his dismissal and was given an opportunity to respond, at the meeting on 11 March 2016.

[24] There is no evidence of an unreasonable refusal by the respondent to allow the applicant to have a support person present at the meeting.

[25] The employer is a medium-sized business with access to human resources expertise. I can find nothing to criticise in the manner in which it went about effecting the dismissal.

[26] I do not consider there are any other matters that I need to take into account.

[27] The applicant was not unfairly dismissed. His application is dismissed.

S Sykes of counsel with M Skaltsounis, solicitor, for Dominelli Group Pty Ltd.

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