FWA 5311
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Damian O’Keefe
Williams Muir’s Pty Limited T/A troy Williams The Good Guys
DEPUTY PRESIDENT SWAN
TOWNSVILLE, 11 AUGUST 2011
 Mr Damien O’Keefe (the applicant) has applied to Fair Work Australia for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (‘the Act’]
 The application is made against Williams Muir’s Pty Ltd trading as Troy Williams The Good Guys (the respondent). The respondent operated a retail electrical goods business in Townsville.
 The applicant commenced employment with the respondent in August 2006.
 The applicant was dismissed from his employment with the respondent on 21 May 2010 for serious misconduct. Upon dismissal, the applicant was paid 3 weeks pay in lieu of notice.
 The applicant represented himself during this hearing and the respondent was represented by Mr J Merrell of Counsel.
 The respondent says that there were two incidents of serious misconduct engaged in by the applicant.
 The first issue related to commentary posted by the applicant on his Facebook webpage on 20 May 2010. The comments were “Damien O’Keefe wonders how the fuck work can be so fucking useless and mess up my pay again. C..ts are going down tomorrow.”
 Ms Kelly Taylor is the respondent’s Operations Manager responsible for payment to employees. Within the administration section of the respondent’s business, there are approximately 10 female staff. The applicant had been having discussions with Ms Taylor (either directly or by e-mail) regarding his pay issues for some period of time. The applicant had advised Mr Williams (Respondent Director) that the target of his comments had been Ms Taylor. Mr Williams was firstly responding to the fact that one employee had called a female employee a “c..t” and that he had done so publically on his Facebook page where other employees could see what was written.
 Secondly, the respondent believed the comment “c..ts are going down tomorrow” constituted a threat to Ms Taylor.
 The respondent contends that there was an intimate link between what the applicant published on his Facebook page and his work. Specifically, the respondent says that what was published “was about a co-worker and was published so that some of his co-workers could see what he had written.” [Respondent’s submissions - point 32]
 The applicant had been employed by the respondent for a period of four years.
 On 1 January 2010, the role occupied by the applicant altered to that of “Geek Guy” - a term used for one who repaired computer equipment. At that time the applicant commenced working under a new commission structure.
 The history around the applicant’s commission payments is as follows:
 On 20 May 2010, the applicant noticed that outstanding payments due to him remained unpaid.
 The applicant admits that at that time he wrote on his Facebook page “f...ing work still haven’t managed to f...ing pay me correctly. C...s are going down tomorrow.”
 The applicant says that his Facebook webpage is set to the maximum privacy setting and only his select group of friends (70 people) could see what he had written. He states that nowhere on his webpage is the Good Guys mentioned. Under cross-examination, the applicant stated that there were probably 11 co-workers in his select group of friends who arguably would have seen the entry posted on his Facebook page on the 20 May 2010.
 The applicant says that on the day of writing those comments [and while he was absent from work] he was contacted by his Area Manager, Ms Hellyer who told him that Mr Troy Williams (Respondent Director) was taking the comments as his letter of resignation.
 Upon returning to work the following day, the applicant spoke to Mr Williams.
 The applicant asked Mr Williams if he had terminated his employment. Mr Williams responded by saying he thought what had been written by the applicant was his ‘letter of resignation’. The applicant responded by saying he had not resigned nor was he intending to resign.
 It is claimed by the applicant that Mr Williams told him that he “resign now or I will sue you”. [Applicant’s affidavit - Exhibit 1 point 13].
 Mr Williams allegedly told the applicant that he could not call him a ‘c..t’. The applicant corrected Mr Williams saying that he had been referring to Ms Taylor.
 The applicant further alleges that Mr Williams told him he was a “fat lazy c..t’ and then Mr Williams grabbed the applicant and physically pulled him towards the office door. The applicant says he was then pushed and shoved in the direction of the stairs by Mr Williams.
 A letter of termination was received by the applicant some days later and the applicant was paid 3 weeks notice and annual leave payments. He claims that he did not receive any of the commissions owing for the 8 weeks in question.
 As a consequence of a complaint made by the applicant to the Fair Work Ombudsman, it had been determined by the Fair Work Inspector (in correspondence dated 23 July 2010) that the respondent had not contravened any Commonwealth workplace laws or the relevant industrial instrument.
 Mr Troy Williams says that he employs between 70 and 85 staff at any time, of which approximately 40% are female.
 The Operations Manager of the business is Ms Taylor and there are approximately 9 to 10 female administrative staff.
 Mr Williams had established, from viewing the applicant’s Facebook web-page, that of his ‘select’ group of friends, there were a number of persons who were employed by the respondent.
 Upon speaking to the applicant when he returned to work, Mr Williams said he advised him that “I am taking it you resigned. You can’t work here - you made threats against us”. [Mr Williams affidavit - Exhibit 5 - point 11]
 Upon the applicant requesting a ‘termination certificate’, the respondent stated “I can’t keep you employed. What do I do if there are females who want to sue for harassment. It is best for you to just go”. [Exhibit 5 - point 15]
 Mr Williams denied that he pushed and shoved the applicant, but said that, upon the applicant making no move to leave the room, he took the applicant by the elbow and guided him towards the door.
 In terms of the allegations made by the applicant, Mr Williams advised that he believed the applicant weighed (at that time) around 160 kgs and
“approximately 1 year ago I had surgery on my left knee, in relation to a tendon that had snapped. Ongoing difficulties with my left knee, including my kneecap regularly dislocating, substantially affect my mobility. I have no lateral movement in my left knee. It is necessary for me to attend physiotherapy nearly every week.” [Exhibit 5 - point 18]
 Upon termination of employment, the applicant was provided with a Separation Certificate and 3 weeks pay.
