Aaron Portelli v Polar Fresh Cold Chain Services Pty Ltd t/a Polar Fresh

[2016] FWC 3519

[2016] FWC 3519

The attached document replaces the document previously issued with the above code on 6 June 2016.

Typographical errors have been corrected at paragraphs [3], [14] and [45].

Associate to Vice President Hatcher

Dated 7 June 2016

[2016] FWC 3519

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Aaron Portelli
v
Polar Fresh Cold Chain Services Pty Ltd t/a Polar Fresh
(U2016/4254)

VICE PRESIDENT HATCHER SYDNEY, 6 JUNE 2016

Application for relief from unfair dismissal.

Introduction

[1] Mr Aaron Portelli has applied for an unfair dismissal remedy under s.394(1) of the Fair Work Act 2009 (FW Act) in respect of the termination of his employment as a “Team Member” with Polar Fresh Cold Chain Services Pty Ltd (Polar Fresh). He was dismissed on 29 January 2016 with four weeks’ pay in lieu of notice for a serious breach of a “Final Formal Warning” concerning absenteeism, in that he had failed to attend for work on 24 January 2016 and had taken leave for that day which was not pre-approved or for the purpose of personal/carer’s leave. Mr Portelli contends that his dismissal was unfair, and seeks the remedy of reinstatement to his previous position.

Preliminary matters

[2] Section 396 of the FWAct requires that four specified matters must be decided before the merits of Mr Portelli’s application may be considered. There was no contest between the parties about any of those matters. I find that:

(a) Mr Portelli’s application was made within the period required by s.394(2);

(b) Mr Portelli was a person protected from unfair dismissal;

(c) Polar Fresh was not a “small business employer” as defined in s.23 of the FW Act, so that the Small Business Fair Dismissal Code was inapplicable; and

(d) the dismissal was not a case of genuine redundancy.

Facts

[3] The basic facts relating to Mr Portelli’s application were, for the most part, not in dispute or firmly established by the evidence. Evidence was given (on oath or affirmation and/or by witness statement) by Mr Portelli and Mr Ryan Adams and, for Polar Fresh, by Ms Christina Wassef, People and Culture Advisor, Mr George Gatsopollus, Team Manager, Mr Greg Seve, Operations Manager, and Ms Nicole Sullivan, Head of People and Culture. Insofar as Mr Portelli gave evidence that was intended to be exculpatory of his conduct, I have difficulty in accepting it for reasons which will be explained. There was no challenge of any significance to the evidence of Polar Fresh’s witnesses.

[4] Polar Fresh operates a refrigerated goods storage and distribution business. Its NSW facility is located at Eastern Creek in Western Sydney. Warehouse employees at its Eastern Creek facility, including those classified as Team Members, are covered by the Polar Fresh Eastern Creek Enterprise Agreement 2014 (Agreement). Clause 5.2.1 of the Agreement provides for an entitlement to ten days personal/carer’s leave per year of service. Clause 5.2.1.2 identifies the circumstances in which the leave may be taken as follows:

“5.2.1.2 Taking paid personal/carer’s leave

A full-time or part-time Employee may take paid personal/carer’s leave if the leave is taken:

(a) because the Employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or

(b) to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:

(i) a personal illness, or personal injury, affecting the member; or

(ii) an unexpected emergency affecting the member.”

[5] Clause 5.2.4 of the Agreement establishes requirements for the provision of notice when personal/carer’s leave or compassionate leave is taken and for evidence of the purpose of which the leave was taken:

“5.2.4 Notice and Evidence for Personal/Carer’s and Compassionate Leave

All full-time and part-time Employees are entitled to paid personal/carer’s leave if the Employee complies with the following notice and documentation requirements:

(a) Notice

An Employee must give the Employer notice of taking of leave as soon as is practical (which may be a time after the leave has started provided that the employee will take all reasonable steps to advise the Employer of their absence two (2) hours before their normal start time) and must advise the Employer of the period, or expected period of the leave. An Employee is required to telephone their Manager or the Manager on duty (Please note that Text Messaging a manager notifying of an absence is unacceptable (text messaging includes Short Message Service (SMS) and Multimedia Messaging Service (MMS) messages)). It is expected that an Employee seeking to take leave will provide at least two (2) hours’ notice of their absence prior to the start of their shift.

(b) Evidence

An Employee who has given the Employer notice of taking leave must, if required by the Employer, give the Employer evidence that would satisfy a reasonable person that the leave has been taken for personal/carer’s, unpaid carer’s or compassionate leave.

