Industrial Relations Commission of New South Wales CITATION: Bitar v SWC [2007] NSWIRComm 1094 APPLICANT: PARTIES: AMWU for Joseph Bitar RESPONDENT: Sydney Water Corporation FILE NUMBER(S): 1213 of 2007 CORAM: Ritchie C Application for unfair dismissal. Applicant worked for Sydney Water. Applicant as a favour to his brother sought to appease a tenant of his brother by delivering a stove during his lunch time. Tenant claimed that applicnt had used inappropriate langauge and intimidated her when she sought license to install. CATCHWORDS: Tenant reported applicant to his employer. Employer investigated and accepted tenant's claim. Applicant then terminated. Commission found that issue to be determined was not whether the applicant was there to deliver or install but the conduct of the applicant during the meeting. Applicant was wearing company uniform and driving company car. Applicant away from work without authority for over 90 minutes. Commission found on balance of probability to prefer the evidence of the tenant. Commission found that this incident was unjustified and that it warranted termination. Application dismissed. LEGISLATION CITED: Industrial Relations Act, 1996 HEARING DATES: 14/11/07, 15/11/07, 15/11/07, 10/12/07 DATE OF JUDGMENT: 20 December 2007 APPLICANT: Mr. I. Morrison of the AMWU LEGAL REPRESENTATIVES: RESPONDENT: Mr A. Salmon of Fisher Cartwright Berriman Lawyers and Consultants. DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: RITCHIE C 20 December,2007 Matter No IRC 1213 of 2007 IN THE MATTER OF: Automotive, Food , Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (on behalf of Joseph Bitar) and Sydney Water. Application by Automotive, Food Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch on behalf of its member Joseph Bitar re unfair dismissal pursuant to section 84 of the Industrial Relations Act,1996. DECISION [2007] NSWIRComm 1094 Background. 1 On 25 July 2007, the Automotive, Food , Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch( the Union) on behalf of its member Mr Joseph Bitar (the applicant) filed a claim for unfair dismissal against Sydney Water Corporation (the respondent). 2 Mr Bitar was terminated from the respondent on 17 July 2007 and was paid two weeks pay in lieu of notice. 3 The matter came before Murphy C. for conciliation but after several attempts he concluded that conciliation was exhausted and provided the parties with directions for filing. 4 The Hearing was held on 21, 22 and 23 November 2007, final submissions on 10 December 2007 with the Decision being reserved. At the commencement of proceedings the Commission was provided with a signed section 146 referral agreement which was placed on the file. 5 Mr I. Morrison appeared for the Union and Mr A. Salmon, Solicitor, appeared for the respondent. 6 It was the submission of Mr Morrison that the applicant be reinstated with back pay in accordance with section 89(1) and 89(3) of the Industrial Relations Act 1996 (the Act) Case for the Union. 7 Mr Joseph Bitar (the applicant) had commenced working for a subsidiary of the respondent in May 1998 and then the respondent as named in the capacity of a fitter. 8 In his affidavit the applicant stated that on 23 June 2007 he went with his brother Maurice and purchased a new gas stove from a retailer for his brother's rental property at 221 William St, Yagoona. He owns in partnership with his brother the house next door to his brother's rental property which is also rented. On the following Monday 25 June, the applicant picked up the stove on his way home from work using the respondent's van which he uses for work. The following day with the stove still in his van he did a job in the city then after that he had a job which required him to have the van empty. He first went to Mascot then to Tempe and then to the Campsie Depot to empty the van of material. Then at about 11.30 to 11.40 am, he went during his lunch time to the William St residency at Yagoona to drop off the stove. He agreed that he did not seek the authority from his supervisor Mr Aquilina to use the company vehicle to do this job. 9 He stated that he arrived at the residency at noon and when he knocked on the front door, the tenant Ms Humphries came to the door. He introduced himself, even though he had met her on several occasions and told her he was there to drop off the stove. 10 He said that Ms Humphries thought the stove was being delivered the following Saturday and she rang the real estate agent. At the end of the phone call she said it was okay to deliver the stove and then she requested to see his gas fitters licence. He asked "what for ?" as he was only delivering it( he does not hold such a licence). She said that the real estate agent had asked her to ask him. Ms Humphries then rang the agent again and handed the phone to the applicant who moved away from the front door towards the front of the property. 