 Mr Williams said he had lost all confidence in the applicant not only because of his comments made about Ms Taylor but also because of his conduct at the meeting of 21 May 2010.
Consideration of the evidence
 There were only two witnesses in this matter. In terms of what was written on Facebook, there is no contest between the parties as to what comments were made and to whom they were directed.
 The only mitigating factors proffered by the applicant were that he was angry at not being paid commissions due to him and that his comments on Facebook were not intended to be seen by Ms Taylor.
 Being concerned at not being paid correctly, the applicant had raised these concerns with Ms Taylor, but in his view the problem remained unresolved.
 Rather than pursue the matter at a higher level within the respondent’s business, the applicant dealt with his frustrations by airing them on Facebook.
 The applicant was aware that there were other work colleagues on his Facebook group who could see the comments made and this is precisely what happened. While Ms Taylor’s view of the applicant’s Facebook page on that day had been blocked by the applicant, there was no attempt made to block the viewing of other work colleagues.
 It would be difficult to accept that the applicant was unaware of the consequences of his actions. The Employee Handbook was available to employees as were notices posted in the amenities block at the respondent’s business. (Exhibit 2B)
 The Employee Handbook referred, amongst other things, to the requirement of employees to be aware that:
“In communicating with other staff, customers and suppliers employees should be courteous and polite, maintain a high level of honesty and integrity and present themselves and the business professionally. Employees will not use offensive language, resort to personal abuse or threaten or engage in physical contact”.
 The Employee Handbook also contained detailed Policies, such as the Sexual Harassment Policy and the Workplace Bullying Policy.
 Even in the absence of the respondent’s Handbook warning employees of the respondent’s views on matters such as this, common sense would dictate that one could not write and therefore publish insulting and threatening comments about another employee in the manner in which this occurred
 The fact that the comments were made on the applicant’s home computer, out of work hours, does not make any difference. The comments were read by work colleagues and it was not long before Ms Taylor was advised of what had occurred. The respondent has rightfully submitted, in my view, that the separation between home and work is now less pronounced than it once used to be.
 I have accepted that the applicant’s conduct was repudiatory conduct which amounted to serious misconduct.
 Against these factors, the applicant has asserted that his dismissal was harsh, unjust and unreasonable.
s.387 Criteria for considering harshness etc
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) ‘whether there was a valid reason for the dismissal related to the person’s capacity, conduct (including its effect on the safety and welfare of other employees)”
 A valid reason existed for the termination of the applicant’s employment.
 The applicant’s comments on Facebook showed complete disrespect and disregard for Ms Taylor. As well, work colleagues were able to view those comments.
 The comments had been brought to the attention of Mr Williams. The applicant in his own evidence, confirmed that the comments related to Ms Taylor.
 While it is accepted that the applicant was frustrated by his unresolved pay issues, the manner in which he ultimately dealt with the issue warranted his dismissal for misconduct.
In Byrnes v Treloar, Stein JA stated:
“As I have referred to above, the trial judge was satisfied that the entire course of conduct by the appellant from her letter of 19 October 1991 up to 8 December 1992 was inconsistent with her continued employment with the respondent. The test of repudiation is not a subjective one. As was stated by Adam J in Loughridge v Lavery  VR 912 at 923, intention is to be judged from what the other party would reasonably infer from the acts or words of the renouncing party, see also Carr v Berriman Pty Ltd (1953) 89 CLR 327” [Supreme Court of New South Wales - Court of Appeal in Byrnes v Treloar (1997) 77 IR 332 at 335]
In Macken’s Law of Employment (6th Edition), the authors state:
‘The use of insulting and objectionable language may constitute misconduct. The standard is not that of the dainty and genteel but the standard applying in the “give and take atmosphere” of the modern workplace. If abusive language is common at the workplace its use by an employee would not normally be regarded as sufficiently serious to warrant dismissal unless it is directed to challenging the authority of a supervisor.”
 Together with describing a female work colleague as a ‘c..t’ the applicant also issued a threat against Ms Taylor, with the words “c...ts are going down today.”.
 Prima facie, threatening another work employee is a serious issue and one which would not be tolerated in any workplace. The manner in which the threat was made and the words used provided sufficient reason for the respondent’s dismissal of the applicant on the grounds of serious misconduct
(b) “whether the person was notified of that reason”
 It is accepted that the applicant knew from his meeting with Mr Williams on 21 May
2010 that the reason for his dismissal was what he had posted on his Facebook page.
(c) “whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
 The applicant was afforded an opportunity to respond to claims made against him.
That debate became somewhat academic, however, when the applicant admitted to being the
author of the comments sent on his Facebook page and confirming to Mr Williams that the
target of the comments was Ms Taylor.
(d) “any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussion relating to dismissal”
 No evidence was put before the Tribunal that any request was made by the applicant to
have a support person with him.
(h) “any other matters that FWA considers relevant.”
 The respondent says that there were other avenues which could have been taken by the
applicant with regard to his pay issues.
 The issue could have been raised with Mr Williams. The applicant agreed with this
 A dispute settling procedure was available (Respondent’s Employee Handbook). The
applicant stated that he had signed acceptance of having read the Handbook.
 Further, the applicant could have consulted the Fair Work Ombudsman with regard to
his pay issues. The applicant, prior to the events of 20 May 2010, had in fact made contact
with the Fair Work Ombudsman’s office but chose initially not to take the matter any further.
 The application is dismissed
Mr D. O’Keefe self represented
Mr J. Merrell Counsel for the Respondent
26 May 2011
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