Industrial Relations Commission of New South Wales CITATION: Williams v Pigment Dispersions Pty Ltd [2005] NSWIRComm 1003 APPLICANT: Mr. Jason Williams PARTIES: RESPONDENT: Pigment Dispersions Pty Ltd FILE NUMBER(S): 4368 of 2003 CORAM: Ritchie C Termination of employment Unfair dismissal Whether termination was harsh,unreasonable ,unjust Alleged threat by applicant to damage respondent's machinery CATCHWORDS: Denial by applicant of threat Found on the balance of probability that threat did take place Found that termination was therefore neither harsh,unreasonable or unjust Application dismissed HEARING DATES: 12/10/2004 DATE OF JUDGMENT: 01/28/2005 Mr. J. Williams LEGAL REPRESENTATIVES: Mr. R. Van-Brink DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: RITCHIE C. 28 January 2005 Matter No IRC 4368 of 2003 IN THE MATTER OF: Jason Williams and Pigment Dispersions Pty Ltd Application by Jason Williams re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2005] NSWIRComm 1003 Background 1 Mr. Jason Williams (the applicant) commenced employment with Pigment Dispersions Pty Ltd ( the respondent) on 21 May 2002 and was terminated on 16 July 2003. He filed a claim for unfair dismissal on 6 August 2003. The application was allocated to Connor C. who heard the matter on 14 April 2004 and handed down his decision on 28 April 2004 finding in favour of the respondent. 2 This decision was appealed and in a decision on 13 September 2004 the appeal was upheld by a full bench and the matter was referred to the Commission as presently constituted. 3 The appeal decision allowed both parties the opportunity to introduce any further evidence in addition to the existing record of the proceedings before Connor C. 4 The hearing was heard on 10 December 2004 where the applicant represented himself and the respondent was represented by Mr. R. Van -Brink (Van-Brink) the owner of Pigment Dispersions Pty Ltd. At the end of proceedings on that day I reserved my decision. Case for the applicant. 5 The applicant accepted that evidence that was before Connor C. would be considered to be before this Commission as currently constituted. 6 The applicant did not file any further evidence for these proceedings. 7 It was the applicant's evidence that on Wednesday 16 July 2003 the applicant sought confirmation from Van-Brink that he would be back from a business trip in time to sign the pay cheques. It was the applicant's view that he was advised that " I will do it when I get back. " 8 The applicant wished to be paid on that day so as he could pay an outstanding bill the following day. Something that he had promised he would do. 9 Later on that day at approximately 3.00pm the applicant rang Van-Brink in his car on his mobile phone to ascertain when he would be returning to the factory. It was the applicant's plan that after Van-Brink signed the cheque, the applicant would then take the cheque up to the bank and have it cashed prior to the bank closing at 4.00pm. 10 The respondent replied that "I'll try and get back in time." The conversation lasted approximately 30 seconds. 11 When Van -Brink returned to the factory approximately 10 to 15 minutes later he terminated the applicant due to an allegation that the applicant during the brief mobile telephone conversation with Van-Brink had threatened to damage machinery in the factory. The termination was made in front of Mr. Martin McGwiggan another employer of the respondent. 12 The applicant denied the allegation of threatening to damage machinery. 13 The applicant was told to wait for his final pay outside of the factory. He was also told by Van-Brink that the police had been called . 14 The applicant agreed that he did say to Van-Brink when the allegation of the threat to damage machinery was raised back in the factory ,"It's your word against mine." The applicant said he said those words because he kept denying he had threatened to damage the respondent's machinery and Van-Brink kept saying he had. "We could have gone backwards and forwards like that for hours." 15 It was the applicant evidence that he at no time during his employment with the respondent ever damaged any machinery or threatened any fellow employee. 16 He also stated that prior to 16 July he believed he had a very good relationship with Van-Brink, there had never been any words between the two people. The only negative thoughts he had was that Van-Brink could be quite forgetful. 17 As a consequence of questions from the Commission the applicant accepted that point 47 of Exhibit 1 was not correct as the respondent did not have any company policies or procedures with respect to termination of employment. 18 It was the applicant view that he was terminated because " I was a thorn in his side asking questions about what award I was under and he couldn't answer. Asking about the pay rise that I was promised and he'd always keep me hanging. And then he terminated my employment without due cause."(transcript 14.30). In his final submission the applicant stated that Van -Brink saw him as a trouble maker . The part fabrication of the telephone conversation was Van-Brink's window of opportunity and he took it . He also believed that it may well have been planned. 19 The applicant responded to questions I asked : Q. So you were watching the clock ? A. Yes, you could say I was watching the clock, yes. Q. And as the clock went down towards 4 o'clock you were getting agitated ? A. Well, no, I wasn't getting agitated. I mean the bill was only going to be-if I didn't get paid then I'd get paid the next day, which wasn't a great hassle or drama , but…… Q. That's not what you first said to me . That's why I asked what was the problem with…. A. Well I did promise to pay the bill on the next day, but the whole world wasn't going to end if I didn't pay that bill. "(transcript 16.40) 20 When the applicant was terminated he was quite shocked and dumbfounded. As a consequence of the termination the applicant sought the maximum order of 26 weeks pay. Respondent's Case. 21 The respondent sought for a brief written statement made by Ms. Karyn Kajan to be made an exhibit which the applicant did not object to . This became Ex. A. Ms. Kajan did not appear as a witness. 22 Van – Brink sought to have made an exhibit of a document that he raised that went to the issue of on what day the applicant was actually paid. Because of there being only one copy of this document and this document had company sensitive financial statements attached, it was not possible to have it marked as an exhibit. I did get agreement from the applicant to my comment that the applicant received pays on a Thursday, some Wednesdays and even a Tuesday and one Friday. 23 The brief statement from Karyn Kajan stated that she had worked for the respondent as a bookkeeper from 14 April 2000 until June 30 2003. She stated that she had started a pay system in 2000 where the pay week ended on a Tuesday and the employees were paid on a Thursday. 