11 He stated that he spoke to the agent Mr Peter Kalamvokis who assured him that he had made no such comment and that all he was there to do was to drop off the stove and that Ms Humphries knew that the agency's plumber, a Mr Nathan Watson was to connect the stove soon. The applicant then went back to the front of the house as the agent wanted to speak to Ms Humphries again. When he got to the front door Ms Humphries was not there, he called out to her but received no answer. He had been at the property about three to four minutes. He said he left the phone on the front step and went to leave the property but when reversing out of the property he remembered he could put the stove in a garage on the property which he had access via a key. The garage was a place which his brother used for general storage and which the tenants on the property did not have access. He placed the stove in the garage and then left the property. This took another four to five minutes. He believed he had been at the property for not even 10 minutes. 12 He stated that on his way back to work he rang his brother and told him what had happened. He said his brother got upset that he could not place the stove inside the house and that he was going to evict Ms Humphries. 13 The applicant did not return to work but instead drove home and spoke to his wife about what had occurred and the confused state that he was in. Whilst he expected to be back at work at about 12.30pm to 12.45pm he did not get back until after 1.30pm. He agreed that his work timesheet for the day did not actually reflect what he did. His normal hours are 7.00am to 3.30 pm, Monday to Friday. 14 In his affidavit the applicant responded to a statement that Ms Humphries had completed on the 27 June 2007. He disagreed with many of her claims. The applicant stated that he had met Ms Humphries several times before when he had visited the William Street residency. He denied that he had told Ms Humphries that he there to install the stove nor did he scream or swear at her. He denied that he had invaded her space nor did he grab the phone from her or throw the phone. 15 The applicant was provided with correspondence from the respondent during the investigation process, which outlined the complaint received from a member of the public. They were: 1. At around midday on 26 June 2007 you attended premises at 221 William St, Yagoona for the purpose of installing a gas cooker. This was during your ordinary working hours for that day but was not a Sydney Water job. 2. You attended the premises to install the gas cooker using a Sydney Water vehicle and in Sydney Water uniform. 3. When the female resident asked you for identification, you became aggressive and used abusive and threatening language towards her, including repeated swearing. 4. You physically intimidated the resident by invading her personal space, standing over her and grabbing a telephone out of her hands, and then throwing the telephone on the ground. The applicant during the hearing of the matter denied all four of the allegations. He was required to attend a meeting on 5 July 2007. 16 The applicant stated that the investigation conducted by the respondent did not involve questioning his brother or the real estate agent a Mr Peter Kalamvokis even though he supplied letters from both persons to the investigation. 17 During cross examination he agreed that he had been involved in a meeting where he was accused of swearing at a supervisor named Mr Jeffrey Oehlman. He denied swearing at Mr Oelhman but did apologise to the man on the basis that whilst he could not remember swearing at him, if he did then he was sorry. 18 In cross examination the applicant was asked about a mobile phone call made to Australian Gas Light Company on the morning of 26 June 2007. He denied the reason for the phone call was to inquire about the installation of the stove but for a property he owned in Panania and whether there was any gas in that street. 19 The applicant said he was "short" with Ms Humphries in that he was just straight to the point, he was just there to deliver the stove. 20 He said that after the incident he rang the real estate agent and apologised to him because he had been abrupt towards him on the phone. He asked the agent to provide a letter as to what happened that day because he had been suspended at work. The agent's letter did not make any reference to the phone call between him and the applicant. 21 In responding to questions from the Commission the applicant said that he felt Ms Humphries was placing obstacles in the way such as requiring a license to install the stove when he was just there to deliver it. He said he had not any previous problems with Ms Humphries. When he was speaking with Ms Humphries he spoke in a normal tone, maybe a little raised due to the noise of the traffic. It was his view that the incident did not get out of hand. At all times he said he was in control of himself, settled, not volatile, no raised voices and did not use any inappropriate language. 22 He said he went to see his wife after dropping the stove off in the garage to clear his head because he was aggrieved at what had occurred. He said he had gone to the William Street address with the stove to try to calm Ms Humphries down as she was taking his brother to arbitration over the old stove malfunctioning. 