| [2017] FWC 3880 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Joseph Essey
v
Rafic Pty Ltd T/A All-Fect Distributors
(U2017/3980)
SENIOR DEPUTY PRESIDENT HAMBERGER |
SYDNEY, 22 AUGUST 2017 |
Application for an unfair dismissal remedy.
[1] On 12 April 2017, Joseph Essey (the applicant) applied for an unfair dismissal remedy in accordance with Part 3-2 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment by Rafic Pty Ltd (the respondent) on 7 April 2017.
[2] On 7 April 2017, the Managing Director of the respondent, Paul Essey (the applicant’s brother) sent a letter of termination to the applicant that included the following:
‘We regret to inform you that your employment with Rafic Pty Ltd trading as Allfect Distributors is terminated effective immediately for the following reason(s):
We have previously discussed with you the need for you to focus upon the state of the business rather than on your own personal agenda. Given your position within the Company these are matters which should not need to have been brought to your attention.
In doing so you have brought the Company and its operations into jeopardy and such conduct causes a serious and imminent risk to the health and safety of staff and the reputation, viability and profitability of the business. These allegations have been substantiated through our investigations.
…
This decision was not made lightly but was necessary given your recent conduct and attitude to the Company and its affairs.’
[3] A hearing was held in Sydney on 6 July 2017. The applicant was represented by J Hassett, solicitor, and the respondent by N Allan of counsel.
[4] Two statements were tendered by the applicant. Statements from the following were also tendered on behalf of the applicant:
[5] Statements from the following were tendered on behalf of the respondent:
[6] Each of these witnesses was cross-examined.
[7] The applicant was appointed a director of the respondent on 16 February 1987 when he was 22 years of age. He is now 53. He has spent most of his working life with the respondent. The other directors include the applicant’s father, Fred Essey, who founded the business in about 1980, his mother Carol, and his brothers Paul, Johnnie and Colin.
[8] The respondent’s business concerns the distribution of confectionary and snack foods. It owns premises consisting of a warehouse and office complex in Lidcombe, NSW, has an annual turnover of some $10 million, and employs around 20 staff. 1
[9] According to the applicant, the respondent’s business has been managed – until his dismissal – primarily by the applicant and his brother Paul, since their father moved to Lebanon about 15 years ago:
‘Paul is the managing director, and I was the general manager. My other brothers also work in less responsible positions.’ 2
[10] The applicant described in his statement how he and Paul had divided the running of the business over the previous 15 years. The applicant was responsible for sales and warehousing, whereas Paul was responsible for product procurement and the management of the company accounts. While this system of divided responsibility had worked well for many years, the applicant considered that in more recent years, Paul had kept the details of the accounts of the company more and more to himself. In particular, he claimed that he had not seen any official profit and loss statements or balance sheets for over 10 years. He said he was paid $810 per week in cash in a pay packet by way of remuneration for his role as General Manager (though he also said in answer to a question from the Commission that he was paid a salary of $35,000): 3
‘Otherwise Paul has completely taken control of the company money.’ 4
[11] The applicant claimed in his statement that Paul spent company money on costs unrelated to the company, including payments and benefits to members of the family, who do little or no work for the company. 5
[12] The applicant said in his statement that he had been told by Paul that the respondent had ‘made a loss on the books’ over the last two financial years – something the applicant found hard to understand. He said that in about October 2016, he had an argument with Paul about a business issue:
‘We then had a major argument and have scarcely spoken since.’ 6
[13] According to Paul’s written statement, he called a meeting with the applicant, Mr Ardi and Christopher Essey on or about 2 March 2017 to discuss:
‘…long-term issues arising and impacting upon the Company as a result of the manner by which Joseph had been conducting business. In particular the decisions Joseph had made to pursue markets and sell certain products at a heavily reduced price to compete in the marketplace with a Competitor at which one of our ex-employees was working.’ 7
[14] According to Paul he and Mr Arnaz told the applicant he needed to cease selling products that were near or below cost. Chris also backed them up. 8
[15] According to Paul’s statement the applicant said:
‘Chris you are a useless fat slob that draws penises and vaginas all day and Arnaz you’re a dopey fucking South East Asian not worth feeding.’ 9
[16] Chris, in his statement, said that after he had supported comments made by Mr Ardi the applicant said to him:
‘Chris you are a fat useless fucking slob that draws penises and vaginas all day.’ 10
[17] Chris said that the applicant then turned to Mr Ardi and made some racist comment to him. He continued:
‘At that point, Paul stood up and said to Joe:
“Your constant bullying and inappropriate racial remarks will no longer be tolerated. You need to resign as director.”’
