CITATION : 2013 WAIRC 00768 CORAM : COMMISSIONER J L HARRISON HEARD : THURSDAY, 18 APRIL 2013, FRIDAY, 28 JUNE 2013 DELIVERED : TUESDAY, 27 AUGUST 2013 FILE NO. : U 213 OF 2012 BETWEEN : MARTIN THOMAS HOWELL WITT Applicant AND GIOVANNI (JOHN) FERRARO Respondent Catchwords : Industrial Law (WA) - Termination of employment - Claim of harsh, oppressive or unfair dismissal - Principles applied - No dismissal at the initiative of the employer - Commission lacks jurisdiction - Application dismissed Legislation : Industrial Relations Act 1979 s 29(1)(b)(i) Result : Dismissed Representation: Applicant : In person Respondent : Mr R Arndt (of counsel) Case(s) referred to in reasons: Bridge Shipping Pty Ltd v Grand Shipping SA and Anor [1991] 173 CLR 231 Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 Rai v Dogrin Pty Ltd (2000) 80 WAIG 1375 Robert Harwood v Ace Services Pty Ltd trading as Defensive Driving School (2002) 82 WAIG 2513 Reasons for Decision 1 On 3 October 2012 Martin Thomas Howell Witt (the applicant) lodged this application in the Commission under s 29(1)(b)(i) of the Industrial Relations Act 1979 (the Act) claiming that he was unfairly dismissed on 5 September 2012 by Giovanni (John) Ferraro (the respondent). 2 The applicant maintains that he was terminated on 5 September 2012 after an altercation with Mr Giovanni Ferraro in the respondent’s office after he questioned the amount of sick leave entitlements due to him. A video of the incident also shows Mr Ferraro saying that he had no shame and telling the applicant to leave the respondent’s office for no valid reason. At the time Mr Ferraro was also being loud and aggressive towards the applicant. The applicant claims that when he was leaving the respondent’s office on 5 September 2012 he was assaulted by Mr Ferraro. 3 The respondent claims that the applicant was not terminated on 5 September 2012. The applicant chose to leave the respondent of his own volition and he abandoned his employment when he left the office taking the TAFE books. If the Commission finds that the applicant was terminated and an in an unfair manner the respondent accepts that the applicant mitigated his loss. Background 4 The respondent provides pest control services to commercial and residential premises. The applicant was employed by the respondent as a senior pest management technician between 20 August 2007 and 5 September 2012 on a permanent full time basis. The applicant booked pest control jobs for technicians, he identified new work for the respondent and he undertook pest and weed control services. When the applicant ceased working for the respondent he usually worked 40 hours per week and he was paid $29 per hour. 5 The dispute over the applicant’s sick leave entitlements arose when the applicant’s partner became incapacitated for four weeks after having knee surgery on 25 July 2012 and she had her operation just prior to Mr Ferraro leaving Western Australia to visit family in Italy. The applicant wanted to use his sick leave as personal leave to care for her and his two young children. In Mr Ferraro’s absence the applicant undertook some of his management duties. In order to assist the respondent during his partner’s convalescence, the applicant worked between 9.00 am and 3.00 pm each day after 25 July 2012 and he expected that the remaining hours he normally worked would be given to him as sick/carer’s leave so that he would be paid his normal wages each week. Mr Ferraro returned to work on 30 August 2012. As he was unsure about how much sick leave the applicant had to use as carer’s leave he completed a summary of the sick leave entitlements he claimed was due to the 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1419 applicant up to September 2012 (the 2012 summary) (Exhibit A2 – part 2). Mr Ferraro gave the 2012 summary to the applicant on 4 September 2012. After reviewing this summary the applicant claimed that the amount of sick leave Mr Ferraro claimed was due to him was lower than the amount of sick leave due to the applicant in a summary completed by Mr Ferraro in 2010 (the 2010 summary). The applicant kept a copy of the 2010 summary in his desk however it was missing when he looked for it on or about 4 September 2012. On the afternoon of 4 September 2012 the applicant and Mr Ferraro had a discussion for some time about the quantum of the applicant’s sick leave accruals and as the applicant believed the 2010 summary was correct they remained in dispute. 