Industrial Relations Commission of New South Wales CITATION: Henriksen -v- Flow-Rite Plumbing Company [2005] NSWIRComm 1189 APPLICANT Russell St John Henriksen PARTIES: RESPOPNDENT Flow-Rite Plumbing Company Pty Ltd FILE NUMBER(S): 6488 of 2004 CORAM: Cambridge C CATCHWORDS: Unfair dismissal - termination of employment - agressive exchange at work - wilful refusal to follow reasonable instruction - misconduct - justification for dismissal despite some procedural error - claim not assisted by post dismissal misconduct - dismissal not harsh, unreasonable or unjust - claim dismissed. LEGISLATION CITED: Industrial Relations Act 1996 [NSW] HEARING DATES: 09/14/2005 DATE OF JUDGMENT: 11/18/2005 APPLICANT Self represented LEGAL REPRESENTATIVES: RESPONDENT Mr J F Law, agent from John F Law & Associates DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES COMMISSIONER CAMBRIDGE 18 November 2005 Matter No IRC 6488 of 2004 Russell St John Henriksen -v- Flow-Rite Plumbing Company Pty Ltd Application by R Henriksen re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2005] NSWIRComm 1189 1 The circumstances of this case are very sad. The matter has involved not only the ending of an employment relationship of more than four years, but also the fracture of a longstanding friendship between the Parties to the employment relationship. 2 On 26 October 2004, Russell St John Henriksen (the applicant), was involved in an incident at his worksite that caused Gregory James Gleeson, a Director of Flow-Rite Plumbing Company Pty Ltd (the employer), to dismiss the applicant. That dismissal brought to an end more than four years of employment and also ended over twenty years of friendship between Mr Henriksen and Mr Gleeson. 3 Written advice of the applicant's dismissal was provided by way of a document dated 1 November 2004, and on 5 November 2004, the applicant filed a claim for Relief in relation to unfair dismissal. The claim was made pursuant to section 84 of the Industrial Relations Act 1996 [NSW], (the Act). 4 The matter was initially allocated to McLeay C, and fixed for Conciliation and Directions on 24 November 2004. The matter was unable to be settled by way of conciliated agreement. The filed documentation and transcript of proceedings before McLeay C, indicates that the pursuit of settlement was beset with significant difficulties. These difficulties culminated in an unfortunate exchange between the applicant and McLeay C during proceedings held on 9 February 2005. As a consequence of certain statements made by the applicant during the proceedings held on 9 February 2005, McLeay C referred the matter to the President indicating that she believed that it was appropriate to have the matter reallocated to a different member of the Commission. 5 Subsequently the matter was reallocated to the Commission as currently constituted. In due course the matter proceeded to Hearing that was conducted on 14 September 2005. BACKGROUND 6 The applicant is a man who was some thirty seven years of age at the time of his alleged dismissal which occurred either by way of verbal advice on 26 October 2004, or by way of receipt of the certificate of termination document on or about 2 November 2004. The applicant had worked for a period of over four years as a Plumber. 7 The applicant and the Directors of the employer, Gregory Gleeson and his wife, Kim Marie Gleeson were friends. Gregory Gleeson and the applicant had been friends for over twenty years. An indication of the closeness of the friendship was revealed by the fact that the applicant was the Godfather of the Gleesons' child. 8 The applicant was the only employee of the Gleesons for most of the period of his employment. Consequently the close employment relationship was mixed with a longstanding friendship. As a result of these close relationships the employment arrangements were very informal. The informality of the employment relationship extended to instances where the applicant would be collected from his home by Mr Gleeson and then the two men would travel to their various worksites. 9 On some occasions when Mr Gleeson went to collect the applicant from his home, he was asleep, so Mr Gleeson would wake the applicant and then proceed to attend for the day's work. Although this particular arrangement occurred in the latter part of the applicant's employment when he had difficulties with the reliability of his private motor vehicle, it seemed that in previous years the applicant had reversed the roles and been involved in waking Mr Gleeson so that the two men could proceed on to work on particular days. 10 As one might anticipate the two men's personal and employment relationships experienced both good and bad times. The nature of these relationships was coloured by the robust language and conduct that is usually associated with work in the building and construction industry. It appeared that in the months immediately preceding 26 October 2004, the relationships between Mr Gleeson and the applicant were somewhat strained. Unfortunately the relationships did not endure the events of 26 October 2004. 