[18] Chris also stated that the applicant said ‘…if you ever ask me to resign I am going to smash you in the face.’ 11
[19] Under cross-examination, the applicant conceded he said to Chris:
‘Christopher, you’re useless, you dawdle around everywhere and have a habit of drawing genitalia’. 12
[20] The applicant denied using the words attributed to him directed at Mr Arnaz. Rather, he said ‘Stay out of it, Arnaz you idiot’. 13
[21] Mr Arnaz said in his statement that the applicant said to him during this meeting:
‘Arnaz you are a dopey fucking South East Asian not worth feeding.’ 14
[22] In his statement, Paul said that he told the applicant not to speak to the staff that way. It was not acceptable and would not be tolerated. He then asked for the applicant’s resignation as a director. There was a further argument in which the applicant allegedly said ‘…if you ever ask me to resign again I am going to smash you in the mouth.’ 15
[23] Mr Arnaz, in his written statement, generally corroborated Paul’s version of this exchange. 16
[24] The following exchange took place during the applicant’s cross-examination:
‘You’ll agree with me that you do use coarse language in the company’s premises, from time to time --- Everybody just about does. The whole company ---
Let’s just focus on you? --- Huh?
Let’s just focus on you, Mr Essey? --- We can’t just focus on me if everybody’s using the language in general terms. Yes, we all did, so I did too, yes.
That’s not something about which you are apologetic, is it? --- Paul used to call everyone names. He called Hawkey, “You silly Chinese cunt.” So what do you want – he introduced it.
I think you used that language too, didn’t you --- it was a common joke. It was a joke around. He used to muck around because he was the new immigrant that Paul sponsored out here and Paul used him as a little toy to play with and we’d all play along with it.’ 17
[25] In his written statement, Mr Xie said that in around November 2016, he was asked by Paul to go to the warehouse to find out why there had been a delay in a particular container being unloaded. When he told Paul that they were busy, Paul told him to take an assistant from the warehouse and start unloading the container. 18 Mr Xie’s statement continued:
‘Joseph saw me in the warehouse and stopped me and then shouted:
“What are you doing, I am in control of the Warehouse.”
I said – “We need to get this container unloaded”
He then said -
“Don’t touch anything you fucking Chinese cunt “Leave it, leave it, Leave it and Fuck off from here”. 19
[26] During Mr Xie’s cross-examination, the following interchange occurred:
‘THE SENIOR DEPUTY PRESIDENT: Can I ask you an important question? You say he was extremely rude to you? --- Yes.
Were other people in the company similarly rude to you? Other people spoke to you that way? --- No, only him. No, other people very friendly.
Did Paul ever swear at you? --- Never happen. He’s very humble.
Right, right, and he never made racist remarks to you? --- No, never.’ 20
[27] Mr Xie said there was not a lot of swearing in the warehouse. 21
[28] In his statement, Mr Ardi said that he interacted with the applicant at least 3 to 4 times per week:
‘Over the many years that I have been employed by the Company, I have had many meetings with Joseph. Usually we try to meet once or twice per month. During these meetings Joseph often made improper comments and inappropriate references to my Race and Culture which I chose to ignore, although I was not happy about it. He often says “You and your Indonesian cousins are fucked”, “All you South East Asians are backward compared to the rest of the world”. He often made these remarks to me.’ 22
[…]
I have felt very intimidated and embarrassed as Joseph has often made comments such as these to me in front of customers, which is very embarrassing. This will usually happen when there is an issue with a shipment or inventory issue to which he is not happy.