6 Mr Ferraro and the applicant had a further discussion about the sick leave entitlements due to the applicant on the morning of 5 September 2012. In the office at the time was Mr Ferraro’s wife Ms Caterina Ferraro who occasionally assisted with the respondent’s administrative duties. There was a further meeting between the applicant and Mr Ferraro on the morning of 6 September 2012 and his friend Reverend William Ross came with him to this meeting. Evidence Applicant 7 The applicant stated that on 5 September 2012 he asked Mr Ferraro if he could look at his time cards for the period up to 2009 as they contained information relevant to the 2010 summary, which was in dispute between the applicant and Mr Ferraro. Mr Ferraro initially said he did not have them and then he said that they could not be accessed because his personal belongings were in the store room where they were kept. The applicant and Mr Ferraro continued their discussion in the staff room and Ms Ferraro told them both to settle down. Both Mr Ferraro and the applicant traded personal insults about each other and their family members. The applicant was not happy about the situation so he returned to sit at his desk. Mr Ferraro then told him that he had no shame to continue working with the respondent and told him that he did not feel comfortable with him remaining in the office. The applicant felt uncomfortable and confused. Mr Ferraro told him he could no longer use his work vehicle. The applicant grabbed books he had completed for his Certificate III in Pest Management Control, as the answers contained in the books were being used by other employees and he decided to take the TAFE books home and think about what to do. When he was leaving the office with the TAFE books Mr Ferraro grabbed the books and tried to take them from him and in doing so Mr Ferraro shoved the applicant into a brick wall. Ms Ferraro then told Mr Ferraro to stop what he was doing and told him to call the police. The applicant maintained that Mr Ferraro was physical towards him and as he did not want to be bashed he left the respondent’s premises and prior to doing so he gave his car keys to Ms Ferraro. 8 When the applicant arrived home he was informed that police officers were looking for him so he went to the police station and told them what had occurred. He was advised not to do anything further that day and to see Mr Ferraro the following day with a witness. The applicant then contacted Reverend Ross and asked him to be his witness to negotiate his ongoing employment with Mr Ferraro the following day. 9 The applicant returned to the office on 6 September 2012 at approximately 8.00 am with Reverend Ross. The applicant clocked on as usual and Mr Ferraro came out of the respondent’s office and asked the applicant ‘[w]hat are you doing here?’. The applicant told him that he had ‘come to negotiate’ (ts29). Mr Ferraro asked who Reverend Ross was and he told him he was a friend. Mr Ferraro then told them to get out of the office or he would call the police so the applicant and Reverend Ross left. The applicant asked for the return of some of his personal items which were later given to him. The applicant maintained that he was still employed by the respondent when he returned to the respondent’s office on 6 September 2012 as he had not resigned nor had he been terminated. The applicant returned the TAFE books to the respondent on 11 September 2012 as the police had advised him to do so as the respondent had paid for this course. 10 The applicant received a letter from the respondent dated 6 September 2012 (Exhibit R2). The applicant responded on 11 September 2012 (Exhibit A5). This correspondence (verbatim) is as follows (formal parts omitted). Letter dated 6 September 2012 As per your decision yesterday to walk out from the job saying to have decided to terminate your employment with us, without giving us any notice. You then went and collected your belongings and you took all the training books by force. Several times my wife and I told you that what you are doing is stealing, but you keep saying that you do not care. Your decision to leave us immediately and take the books has caused loss in business and stress to me. If all training books are not returned by the Tuesday 11 September 2012 in good conditions I will take legal action against you. Legal action will be taken also if there is any material missing or damaged. You also required to return, the office keys, mobile phone complete with charger and all work uniform. (Exhibit R2) Letter dated 11 September 2012 Thank you for your letter dated 6 September 2012 which I received on Monday 10 September 2012. There seems to be some confusion in relation to my employment status with your company. You indicated to me on Wednesday 5 September 2012 that you no longer wanted me to work with you. At the time I asked for you to formalise my termination in writing, as it was not my intention to cease employment. You also told me I couldn’t use the company work ute for after hours personal use, so I collected my training books to place in the car so I could take home at lunch time, as we are allowed to use the company vehicle during work hours. You then attacked me and I feared for my safety so I left the premises. I attended work on Thursday 6 September at 8 am as usual, at which time you instructed me to leave the workplace or you would call the police. I was not sure what you meant, as there had been no further discussion or agreement regarding ceasing my employment. 