Capotosto v Uinta Beds t/as Sleep City [2001] NSWIRComm 219 (20 September 2001)

Last Updated: 18 December 2001

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Capotosto v Uinta Beds t/as Sleep City [2001] NSWIRComm 219

FILE NUMBER(S): IRC1542

HEARING DATE(S): 16/08/2001, 17/08/2001

DECISION DATE: 20/09/2001

PARTIES:

David Capotosto

Uinta Beds Pty Ltd trading as Sleep City

JUDGMENT OF: Harrison DP

LEGAL REPRESENTATIVES

APPLICANT

Mr A Cardillo

Solicitor of Harris Wheeler Solicitors

RESPONDENT

Ms P Ryan

Solicitor Furnishing Industry Association of Australia

CASES CITED:

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

- 9 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: HARRISON DP

Thursday, 20 September 2001

Matter No IRC 1542 of 2001

David Capotosto & Uinta Beds Pty Ltd t/as Sleep City

Application for relied from alleged unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2001] NSWIRComm 219

1    This matter was subject to arbitration proceedings on 16 and 17 August 2001 in Newcastle in accordance with directions issued following conciliation proceedings which established that the matter could not be resolved by agreement between the parties.

2    Mr A Cardillo, Solicitor of Harris Wheeler Solicitors appeared on behalf of Mr David Capotosto, the applicant. Ms Ryan Solicitor of the Furnishing Industry Association of Australia (NSW) Ltd appeared on behalf of Uinta Beds Pty Ltd, trading as Sleep City, the respondent employer.

3    Mr J Ryan of the Shop Assistant's and Warehouse Employee's Federation of Australia, Newcastle and Northern New South Wales (`the union') intervened on behalf of that organisation pursuant to a Notice of Motion filed by the union in response to summons to give evidence issued to Ms Maureen Matson and Ms Barbara Niebaart, officers of the union.

4    Mr Cardillo did not oppose the Notice of Motion.

5    The Notice of Motion sought to have the summons set aside and the officers of the Union not be required to give evidence.

6    Mr Ryan mounted an argument that there was no statutory base for the summons, submitting that the summons had not been issued by the Industrial Registrar or Deputy Industrial Registrar. This argument was not accepted. The summons is, in my view, properly issued by an officer of the Registry acting on legitimate delegation of authority.

7    Mr Ryan put a second argument that Union officials should not be required to give evidence concerning their representation of and advice to members, asserting that the principles of legal professional privilege be applied.

8    These arguments were not accepted. An ex tempore ruling was made, found in transcript at page 18 in the following terms:

HIS HONOUR: Thank you. Union officials do not as a matter of law have refuge in legal professional privilege, simply because they are union officials. Union officials are not free or immune from summons to proceedings. There might be circumstances however where it is appropriate and proper to afford union officials the principles of legal professional privilege. Such circumstances would arise in point 1 of schedule B, the grounds and reasons to the notice of motion to set aside.

It is a long bow in my opinion, however to regard union officials as a stranger to proceedings particularly where (the) union has acted as agent for the employee and has become involved in material events. I do not accept the submission that a requirement for a union official to give truthful evidence of events in proceedings before this Commission is likely to undermine the relationship between the union and its members. Such a notion, to my mind, is most offensive as it carries with it a connotation that union officials would be otherwise than truthful, straightforward and proper in their dealings with management and with this Commission. I hasten to add, my experience and observation is to the contrary, union officials have always represented their members in a proper, straightforward and honest manner and conducted themselves in these proceedings in that respect.

If I turn to the authorities presented, the principles there may be distilled to a simple concept, "whether the summonses are issued for a proper forensic purpose". I regard the ground 3 in schedule B to be a proper forensic purpose. The issues there are somewhat disputed, it is the task of this Commission to get to the truth and fact of the matter. It is appropriate that those persons involved be brought to give evidence about those events. I say that and restate the caveat in respect to private confidential conversations that the union officials may have had with their member, not in the presence of the employer because I do think that is an area where a degree of privilege ought be afforded.