I was present and heard Paul tell Joseph many times not to speak about and to me in this way. But he continued regardless of being advised by Paul not to.’ 23
[29] According to the applicant, he asked Paul in March 2017 if he could see the company accounts, and said if he did not get them he would get a lawyer involved. 24 According to Paul’s statement, he received an email from Mr Hassett on 7 March 2017 stating that his firm was acting for the applicant and that the applicant was being refused access to records.25
[30] Paul arranged for the applicant to meet with the respondent’s accountant on 22 March 2017. He was shown a spreadsheet which disclosed losses in the last two financial years. The accountant answered the applicant’s questions, but would not provide him with copies of any documents. 26
[31] According to the applicant, after this meeting, Paul and Mr Ardi joined them:
‘Paul suggested I resign as director. He said:
“We made a loss of $200,000 last financial year and a loss of $100,000 the year before. It’s your fault. You are to blame. You are not doing your job properly. I must ask you to resign.”’
[32] While Paul agreed in his statement that the meeting was called to discuss the applicant’s future as a director, he said it was because his behaviour and actions were detrimental to the interests of the company. 27
[33] According to the applicant, Christopher Essey (Chris) and Mr Ardi appeared to support the idea of his resignation. The applicant reacted angrily:
‘I said to Arnaz:
“Who do you think you are? You are not even a director or a shareholder. Don’t interfere with our family business, you idiot.”
[34] In his statement in reply, the applicant agreed that he may have sworn and called Mr Ardi ‘a fucking idiot’. 28
[35] In his statement in chief, the applicant continued:
‘To Chris I said:
“And you do next to nothing for this business. Stay out of this.”’ 29
[36] According to Paul’s statement, he again raised with the applicant his abusive behaviour and said he had had a complaint from an incident involving an employee where he called him a ‘fucked up Chinese cunt’. 30
[37] During his cross-examination, the applicant said:
‘They just wanted to ask me to resign, remove. I think Paul had the intentions of getting me out of the way so he could further gain his power and shares.’ 31
[38] The same day (22 March 2017), Paul issued a notice for a special meeting of the members of the company on 19 April 2017 to consider a resolution that the applicant be removed as a director of the company.
[39] On 31 March 2017, the applicant sent an email to Paul requesting that certain financial records be made available for inspection by himself and Mr Hassett, his solicitor, on 5 April 2017 at 9:00 am. Paul did not respond. 32 During his cross-examination, Paul said he did not agree to the request because Mr Hassett was not retained by the company,33 though he agreed that as a director the applicant was entitled to see the records, which he said had always been available to him.34
[40] The applicant attended the offices of the respondent with Mr Hassett on 5 April 2017 at 9:00 am. They walked into the boardroom. According to the applicant, after about 30 minutes Mr Hassett walked out of the boardroom and approached Paul, who was outside his office. After a brief conversation, Paul asked Mr Hassett to leave the premises or he would call the police. Mr Hassett told Paul that the applicant, as a director and shareholder of the company, was entitled to see the company records. Paul then apparently rang the police, and Mr Hassett left the premises. 35
[41] Ms Sachdeva said in her statement that Mr Hassett was very rude and aggressive in the way he spoke to Paul. Paul asked him to leave the premises a number of times and he only left after Paul had rung the police. 36
[42] According to the applicant’s statement, Paul and his other brother Colin ‘raided’ his office on the night of 5 April 2017. When he went to his office the next day (6 April 2017), he saw that:
‘…a large amount of cash I had in my office, about $10,000 was missing. About $8,000 of this was company takings, but the rest was my personal money. Also, numerous company documents were missing.’ 37
[43] During his cross-examination, Paul agreed that he had entered the office and opened the drawer that contained the cash and took the money, because he believed it was company property. He said he used the key that was on the desk. 38 He said he had a ‘rough idea’ that there would be money there because Chris had told him he had seen the applicant put money there. He did not deny the possibility that some of the money could have belonged to the applicant, but said:
‘I asked for a receipt or some form of identification why that money would be in there and it was never given to me.’ 39
[44] Paul said that he had told the police that he would return the money to the applicant ‘on the event that it’s certified why this money is jumbled with company money.’ 40
[45] The applicant said in his statement:
‘I confronted Paul over this. He said:
PE: “Yes I took the money but it’s company money.”
JE: “About $2,000 of it was mine – give it back”.
PE: “No, its company money.”
I then called the police. They came but told me it “was a commercial matter” and left.
Later on Thursday 6th April I saw Arnaz. I said:
JE: “I need that money back to pay the boys who are coming tomorrow to do some casual work”.