1420 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. In your letter you have requested the return of training books which I am willing to give to you. I thought they belonged to me as they are work training books for my Certificate in Pest Management with my writing and answers in them which I completed for my qualification. I can also return the mobile phone and charger to you, however I do not have any office keys. I can also return my work uniform once my employment status is resolved. I also have personal items in the office: water bottle and current pest licence along with other paperwork which you said you will give to me, which I have not yet received. As mentioned on Wednesday 5 September 2012, there is also some discrepancy with my contractual entitlements. While I have a copy of payroll advice dated 2 September 2012, these differ from the original payroll advice that was in my work cupboard. I would therefore like to discuss my entitlements with you including leave, sales commissions and termination pay. Your actions have caused me considerable distress and financial hardship. Please advise me of a suitable time we can meet to mediate my employment status and if you are terminating my employment then a written notice and all that I am entitled to. (Exhibit A5) 11 Under cross-examination the applicant conceded that he took sick leave of approximately one week in advance when his youngest child was born in October 2007. The applicant stated that the 2010 summary was accurate and he stated that the last time he looked at this summary was in August 2012. The applicant agreed that Mr Ferraro told him before he went overseas that he may not have enough sick leave to take as carer’s leave. 12 The applicant gave evidence that he did not know prior to 5 September 2012 that his time cards for the period up to June 2009 were missing. The applicant stated that on 5 September 2012 he may have accused Mr Ferraro of having no loyalty to his staff and in response Mr Ferraro may have said the applicant had no respect. The applicant conceded that he and Mr Ferraro had a heated discussion about personal matters but he could not recall saying that he was leaving nor did he tell Mr Ferraro to ‘shove the job up his arse’ as he did not use this language. Nor did he tell another employee Mr Darryl Flynn this when he spoke to him later that day. The applicant claimed that he took the TAFE books so they could not be used by other employees not because he was not coming back to work. He had not resigned when he left on 5 September 2012 and he had not clocked off. The applicant confirmed that Ms Ferraro told him on 5 September 2012 that if he had a problem about his sick leave entitlements he should call Wageline. 13 The applicant did not attend the respondent’s premises on 6 September 2012 to confront Mr Ferraro and he stated that Reverend Ross was with him to ensure that the applicant could safely return to work and not to intimidate Mr Ferraro. The applicant agreed that when he attended the office on 6 September 2012 Mr Ferraro told him that he no longer worked with the respondent. The applicant maintained that he did not make up being assaulted by Mr Ferraro but he did not make a complaint to the police about this as he had a long term relationship with Mr Ferraro and this was a work dispute. 14 After the hearing the applicant lodged a statutory declaration containing details of his efforts to obtain alternative employment after he ceased working for the respondent and his earnings. 15 Reverend Ross gave evidence that the applicant contacted him on or about 5 September 2012 about his employment with the respondent and he told him that he wanted to return to the respondent’s office to obtain payments owing to him and pick up his personal effects. When Mr Ferraro asked Reverend Ross what he was doing at the office on the morning of 6 September 2012 he told him he was the applicant’s friend and there was a conversation about the applicant seeking his sick leave and annual leave payments and the return of his personal possessions. Reverend Ross stated that Mr Ferraro was unhappy with the situation and with Reverend Ross being there. Both he and the applicant were told that they should leave or the police would be called. Reverend Ross stated that he stood behind the applicant and only spoke when asked to. Respondent 16 Mr Ferraro stated that when he was away in Italy he became aware that the applicant was working reduced hours. When Mr Ferraro was given a copy of the medical certificate for the applicant’s wife just prior to going overseas he was advised by Wageline that the applicant was entitled to use 10 days’ sick leave as carer’s leave and he mentioned this to the applicant. 17 When Mr Ferraro returned to work he completed the 2012 summary by reviewing the applicant’s time cards and information contained in the respondent’s MYOB system. Mr Ferraro agreed that when he spoke to the applicant around 29 July 2012 about the applicant’s wife having surgery the applicant told him that he would do his best to attend work. 18 After the applicant arrived at work on the morning of 5 September 2012 he wanted to speak to Mr Ferraro about discrepancies in his sick leave entitlements. Mr Ferraro told him that if he was concerned about this he could contact Wageline but the applicant said he did not want to do this. The applicant said that he wanted to be paid his full 40 hours per week even though he did not work full time whilst his wife was unwell. 