11 Although there was conflict in the evidence about details of the events of 26 October, there was an incident at a worksite that involved some heated exchange between the applicant and another person working on that site. The detail of the altercation between the applicant and this other worker, Mr Ivan Kezic was hotly contested. However as a result of the incident Mr Gleeson removed the applicant from that worksite and returned him to his home. Subsequently the employer issued a certificate of termination advising the applicant of his dismissal and although that document sets out a variety of aspects that relate to the termination of the applicant's employment, the dismissal was clearly anchored upon the incident of 26 October 2004. 12 The certificate of termination document makes mention of various aspects of the incident of 26 October, and also importantly refers to suggestions regarding the applicant's state of mental health. This is a difficult and sensitive issue. The incident of 26 October, and the starkly different recollections of the events of that day as between the applicant on the one hand, and Mr Gleeson and Mr Kezic on the other, can in large part be referable to suggestions regarding mental health issues. 13 Following the worksite incident of 26 October, the applicant performed no further work for the employer. Shortly after being provided with formal advice of his dismissal by way of the certificate of termination, the applicant commenced his claim for unfair dismissal. The applicant has asserted that his dismissal, as conveyed by way of the certificate of termination document dated 1 November 2004, was unfair and he has sought monetary compensation as remedy for the alleged unfair dismissal. THE EVIDENCE 14 The evidence of most significance in this matter involved the questions of contested fact about the detail of the incident of 26 October. The applicant's version of this event did not deny that there had been some incident at the worksite involving Mr Kezic. However the applicant's evidence would generally have characterised the incident to have been of little or no significance, and broadly not warranting of any dismissal. 15 The alternative evidentiary position of the employer as presented by the affidavits and testimony of Gregory Gleeson and Ivan Kezic, painted a dramatically different picture of the incident of 26 October. It would be likely for there to be adverse inferences drawn as to credit in respect to the blunt factual contest that can be discerned from the evidence presented in this case. However, I do not believe that any of the witnesses to this particular incident, the applicant, Mr Gleeson, and Mr Kezic, provided any intentionally false or misleading evidence. Rather, I tend to think that the mental health issues that were mentioned in the certificate of termination document may have contributed to what I will describe as memory lapses. 16 The applicant was the only witness called in support of his claim. The applicant attested to the veracity of two statements that he had filed in respect to these proceedings. The evidentiary material for the employer was provided by three witnesses. In addition to Mr Gleeson and Mr Kezic, witness evidence was also provided by Mr Gleeson's wife, and the other of the employer's Directors, Ms Kim Marie Gleeson. Each of the three witnesses for the employer provided affidavit material which was supplemented during their attendances as witnesses in the proceedings. THE CASE FOR THE APPLICANT 17 The applicant represented himself during the Hearing. The applicant's submissions involved severe criticism of the employer's general employment practices. The applicant referred to a variety of alleged underpayment of wages and related employment complaints. 18 In respect to the workplace incident of 26 October, the applicant stated that the evidence provided by Mr Kezic was not credible. The applicant submitted that it was difficult for him to argue against the blatant lies of the evidence provided by the employer. Consequently it was implied by the submissions made by the applicant, that his version of the events of 26 October should be adopted over the starkly contrasted position presented by the employer's witnesses. 19 The applicant also made reference to the alleged absence of any proper advice regarding his termination of employment. In this respect the applicant asserted that he was not advised that he was dismissed when he was returned home prematurely on 26 October 2004. In addition, the applicant submitted that at no point prior to him receiving the certificate of termination document was he given any information regarding either poor work performance or other matters which might contribute to the basis for dismissal. 20 The applicant indicated that he had suffered considerable financial loss as a result of the alleged unfair dismissal and he sought some compensation for this loss. The applicant's submissions then concluded by return to the strong challenge to the veracity of the employer's evidentiary position. THE CASE FOR THE EMPLOYER 21 Mr J F Law, agent, appeared on behalf of the employer. Mr Law commenced his submissions by urging the Commission to accept the evidence of Mr Gleeson and Mr Kezic regarding the incident of 26 October. 