AA: “I’ll tell Paul.”
By “boys” I meant my son Fred and his friend Jesse Miller. They are both about 18 years old and the Respondent has employed them as casual hands often in the past. This was just business as usual. But since Paul had taken my cash, I had nothing to pay them with.
Usually, when I need to pay casual staff, Arnaz gives it to me if I don’t have company takings to hand. However, no cash was provided to me on this day.
The next day, Friday 7th April, 2017, I had leave as I was going on a cruise that weekend. However, because no money had been provided to me to pay them, and I was still looking to get my $2,000 back, I told them at about 8 a.m. before they left my home:
J.E: “Don’t unload any containers today until we’ve got your pay sorted out.”
At about 10:30 a.m., my son Fred called me. He said my brother Chris had directed him to unload a container and he had refused. He said Paul had then come down to “sort him out”. I said I would come immediately.
I then drove from my home to the Respondent’s warehouse. I immediately sensed a very hostile atmosphere. When I arrived, Arnaz called out:
AA: “Why are you here? You are supposed to be on holidays.”
JE: “I’m an owner and a director of this company. If I want to see what’s going on, I will. The boys are not unloading the containers until we sort the money out. Are you guys picking on them?”
Paul then walked towards me with his chest puffed out. My brother Chris tried to hold him back but he shook Chris off. He walked right up to me, chest out, and said
PE: “Come on.”
JE: “What’s this, are you shaping up? Do you want to take it outside?”
Paul then said:
PE: “Did you hear that everyone? That’s assault.”
Then he said to me, with something of a smile or smirk:
PE: “I feel sorry for you.”
I called the boys over to me and said:
JE: “Just do what needs to be done to get the orders out and then go home. I’ll sort the money out on Monday.”’ 41
[46] The applicant’s son, Frederick, and his son’s friend, Jesse Miller, both gave written statements 42 that on their face corroborate the applicant’s version of the events of 7 April 2017.
[47] Paul’s version of the events on 7 April 2017 is that at about 10:30am Chris came to his office and told him that Frederick was refusing to unload a container. Paul decided to go to the warehouse to find out what was going on together with Mr Ardi and Chris.
‘We then went downstairs to the warehouse and I observed Joseph’s son Frederick and some friends just sitting around. I did not converse or make any comments to them and walked over to the office with Chris and Arnaz. Then suddenly, Joseph was walking towards us in the office in a very aggressive manner in casual attire.
I said to Chris: “Is he working today”.
Joseph heard this comment and said in absolute rage at me:
“Who the fuck do you think you are you prick, none of your fucking business what I am doing.”
Then he approached me in an extremely threatening manner, and placed his finger right in my face and said:
“I am going to drag you outside and smash your face. Come on, touch me, fight me.”
I was quite stunned and remained with my arms folded bracing to take a punch to my face, but trying not to provoke him any further. Chris also, moved in front of me to try to detract (sic) him. I did not respond to him as I know he is of a violent nature.
We moved away from him and left, I thought it is better to remain responsible and diffuse (sic) the situation as this was happening on display in front of the warehouse staff and was causing people to become unsettled.’ 43
[48] During his cross-examination, Paul said that he never spoke to the applicant during the incident.
‘I stood with my arms folded in quite a bit of fear, actually.’ 44
[49] Paul said he did not want to provoke the applicant. 45
[50] Paul agreed that he stood up and walked to the door of the office when he saw the applicant arrive in a rage. 46
[51] Chris’s written statement generally corroborated Paul’s version of the incident. 47
[52] During his cross-examination, Chris said he, Mr Ardi and Paul were talking in the office when the applicant arrived.
‘What did you observe about him when he walked in the door?---Joe did come in, he was upset and he was angry and he called out to me and he says what’s going on.
Who said the first words? --- Joe did. Joe came in.
Joe came in, saw you. He walked in the warehouse, sees you? --- Yes, came in and spoke to me.
The three of you are sitting in the office, aren’t you? --- Yes, but Joe and Paul don’t talk, so he spoke to me.
Did Arnaz say “What’s he doing here; he’s supposed to be on holidays”? --- Not that I know of.
Did anyone say what’s he doing here? --- Paul came and asked me. He goes, is he on holidays? I didn’t get a chance to answer Joe. Joe asked me is he on holidays. I didn’t really answer.