19 Mr Ferraro completed the 2010 summary because an employee had a problem with his wages and Mr Ferraro realised that he needed to complete a proper reconciliation of his employees’ entitlements. 20 Mr Ferraro conceded that during his discussion with the applicant on 5 September 2012 they both raised their voices, the applicant told him he needed to look after his staff and they both raised personal issues criticising each other and members of their families. The applicant told him he wanted to leave and Mr Ferraro said if he wanted to do so he could. The applicant then left the staff room and made a phone call. They continued their conversation in the office and the applicant told Mr Ferraro that he was unhappy and Mr Ferraro told him that he was not happy either and that is was an uncomfortable situation for them both. The applicant said he would leave and he then grabbed the TAFE books. Mr Ferraro denied that there was any discussion about the applicant’s work vehicle at this point. As the respondent owned the TAFE books he followed the applicant and told him to leave the books behind and he told the applicant that he was stealing them. Ms Ferraro came outside with them and she and Mr Ferraro told the applicant to give the TAFE books back or the police would be called. Mr Ferraro 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1421 then went back inside the office to call the police. Mr Ferraro denied that he assaulted the applicant or threatened to assault him. 21 When the applicant and Reverend Ross visited the respondent’s premises on the morning of 6 September 2012 the applicant clocked on. Mr Ferraro asked the applicant why he did so and the applicant said he still worked with the respondent. In response Mr Ferraro told him that he had left yesterday and the applicant said if you want to ‘sack me, sack me. I got a witness here’ (ts72) and he told him he was not going to sack him. When Mr Ferraro asked who Reverend Ross was, the applicant said he was there to witness Mr Ferraro ‘sacking’ him and again Mr Ferraro told the applicant that he left the respondent yesterday. The applicant told him that he would return the TAFE books ‘when things go the way I like’ (ts72) and the applicant and Reverend Ross then left. 22 Mr Ferraro claims the respondent’s security DVD of what occurred on 5 September 2012 is accurate (Exhibit R1). Mr Ferraro maintained that he did not tell the applicant that he was terminated and he stated that the applicant resigned when he left the respondent’s premises that day. Mr Ferraro claimed that all of the applicant’s time cards were in the respondent’s possession until December 2010 when a tank in a shed where employee records were temporarily stored was being filled with chemicals and it overflowed. The applicant’s time cards for the period up to June 2009 became unreadable and contaminated by these chemicals. 23 Under cross-examination Mr Ferraro stated that when the applicant asked to see the time cards on 5 September 2012 he told the applicant that he had some of his time cards but not all of them. He also told the applicant he could not look for them because personal items were in the store room. Mr Ferraro agreed that he told the applicant that he had no pride to keep working with the respondent and he said this because the applicant was blackmailing him about paying him his full wages. 24 Under re-examination Mr Ferraro said that he did not know what happened to the applicant’s 2010 summary. Mr Ferraro relies on an invoice of $255.75 from an accountant which he claimed was paid to review the respondent’s MYOB system to deal with mistakes in his employees’ leave entitlements up to 2010. 25 Ms Ferraro was working in the respondent’s office on 5 September 2012 to cover for a staff member who was on leave. She was aware that the applicant and Mr Ferraro were having a discussion and she heard some of what was said but could not see what was happening. She stated that on occasions both men raised their voices and after a discussion about the applicant’s entitlements Mr Ferraro told the applicant to contact Wageline. When they both came out of the staff room the applicant went to his office and they were still talking. The applicant then picked up the TAFE books and said he was leaving and Ms Ferraro stated that the applicant accused Mr Ferraro of rigging his payroll details. Ms Ferraro told the applicant to contact Wageline about his entitlements and the applicant started walking out with the car keys. She told the applicant to give the TAFE books back as they did not belong to him but he said he did not care and she told him to return his car keys as he was not in a proper state to drive. Ms Ferraro then said that the police would be called. Ms Ferraro stated that there was no physical contact between the applicant and Mr Ferraro when they were outside the