22 Mr Law said that the applicant had refused to obey the reasonable direction of Mr Gleeson and had acted in a way which represented direct and insufficiently provoked threat against another person, that being Mr Kezic. Mr Law submitted that the actions of the applicant on 26 October represented serious and wilful misconduct, for which the employer was entitled to dismiss. Mr Law said that the nature and severity of the aggression exhibited by the applicant was reflected by the fact that Mr Kezic was legitimately afraid that the applicant might inflict some physical assault upon him. It was, according to the submissions of Mr Law, only the intervention of Mr Gleeson that prevented some actual physical altercation at the time. 23 Mr Law stated that the employer had proper justification for dismissal of the applicant and therefore the claim for unfair dismissal should be dismissed. CONSIDERATION 24 The consideration of this matter has primarily involved an analysis of the conflicting evidence concerning the incident of 26 October 2004. Given the nature of this factual conflict it was obvious that the claim would either succeed or fail on the basis of resolution of the very different versions of that particular event. 25 The incident in question occurred at a multi storey construction site located at 33 Erskine Street, Sydney. From uncontested evidence it was established that the applicant and Mr Gleeson arrived at the Erskine Street site at around mid to late morning. Shortly after their arrival Mr Gleeson told the applicant to have his lunch break. Mr Gleeson then proceeded to undertake work on various of three floors of the multi storey building. The applicant proceeded to have his lunch break in the car park on the ground level. 26 As the applicant was having his lunch break, Mr Kezic was throwing steel rods into the back of a truck which was located near to the applicant. The activity of Mr Kezic made considerable noise, such that it greatly disturbed the applicant. There was apparently some brief exchange between the applicant and Mr Kezic about the level of noise that was emanating from Mr Kezic's activities. Mr Kezic then proceeded to return to the seventh floor of the building and undertake further work. 27 Mr Gleeson who was also working on level seven of the building at that time, was about to descend in the elevator to find the applicant as it appeared that he had taken an extended lunch break and was required to commence work. When the lift arrived on the seventh floor, the applicant emerged and appeared to be in an agitated state and advised Mr Gleeson to the effect that "There's a guy in the car park who won't fight me". Exhibit 5 @ paragraph 19. Mr Gleeson inquired about this unusual comment. The applicant then explained about the excessive noise being made by Mr Kezic. The applicant expressed his displeasure at the conduct of Mr Kezic. After a brief exchange between Mr Gleeson and the applicant about the problem associated with the noise being made by Mr Kezic, the applicant then commenced work. 28 The applicant's work on this occasion involved the dismantling of some copper drainage pipes. At this point all three men were working in near vicinity on level seven of the building. The applicant and Mr Gleeson were dismantling the copper drainage pipe, and Mr Kezic was doing separate work not connected with the employer's operations. 29 The applicant then threw a steel pipe bracket approximately seven metres. Why the applicant would throw the bracket that distance was not explained, although the applicant's evidence was that he was throwing the pipe bracket towards a rubbish pile. The applicant also confirmed that Mr Kezic was working in the vicinity of the rubbish pile. However the applicant's evidence was that he did not believe that the steel pipe bracket went near Mr Kezic. 30 From about this point onwards the evidence has taken significantly different pathways. The applicant's evidence was that there was some further minor verbal exchange between himself and Mr Kezic. However, the evidence provided by Mr Kezic and Mr Gleeson, was that the applicant became highly agitated to the point of being enraged. 31 According to the evidence of Mr Kezic the applicant confronted him in a highly agitated state such that he was scared for his personal safety. Mr Gleeson provided evidence that supported the version deposed by Mr Kezic, and the most convenient summary of the alleged incident was provided by the following testimony given by Mr Gleeson during cross-examination by the applicant: " Q. If what you say in your statement is true, why did it take so long for you to act on the situation? A. What time are you talking about? You come out of the lift, right, with aggression, telling me this story, there's a guy downstairs who won't fight you, he's making noise and I want to fight him. Okay. So then we come back upstairs to try and work out the conflict. Johnny proceeded with his work and I said, leave the guy alone, he's doing his work, we proceeded with our work, you carried on with it, started flowing [sic] those clip supports from that 2 inch copper at him, provoking him, in his face, several times verbally abusing him. I warned you again that you would be dismissed if you did not [ sic ] continue this behaviour, you ignored me, you swore at me, you were taken from the job site after we collected our tools from the three different levels that we were working on. That's what happened." Transcript of proceedings , (14/09/05) @ page 63. 