Antonios Dionisopoulos v Business Risk International Pty Ltd t/as Business Risk International [2012] FWA 1403
The applicant commenced employment with Business Risk International in December 2009 as a casual security guard and was appointed to a permanent position in June 2010.
The applicant was stationed at the RMIT Bundoora campus. He had an altercation with his team leader, Mr Brian Jackson, in late 2010 with respect to the 'payment' of $20. He made a written complaint about the matter. As a result of the investigation that arose from the complaint, Mr Jackson was counselled and the $20 was returned to the applicant.
On 24 July 2011, the applicant was 10 minutes late for work. Mr Jackson tried to contact him, including through the National Operations Centre. The applicant confronted Mr Jackson in that regard. There was a heated exchange which led to a colleague, Ms Galea, intervening, and then the applicant lodging a complaint against Mr Jackson. The complaint led to an investigation which found that both men had been aggressive and used inappropriate language.
The applicant was called in for an interview with respect to the incident on 2 August 2011. There was conflicting evidence about whether he was offered to bring a support person. He was not provided with written notice in advance as to the subject matter of the meeting. The applicant was told that he was to be transferred to the RMIT Business School site in Bourke Street. He objected on the basis of the cost of parking and a fear of public transport due to a previously undisclosed medical condition. His contract specified that he must accept transfers.
The applicant became angry and violent, swearing and slamming doors.
The applicant did not disclose on his employment form that he had a nervous or mental disorder that might affect his ability to carry out his job. The application form says on the front that 'you are under no compulsion to complete the form'.
The applicant did complete it but was not honest in his responses, which was considered different to electing not to complete it.
Following the outburst at the meeting, and on the same day, the applicant's employment was terminated via letter, for gross misconduct. The applicant was legally represented at the time he filed his application for unfair dismissal, however, his representatives gave notice that they ceased to act on 6 December 2011.
The applicant called the respondent's witnesses 'malakas' on leaving the courtroom at the lunchtime adjournment of the hearing, which did not assist his cause.
Commissioner Bissett looked at whether the applicant's dismissal was harsh, unjust and unreasonable.
It was emphasised that the termination on the basis of serious misconduct arose from the actions of the applicant at the meeting on 2 August 2011, and not from the previous difficulties with Mr Jackson. The applicant was terminated because of his aggressive, violent and offensive actions and words on 2 August 2011. This was a valid reason for termination.
Commissioner Bissett then looked at whether the applicant's conduct amounted to serious misconduct with reference to the definition of same in the Fair Work Regulations. He stated that:
'There is, in my opinion, no question that the conduct engaged in by Mr Dionisopoulos on 2 August 2011 was wilful and deliberate behaviour inconsistent with the continuation of the contract of employment. The language was highly inappropriate, taking into account the workplace and the meeting where the exchange occurred. The aggression shown was unnecessary. There is no excuse for this behaviour.'
In those circumstances, the conduct was serious misconduct and the dismissal was not harsh, unjust or unreasonable. The application was dismissed.
It was noted that the respondent had subsequently put in place improved procedures for advising employees of the purpose of any meeting they may be called to attend. This was commended, however, its absence at the time the applicant was called in for a counselling meeting did not invalidate that meeting or affect the validity of the termination, including because the termination arose from subsequent behaviour.
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