Didn’t Joe say to Arnaz, I’m a director of this company and I can come and go as I please? Did those words get spoken? --- Yes, probably. It happened so fast, so much happened.
But he may well have said to Arnaz? --- He may well have – yes, probably would have.
I’m a director and I’ll do what I want to do. --- Yes.
Then what happened? --- Joe got a little bit heated, because – Joe came in and was screaming and then he turned to Paul. Paul just had his hands crossed, didn’t say anything. Joe was angry and he started screaming at Paul. Really coming on him abruptly.
Did the three of you – you were sitting in the office? --- No, we were all standing.
Paul was standing? This is before Joe arrives? --- Yes.
Isn’t there seats in the office? Well, you must have been sitting down, surely? --- Yes, it’s not a very big office, it wasn’t very big.
Wasn’t anyone sitting? --- No, I think they were leaning on the table I think. I can’t really remember, sorry.
Joe comes in and walks towards the office does he? --- Yes.
Paul walks to the door of the office, or what happens? --- I sort of walk in to meet Joe and I don’t really know, because I was facing Joe. That’s why, I faced Joe. I wasn’t really paying attention to what Paul was doing.
Did you see Paul walk towards Joe at all? --- Well, Joe came in and they were just in front of each other. I had my back to Paul, so.
They have to get to each other, don’t they? One’s got to be moving this way, and one’s got to be moving this way? --- Like I said, I don’t know if Paul – because I had my back towards Paul, that’s why. I wasn’t looking at Paul.
Did Paul push past you and you try and hold him back at all? --- I can’t remember sorry. It was like --- I wasn’t really paying attention, like. I just didn’t want there to be any problems, to tell you the truth.
Have you seen either Joe, Jessie’s or Fred’s statement in these proceedings? --- I did look over and I didn’t really ---
They all say that you tried to hold Paul back and he pushed, shrugged you off and walked towards the door? --- I don’t, I didn’t I never, like I said, I can’t really remember sorry, because like, I wasn’t really focussing on it.
They say Paul had his chest pushed out like this? – He had his arms – all I know, I did step away, all I know is I did step away. I can’t really, to tell the truth what happened. All I remember is that Joe had his fingers in Joe’s face screaming at him.
Did Paul say any words at all through this whole exercise --- Not to Joe.
Not to Joe? --- And I didn’t – I didn’t hear any.
Sure, he didn’t say “come on”? --- I might have forgotten, but I don’t remember it, I’m sorry.
Didn’t Joe say something like “What’s this, you’re shaping up?” Did the conversation take that turn? --- They started to – I thought it was going to get violent, because like Joe was screaming at him and he was angrily screaming at him and swearing at him. I think Joe did threaten him.
Did he say you want to take it outside, did you hear that? --- I remember that. Something was said you want to take this outside.
Do you want to take this outside? Do you remember those words specifically? --- Yes.
Do you want to take this outside? --- yes.
That was definitely said by Joe? --- Joe.
…
Tell me what you – as best as you can, tell me what you remember Joe saying? --- I remember Joe, he was screaming and he was saying I’m going to take you outside and I’m going to bash you. I remember he literally had his finger in his face, that finger.
Joe had his finger in Paul’s face? --- Yes.
But I thought you said you weren’t looking at Paul? --- That’s why I stepped back by that point because I just thought like if I get involved it’s going – I’m probably going to be the culprit, so I felt like I should step back and it’s between those two.
How close were you…? I was really close to them. I was literally nearly in between them.
…
Joe you said was shouting and he was pointing his finger at Paul? --- Yes.
What did he say? --- he said do you want to take this outside and I’m going to bash you. He did swear, obviously he was swearing because he was angry.
Do you want to take this outside and I’m going to bash you? --- Yes. That’s what I do remember. I don’t sorry remember the whole thing, it was so fast.’