32 The evidence provided by Mr Kezic, who is also referred to as "Johnny", was broadly consistent with that provided by Mr Gleeson. The evidence about the incident, as provided by Mr Kezic, was unshaken during cross-examination from the applicant. It was particularly instructive to observe the responses given by Mr Kezic when he was being cross-examined by the person who had been involved in the incident of 26 October. The following extract from transcript provides a succinct summary of the testimony given by Mr Kezic about the nature of the incident on 26 October: " Q. Can you try to explain that, because we need it for the record. A. All right. If someone's angry - this is how I think - if someone's angry and he wants to approach you, he'll approach you like that. .. (Not transcribable) .. physical. And I could just see it in his eyes that he was upset, that he was pretty red hot. Q. You could see in his eyes he was upset? A. Yes. Q. In what way? A. Like he wanted to kill me basically, yes. Q. You were scared? A. Yes" Transcript of proceedings , (14/09/05) @ page 41. 33 The Commission has carefully considered the evidence provided by Mr Kezic, Mr Gleeson, and the applicant as it relates to the contest regarding the incident of 26 October. As a result of detailed and careful examination of this evidence, on weight and balance, the Commission is persuaded to adopt the evidence of Mr Kezic, and Mr Gleeson, over that of the applicant. 34 Consequently the Commission finds that as a matter of fact, the applicant did misconduct himself in the manner as broadly attested to by Mr Kezic and Mr Gleeson. As mentioned earlier in this decision, the resolution of this contest should not be translated into adverse findings in respect of credit as would apply to the applicant. I believe that memory deficiencies, as opposed to any deliberate untruth, contributed to the dramatically different recollections of the incident of 26 October. 35 There was further evidence of very unfortunate activities of the applicant which involved his attendance at the residential premises of the employer at about 2.00 am on one occasion, and at about 4.30 am on another. The applicant did not deny his attendance at these times, and it seemed that he may have been overly preoccupied with matters relating to his dismissal, such that he was undertaking activities which, if continued, might lead to criminal prosecution. Particularly given the mental health issues which I have referred to earlier, these issues may also be connected with this unusual misconduct on the part of the applicant. 36 It is of course understandable that dismissed employees can be greatly distressed by the loss of employment. However it must be emphasised that there are instances where although the Commission found that the dismissal of an employee was unfair, the conduct of the employee after dismissal involving attempted retribution against the former employer has compelled the Commission to refuse any remedy, even though the employee was clearly subject to an unfair dismissal. 37 The consideration of this matter must also include record of concern regarding the delay in providing formal advice of dismissal to the applicant. The applicant was entitled to be provided with formal written advice regarding his dismissal at, or shortly after, the time he had been returned home on 26 October. Consequently the Commission has some sympathy for the legitimate complaint of the applicant about the delay in the provision of formal written advice concerning his dismissal. 38 However, the delay in the issuing of the letter of dismissal must be considered in circumstances where the employer's business was very small such that, essentially, the applicant was the only employee. On balance, and in view of the particular circumstances of this case, although the delay with the issue of the written confirmation of dismissal was regrettable, it cannot be construed as an action that might represent procedural deficiency that would overcome the underlying substantive basis for dismissal. CONCLUSIONS 39 The end of more than twenty years friendship and over four years employment was a sad occasion. The close friendship and working relationships have contributed to difficulties in dealing with the unfair dismissal claim. These difficulties were exacerbated by the mental health issues that were also involved. 40 The determination of this matter has been reduced to a requirement to settle conflicting accounts of an incident that occurred on 26 October 2004. Following a detailed and careful examination of the evidence, the Commission has concluded that the evidence provided by the employer represents the more accurate version of the incident of 26 October 2004. 41 Consequently the applicant was involved in an aggressive exchange with another person in the workplace. The aggressive exchange included the applicant's wilful disobedience to comply with the reasonable instruction of the employer. The applicant refused to desist from further aggressive conduct towards the other person. The applicant's conduct is therefore found to have been misconduct, sufficient to justify his dismissal. Regrettably further post-dismissal conduct has not assisted the applicant's claim. 42 Therefore the substantive basis for the applicant's dismissal has been established. Although there were some procedural deficiencies in the way in which the employer handled the implementation of the applicant's dismissal, those deficiencies, on balance, do not displace the underlying substantive basis for dismissal. 43 Therefore the decision of the employer to dismiss the applicant was not harsh, unreasonable, or unjust and consequently the Commission cannot intervene in the employer's decision to dismiss. 44 Therefore the applicant's claim is dismissed and proceedings are concluded. oooOOOooo 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.