23 The brother of the applicant Mr Maurice Bitar also gave evidence. He stated that he is the owner of the property found at 221 William Street, Yagoona. In his view Ms Humphries had met his brother Joe when they both visited the property to do work. He stated that he had leased the property out to Mr Ross Hope and Amanda Humphries on 16 March 2007 and over the next three months he found Ms Humphries difficult. The stove on the property did not work satisfactorily so he decided to replace it. On Saturday 23 June 2007 accompanied by his brother he bought a new stove which his brother Joseph picked up on Monday afternoon 25 June 2007. He said that he told his real estate agent that the new stove would be installed on the weekend coming. 24 On 23 June he told his brother that Ms Humphries had commenced arbitration proceedings against him. He asked his brother to drop the stove over on the Tuesday to show that things were progressing. 25 He said that he received a phone call from his brother Joseph on Tuesday 26 June telling him of what had happened. He said that his brother was puzzled over what had just happened. He said to his brother that he had had enough of Ms Humphries behaviour and he would call his agent to have them evicted. The agent told him that this would not be possible as they had a lease. The agent told him that after he had spoken to Joe he had spoken to Ms Humphries who was willing to allow his brother to deliver the stove but that Joe had left. He said he told the agent that the stove had been left in the garage. 26 It was his view that Ms Humphries would have known his brother Joseph because she was present when they both rectified the clothes line at William Street and Ms Humphries was there. He said that the accusations that his brother had sworn or had stood over someone were completely out of character. Whilst he had written a letter concerning the matter to the respondent no one had called him. 27 Mr Peter Kalamvokis gave evidence to state that he was a real estate agent who managed the property on 221 William Street, Bass Hill. At the request of Joseph Bitar he supplied a letter outlining his recollection of the events, which was attached to his affidavit. He said that he did not understand why Ms Humphries thought that Joseph Bitar was going to install the stove as he had told her that he was only going to deliver it and it would be installed by his regular plumber Nathan Watson, the man who had looked at the original stove and declared that it should be replaced. 28 Mr Kalamvokis was subject to cross examination with respect to the phone calls from Ms Humphries he received on 26 June 2007. He was asked by the Commission to confirm the accuracy of a section of Ms Humphries affidavit, that being point 19. Me:" Hi Peter ,it's Amanda from William Street." Peter: " Oh yeah. Hi , how are you doing ?" Me:" I've got the Owner's brother here to install the stove...he is going off. I thought it was being installed on Saturday so I just want to check what's happening?" Peter: " Sorry, I should have called you, I just got off the phone with the Owner about 10 minutes ago and he said it would be installed either today, tomorrow or the day after. Just let him in." Me: " Okay, I just wanted to check what was happening that's all." He confirmed that it was accurate. 29 Mr Kalamvokas stated that during that phone call Ms Humphries sounded fine. He stated when he spoke to Ms Humphries and the applicant in the second telephone conversation both sounded upset. He confirmed that Ms Humphries stated to him that she "wasn't going to let Joe into the house." He said he was trying to convince Ms Humphries to let the applicant put the stove in the house so it could be later installed. He did not want any more problems with this property. He thought by the end of the conversation that Ms Humphries was fine. 30 He said that he went to the property on around 10 September 2007 to look at a few problems in the house. He denied what was expressed in Ms Humphries affidavit that he had stated that: " Maurice is reluctant to fix any problems, but is willing to start afresh with you guys if you would just let the thing with Sydney Water go--just say that you were emotional at the time and it got the better of you, that it wasn't as bad as you made out and that you were angry at the time. Have a chat with Ross, he will tell you what to do. Let me know what you decide ." He did confirm that he told Ms Humphries that Mr Bitar had lost his job and that his brother was upset as a result. He said to her that Maurice Bitar was not happy to do every repair that was asked for after what had happened. She then said if he is not happy to do the repairs then what about if we break the lease and agreement was reached at a later date for that to occur. 