24 Van –Brink stated that he received a phone call whilst in his car from the applicant on 16 July when the applicant said " I hope you're back in time because you've got a lot of expensive machinery here which you don't want damaged ." Van-Brink said he went straight back to the factory which took about 10 to 15 minutes. He immediately confronted the applicant in front of Mr. McGwiggan . The applicant denied that he had made the comment that threatened the machinery and responded to Van- Brink by stating "It's your word against mine." Van –Brink terminated him for the threat that he had made on the phone. He called the police and asked the applicant to wait outside the factory until the applicant's final pay was made up. In his final pay the applicant was paid one week's pay in lieu of notice. He was paid that as it was Van-Brink's understanding that the applicant was entitled to such a payment , notwithstanding the reason for his termination. 25 Van-Brink in evidence accepted that the applicant had never previously threatened any employee or threatened to sabotage any machinery. Van –Brink said that on a day to day basis he had little or no contact with the applicant even though it was a small business. 26 Van-Brink did not believe that the comment made by the applicant was out of character because his perception was that the applicant was given to rash behaviour. He believed the applicant had an aggressive demeanour about him. 27 Van –Brink gave evidence that he had experienced previous attacks against his property on the estate where his factory is located but did not know who had caused this damage. 28 It was Van-Brinks evidence that he did not consider any alternative to his decision to terminate the applicant. He stated that the applicant had the idea in his head and that he had that resentment or that potential to do damage. 29 It was also Van-Brinks evidence that there was a history of the applicant receiving his pay on a Thursday. There was evidence that on occasions he received it early on a Wednesday but never on a Friday, except when he was paid early because of Christmas. 30 Van-Brink categorically denied terminating the applicant as a consequence of the applicant seeking a pay rise. He said that the applicant was no different to himself when he sought higher wages to better himself. It was his view that an employee could be aggressive in a positive way at work but if it was expressed in a negative way then that could be dangerous . He said that in a counselling discussion the previous year he had rejected the applicant's announcement of "If you want me to leave I'll leave." All Van-Brink wanted at that time was for the applicant to do his job. Considerations and Decision. 31 The applicant was terminated by the respondent for the threat made against the respondent's machinery. It therefore falls on the respondent to prove beyond the balance of probability that the reason for termination did take place. 32 I do believe that on 16 July the applicant was anxious on Van-Brink returning to the factory in time so the applicant could cash his wages cheque prior to the bank closing at 4.00pm and thereby settle an outstanding bill the following day. I do not believe the answers given before this Commission that failure to pay the bill the following day was no big deal. It is my finding that the applicant was anxious to fulfil his promise to pay this outstanding bill. 33 It was my observations of the applicant during proceedings that he came across as somewhat of an intense person. 34 I do believe that on 16 July 2003 the applicant was concerned that Van-Brink would not arrive back in time for him to cash his wages cheque and I find that he did threaten to sabotage the respondent's machinery. 35 I believe his comment that 'It's your word against mine " was no more than a defensive mechanism to Van-Brink 's confrontation at the factory. 36 In accepting the respondent's version I also reject the applicant's submission that his termination had been planned and that the real reason was because "I was a thorn in his side asking questions about what award I was under ."I saw or heard nothing in evidence that would bring me to that conclusion. 37 I also find that the normal payday was a Thursday. If employees got paid on a Wednesday then that was their good luck. That the applicant undertook to pay an outstanding bill on a Thursday would mean that he would have to be paid early that week. Such an undertaking was based therefore on the applicant being paid not on the normal Thursday but on the Wednesday. He therefore took a risk. 38 It is also my finding that the concern of Van-Brink that the applicant may damage machinery was genuine. His involvement of the Police was indicative of the high degree of his concern. 39 Notwithstanding that I have found that the applicant did threaten to damage machinery I still have to determine the issue as to was the action of Van - Brink in terminating the applicant harsh, unreasonable or unjust ? Both the applicant and Van-Brink stated that their relationship prior to 16 July was good based on the limited interaction that occurred between them. The applicant had never been counselled concerning threats towards fellow employees or the respondent's property. It was the evidence of Van –Brink that it was not out of character for the applicant to have made such a threat. Van-Brink's evidence was that everything had to be negotiated with the applicant. Safety standards had to be adhered to and the applicant had to be called in and formally required of him to do his work in a safe and orderly manner. Van-Brink also stated that it was his perception that the applicant was given to rash behaviour . 40 It is my concluded view that the termination of the applicant by Van-Brink was neither harsh, unreasonable or unjust. As stated previously it was the applicant who undertook to pay an outstanding bill on a day that was the normal payday. To accomplish what he had planned he had to organize an early pay. That he then found late on 16 July 2003 that he may not be able to pay that bill resulted in him making a phone call to Van-Brink and in doing so making a threat to damage the respondent's machinery. Such a threat was completely unacceptable. It strikes at the very heart of the contract of employment in requiring an employee to serve the employer faithfully. From Van Brink's point of view such a threat if carried out may result in the business being unable to continue and thereby being unable to pay employees nor service customers. 41 If the threat was made by the applicant out of frustration and was never meant to be carried out, then at the point when Van-Brink returned to the factory and confronted the applicant, the applicant had the opportunity to apologise. Instead he totally denied making the accusation and then made the comment about it was just his word against Van-Brink's. At that point in my view he lost any goodwill that may have existed between the two persons. 42 Considering all the evidence I do not believe this is a case that warrants the intervention of this Commission. This application is therefore dismissed and this matter is concluded. D.RITCHIE COMMISSIONER. 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.