respondent’s building. After Mr Ferraro went inside the respondent’s office the applicant started walking away. 26 Mr Flynn has worked with the respondent for approximately five years. He received a phone call from the applicant on 5 September 2012 that he missed and he then rang him back. He stated that he had an animated discussion with the applicant for approximately 10 minutes. The applicant was upset because he had had an argument with Mr Ferraro over ‘a few things’. He told him he had told Mr Ferraro ‘to shove his job up his arse’ and said ‘f*** him. I’m out of here’ (ts107). He stated that he hated working for ‘the wog bastard’. Mr Flynn told the applicant to settle down. The applicant then stated that he had taken his TAFE books and said that he might have ‘gone a little too far’. Mr Flynn told the applicant he thought he may have ‘just shot [him]self in the foot’ (ts107). 27 Under cross-examination Mr Flynn stated that during the telephone conversation the applicant did not mention being assaulted. Mr Flynn was adamant that the applicant told him what he had already stated and stated that he had heard the applicant abuse Mr Ferraro behind his back on several other occasions. Consideration 28 It became evident during the proceedings that the respondent had been incorrectly named. After the hearing the respondent confirmed the correct name of the respondent as Giovanni Battista Ferraro and Caterina Ferraro trading as Central West Pest Control. Having formed the view that it is appropriate for the respondent to be correctly named, I propose to issue an order that Giovanni (John) Ferraro be deleted as the named respondent in this application and be substituted with Giovanni Battista Ferraro and Caterina Ferraro trading as Central West Pest Control (see Rai v Dogrin Pty Ltd (2000) 80 WAIG 1375 and Bridge Shipping Pty Ltd v Grand Shipping SA and Anor [1991] 173 CLR 231). 29 An unfair dismissal claim brought under s 29(1)(b)(i) of the Act requires that the applicant, on the balance of probabilities, demonstrates that he or she has been dismissed by the employer to attract the Commission’s jurisdiction and in this instance it needs to be determined if a dismissal took place. 30 A termination usually occurs when an employer’s actions result in the cessation of the employment relationship. In Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 the Full Court of the Industrial Relations Court of Australia said: ‘[T]ermination at the initiative of the employer’ involves a ‘termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship … [A]n important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship’ (205). (See Macken et al, Law of Employment (5th ed, 2002) 326) 31 In Robert Harwood v Ace Services Pty Ltd trading as Defensive Driving School (2002) 82 WAIG 2513 Smith C stated the following in relation to the law when it appears that an employee has resigned: 1422 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. In NGO v Link Printing Pty Ltd unreported Print R7005 (del 22 January 1999), the Full Bench of the Australian Industrial Relations Commission heard an appeal in relation to whether the appellant had resigned. Mr Ngo had been interviewed by the Respondent’s General Manager about his performance. At the conclusion of the interview Mr Ngo informed the General Manager of Production that he was very disappointed that the company did not trust the quality of his work and that he said, ‘I resign my job because I am so disappointed.’ The General Manager of Production advised Mr Ngo that he must give them a letter in writing and to give it to him tomorrow. Mr Ngo indicated that he would do so. Mr Ngo then returned to his job and completed his shift. In cross-examination Mr Ngo agreed that he said, ‘I resign. Is two weeks’ notice okay?’ He also said in his oral evidence that at the time he resigned his mind was confused, he really (sic) nervous and his heart was jumping. On the next day Mr Ngo went to work as usual and commenced work. He was then approached by the General Manager of Production who told him he would have to finish now and that he did not have to work that day as the company would pay him up to the end of the period of his notice. The General Manager of Production also asked Mr Ngo for his letter of resignation. Mr Ngo informed the General Manager of Production that he was not resigning and he did not write the letter because he had checked with his wife and family as well as his solicitor and accountant and he wanted to continue to work. After considering these facts the Full Bench of the Australian Industrial Relations Commission held— ‘We have had regard to the various decisions to which we were referred relating to resignations of employment. In particular we have considered the decisions that assert the existence, in certain circumstances, of a duty to clarify a resignation. The position was referred to by Murphy JR in Minato v Palmer Corporation Ltd [(1995) 63 IR 357 at 361-2] as follows: ‘The legal position was set out in the case of Sovereign House Security Services Ltd v Savage [1989] IRLR 115 where at 116 May LJ said: ‘In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise … However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.’ Those comments were considered in another case: Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 where at 188 Wood J said that he saw no difference in principle between words or actions of resignation. At 191 he set out the position as follows: ‘If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (“being jostled into a decision”) and indeed the intellectual make-up of an employee may be relevant: see Barclay v City of Glasgow District Council [1983] IRLR 313. These we refer to as “special circumstances.” Where “special circumstances” arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer’s risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the “special circumstances” the intention to resign was not the correct interpretation when the facts are judged objectively.’ We are prepared to assume, without so deciding, that it was incumbent on Link, following Mr Ngo’s statement that he resigned, to allow a reasonable period of time to elapse to ascertain whether circumstances arose during the period that put Link on notice that further enquiry was necessary to see whether Mr Ngo’s resignation was really intended. Mr Ngo spoke his words of resignation on the afternoon of 8 June 1998. He then resumed work for the balance of the shift, went home, resumed work the next day and, when approached by Mr Corrigan, said that he was not resigning. In our view, any reasonable period of time had elapsed well before Mr Ngo said this [46]. 32 There was a conflict in the evidence about what took place between the applicant and Mr Ferraro in the respondent’s office on the morning of 5 September 2012 and whether the applicant was terminated. I find that both the applicant and Mr Ferraro were unconvincing at times when giving their evidence. Furthermore, some of the evidence they gave was inconsistent with evidence given by other witnesses. I therefore have little confidence in the evidence given by both of them about the events which occurred that morning. 33 I have no hesitation in accepting the evidence given by Reverend Ross. In my view he gave his evidence honestly, in a considered manner and to the best of his recollection. Reverend Ross gave evidence that the applicant attended the respondent’s office to collect personal effects and to negotiate his sick leave and annual leave entitlements. In contrast the applicant gave evidence that when he visited the respondent’s premises on 6 September 2012 with Reverend Ross it was to discuss his ongoing employment with the respondent on the basis that he had not resigned the previous day. 34 Mr Ferraro gave inconsistent evidence about the reasons for the applicant’s time cards in the period up to June 2009 being unavailable for the applicant to review. These time cards were critical to verifying the amount of sick leave due to the applicant and for resolving the dispute between Mr Ferraro and the applicant about this issue. Prior to the hearing the respondent’s representative, on instruction from Mr Ferraro, informed the Commission that the respondent could not provide 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1423 the applicant’s missing time cards which the applicant had requested be discovered as part of these proceedings to review. An email to the Commission dated 12 April 2013 about this issue stated the following: In relation to the time cards and sales commission records, I am instructed that the records up to about July 2009 were destroyed as a result of flood damage while the business was relocating to its present premises in about August 2009. At the commencement of the hearing the respondent’s representative then stated that his instructions were that the flood damage which destroyed the applicant’s time cards up to June 2009 occurred in December 2010. ARNDT, MR: My instructions are that they were destroyed as a result of flood damage. HARRISON C: And when was that flood? ARNDT, MR: That was in late 2009. Do you want the date? Sorry, December 2010 (ts26). During the hearing Mr Ferraro gave evidence that the applicant’s time cards were destroyed when a tank containing chemicals overflowed onto a box containing the applicant’s time cards in December 2010 (ts76-77). Mr Ferraro also gave evidence that he told the applicant on 5 September 2012 that he could not look at his time cards for the period up to June 2009 because his cards were in a store room containing his personal items (ts84). In response to a question about the time spent by an accountant reviewing the respondent’s employee time cards Mr Ferraro stated that this task took less than one hour however when later asked about this issue he contradicted this and stated that the timeframe for the accountant’s review was one day. 35 Mr Flynn gave clear evidence which was not broken down during cross-examination that during a telephone conversation with the applicant late on 5 September 2012, the applicant told him that he told Mr Ferraro ‘to shove his job up his arse’ that morning. However, Mr Ferraro did not give evidence that the applicant said this to him. 36 Given my doubts about the veracity of the evidence given by Mr Ferraro and the applicant and as their evidence was at times inconsistent and contrary to evidence given by other witnesses, I rely on evidence which was not in dispute and relevant documentation to determine if the applicant was terminated by the respondent. 