31 In his final submissions Mr Morrison stated that the respondent's case was based on lies, exaggerations and numerous errors that fell from their witnesses. This was supported by the lack of investigation by the respondent re the conflicting evidence that existed between the two parties and the lack of opportunity to put that conflicting evidence to the applicant. As a consequence procedural fairness was missing in the process. The report raised by the respondent which recommended the termination of the applicant was based on the lies of Ms Humphries and Mr Hope. The report stated that the first two allegations were admitted by the applicant when in fact they were rejected. The basis how Mr Humphries came to conclude on allegations 3 and 4 was open to question. The charade of Ms Humphries not knowing who the applicant was when he arrived on her doorstep on 26 June. He saw the issue of whether the applicant was there to deliver or to install the stove as extremely relevant as the Commission had to find that the applicant was there to install the stove, for Ms Humphries evidence to make sense. He saw the motive of Ms Humphries/Mr Hope as one of vengeance and revenge. They just wanted to punish the Bitars for their lack of action with respect to the stove. He said that the applicant did not get upset until he spoke to his brother when driving away from the premises on 26 June. He then drove home so he could speak to his wife about what had happened. From the bar table Mr Morrison said that it took a few months for the applicant to try and find alternative employment. He stated that he has unsuccessfully sought employment through private companies and labour hire companies. Case for the Respondent. 32 Ms Amanda Humphries gave evidence and stated that she and her partner Mr Ross Hope entered a 12 month lease on a house located at 221 William Street, Yagoona in February 2007. On a number of occasions she said that she reported to the estate agent repairs required on the premises. Sometimes the landlord Mr Maurice Bitar, would attend to fix the problem and on one occasion his father. She did not recall Joseph Bitar attending. She said that as a consequence of having difficulties in lighting the stove in the kitchen, she was pregnant at the time, she complained to the estate agent. In early 2007 a Mr Nathan Watson attended the premises and inspected the stove. He concluded that the stove was in a dangerous condition. It was okay to use the cook top but not the oven. He advised her not to use the actual oven. He said he would speak to the estate agent. She spoke to the estate agent about the repair/installation of the stove/new stove but to no avail. 33 In about mid June she contacted the Department of Fair Trading who advised that only a licensed gas fitter could install a new gas stove. She said she told the estate agent that she was thinking of making a formal complaint to the Department of Fair Trading because of the lack of action. 34 On Tuesday 26 June 2007 about noon she answered a knock on the front door. She stated the following conversation taking place: Me: "Hi, can I help you?" Joseph: " I'm the Owner's brother, I'm here to install the stove for you." Me "Oh, sorry, I didn't think we were getting it till Saturday ?" She said the applicant then leaned toward the screen door and said: " Well, if you don't want the stove you can get fucked, I can go and you can get fucked !" She said she did not know what to do so she said she would call the estate agent. She said she was confused as to why a person from Sydney Water would be there to install a gas stove. She said she went back down the hall to retrieve her cordless phone whilst the applicant paced outside the front door talking under his breath cursing and swearing. She spoke to Peter Kalamvokas. The conversation was as expressed in point 28 of this Decision. Remembering what she had been told by the Department of Fair Trading she asked him as he was installing it, she wanted to see his license or papers. He replied that he couldn't as they were at home and she had no fucking right to see them. She replied that she did. The applicant reacted to this comment by raising his voice and gesticulating with his hands, pacing up and down the verandah cursing under his breath calling her a " fucking bitch" and "fucking cunt". She then said the applicant stated that this was his brother's property and he can do what he wants and come in when he wants, if she didn't want the stove it suited him fine and he would see her on the street at the end of the day. 35 She then picked up the phone and pressed redial and at that moment the applicant opened the screen door and grabbed the phone from her hand and went outside. She said she closed the screen door and observed the applicant pacing and screaming into the phone. 36 At that point her mobile phone rang and it was her partner Mr Hope. She told him that the owner's brother was there to install the stove and that he was going off. Mr Hope asked was that the person he could hear in the background. She confirmed that it was and at that point she noticed out of the corner of her eye, the phone flying through the air landing a few feet from her. She picked it up and was surprised that the phone was still working. 37 She confirmed that it was still the estate agent on the phone and he asked her to let the applicant into the house so he could install the stove. She replied that she was not letting this person into her house and gave him reasons why. The estate agent was still trying to convince her to let the applicant into the house when she glanced out of the door to see the Sydney Water van reversing out of the drive. She told the estate agent that it didn't matter as he had left. 38 She said that as a result of this incident she felt threatened, intimidated and abused. She was upset and teary. She said she did not remember what happened to her phone call from her partner but that her partner came home early as a result of this incident. She explained what had happened to him and he decided to call Sydney Water, the real estate company and the Police. 