(c) Additional Personal Leave Evidence requirements

Provided that an Employee who takes personal leave under this clause may be required by the Employer to produce a medical certificate after having:

i. two (2) or more consecutive absences; or
ii. eight (8) single day absences in any twelve (12) month period; or
iii. an absence before or after a public holiday or annual leave.

(d) Compliance

An Employee is not entitled to take leave under this Clause unless the Employee complies with this subclause.”

[6] Clause 2.6.1 of the Agreement sets out the disciplinary procedures to be followed in respect of misconduct or poor performance, excluding conduct justifying summary dismissal. It provides for a familiar system of escalating steps, starting with a verbal warning or counselling, and then proceeding to a first written warning, a second written warning and a final written warning. Termination of employment may then result in the following circumstances:

“If after the Employee has been issued with a final written warning and the Employee’s conduct, capacity or performance continues not to meet the Employees position expectations, the Employers Policy and Procedures, standards as contained in the Employee Handbook or their contractual obligations to the Employer then the Employees’ employment may, depending on the circumstances, be terminated.”

[7] Clause 2.6.6 of the Agreement is entitled “Absenteeism Control Measures” and provides that “All issues pertaining to an Employee’s unacceptable levels of absenteeism will be dealt with separately from all other disciplinary matters”.

[8] Clause 2.6.7 establishes the duration of warnings issued pursuant to clause 2.6.1 as follows:

“A first written [warning] shall have maximum duration of three (3) months, a second warning shall have maximum duration of six (6) months and any final written warning issued will have a maximum duration of twelve (12) months. However the Employer may rely upon a warning that would have otherwise expired, where a subsequent warning is issued prior to that warning/s expiration.”

[9] Other relevant provisions of the Agreement concerning leave entitlements are as follows:

● Clause 4.6.1 provides that the employer and an employee may agree to accrue time off in lieu of overtime, to be taken at a time mutually agreed.

● Clause 4.7.1 allows an employee to elect, with the consent of the employer to take time off during ordinary hours and to work those hours at a later date as “Make-up time”.

● Clause 5.1.4, which concerns the taking of annual leave, provides that employees are to submit a leave request two weeks prior to the intended start date of the leave, but also states: “Where an employee seeks leave with less than two (2) weeks’ notice, they are to speak directly with their manager regarding the request. The employee may need to provide further information and or documentation regarding the request”.

● Clause 5.7.3 allows for each employee to take a day off each year, at a time agreed with the employer, as a union picnic day.

[10] Polar Fresh has in recent years experienced high levels of absenteeism among its permanent workforce, with each employee on average taking 15 days per year of paid and unpaid sick leave. It has adopted policies and procedures to attempt to address this. In particular, it has since about mid-2014 more rigorously enforced the evidence requirements for the taking of personal/carer’s leave than it hitherto had done.

[11] Mr Portelli commenced employment with Polar Fresh on 8 January 2008 as a full time Team Member in the warehouse performing duties which included the operation of a loader and work in the despatch office. Since mid-2014 he has been subject to a number of instances of counselling or disciplinary action in relation to absenteeism.

[12] The first occasion was on 31 August 2014, when Mr Portelli was verbally directed in future to provide appropriate documentation such as a medical certificate to support any future absences for personal/carer’s leave absences. This occurred at a time when Mr Portelli had exhausted his accrued personal/carer’s leave and had taken more than eight single day absences in the previous 12 months. On this occasion Mr Portelli acknowledged that he had used too much leave and that he would need to provide documentation to justify future absences.

[13] The second occasion was on 8 January 2015, when Mr Portelli was given a verbal warning concerning his failure to provide evidence concerning his absences on 4, 24 and 29 December 2014, and his failure to contact Polar Fresh to notify of his absence on 29 December 2014. Mr Portelli was advised that if he was unable to attend work, he had to contact his manager or the absenteeism telephone number within an hour of his normal start time to explain the reason for his absence and when he believed he would return to work, and that he had to support any claim for personal/carer’s leave with a medical certificate or statutory declaration on his first day back at work. Any statutory declaration had to contain a satisfactory reason relating to his own personal illness or injury or that he was required to provide care to a member of his household or immediate family.

