100212320

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES RANDALL DE VOS

APPLICANT

 -v-

 MINIT AUSTRALIA PTY LTD

RESPONDENT

CORAM SENIOR COMMISSIONER A R BEECH

DATE TUESDAY, 30 JULY 2002

FILE NO APPLICATION 464 OF 2002

CITATION NO. 2002 WAIRC 06108

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Result Application alleging unfair dismissal dismissed.

Representation

Applicant Mr T. Crossley (as agent)

Respondent Mr S. Kemp (of counsel)

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Reasons for Decision

(Extemporaneous)

1         At the time of Mr de Vos’ dismissal he was employed as the sole operator of the Minit kiosk in the Target store in Fremantle.  He had worked there for approximately 6 months.  Mr de Vos had worked for the respondent over a period of 6 years, although his service was not continuous.  In fact, Mr de Vos had been previously dismissed and had been re-employed after a conference in the Industrial Relations Commission (application 2233 of 1998).  His duties involved serving customers by cutting keys, engraving, performing shoe repairs and also doing the administrative work such as stock transfers and banking and so on.

2         He was dismissed on 21 February 2002.  During February 2002 Mr de Vos served a customer who complained that a battery put into her watch on the previous Saturday (when Mr de Vos was not at work) was faulty and she required a refund.  After dealing with the customer, Mr de Vos wrote obscene and offensive words on the weekly shop spoilage / shrinkage report form regarding this refund which was subsequently sent to the respondent’s head office.  It gave offence to a data entry clerk in the respondent’s head office in New South Wales who read it.  In that portion of the form where Mr de Vos was to insert his name, he had also written “who cares?”. 

3         When he was approached by his manager, Mr Cooper-Fowle to explain his conduct Mr de Vos also reported that he had had a problem with another customer and had remained talking on a private telephone call whilst trying to deal with a customer’s complaint.  After following a process and giving Mr de Vos an opportunity to explain his position, Mr de Vos was dismissed with pay in lieu of notice. 

4         When the matter came before the Commission for determination, Mr de Vos gave evidence in chief and was then cross-examined.  After approximately 20 minutes of cross-examination Mr de Vos made an obscene and offensive gesture towards Mr Kemp, counsel for the respondent. 

5         I stopped the proceedings and informed Mr de Vos that his behaviour was unacceptable and that he should reflect upon whether he was able to continue with his application given his reaction after only 20 minutes of cross-examination.  Mr de Vos apologised and explained that it was his way of dealing with stress to do something in a non-verbal way.  I then adjourned the proceedings for lunch.  Upon resumption I dismissed the application for the following reasons.

6         I have had the opportunity to reflect upon the action of Mr de Vos towards Mr Kemp.

7         It is an action quite unprecedented in my time in the Commission.  At one level it is not only personally offensive to Mr Kemp, it is a contempt of the Commission process, the same process that Mr de Vos is seeking to utilise.

8         I have also reflected upon Mr de Vos’ explanation and his apology to me.  I have endeavoured to put to one side my amazement and my offence at his action.

9         What I have considered, however, is that even if I do so, Mr de Vos has exhibited in this hearing the very conduct about which the respondent has warned him and for which he was dismissed:  conduct described by him as a non-verbal means of channelling his anger or his frustration.

10      His dismissal was primarily a result of the obscene and abusive words he wrote on the shop spoilage / shrinkage form and which gave offence to a person other than the person about whom it was written.  Even if I accept that Mr de Vos did not intend to give offence, I have had a vivid example in this hearing of what Mr de Vos may do in a situation he finds stressful and how it may give offence.

11      I have heard all of his evidence this morning although I have not heard all of his cross-examination.  Mr de Vos admits he received a final written warning on 12 March 2001 concerning his need not to take matters personally or reply with a jibe likely to make the situation worse.

12      Mr de Vos’ action this morning has illustrated to me why the respondent decided, as Mr Cooper-Fowle apparently said to him at the time, that the respondent cannot continue like this.

13      Even if the telephone call incident involved a work call, as Mr Roberts may say in evidence, and not a private call, Mr de Vos’ evidence has not been able to persuade me that his dismissal for writing the words he did was unfair.

14      Mr de Vos’ action this morning was not in response to anything other than only 20 minutes of the usual cross-examination of a person in an unfair dismissal hearing.  I have re-read his evidence of why he became aggravated by the watch battery customer.  His answer, as illustrated by his action, shows to me that the respondent had ample justification to regard the conduct which led to his dismissal as continuing behaviour, and even if Mr de Vos has 6 years’ history, was good at his job, punctual and received Store of the Month awards, the events of the last 2 years including today, show a behaviour, even after warnings have been given to him about it, that means Mr de Vos has not shown that his dismissal was unfair.

15      An order will therefore issue dismissing Mr de Vos’ claim.  I am aware that Mr de Vos has summonsed Mr Ian Roberts to give evidence.  Mr Roberts has attended court and is presently waiting outside.  If Mr Roberts has any loss caused to him by his attendance this morning even though he has not been called, that is the responsibility of Mr de Vos.  Without knowing whether or not there is an issue of the cost involved in Mr Roberts’ attendance, I will provide a liberty for 7 days for him to apply to the Commission for an order for costs against Mr de Vos for his attendance at the Commission this morning.

16      Order accordingly.