9    Mr Cardillo brought evidence from the applicant; Ms Ingster, a former employee of the respondent; Ms D Smyth; a former employee of the respondent; and Ms A Roberts, the applicant's partner.

10    Ms Ryan brought evidence from Mr R Howard, Manager of the respondent; Ms F Larkin, Human Resources Manager of the respondent; Ms M Matson, union official; Ms B Niebaart, Assistant Secretary of the Newcastle branch of the union; Ms G Gray, employed by the respondent as Manager of their Kotara store.

THE EVIDENCE

11    Mr Capotosto commenced employment with the respondent on 16 November 1998 as a permanent full time sales assistant pursuant to the Shop Employees' (State) Award (324 IG 935) (`the award'). His employment was terminated on 31 February 2001. The applicant deposed that his remuneration was a gross salary of $520.00 per week, plus sales commissions.

12    The evidence is that the applicant's employment was uneventful during the period of his engagement whilst the Kotara store at which he was employed was under the management of a Mr D Ward. Mr Ward left in pursuit of other career opportunities and was replaced as manager by Ms G Gray in May 2000.

13    Mr Capotosto was not an applicant for the manager's position, though expressed his disappointment at not being considered by management for the position.

14    Mr Capotosto deposed that he was treated differently to female staff in that he was required to carry out tasks involving heavy lifting and cleaning that female staff were not required to do. This gave rise to a perception by Mr Capotosto that the respondent favoured female staff, a perception reinforced by the appointment of Ms Gray as manager.

15    The evidence is that Mr Capotosto was disenchanted by the appointment of a female to the position of manager and, on the evidence of Ms Gray, resentful and uncooperative towards her.

16    It is Ms Larkin's evidence, supported by that of Ms Gray that on introducing Ms Gray to the applicant on the day she commenced duties as the new manager, Mr Capotosto refused to shake her hand, uttering the words "yeah right", in an incredulous and dismissive manner.

17    Mr Capotosto denies this, deposing that it is not his general practice to shake hands with females and that Ms Gray did not offer her hand.

18    The evidence of Ms Gray and Ms Larkin is that Mr Capotosto's resentment of female authority was exhibited by loud and aggressive outbursts and on one occasion in June 2000, when confronted with a customer complaint by Ms Gray, he lost his temper, picked up a chair and slammed it down, breaking it.

19    Ms Gray's evidence is that there was a further occasion in which she was attempting to discuss another issue with the applicant when he became angry and picked up a chair.

20    The evidence of Ms Gray is that she often felt intimidated and fearful in her dealings with Mr Capotosto, deposing that when ever there was a need to discuss an issue with him, he would give her "the cold shoulder" for the rest of the day.

21    The evidence of Ms Larkin, Ms Gray and Mr Howard details incidents in which they assert Mr Capotosto was loud, abusive and intimidating, referring at one time to Ms Larkin as "the black widow" and "his persecutor".

22    The relationship between Mr Capotosto and Ms Gray further deteriorated when an amount of $200.00 cash, kept in the cash register, was reported missing by Mr Capotosto. Company gossip connected the disappearance of this money with a purchase by Ms Gray of an item of similar value at around that time. Ms Gray denied any culpability.

23    Some time later the $200 was subsequently discovered to have slipped down behind the cash drawer and was retrieved.

24    The $200 cash had apparently emerged as a surplus in the till some months prior and had been kept in the cash drawer of the till since then. Mr Capotosto reported the disappearance of the money to Ms Larkin, who undertook to investigate the matter.

25    The evidence suggests that Mr Capotosto was persistent in his enquiries to Ms Larkin as to the course of her investigation; and critical of her lack of conclusion in the matter.

26    A further issue of conflict concerned the approval of a credit application made by a female customer. The allegation is that Mr Capotosto declined to submit a credit application sought by a female customer on the basis of her gender.