37 Paragraphs 4, 5 and 6 set out the background related to this application. This matter revolves around what transpired on the morning of 5 and 6 September 2012 between Mr Ferraro and the applicant and whether Mr Ferraro terminated the applicant or if the applicant abandoned his employment. 38 I have considered the events of the mornings of 5 and 6 September 2012. I conclude that the applicant was not terminated by the respondent and I find that the applicant abandoned his employment of his own volition when he left the respondent’s premises on 5 September 2012. It was not in contest that the applicant and Mr Ferraro had lengthy discussions about the quantum of the applicant’s sick leave entitlements to be used as personal or carer’s leave on 4 September 2012 and again on the morning of 5 September 2012. It is also not in contest that the applicant thought that he had more sick leave due to him than Mr Ferraro had calculated. I find that the applicant believed the 2010 summary, which had gone missing from his desk, was correct and the 2012 summary recently completed by Mr Ferraro did not accurately reflect the amount of sick leave available to him to take as carer’s leave. I find that the applicant was agitated and annoyed when Mr Ferraro would not allow him to review his time cards to check his sick leave entitlements and he gave the applicant various reasons for them not being available on the morning of 5 September 2012. I find that as a result of this impasse the applicant and Mr Ferraro had a heated discussion which became personal and both the applicant and Mr Ferraro made derogatory comments about each other and their respective family members. I find that after this discussion the applicant returned to his desk and he and Mr Ferraro continued to insult each other. I find that Mr Ferraro then attempted to resolve the dispute about the applicant’s sick leave entitlements by telling the applicant that he could contact Wageline to assist in resolving this issue but the applicant declined to do so. I find that the applicant was unsure about what to do next and he was frustrated and angry about what he believed to be a shortfall in sick leave entitlements due to him. I find that at this point the applicant decided to take the TAFE course books from his office, which belonged to the respondent, and leave the respondent’s premises to return home and he made this decision of his own accord. I find that when Mr Ferraro told the applicant not to remove the TAFE books and he told the applicant he would contact police to retrieve these books because he rightly believed they remained the property of the respondent, the applicant left the respondent’s premises with the books. I find that when the applicant removed these books he further inflamed an already tense situation between the applicant and Mr Ferraro. In support of my conclusion that the applicant left his employment with the respondent of his own volition on 5 September 2012 I take into account Reverend Ross’s evidence that the applicant attended the respondent’s premises on 6 September 2012 to finalise entitlements due to him and to collect some personal items and in my view this is consistent with the applicant ceasing his employment with the respondent the previous day. The applicant therefore abandoned his employment with the respondent. 39 I reject the applicant’s claim that Mr Ferraro assaulted him after he left the respondent’s office. There was no evidence on the respondent’s videos of the events of 5 and 6 September 2012 to verify the applicant’s claim that Mr Ferraro assaulted him after he left the respondent’s office with the TAFE books. Furthermore, the applicant did not make a formal complaint about this alleged assault to police. 40 I find that Mr Ferraro did not force the applicant to leave the respondent’s premises on 5 September 2012 nor did he tell him that he was terminated. The applicant’s letter to the respondent dated 11 September 2012 states that on 5 September 2012 Mr Ferraro told him that his personal use of the respondent’s vehicle was being restricted, not that he had been asked to cease using the vehicle, which would have occurred if the applicant had been terminated on that date. It was common ground that Mr Ferraro told the applicant that he ‘had no pride to keep working’ with the respondent, however, I accept that Mr Ferraro made this comment in response to derogatory comments the applicant made about Mr Ferraro and that when he said this he was not terminating the applicant. 