[53] Mr Ardi gave similar evidence about the incident. In particular he said that the applicant approached Paul and pointed his finger in his face saying:
‘Fight me. Come and touch me, I am going to drag you outside and smash your face.’ 48
[54] Mr Ardi said that Paul did not say anything to the applicant during the confrontation but just stood still with his arms folded. 49 He reiterated this during his cross-examination.50
[55] Paul met that afternoon with Mr Ardi and Chris to discuss the events that had taken place earlier that day. The three of them called the police and gave statements about what had happened. 51
[56] The applicant says that in the morning of Monday 10 April 2017, he was at work when the police arrived and served him with a provisional apprehended violence order. They also gave him a copy of his letter of dismissal. 52
[57] In his statement, the applicant referred to the allegations contained in the dismissal letter. He denied that his behaviour towards staff was objectionable. He said:
‘I have behaved towards staff the same way for 30 years as far as I am aware. I have not received any written warnings in relation to this accusation. I admit I swear occasionally, and so do others including Paul. I have neither increased, nor decreased, my level of swearing in recent years. As far as I’m aware, a certain amount of swearing around warehouses in Australia is commonplace and I do no more than this. I deny I made “threats of violence” toward Paul…’ 53
[58] In his statement in reply the applicant said in response to Mr Xie’s statement:
‘…I recall this incident and say I was annoyed when Paul sent Yong Xie and another person to unload a container. There are frequently many urgent jobs to do, and I ran the warehouse and had done so for decades, I didn’t want this job done at this time because I thought the job could be done more efficiently later. So I asked Yong to just leave it. Yong resisted saying:
“No I need to do it now. I don’t want to get into trouble with Paul”.
This did annoy me and I may have said “just fucking leave it” or “just fuck off” or words to that effect. I admit I shouldn’t have said that, but say this incident has nothing to do with these proceedings.’ 54
[59] During his cross-examination Paul was asked if there was swearing around the warehouse, as stated by the applicant. He responded:
‘Generally not, no.’ 55
[60] While he did not deny that other people swore, he said it was not to the magnitude of the applicant’s swearing. He totally rejected that he used the expression ‘Chinese cunt’. 56
[61] The applicant denied there were ‘many incidents’ when he had failed to carry out lawful/reasonable instructions in relation to the position in which he was employed. He had never received a written warning. Generally, while Paul and he had had differences about how the company was to be run, he got his way in relation to his area of responsibility and Paul got his in his area. 57
[62] The applicant denied calling the police for no reason, as Paul had taken $2000 of his money. 58
[63] During his cross-examination, the applicant was shown a letter from 2001 which he agreed had been countersigned by his father. 59
[64] The letter was from the company accountant, Michael Watson, to the applicant. It included the following:
‘Your father has asked me to write to you about his deep concerns on the way in which you conduct yourself, as he sees it, at All-Fect.
He has asked me to explain his position, in writing, so that there is no doubt about what is being stated.
The strength of All-Fect is the Essey Family and the contribution of all members. I understand also as a first born son that there is a perceived pressure within yourself to ensure that things run smoothly. I have enjoyed a good relationship with you but on a number of occasions I have been asked to speak to you regarding outbursts which alarm, and quite frankly scare, not only your brothers and father, but also members of the staff.
Whatever the frustrations of a business, violence; the threat of violence; abusive language; and yelling are not acceptable parts of a business environment.
All of your brothers receive your criticism and verbal abuse and of recent times this has reached a level, I am informed by your father, which is unacceptable and threatens the continued involvement of your brothers in the business. Quite frankly they don’t enjoy going to work and being abused by you.
There have been outbursts of this behaviour from you on different occasions over the years and now it is becoming a behavioural pattern. Your father goes overseas tomorrow and fears that this will escalate during his absence. Accordingly he wants me to remind you that as an employee such continued behaviour will lead to immediate termination of your services. A Directors meeting will be held where you will be removed as a Director. You will of course remain a Shareholder, but only a minority one with the rights and privileges afforded by Corporate Law which do not extend to a guarantee of employment. You will be prohibited from entering the business premises.