27    Mr Capotosto denies this assertion, submitting that the female customer's financial status did not meet the criteria for advancing credit. Mr Capotosto alleges that other members of staff completed a credit application for the customer, ignoring vital information in order that credit would be advanced, of which he was most critical.

28    It is further alleged that Mr Capotosto was in the practice of issuing warnings to Ms Gray and other staff members in the terms " You don't know my connections. If anyone goes against me I will get them back", and "If I ever lose my job I will get the press here and put an advertisement in the Italian newspaper."

29    During cross examination it was put to Mr Capotosto that he had intended these comments to be interpreted as connection to the "Mafia".

30    Mr Capotosto denied this assertion, asserting that if he were so connected he would not need to seek relief in this jurisdiction. Mr Capotosto deposed that his reference to the Italian newspaper was for the purpose of sales promotion to a particular market segment which he believed would be most fruitful.

31    An issue also arose concerning warnings to Mr Capotosto arising from customer complaints. Mr Capotosto put that the customer complaint was unfounded. This matter and other issues of conduct developed into a dispute in which he sought the assistance of the Union. The resolution of this dispute proved difficult, resulting in an arrangement for a meeting between Mr Capotosto, Ms Matson and Mr J Lovatt of the Union, Ms Larkin, Mr Howard and Ms Gray in the Union's offices on 19 January 2001.

32    The evidence of Ms Matson is that the purpose of the meeting was to resolve all issued that had arisen. Ms Matson deposed that the meeting commenced on a positive note, though rapidly deteriorated on the production of letters of comment and complaint concerning Mr Capotosto's behaviour prepared by various members of staff employed at the Kotara store.

33    The evidence is that shortly after Ms Larkin commenced to read the content of the first of a number of letters (attachments to ex 9) Mr Capotosto became angry and agitated, expressing surprise, denial and disappointment in a loud and aggressive manner. The evidence is that Mr Capotosto broke down and was accompanied from the meeting by Mr Howard whilst in a state of distress. It was not possible in these circumstances for the meeting to continue. Arrangements were then made that Mr Capotosto proceed on pre-arranged annual leave.

34    The parties next met at the Tuggerah Shopping Centre on 30 January 2001 prior to Mr Capotosto's return from annual leave.

35    That meeting took place in a food court area in front of the Sleep City Tuggerah store. Ms Matson and Ms Niebaart attended with Mr Capotosto. Mr Howard and Ms Larkin attended on behalf of the respondent.

36    A proposition was advanced to Mr Capotosto that he be transferred to the Tuggerah/Erina stores on the basis that he undertook to attend anger management counselling, the intention of the respondent being to offer Mr Capotosto a fresh start, leaving the problems of the Kotara store behind him. The evidence of Ms Larkin and Mr Howard is that Mr Howard had been informed on 19 January 2001 by Ms Roberts, Mr Capotosto's partner, that he was prepared to attend such counselling.

37    The evidence is that Mr Capotosto rejected this proposition despite advice from the union to accept the transfer. Mr Capotosto became angry and expressed his refusal and attitude towards the proposal in a loud and aggressive manner. The evidence is that Mr Capotosto then made threats that he would involve high profile media and refer the matter to New South Wales Parliament in a manner disadvantageous to the respondent. The evidence of Ms Larkin and Mr Howard is that Mr Capotosto's response left no alternative to termination of employment. Accordingly, Mr Capotosto's employment was then terminated.

38    The evidence of Ms Roberts is that she had informed Mr Howard that she thought Mr Capotosto would consider anger management counselling, but did not say he would agree to it.

39    Mr Capotosto denied that he had acted in an aggressive and intimidating manner, conceding that he had expressed his disappointment and concern in strong terms. It was advanced by Mr Cardillo that whilst Mr Capotosto may become loud when distressed, this is not properly interpreted as aggression.