[14] The next occasion was on 4 February 2015, and concerned Mr Portelli’s failure to provide evidence to justify the taking of personal/carer’s leave on 19 January 2015 and 1 February 2015. Mr Portelli’s explanation for this at the time was that his car had broken down and that he did not know how to provide the requisite information. He was issued with a first written warning letter which identified that he had been absent from work on 22 occasions in the previous 12 months, and had failed to provide any evidence for the taking of personal/carer’s leave on two occasions (on the dates earlier referred to). The letter said:

“In the event that you do not provide reasonable notice, do not provide evidence to explain your illness or injury or you do not follow the conditions contained in this letter, further disciplinary action will occur which may lead to the termination of your employment.”

[15] The letter set out a number of conditions with which Mr Portelli was required to comply, including that he could only take personal/carer’s leave if unfit for work because of illness or injury or to care for a member of his immediate family or household who was affected by illness or injury, and that any absence “for illness, injury or carer’s responsibility must be accompanied with the appropriate evidence in the form of a medical certificate or statutory declaration” which had to “contain a satisfactory reason regarding illness, injury or carer’s responsibilities”. Such evidence was required to be provided on the first day back at work following the absence. The letter further advised that his absenteeism would be reviewed on a regular basis, and that he would face further disciplinary action if he engaged in absenteeism in breach of the conditions in the letter or the terms of the Agreement. In accordance with clause 2.6.7, the letter stated that it would remain on Mr Portelli’s file for a period of three months.

[16] Mr Portelli was issued with a second written warning on 18 March 2015. Since the date of the first written warning (about six weeks earlier), he had taken a further six days personal/carer’s leave, of which four were single-day absences. On 11 and 15 March 2015, Mr Portelli had been absent but failed to provide a medical certificate or statutory declaration upon his return to work. Mr Portelli’s explanation at the time was that his pregnant wife was sick and he had to look after his children. The second warning letter stated, in effect, that it was being issued because Mr Portelli had failed to comply with the provisions of the Agreement concerning the evidentiary requirements for taking personal/carer’s leave. The letter contained the same list of conditions with which Mr Portelli was required to comply as the first letter. In accordance with clause 2.6.7 of the Agreement, the letter was to remain on file for six months.

[17] Polar Fresh issued a fact sheet concerning personal/carer’s leave to employees on about 30 March 2015. That fact sheet identified the purpose for which such leave could be taken (in terms consistent with the provisions of the Agreement earlier identified), and referred to the requirement to notify the business of the taking of personal/carer’s leave by ringing an identified phone number within two hours of the commencement time of the employee’s rostered shift. It also set out the evidence requirements for taking leave as follows:

“EVIDENCE REQUIREMENTS FOR TAKING PERSONAL/CARER’S LEAVE

A Team Member will be required to provide evidence after having:

• two (2) or more consecutive absences; or



• eight (8) single day absences in any twelve (12) month period;



• an absence before or after a public holiday or annual leave; or



• if requested to supply documentation by a manager.

Please note: - If a Team Member has received disciplinary action that includes a warning, then the Team Member needs to abide by the conditions within their warning letter.”

[18] In his evidence Mr Portelli said he recalled seeing the Fact Sheet. However, he never read it, despite its obvious connection to the matters referred to in the warning letters which had been issued to him.

[19] Mr Portelli said that he had no issue with the first two warning letters issued to him, but he did have an issue with respect to the final written warning issued to him on 23 April 2015. This letter arose from Mr Portelli’s absence from work on 1 and 2 April 2015. The reason for the letter was that Mr Portelli only provided evidence justifying his absence on 2 April and not 1 April, and he did not provide that evidence until 23 April 2015 even though his first day back at work had been 20 April 2015 (Mr Portelli having taken annual leave in the intervening period). Mr Portelli had taken three days of personal/carer’s leave since the second written warning letter five weeks before. At Mr Portelli’s request, Ms Sullivan gave him a personal explanation as to why he was being issued with a final written warning. The letter identified its duration as being 12 months in accordance with clause 2.6.7 of the Agreement, and contained the same list of conditions that Mr Portelli was required to comply with as the earlier warning letters.

[20] The explanation about these events given by Mr Portelli in his oral evidence was as follows. His wife was pregnant and she had gone into labour on 1 April 2015. He had taken her to hospital that day, and she had remained in hospital until giving birth on 7 April 2015 and then for some time afterwards. The annual leave he had taken was in anticipation of the birth. He only obtained evidence concerning his absence on 2 April 2015 because he thought this was sufficient when two consecutive days’ leave were taken. He had brought the evidence of his absence to work on his first day back, but he had forgotten to hand it in and left it in his locker. He produced it when the issue was raised with him on 23 April 2015.