39 They ascertained the surname of the applicant through a bill that they had received from their landlord. She said that she was aware that Mr Hope called Sydney Water and later that day they went to the real estate company and lodged a complaint with a Mr Robert Janes and to Bankstown Police to make a formal complaint. She said she went to the Police because she was scared. 40 The next day an employee of Sydney Water came to her house and she wrote out what had occurred the previous day. This became an annexure to her affidavit. 41 A few days later the landlord turned up and delivered the stove into the kitchen and that night Nathan installed it, leaving the old stove on the verandah. It was moved several weeks later. 42 She said that after this incident her relationship with both the owner and the estate agent soured. 43 On or about 10 September 2007 Peter Kalamvokas arrived to look at some of the things that needed fixing. She said that Mr Kalamvokas commented that the landlord was upset that his brother had lost his job. He then said what is expressed in point 29 of this Decision. Ms Humphries said that she spoke to her partner who then tried to speak to Mr Kalamvokas but was unsuccessful. 44 On 17 September she spoke with Mr Kalamvokas and said that Ross had impressed upon her to leave the Sydney Water thing alone but we wanted to terminate the lease. This was later agreed. 45 She denied that she had met Joseph Bitar on several occasions and also that he had only been there that day to drop the stove off. She also denied that she was aware that the plumber was going to install it. She also said that she did not remember anyone coming to her front door as a courtesy, to advise that they were going to the garage located on the property. 46 Mr Robert Hutchinson is a Human Resource Consultant and has been with the respondent since November 2004. He has held his present position since January 2007. 47 On the afternoon of 26 June 2007 he was provided by his manager Mr Barry Boyle with a copy of a complaint summary prepared by a customer service officer. He with a Mr Paul Fox commenced to investigate the matter. He was advised by Mr Fox that when Mr Fox attended the premises of 221 William Street that afternoon he was met by Ms Humphries mother who advised him that her daughter was at the Police station. Mr Hutchinson later spoke with Mr Ross and advised him that the respondent was going to investigate Ms Humphries complaint. The following day he went to the residency and obtained from Ms Humphries a copy of her letter of complaint. On the same day the applicant was placed on suspension with pay. 48 On 29 June the applicant was advised in writing the particulars of the allegation and the arrangements for a disciplinary interview to take place on 5 July 2007. The applicant attended the meeting with his union delegate Mr Bonus. The applicant was given a copy of the letter raised by Ms Humphries. A typed copy of Mr Hutchinson's notes of the meeting were attached to his affidavit. The applicant denied all the allegations. 49 The applicant was asked in the meeting why would Ms Humphries make up these accusations. The applicant stated that his brother had given her an eviction notice and that she was angry about it. After the meeting an email was sent to Mr Hope requesting further information which he provided. On 12 July Mr Hutchinson and Mr Fox made a report to their managers recommending termination of the applicant. That recommendation was accepted and on 17 July 2007 he handed the applicant a letter of termination for misconduct with two weeks pay. 50 In cross examination Mr Hutchinson stated that he did not place any weight on the original notification received by phone from Mr Hope on 26 June by the respondent. Whilst the contents of the letters received by Mr Maurice Bitar and Mr Peter Kalamvokas were taken into consideration by himself in his investigation he did not believe anything would be gained by interviewing the gentlemen. He said of the four allegations, very little swung on allegations 1 and 2. He saw the applicant's dispute with Mr Oehlman as a factor in his consideration. In summary he preferred the word of Ms Humphries. 51 In his report and recommendation to his manager, Mr Hutchinson reasoned that if Ms Humphries was angry at not getting the stove she would have complained to the real estate agent but that was not the case, she was angry at the applicant for the way she had been treated. 52 Mr Ross Hope gave evidence to state that he is the partner of Ms Humphries and resides at 221 William Street Yagoona. He confirmed that he had occasion to contact the estate agent re action to be taken on necessary maintenance and repairs to the premises. He confirmed that he and his partner were considering making a formal complaint to the Department of Fair Trading with respect to getting action on the stove. 