No one wants to see this happen, and that is especially so of your father and me. I consider that I have a close relationship with you. However, your father as the Managing Director and the majority Shareholder is adamant that this letter will serve as an authorization that I speak on his behalf during his absence overseas and if two of your brothers complain of your continued bad behaviour or any threat of violence then I am to attend the premises and terminate your services, pay you out and have you removed from the premises by the police…’
[65] The applicant also agreed that he had been involved in a physical altercation with his brothers Chris and Luke in 2010, though he said they had attacked him. 60
[66] This incident was described by Mr Ardi:
‘In 2010, the Police arrived to the work premises, Joseph was arrested by the Police for fighting with his two younger brothers Chris and Luke and removed by them from the business premises. He had punched Chris in the head and caused him to roll down stairs. I know because I was present and saw the event take place. He was held by the Police for his actions and this was dealt with in the family.’ 61
[67] The applicant, during his cross-examination, said about the letter signed by his father:
‘My father was like Paul, on a power trip as well. They’re the same. They just wanted to write a letter, get people to write letters and make up, just to get you to do what they want, otherwise they start getting accountants to write letters to threaten you.’ 62
[68] The applicant said that his dismissal had left him to find a new career at the age of 53:
‘Becoming an employee at my age is next to impossible, so I am left to do such bits of consulting work as I can do.’ 63
[69] In considering whether the applicant’s dismissal was harsh, unjust or unreasonable the Commission is required to take into account the factors outlined in s.387 of the FW Act. These are:
‘(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.’
[70] I turn first to consider whether the respondent had a valid reason to dismiss the applicant. In its letter of termination, the respondent gave five reasons for the applicant’s dismissal. These can be summarised as:
1. Engaging in ‘serious and wilful misconduct’ by instructing his solicitor to enter the business premises and demand access to company books and records, leading to the solicitor questioning and intimidating staff members;
2. Engaging in objectionable conduct towards other staff, including on many occasions being verbally abusive and using obscene language and making threats of physical violence to the managing director;
3. Failing on many occasions to carry out lawful/reasonable instructions that were consistent with the position in which he was employed;
4. Having the police attend the business premises on 6 April 2017 without just cause or reason; and
5. Verbally intimidating and threatening physical assault at the warehouse on 7th April 2017.
[71] It is hard to find that the first of these reasons amounted to a valid reason for dismissal, let alone serious misconduct. The applicant was still, at the relevant time, a director of the company and I can see no reason why he was not entitled to ask his solicitor to examine the company’s records. If Mr Hassett behaved less courteously than he might have, that is not something that the applicant can be held directly responsible for.
[72] The second matter is much more serious. I found Chris Essey, Arnaz Ardi, and Yong Xie to be credible witnesses. On the basis of their evidence, I am satisfied that the applicant on a number of occasions was rude and abusive towards other staff. This includes the way he spoke to Chris Essey and Mr Ardi at the meeting on 2 March 2017. I am also satisfied that the applicant used derogatory and racist language about and towards Mr Ardi and Mr Xie. Such behaviour is completely unacceptable. Moreover, based in particular on Mr Xie’s evidence, I do not accept that the applicant was just behaving like other employees, including Paul Essey. Mr Xie was quite adamant that it was only the applicant who was rude to him. I consider the incident on 7 April 2017 separately below.
[73] There was very limited evidence about the applicant’s alleged failure to comply with lawful and reasonable directions, and I make no finding about this matter.
[74] I cannot see why calling the police on 6 April 2017 would be a valid ground for the applicant’s dismissal. It appears that unfortunately, the police had been called quite a few times over the years to attend the respondent’s premises. It would certainly have been better if the various members of the Essey family had been able to sort out their disputes without the need to involve the police. However, I see no reason, in the circumstances, to single out the applicant’s calling the police on 6 April 2017 as particularly blameworthy.
[75] I turn finally to the last reason given for the applicant’s dismissal – the events of 7 April 2017.
[76] Much of the evidence I have summarised above concerns this incident. I should point out that I totally discount the evidence given by Frederick Essey and his friend Jesse Miller. Neither of them were at all convincing during their cross-examination, particularly in their responses concerning how they composed their witness statements. I am quite satisfied that their statements bear very little relationship to what happened on any of the key points. The witness I found most convincing about the incident was Chris Essey. I am satisfied that during his oral evidence he was genuinely trying hard to recall what actually happened, rather than simply repeating what he had put in his written statement. Based particularly on Mr Essey’s account, as well as Mr Ardi’s, I am satisfied of the following:
[77] In summary, I am satisfied that the applicant threatened to physically assault Paul – who, it should be recalled, is the respondent’s Managing Director. I am satisfied that Paul did nothing to provoke this conduct on the part of the applicant.