[21] Although the information before me is insufficient to determine what precisely happened over this period, I cannot accept Mr Portelli’s explanation. The principal reason for this is that the evidence he provided to Polar Fresh to justify his absence was a medical certificate issued on 2 April 2015. The certificate stated that the doctor who issued it had examined Mr Portelli’s son on 2 April 2015, and that “he is suffering from medical illness and his dad Aaron Portelli will need to look after him at home. In my opinion, he will be unfit for his normal work from 02/04/2015 to 02/04/2015 inclusive”. The certificate therefore had nothing to do with Mr Portelli’s wife’s pregnancy, and there was no rational basis to consider that it provided an explanation for Mr Portelli’s absence on 1 April 2015. When this was raised with Mr Portelli in cross-examination, he could not intelligibly reconcile this with his earlier explanation. This significantly diminished his credibility.

[22] The incident which led to Mr Portelli’s dismissal arose from his purchase of a new house in the suburb of Glenmore Park in December 2015. He had sold his existing home at St Clair before the sale, and he and his family had already moved out of that home and were staying with relatives. Their furniture was stored at the upstairs apartment of another relative.

[23] Mr Portelli was advised by the conveyancers on 14 January 2016 that the settlement of the purchase of his new home would occur on 22 January 2016. At the time this occurred, Mr Portelli was working a roster under which he performed his ordinary hours from Sunday to Thursday. He also had the capacity to volunteer for overtime shifts in addition to this which would, under the Agreement, be paid at overtime penalty rates.

[24] Mr Portelli worked an overtime shift for which he had volunteered on Saturday 23 January 2016. He did not attend for his rostered afternoon shift on Sunday 24 January 2016. At about 10.30am that morning he rang the designated number for advising Polar Fresh of an absence, and left a message that he would not be attending for work. He attended for work the following day (Monday 25 January 2016) and provided a statutory declaration explaining his absence the previous day. The explanation was: “I was unable to work on Sunday the 24^th of January because I was moving house”.

[25] The evidence given by Mr Portelli as to why he arranged to move into his new house on a working day, and why he was unable to provide any advance notice to Polar Fresh of his intention to do so, was sketchy and inconsistent. It is clear that Mr Portelli, once he was advised of the settlement date for his house purchase, wanted to move in as quickly as possible because of the unsatisfactory situation of him and his family having to live with relatives. Under the Agreement, Mr Portelli could have applied to take a day’s annual leave in order to move into his house. However the reasons he gave as to why he did not do this varied. He initially told Polar Fresh that he did not do this because he only had two hours remaining of his annual leave accrual. This was not correct because, as his final payment slip demonstrated, he in fact had over 24 hours of accumulated annual leave remaining. In his oral evidence before me, he said that he did not do so because the Agreement (clause 5.1.4) required employees to submit their annual leave request two weeks prior to the intended leave date. When it was pointed out to Mr Portelli that the same clause allowed employees to apply to take leave on less than two weeks’ notice by speaking directly to their manager, Mr Portelli said that he did not apply because he knew his request would be refused, as it was the busiest time of year for Polar Fresh. I do not accept any of these explanations as credible.

[26] Mr Portelli likewise had no credible explanation as to why he could not have applied to take time off in lieu of overtime under clause 4.6.1 of the Agreement or to work make-up time for the time off pursuant to clause 4.7, or taken his picnic day under clause 5.7.3.

[27] Mr Portelli’s evidence was that he had originally planned to move into the new house on Friday 22 January 2016, the day of settlement, and had arranged to hire a truck to move his furniture. He gave two reasons why this did not proceed: the first was that it was raining, and the second was that he did not receive the keys to the new house until 4.30pm. He said he cancelled the hire of the truck when it became apparent that he couldn’t undertake the move, although whether this was because of the rain or the late receipt of the keys is not clear. I have my doubts about this evidence, but it is ultimately not material to the disposition of Mr Portelli’s application.

[28] He further explained that he did not undertake the move on Saturday 23 January 2016 rather than working voluntary overtime because, having already placed himself on the roster for that day, he was concerned that he would be disciplined if he did not attend for work. He also had two alternate explanations. The first, which he communicated to Polar Fresh immediately before his dismissal, was that he was too tired to undertake the move on the Saturday because on the Friday he had moved his furniture downstairs from the apartment where it was stored so that it was ready to be loaded on the truck for removal. The second, which he gave in his evidence before me, was that he intended to use his brother’s truck for the move, and his brother used the truck for his work from Monday to Saturday each week so that it was only available on Sunday. He actually commenced undertaking the move early on Sunday morning, and said it could not be completed before he was due to commence work in the early afternoon and was not in fact completed until late that evening. It is not apparent to me why the move would take that long if the furniture was already in a position to be loaded straight onto the truck and the actual drive to the new home (from Jamiesontown to Glenmore Park) only took about ten minutes.