41 There was no dispute that Mr Ferraro did not seek to clarify if the applicant had resigned when he left the respondent’s premises on 5 September 2012 or in the immediate period thereafter. In my view in this instance this was unnecessary. I find that when the applicant left the respondent’s premises on 5 September 2012 without completing his normal duties for that day the applicant’s relationship with Mr Ferraro and therefore the respondent had broken down. Both the applicant and Mr Ferraro 1424 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. had made unpleasant, derogatory and highly personal accusations about each other that morning. I find that this abusive altercation destroyed the working relationship between the applicant and Mr Ferraro given the nature of the accusations made against each other. In my view this breakdown was exacerbated when the applicant was unwilling to accept Wageline’s assistance to resolve their dispute about sick leave entitlements due to him, which was an option put to him by Mr Ferraro to resolve this issue, and by the applicant’s removal of the TAFE books, which belonged to the respondent, after Mr Ferraro expressly told him not to. 42 As the applicant was not terminated the Commission does not have jurisdiction to deal with this application and an order will issue dismissing the application. 2013 WAIRC 00778 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MARTIN THOMAS HOWELL WITT APPLICANT -v- GIOVANNI BATTISTA FERRARO AND CATERINA FERRARO TRADING AS CENTRAL WEST PEST CONTROL RESPONDENT CORAM COMMISSIONER J L HARRISON DATE THURSDAY, 29 AUGUST 2013 FILE NO/S U 213 OF 2012 CITATION NO. 2013 WAIRC 00778 Result Dismissed Representation Applicant In person Respondent Mr R Arndt (of counsel) Order HAVING HEARD the applicant on his own behalf and Mr R Arndt of counsel on behalf of the respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders – 1. THAT the name of the respondent be deleted and that Giovanni Battista Ferraro and Caterina Ferraro trading as Central West Pest Control be substituted in lieu thereof. 2. THAT the application be and is hereby otherwise dismissed. (Sgd.) J L HARRISON, [L.S.] Commissioner. CONFERENCES—Matters arising out of— 2012 WAIRC 01107 DISPUTE RE TERMINATION OF UNION MEMBER WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES WESTERN AUSTRALIAN PRISON OFFICERS' UNION OF WORKERS APPLICANT -v- THE MINISTER FOR CORRECTIVE SERVICES RESPONDENT CORAM COMMISSIONER S J KENNER DATE TUESDAY, 18 DECEMBER 2012 FILE NO. C 68 OF 2012 CITATION NO. 2012 WAIRC 01107 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1425 Result Direction issued Representation Applicant Mr J Walker Respondent Mr D Hughes Direction WHEREAS the Union made application under s 44 of the Industrial Relations Act 1979 for a compulsory conference in relation to the dismissal by the Minister of a member of the Union Mr G Sell; AND WHEREAS on 14 December 2012 the Commission convened a compulsory conference between the parties. At the conference the Union informed the Commission that on 31 August 2012, as a consequence of an incident at the Hakea Prison Social Club, Mr Sell and another officer Mr Bull were involved in an altercation. Mr Sell was, at the material time, a probationary prison officer undergoing training. An investigation was conducted by the Department of Corrective Services which ultimately led to the termination of Mr Sell’s employment on 22 November 2012 on the grounds of unsatisfactory attitude and behaviour towards a fellow probationary prison officer. The Union contends that the conclusion of the investigation that Mr Sell was the initiator of the altercation is wrong. The Union contends that Mr Sell was acting to defend himself from the aggressive and threatening behaviour of Mr Bull; AND WHEREAS the Minister contends that as a consequence of Mr Sell’s aggressive and violent outburst towards Mr Bull and his conduct generally in relation to the incident, Mr Sell is no longer considered suitable to retain as a prison officer. In accordance with reg 5(4) of the Prisons Regulations 1982, Mr Sell’s appointment was terminated. AND WHEREAS under s 44(6)(bb)(ii) of the Act the Union seeks an interim order that Mr Sell be reinstated, pending the hearing and determination of the claim by the Union that he was harshly, oppressively or unfairly dismissed by the Minister; AND WHEREAS to facilitate the determination of the interim application by the Union the Commission advised that directions would be made; NOW THEREFORE the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby directs – (1) THAT the Minister provide to the Union a list and copies of discoverable documents by midday 21 December 2012. (2) THAT the Union file and serve its written submissions, including copies of any documents referred to in the submissions, in support of its claim for an interim order by 31 December 2012. (3) THAT the Minister file and serve his written submissions, including copies of documents referred to in the submissions, in opposition to the claim for an interim order by 9 January 2013. (Sgd.) S J KENNER, [L.S.] Commissioner. 2013 WAIRC 00067 DISPUTE RE TERMINATION OF UNION MEMBER WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION