T8445
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Bill Tsakiris and Denmar Pty Ltd and Petvic Pty Ltd
Industrial dispute - alleged unfair dismissal - unfair dismissal upheld - order issued REASONS FOR DECISION The applicant in this matter Mr Bill Tsakiris (the Employee) was employed by Stokes and Hammond as a driver/storeman from 5 February 1991 until 25 May 1999 when he was dismissed for alleged misconduct. The Employee's application describes the events of 25 May 1999 which resulted in his dismissal as follows: "At the time and date of the termination, Mr Tsakiris was engaged in loading fruit on to a truck (or tasks reasonably incidental to that task). Mr Tsakiris was smoking a cigarette at the time. Mr Behrakis approached him. Mr Behrakis said words to the effect "you have to give up smoking" or "I told you to give up smoking". Mr Behrakis used a loud and angry voice. After this exchange, Mr Tsakiris and Mr Behrakis exchanged further words. Mr Behrakis then grabbed Mr Tsakiris by the arms. Mr Tsakaris told Mr Behrakis not to grab him by the arms; as to do so was an assault. Mr Behrakis then stated he was sick of Mr Tsakiris nonsense, and that he should leave the workplace immediately. Mr Tsakiris then stated that if that was the case, he wanted to be paid immediately. Mr Behrakis stated that was not possible and that Mr Tsakiris would have to return on the normal pay day, on Thursday 27th May 1999. Mr Tsakiris returned to the workplace on Thursday 27th May 1999 and was given the letter "A" annexed, together with amounts set out in that letter, less the noted deductions. On 25th May 1999, neither the employer, nor any person on its behalf had said anything at all to Mr Tsakiris about those matters appearing in that letter "A" annexed as being the reasons for dismissal. Mr Tsakiris was not given any opportunity to respond to any of the reasons for dismissal which appear in the letter "A" annexed. Prior to 9.00 am on 25th May 1999, neither the employer nor any person on its behalf had ever provided Mr Tsakiris any warning about unsatisfactory performance or conduct. It was clearly possible for the employer to have given a written warning of unsatisfactory performance or conduct. Prior to 9.00 am on 25th May 1999 neither the employer nor any person on its behalf had ever provided Mr Tsakiris any warning of dismissal - written or otherwise. It was clearly possible for the employee to have given a written warning of dismissal. There was no conduct on the part of Mr Tsakiris which might justify dismissal. In the circumstances, the termination of Mr Tsakiris's employment by the employer was harsh, unjust and unreasonable. Mr Tsakiris seeks reinstatement to his former position with the employer. Should the Commission decline to order reinstatement, Mr Tsakiris seeks an order for monetary compensation." Discussions between the parties failed to resolve this matter and the application was heard on 16 and 23 June 1999. The evidence of the Employee generally supported the statements in the application. However, the evidence of the Employee and Mr Behrakis the Managing Director of the company conflicted on the detail of what happened that day and whether or not there had been warnings given to the Employee prior to 25 May 1999. Those warnings were in relation to his smoking in the proximity of fruit and vegetables and his bad language in front of customers. Mr Tsakiris's main evidence going to the events of 25 May reads; "Mr Daly xn ......I went over to the pallet to pick it up and then that's when the boss, Peter Behrakis came up behind me. He just started going on, I told you to give up smoking. I looked around and I said, what. He goes, I told you to give up smoking. I said, what are you talking about. He said, I don't want you smoking around the fruit. I said, why don't you tell the others. He goes I've already told the others. I just sort of looked and was shaking my head in disbelief. I turned around. I walked over near the bin, had one more drag on my cigarette, I put it out, I came back to pick up the banana, he's picked me up with both arms he lifted my arms up and I said to him, take your hands off me. I said, I'll have you up for effing assault, and that's when he started to say, I'm sick of you. I've had enough of your effing nonsense. If you don't like it you can go. Go, go, he's saying. I said, what did you say. He said, go, just leave. I went to get my pay from the office, and he said to me, no, Thursdays are pay days usually so if you want it you come back Thursday and get your money." and "Do you know what that all meant? He said, you have to give up smoking, or something like that, did he?... Yes. The way he said it to me he said, you have to give up smoking, you have to give up smoking. It was like, who was he to tell me to give up smoking anyway. He didn't even ask me to put it out properly. He didn't ask me - it was just more or less an order, or something like that." and "Worked up. Had he told you before about giving up smoking?... No. There had been a time where they'd said something about - some customer complained about - she could smell smoke on her fruit or something and he just told us individually - he didn't call us together or anything. He just said, if you can try and refrain from smoking when you're loading the trucks up. Can you recall when he told you that?... Not really. Probably about five months ago maybe. As to the smoking, did he ever put anything in writing to you about smoking?... No." 1 As the outcome of this matter hinges on the incident of 25 May 1999 and whether or not warnings were given to the Employee in relation to smoking and swearing: I now go to the evidence of the Employer relating to those issues. His witness statement in part reads: "During the past year the company has developed and implemented a quality assurance system. On implementation of this system, Mr Tsakiris was instructed not to smoke whilst in the vicinity of fruit and vegetables or when carrying these. Mr Tsakiris ignored this instruction despite numerous warnings. During the past 12 months Mr Tsakiris attitude and conduct had become worse. His communication with his supervisors was strained and was becoming increasingly difficult. He was also badmouthing the company to other employee. Whilst I was away at a banana conference in Queensland my Supervisors, experienced further difficulties in managing and communication with Mr Tsakiris. On 25 May 1999, Mr Tsakiris was smoking whilst he was loading fruit on to the truck. I instructed him to stop smoking and told him that I had warned him on a number of occasions. Mr Tsakiris became very aggressive and started using bad language. He was very upset and speaking with a loud voice. There were customers in the Warehouse who would have heard the bad language. I attempted to calm Mr Tsakiris by putting my hand on his shoulder and I said "Billy stop swearing in front of customers." This made him worse, in the end I said "Billy you can finishes up now, I cannot tolerate your behaviour any longer, I have warned you enough." and I prepared a letter dated 27 May 1999 to Mr Tsakiris confirming the reasons for his dismissal and detailing his final payment." 