[29] It is apparent that, at least the day before, Mr Portelli had formed the intention not to attend for work on Sunday 24 January 2016. When, while giving evidence, it was raised with him why he had not at least advised Polar Fresh of his intended absence while at work on the Saturday, Mr Portelli claimed that he had told his shift supervisor. Mr Portelli had never suggested before this time that he had done this, either in the interviews which preceded his dismissal or in his statement of evidence. I do not accept his evidence in this respect.

[30] Mr Portelli further claimed that, while undertaking the move, he was simultaneously looking after his three elder children while his wife looked after the baby. It is apparent that Mr Portelli was actually lifting furniture during the move, so in what sense he was looking after his children is not clear. He accepted that if he had worked as normal his wife would have looked after all the children. His statutory declaration made no mention of looking after the children as a reason for his absence. While I accept that Mr Portelli’s children may have been with him while the process of moving house took place, I do not accept that supervising his children formed any part of the reason for his absence from work.

[31] The following week, on 27 January 2016, Ms Wassef and Mr Seve met with Mr Portelli and told him that his statutory declaration did not provide an acceptable reason for an absence on personal/carer’s leave on 24 January 2016. Mr Portelli explained the circumstances which caused him to undertake the move on Sunday 24 January 2016. He also said that he thought he was entitled to take personal/carer’s leave to move house, and that it was sufficient to provide evidence of this to justify his absence. He was then stood down with pay, and advised that he needed to attend a further meeting on 28 January 2016 and that he could have a support person with him.

[32] The meeting on 28 January 2016 was attended by Mr Portelli, his support person Mr Ryan Adams, Ms Wassef and Mr Seve. Ms Wassef opened the meeting by stating that its purpose was to investigate whether Mr Portelli had breached his final warning in taking personal/carer’s leave to move house. Mr Portelli again explained the circumstances which caused him to undertake the move on Sunday 24 January 2016. Ms Wassef then adjourned the meeting to discuss the matter with other managers. It appears that the decision was made to dismiss Mr Portelli during this adjournment. When the meeting resumed, Mr Portelli claimed he was looking after his children during the move because they were present with him. Ms Wassef said this did not change the position because the children were not ill and there was no emergency. She then told Mr Portelli that he was terminated for breach of his final warning. Mr Portelli asked for leniency because of his length of service, he had been a good worker, and he had just purchased a new house and had four children and a mortgage. He also argued that he could have lied and given a different reason on his statutory declaration and, if he had, he would not be in this position. However there was no change to the decision.

[33] Mr Portelli was issued with his termination letter on 29 January 2016. The letter confirmed that the reason for termination was “a serious breach of your Final Formal Warning for failure to follow reasonable and lawful directions concerning your absenteeism”. The breach was said to be constituted by “Unacceptable Conduct” as follows:

“You were rostered to work on 24 January 2016. You failed to supply documentation regarding illness, injury or carer’s responsibility to Polar Fresh regarding your absence. You also took leave that was not pre-approved or for the purpose of personal leave.”

[34] The dismissal of Mr Portelli occurred in the context of an attendance record which stood as follows:

• In the two years prior to the date of his dismissal, Mr Portelli had been absent on paid or unpaid personal/carer’s leave for a total of 340 hours.



• The absences occurred over a total of 54 days (whole or part days).



• There were 36 single day absences.



• In the fortnight prior to the absence on 24 January 2016 which caused his dismissal, Mr Portelli had taken personal/carer’s leave on three other days.

[35] As earlier stated, Mr Portelli was paid four weeks’ pay in lieu of notice on termination. He was also paid his accrued leave entitlements, including accrued long service leave for approximately eight years’ service (amounting to about seven weeks’ pay). Mr Portelli found new employment with Chandler McLeod as a storeperson at a Woolworths Distribution Centre, commencing on 19 February 2016 (about three weeks after his dismissal). His pay has dropped from about $2000 gross per week at Polar Fresh (including regular overtime) to about $1300 per week.