53 On the afternoon of 26 June 2007 he rang his partner on her mobile phone. He was told by Ms Humphries that the owner's brother was there to install the stove and he was "going off ". He said he could hear someone in the background. He could hear in the background profane language with the use of the word "fuck" and asked his partner if she was alright. She replied that she was stressed out and that " he's an idiot. I cannot believe he just threw the phone at me !He's outside what shall I do ?" He advised her that he would come home and not to let him in. When he arrived home some 40 minutes later he found his partner quite distressed. When he was told what had happened he decided to telephone Sydney Water, the Company(real estate) and the Police and make a formal complaint. 54 After he rang Sydney Water he received a phone call from Robert Hutchinson who asked if he could get his partner to put in writing what she had experienced. Later on the same day they both went to the company and made a verbal complaint to Mr Robert Janes. Later he also accompanied his partner to Bankstown Police. 55 In cross examination Mr Hope agreed there were occasions when Maurice Bitar knocked on the front door as a courtesy when he wished to use the garage and he agreed that he was present when the applicant and Maurice Bitar fixed the clothes line but he could not recall if his partner was present at the time in the backyard. He denied that he had made up this story about the allegations against the applicant for reasons of to get back at the Bitars for mucking them about with the stove. He said that they had got what they wanted, that is a new stove and he would not have been willing to come to Court and tell lies. He said he would not waste his and anybody else's time just for the sake of petty revenge. He said when he arrived home on the afternoon of 26 June he found his partner under stress, visibly upset, shaking and nervous. 56 He stated that he received an email from Robert Hutchinson and replied to it on 6 July. He said they had never received an eviction notice from the landlord or the real estate agent. 57 He said that on or about 10 September 2007 he was advised by his partner of the visit by the real estate agent. He sough to contact the real estate agent but his calls were not returned. On or about 17 September 2007 he asked his partner to contact the real estate agent and discuss the matter of the lease and his suggestion to "drop it". 58 Mr Paul Fox gave evidence and stated that he commenced employment with the respondent in 1977 and currently holds the position of Business Manager-Networks Sydney. Part of his role is to oversee the investigating and reporting on employee disciplinary matters across the Mechanical and Electrical Maintenance. He was delegated the responsibility to oversee the investigation into the allegations concerning the applicant. He stated that after receiving the initial complaint he went to the premises of Ms Humphries on the afternoon of 26 June 2007 but she was not present. The following morning he stood down the applicant with pay. He authorised Mr Hutchinson to go to the Yagoona premises and he returned with a signed letter from Ms Humphries. On 29 June 2007 the applicant was provided in writing with particulars of the allegations and a disciplinary meeting was arranged for 5 July 2007. 59 He attended that meeting where Mr Hutchinson took notes. At that meeting the applicant provided correspondence from Mr Maurice Bitar, from Mr Peter Kalamvokas and from himself to Mr Barry Boyle. After the meeting he met with Mr Hutchinson and discussed the matter for approximately one hour considering the competing version of events. As a consequence of that discussion it was decided that more information was required from Mr Hope. Further discussions took place between himself and Mr Hutchinson which culminated in a report and recommendation being sent to his managers on 12 July 2007. That recommendation was accepted and on 17 July I handed a termination letter to the applicant. 60 In cross examination he stated that he phoned and spoke to Ms Humphries a couple of days after 26 June in the presence of Mr Hutchinson to go over her letter she had provided the respondent. He admitted that this was not in his affidavit. He said that in coming to his recommendations he could not find a reason why Ms Humphries would make up such a claim. He found her creditable. He did not recall whether he went back to the applicant with the contents of Mr Hope's email response. In answering a question from the Commission he said that the applicant was terminated for what occurred on 26 June 2007. 