2 That letter of 27 May 1999 records the following reasons for dismissal. "The reasons for your dismissal is a direct result of your unsatisfactory work performance and misconduct in that you failed to but not limited: to comply with lawful instructions given by us the employer. You're continual swearing in front of other employees and customers. Smoking around the fresh fruit and vegies. Your inability to work harmoniously with your fellow workers. I have spoken to you on numerous occasions expressing my concerns. However your performance / attitude did not improve to my satisfaction" 3 The evidence of Mr Behrakis attempted to support the reasons for dismissal detailed above. Unfortunately much of Mr Behrakis's evidence was confused and he attempted to introduce performance issues relating to the Employer over a long period of time. Rather than summarise this evidence I will focus on what I consider are the important issues and detail my conclusions. In relation to the alleged performance problems, I am inclined to the finding that there were problems with the Employee going to his performance and attitude towards his workmates and the Employer. However, these problems have not been documented and there was no evidence from Mr Behrakis that he had counselled the Employee in relation to these matters. I am therefore left to conclude that the Employee in the absence of counselling or written warnings is entitled to assume that his actions and attitude were not a problem and accepted as normal behaviour by the Employer. It was acknowledged by Mr Behrakis that he had not at any time told the Employee his performance or poor performance could lead to his termination. The incident on 25 May 1999 appears to have occurred because the Employee was smoking in an area that he had been previously told was effectively a no smoking area. ie. where he was handling fruit and vegetables during the loading process. I accept the evidence of Mr Behrakis that he had told the Employee he was not to smoke when he was handling fruit or vegetables, (it was acknowledged by the Employee that he had been told at least once). However, Mr Behrakis acknowledged that he did not declare a no smoking area and enforce it and more importantly he did not advise the Employee of the employment or disciplinary consequences of smoking in the vicinity of fruit and vegetables. Again there was no written policy or communication of the Employer in relation to smoking. Again from the evidence I am inclined to accept that the Employee has a problem with bad language. However, he was not warned in writing or there was no clear policy in relation to swearing in the workplace spelled out by the Employer. Bad language in the workplace is not unusual and it may only become offensive if there are customers present or it becomes personal. In the absence of written warnings or policy statements and no clear evidence that customers were present at times when the Employee used bad language I am unable to find that the Employee's alleged misconduct on this issue would justify his dismissal. There is no doubt from the evidence that the incident on 25 May 1999 over the smoking in the vicinity of fresh fruit and vegetables caused the angry exchange between Mr Behrakis and the Employee and led in the heat of the moment to his dismissal. Any reasonable person would acknowledge that that incident should not have occurred and it should not have resulted in the dismissal of the Employee in the heat of the moment. If appropriate written warnings had been given to the Employee about his smoking in certain areas or no smoking signs place appropriately I would be surprised if the Employee would have ignored them, if he did the consequences would be well known to him. It is obvious from the evidence that the dismissal was instantaneous with no appropriate counselling of the Employee or the opportunity for him to explain or defend his actions before he was dismissed. I have little option but to find that the Employee has been unfairly dismissed and that there was a lack of a proper process leading to his dismissal. The sad part about this whole dispute is that it could so easily have been avoided. Smoking in many work places and particularly around food has been banned for many years now and is readily accepted by employees and the general public. Simple action by the Employer in classifying areas as no smoking would I believe have prevented this dispute. A similar direction on bad language to employees would also go a long way towards resolving problems as alleged in this case. At the outset of proceedings the applicant sought re-instatement however, in final submissions Mr Daly acknowledged re-instatement could be difficult given the events of this case. The Employer opposed re-instatement on the basis that the Employment "relationship between Mr Behrakis and Mr Tsakiris is a fractured one."4 I accept in the circumstances that re-instatement is not appropriate and therefore determine compensation. In accordance with s.31(1) of the Industrial Relations Act 1984 I order that Stokes and Hammond pay to Mr Bill Tsakiris of 50 Carella Street, Howrah seven (7) weeks pay at the normal rate of pay Mr Tsakiris received at the time of his termination. Payment to be made by 16 July 1999. I have taken into account in determining compensation the amount paid to Mr Tsakiris at the time of termination and the submissions of the parties in relation to sick leave and long service leave.
J G King Appearances: Date and place of hearing: 1 Transcript page 6 |