[78] I am satisfied that the applicant’s conduct on 7 April 2017 by itself constituted a valid reason for the applicant’s dismissal. Indeed, it is hard to think of a more valid reason for terminating an employee’s employment than threatening to take the Managing Director outside and bash him. However, to this must also be added the applicant’s abusive and racist remarks directed at Mr Ardi, Mr Xie and his own brother Chris.
[79] I now turn to the issue of procedural fairness – in particular, whether the applicant was notified of the reasons for his dismissal and was given an opportunity to respond to them (ss.387 (b) and (c)).
[80] Paul made the decision to terminate the applicant soon after the incident in the warehouse on 7 April 2017. The applicant was not notified of the reasons for his dismissal until he received his notice of termination (delivered by the police) on the following Monday. Obviously, therefore, he was given no opportunity to respond to those reasons.
[81] However, the weight to be placed on these findings must be considered in the circumstances. In this case, the decision-maker was not only a witness to the misconduct for which the applicant was dismissed, but also one of the targets. Moreover, while the applicant may not have received any formal warnings, I am satisfied that he was told at the meetings on 2 and 22 March 2017 that his abusive conduct towards other staff members was unacceptable and would no longer be tolerated. Indeed, it would be reasonable to draw the inference from evidence such as the letter signed by his father that the applicant’s behaviour had only been tolerated for so long because he was a member of the family. It would be highly artificial in these circumstances to insist on formal procedural fairness.
[82] The issue of a support person does not arise in the circumstances.
[83] The dismissal was due to misconduct rather than performance.
[84] The lack of formality in the procedure used to terminate the applicant’s employment is understandable in the circumstances of a small family business, with no access to human resources expertise.
[85] I note the applicant’s comments about the difficulty he faces finding other work at his age. However, this has to be weighed against the appalling misconduct which led to the applicant’s dismissal.
[86] On weighing up all of the above, I am satisfied that the applicant’s dismissal was neither harsh, unjust nor unreasonable. His application for an unfair dismissal remedy is accordingly dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
J Hassett, solicitor, for Joseph Essey.
N Allan of counsel with J Whitby, solicitor, for Rafic Pty Ltd T/A All-Fect Distributors
Hearing details:
Sydney.
2017.
July 6.
1 Exhibit E1 [4].
2 Ibid [5].
3 PN171.
4 Exhibit E1 [7].
5 Ibid [8].
6 Ibid [9]-[12].
7 Exhibit R2 [2]-[3].
8 Ibid [5].
9 Ibid.
10 Exhibit R3 [2].
11 Exhibit R3 [3].
12 PN139.
13 PN144.
14 Exhibit R6 [11].
15 Exhibit R2 [5].
16 Exhibit R6 [12].
17 PN145-PN149.
18 Exhibit R5 [4]-[5].
19 Ibid [6].
20 PN1358-PN1361.
21 PN1370-PN1373.
22 Exhibit R6 [4].
23 Ibid [6]-[7].
24 Exhibit E1 [13].
25 Exhibit R2 [6].
26 Exhibit E1 [14]-[15].
27 Exhibit R2 [10].
28 Exhibit E2 [5].
29 Exhibit E1 [16]-[18].
30 Exhibit R2 [10].
31 PN217.
32 Exhibit E1 [20], appendix C.
33 PN690.
34 PN697.
35 Exhibit E1 [21]-[24].
36 Exhibit R4 [10]-[15].
37 Exhibit E1 [27].
38 PN927-PN931.
39 PN997.
40 PN1002.
41 Exhibit E1 [28]-[39].
42 Exhibits E3 and E4.
43 Exhibit R2 [16]-[17].
44 PN896.
45 PN916.
46 PN906-PN908.
47 Exhibit P3 [4]-[7].
48 Exhibit R6 [19].
49 Exhibit R6 [20].
50 PN1528.
51 Exhibit R6 [24].
52 Exhibit E1 [40].
53 Exhibit E1 [41](b).
54 Exhibit E2 [22].
55 PN1005.
56 PN1007-PN1008.
57 Exhibit E1 [41](c).
58 Ibid [41](d).
59 Exhibit R1.
60 PN462-PN469.
61 Exhibit R6 [14].
62 PN458.
63 Exhibit E1 [55].
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