61 Mr Jeffery Oehlman has been employed with the respondent since December 1986 and is currently Works Planner-MEM. In March 2007 he lodged a formal complaint against the applicant because of his insubordination and offensive language. This occurred during telephone conversations. A meeting was held where the issue of the removal of a tag off a piece of equipment and the allegation of insubordination and bad language was discussed. In cross examination he gave his view on why he acted the way he did in removing the tag and whether it was done according to procedure. He was clear in his evidence that the applicant had used bad language when speaking to him over the phone. In cross examination he said that the applicant was not a person who used inappropriate language on a regular basis but when questioned or asked, when frustrated it happened. He was asked in cross examination the following question: Q. So you read in that document by Ms Humphries what she alleges Joe said and did to her? A. Yes. Q. Does that sound like the Joe Bitar you've worked with? A. In certain circumstances, yes. 62 In final submissions Mr Salmon stated that the gravamen of this matter was not a case about delivery versus installation but one of conduct. Did an employee of the respondent dressed in the respondent's uniform driving their van, abuse a member of the public? In his view the Commission did not have to come to a concluded view as to the question of delivery or installation. He said the applicant's credibility must be questioned when one considered the timesheet of 26 June which clearly did not allow for the extended period the applicant was away from his job. He also had failed to obtain approval to use the respondent's van to carry out private work, which he knew was against the respondent's policy. The applicant denied that he had sworn at Ms Humphries only that he was short in talking to her. He said he had spoken to her at a normal level. The applicant could not recall swearing at Mr Oehlman but apologised to him if he did. Mr Oelhman took detailed notes and his evidence should be believed rather than the applicant's. The applicant stated that he was not upset at the time he was at the premises but only got upset when speaking to his brother on the phone yet the evidence of Mr Kalamvokas was that the applicant sounded upset when he was speaking with him on the phone when the applicant was at the premises. A phone call Mr Kalamvokas failed to mention in his statement. The applicant later rang Mr Kalamvokas to apologise because on 26 June, he was abrupt with him on the phone. Mr Salmon stated that the applicant had a motive to get angry with Ms Humphries because he was aware of his brother's problems with Ms Humphries and now he was prevented in doing what he wanted to do. There was animosity against the tenants. Consideration and Decision. 63 The applicant was terminated for what the respondent believed occurred on 26 June 2007. At the point of termination the applicant was paid two weeks wages, but as I understand through the evidence of Mr Hutchinson, this was done more through custom rather than to circumvent the nature of the termination which was for misconduct. Whilst Mr Salmon may have been somewhat reluctant to come to this conclusion, it is my view that as a consequence of the reason for termination of the applicant, the onus falls on the respondent to prove beyond the balance of probability that what he was accused off doing in his meeting with Ms Humphries did take place. 64 The Commission is presented with the situation of two persons giving widely conflicting evidence with supporting witnesses not being actual eye witnesses to the meeting between the applicant and Ms Humphries. 65 The applicant in his evidence denied emphatically that he had acted and spoken in an inappropriate fashion towards Ms Humphries. He was aware that his brother was having problems with the tenant at 221 William Street, Yagoona and that he was being taken to "arbitration". The reason for the visit on 26 June to the residence was to nip this problem in the bud by delivering the stove. 66 I accept the submission of Mr Salmon with respect to the issue as to whether the applicant was there to deliver or to install the new stove not being the critical point as submitted by Mr Morrison. The applicant was clear that he was only there to deliver, Ms Humphries to install. It is my view that whilst the issue of delivery as opposed to installation was the subject of the interaction between the applicant and Ms Humphries, it is the conduct between the two people that is the issue that this Commission must determine. I note the evidence of Mr Kalamvokas that he confirmed to the Commission the telephone conversation between Ms Humphries and himself on 26 June when both Ms Humphries and himself used the word "install". If I am to believe Mr Kalamvokas with respect to that piece of evidence, then am I not also bound to believe and accept that also of Ms Humphries' that the owner's brother was there to "install" the stove and that he was "going off". Mr Kalamvokas confirmed in his evidence that Ms Humphries had told him during the second telephone conversation that she had had an argument with the applicant and that she was not "letting that guy in the house". He also stated that both the applicant and Ms Humphries had sounded upset when he had spoken to both of them on the phone on 26 June. Mr Hope gave evidence that when he phoned his partner on 26 June he could hear someone swearing in the background. He stated that his partner sounded upset to the extent that he left work at Bellevue Hill and came home, a trip he said that took him some forty minutes. He found his partner upset and shaking. The applicant gave evidence