AN employee at a real estate agency, who grabbed his boss and tore his vest after being asked to buy milk, has lost an unfair dismissal claim.
Josip Almasi launched an action with Fair Work Australia claiming his sacking by Giuseppe (Joe) Mazzaferro, the manager of Sydney property firm United Realty Cecil Hills, was illegal.
In giving evidence to FWA the pair agreed on just one thing - that on May 31 last year Mr Mazzaferro entered the office tea room and asked Mr Almasi to buy milk.
But that's where the similarities ended.
Mr Almasi, who was a property sales associate with the agency, told the hearing he politely declined Mr Mazzaferro's request and suggested he ask a colleague.
It was at this point, Mr Almasi claimed, his boss asked if he was having another "brain snap".
"... I then replied 'I don't have brain snaps, I'm just simply saying that Tommy drinks a lot of coffee and also drinks the milk you like, so I'm sure he will have no problems in getting it'," Mr Almasi told the hearing.
When Mr Mazzaferro persisted, Mr Almasi said he agreed to buy the milk.
"I then took the money from Joe, and placed the money on the coffee machine," he said.
Mr Almasi claimed Mr Mazzaferro began "tapping me with his hands as if wanting to play wrestle".
"Joe continued to play tap and as I passed him a little bit more he jabbed me in the left of the chest. At this point I had returned the jab. It was in no way malicious or any direct attempt to wrestle," Mr Almasi said.
"Joe obviously did not like the fact that I returned the jab, and proceeded to grab me by the shirt. I also grabbed Joe by the front of his shirt. I thought it was all just play wrestling.
"He applied pressure to me in which I was pushed back from it, although I then returned pressure. Joe applied even more pressure and starting ripping my shirt as I could hear it tear along the seams. At this point I had dropped the money that he gave me to buy the milk which was in my right hand. Also Joe was frustrated with the whole jab and play wrestling which almost was becoming a little overboard."
He said Mr Mazzaferro asked him to leave the office and not attend the morning meeting. When he returned at 11am Mr Almasi said Mr Mazzaferro called him into his office and told him, among other things, to "get up, go to your desk, pack your f****n things ... and you get out".
Mr Mazzaferro's version of events differed dramatically.
He said after being told the milk had run out he "placed about $4 in coins on the kitchen bench and politely said words to the effect of 'Josip, would you mind going to Woolies to buy me my milk?'".
"What happened next I will never forget. Mr Almasi turned and stared at me for maybe five seconds and his face changed colour, I can best describe him as turning pale. Mr Almasi grabbed the money off the bench and slammed it back down on the bench with force and said 'No. No way Joe. It's not in my job description'," Mr Mazzaferro said.
Mr Mazzaferro said he asked Mr Almasi whether he was serious, to which he replied: "I am dead f*****g serious; it is not in my job description."
The verbal exchange continued, Mr Mazzaferro said, before Mr Almasi grabbed him by the vest and "pulled me violently towards him". The vest was ripped in the altercation.
It was at this stage Mr Mazzaferro asked Mr Almasi to leave the office.
The only witness to the tea room incident was property officer Martina Nesan.
Her version of events was remarkably similar to Mr Mazzaferro's, a fact noted by Com. Harrison.
"This is a difficult decision for the tribunal," Com. Harrison said.
"Word-for-word recollections of an incident five months previous tend to undermine the credibility of such evidence," Com. Harrison said in concluding.
"Their evidence, nevertheless, is the only corroborated version of events before me and I accept it. Where the evidence of Mr Almasi conflicts with the evidence of Ms Nesan and Mr Mazzaferro I prefer the evidence of the latter."
Com. Harrison found "on the balance of probabilities Mr Almasi provoked the incident and initiated the resultant physical altercation".
"It follows that I find there was a valid reason for the termination on the grounds of serious misconduct."
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