40    Mr Capotosto's evidence is that he was upset by what appeared to him to be a set up. The proposition that he be transferred to the Tuggerah store was, in his evidence, resolved as a concluded matter which significantly increased his travel obligations and was undermined by the meeting taking place in full view of the staff of the Tuggerah store.

41    It was put by Mr Howard in his evidence that the staff at the Tuggerah store were not the people whom Mr Capotosto would work with and that there was no way that the staff on duty would have been aware of the purpose of the meeting.

SUBMISSIONS

42    Mr Cardillo submitted that the applicant had been denied substantive and procedural fairness.

43    Mr Cardillo put that the allegations of aggressive conduct by the applicant towards Ms Gray were unsustainable. It was Mr Cardillo's submission that the notion that an employee could break a chair, the property of the employer, without any disciplinary action being taken was incredible.

44    Mr Cardillo submitted that the failure by the employer to take any action consequent upon the chair being broken suggested that the event did not take place.

45    Mr Cardillo further submitted that the respondent had unfairly amplified the applicant's behaviour, misrepresenting the true conduct, which he put could not support termination of employment.

46    Mr Cardillo submitted that the applicant's perception that the respondent favoured female staff, which he put had developed as a consequence of various events detailed in evidence, made him sensitive to criticism and issues which may have put his employment in jeopardy. Mr Cardillo submitted that management were at fault in their dealings with the applicant as they failed to understand this sensitivity.

47    Ms Ryan submitted that the respondent did not favour female staff over male staff, and that the employment of a higher proportion of female staff was consistent with employment distribution within the retail industry generally. Ms Ryan further submitted that there was no division of duties between sales people on a gender basis.

48    Ms Ryan submitted that the evidence of the applicant and his demeanour in the witness stand revealed that he resented authority residing in female management.

49    Ms Ryan submitted that the inability to resolve issues in the workplace arose entirely from the applicant's inability to accept resolution, let go of matters and move on. Ms Ryan defended the handling of these issues by Ms Gray, Ms Larkin and Mr Howard, putting that the issues had been dealt with by management in a calm, professional manner which she contrasted to the volatile conduct of the applicant.

50    Ms Ryan submitted that it became impossible to deal with the applicant on a rational basis, putting that the termination of his employment in all of the circumstances was not harsh, unreasonable or unjust.

CONSIDERATION

51    The evidence leads to the conclusion that the applicant responded to criticism, warning and adverse circumstances in a loud and emotional manner. This was interpreted by management and some staff as aggressive and threatening. As relationships deteriorated the reactions of the applicant to those worsening circumstances increased in volume and intensity of emotional response.

52    The applicant has not assisted his cause by the manner of his response and contributed to the termination of his employment.

53    It is apparent that a personality conflict arose between the applicant and Ms Gray, the manager, which all parties were required to deal with.

54    The applicant sought and obtained support and representation from the Union, ultimately rejecting the advice given.

55    The advice from the union that the applicant take the opportunity of a fresh start at the Tuggerah store was, in my view, sound and in his best interests.

56    The issue arises in this matter whether the applicant's conduct absolved the respondent from the obligation to procedural and substantive fairness or so frustrated the attempts of the respondent to provide procedural and substantive fairness to relieve it of responsibility.

57    The written complaints by fellow employees produced at the meeting of 19 January 2001 took the applicant by surprise. To read these verbatim shortly after the commencement of the meeting without first establishing the basis of co-operation was most unhelpful, described by Mr Cardillo in his submissions as an ambush.

58    I am compelled to a finding that the applicant's behaviour created an entirely unmanageable situation. His attitude towards management of the respondent was the principle moving force in the deterioration of the employment relationship. The applicant was unable or unwilling to contemplate any solution to the number of issues arising other than that of his own preference.

59    I find that the termination of the applicant's employment was not harsh, unreasonable or unjust, and accordingly the application for relief is refused.

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LAST UPDATED: 07/11/2001