that whilst he was short in speaking to Ms Humphries he was in control of himself and was not in any way volatile or used inappropriate language nor were there raised voices. It did not get out of hand. He said he only got upset after speaking to his brother after he left the premises. For the Commission to accept this evidence then it would have to find that Mr Kalamvokas lied to the extent to say that both the applicant and Ms Humphries sounded upset during his telephone conversation and that Mr Hope lied in stating that he could hear someone swearing when he phoned Ms Humphries. The lie would also have to be found in how he described the condition and appearance of his partner when he returned home on the afternoon of 26 June or alternatively his partner was acting to support her accusations. The Commission would also have to reject the near entire evidence of Ms Humphries. Her evidence had been that as soon as she questioned the applicant on 26 June with respect to the stove she received a verbal assault. The lie would also continue with the reporting of the incident to the NSW Police, the estate agent and the respondent. I accept the evidence of Mr Oelhman that the applicant used inappropriate language towards him in March of this year and the detailed hand written notes supporting his claim. I note that his experience was that the applicant did use inappropriate language when the applicant was frustrated. The applicant believed the motive for Ms Humphries and Mr Hope to lie was because of the agent calling her and stating the landlord's dissatisfaction with her conduct and the eviction notice (Ex 4 RH23). I am unaware of any evidence that confirmed this view. Mr Maurice Batir wanted to evict his tenants but was advised by Mr Kalamvokas that this was not possible. Neither Ms Humphries nor Mr Hope ever received any eviction notice. If as submitted by Mr Morrison that the action of Ms Humphries and or Mr Hope was one of revenge, that is to get back at both the applicant and Mr Maurice Bitar for the delay in obtaining a replacement stove, then it must rank as one of the most extreme methods I have seen. I do not accept this submission. In giving their evidence I did not come to the conclusion that either Ms Humphries or Mr Hope were vengeful people who had tailored their subsequent actions and now their evidence for that purpose. In my view both gave their evidence in a straight forward manner. 67 It is my finding that the applicant using the respondent's van left work to assist his brother in appeasing the occupant of his brother's premises thereby preventing any problems in having to go to arbitration concerning the stove. On the balance of probability I prefer the evidence of Ms Humphries in that she was subjected to a hostile and inappropriate verbal assault by the applicant as he saw obstacles being placed in his way. Why would both the applicant and Ms Humphries sound upset (evidence of Mr Kalamvokas) if according to the evidence of the applicant there was no volatility or raised voices ? 68 I find the journey of the applicant back to his home after his visit to the Yagoona house to speak to his wife most interesting. If as the applicant stated that nothing occurred between himself and Ms Humphries and it was only the phone call to his brother that left him confused, then what would be gained at that point to speak face to face with his wife, instead of going straight back to work. 69 The respondent was subject to criticism for their lack of procedural fairness in their investigation. Whilst it was possible to put the response of Mr Hope of the email sent by Mr Hutchinson to the applicant and the written conclusions drawn by Mr Hutchinson to allegations numbers 1 and 2 were not accurate I do not believe they were fatal to the respondent's case. At all times the applicant was represented by his Union and it is my finding that he was given ample opportunity to present his case. 70 It was accepted that Ex 2 did not accurately reflect the applicant's work for 26 June 2007 and that in fact he was absent from work without authority for over some ninety minutes. A period well in access of his lunch time of 30 minutes. 71 In finding that the applicant had misconducted himself on 26 June 2007 whilst at the premises at Yagoona in front of Ms Humphries I now consider whether this one action constituted misconduct to the extent that warranted termination. It is my finding that the applicant used quite inappropriate language towards Ms Humphries without cause. There was no evidence that Ms Humphries responded in kind. There was no basis for the actions of the applicant. The applicant during this confrontation was wearing clothing that identified himself as a representative of the respondent and was driving a van that represented the respondent. It is my finding that as a consequence of the actions of the applicant on that day, the respondent was justified in the termination of the applicant. 72 In conclusion it is my finding that on the balance of probability the applicant did misconduct himself in the presence of Ms Humphries and I therefore dismiss this application for unfair dismissal. 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.