[36] In support of his contention that he was harshly treated compared to other employees of Polar Fresh, Mr Portelli called Mr Adams to give evidence about an occasion when he took compassionate leave in November 2015. Mr Adams said that his father had died after a long illness, and he took two days off work to prepare for and attend the funeral. He did not provide the relevant evidence of his absence (his father’s death certificate) until about a week after he returned to work. No action was taken by management about this. Mr Adams said he may have been on a first warning concerning a breach of the personal/carer’s leave requirements at the time, but he was not sure.

[37] Mr Portelli also gave evidence of the circumstances of other employees who, he contended, were treated more leniently than he was. This evidence was hearsay and entirely lacking in particularity. I place no weight upon it.

Was Mr Portelli’s dismissal unfair?

[38] Section 387 of the FW Act requires the Commission, in considering whether a dismissal was harsh, unjust or unreasonable, to take into account a number of matters specified in paragraphs (a) to (h) of the section. I will deal with each of these matters in relation to Mr Portelli’s application in turn below.

Paragraph 387(a)

[39] I find that there was a valid reason for Mr Portelli’s dismissal based on his conduct. He failed to attend for his rostered shift on 24 January 2016 without a proper reason to do so. This occurred in circumstances where he was on a final written warning (after one earlier verbal warning and two written warnings) concerning his prior failures to comply with the requirements for the taking of personal/carer’s leave contained in the Agreement. In doing so, he breached the conditions identified in his final written warning, which I consider to have constituted lawful and reasonable directions, and the provisions of the Agreement.

Paragraph 387(b)

[40] Mr Portelli was notified of the reason for his dismissal at the meeting which occurred on 29 January 2016.

Paragraph 387(c)

[41] Mr Portelli was given an opportunity to respond at the meeting on 29 January 2016, and did so.

Paragraph 387(d)

[42] Mr Portelli was invited to bring a support person to the meeting on 29 January 2016, and he did so.

Paragraph 387(e)

[43] Mr Portelli was not dismissed for unsatisfactory performance. In any event, he had four prior warnings about his failure to comply with the requirements for taking personal/carer’s leave.

Paragraphs 387(f) and (g)

[44] Polar Fresh is a substantial employer with dedicated human resource management specialists and expertise, and the procedures it followed in effecting Mr Portelli’s dismissal reflected that fact.

Paragraph 387(h)

[45] There are a number of additional matters which I consider to be relevant, none of which favour the conclusion that Mr Portelli’s dismissal was unfair:

(1) Polar Fresh was justified in strictly enforcing the requirements for the taking of personal/carer’s leave, having regard generally to the significant level of absenteeism amongst its workforce and specifically to Mr Portelli’s own attendance record, which can fairly be described as appalling. In doing so, it complied with all the disciplinary requirements of the Agreement as earlier described.

(2) Mr Portelli did not demonstrate either to Polar Fresh immediately before his dismissal or during the hearing before me any real understanding of the requirements for the taking of personal/carer’s leave, despite all the warnings he had received about this. He continued to insist that he was entitled to take personal/carer’s leave in order to move house, provided that he supplied evidence that this was the reason for his absence from work. Alternatively, he contended that if he had stated that he was looking after his children in his statutory declaration, he would not have got into trouble.

(3) There were numerous options for Mr Portelli to take time off work legitimately to move house. He could have made an application to take a day’s annual leave, or take his union picnic day, or take time off in lieu of overtime, or take the time off and work make-up time later. Mr Portelli could not give any valid reason why he could not have exercised one of these options.

(4) Mr Portelli did not even take the basic step of informing Polar Fresh’s management in advance of his intention to take the day off, even though it is perfectly obvious that he planned in advance to do so.

(5) It is well arguable that Polar Fresh would have been entitled to summarily dismiss Mr Portelli, and deny him his long service leave on the basis that he had committed serious and wilful misconduct. 1 However they treated him generously by dismissing him with a payment in lieu of notice and paying out his long service leave, which provided him with about eleven weeks’ income on termination.

(6) Mr Portelli was able to find new employment after a period of three weeks, albeit with significantly lower earnings.

[46] I have taken into account Mr Portelli’s length of service, and the fact that apart from his absenteeism there was no evidence of any problem with his work performance. However in the circumstances of this case these do not amount to significant mitigating factors.

[47] Finally, it is necessary to deal with Mr Portelli’s contention that he was unfairly treated compared to other employees. As earlier stated, the only concrete example advanced in support of this contention was that of Mr Adams. That Mr Portelli considers Mr Adams’ situation to be in any way comparable to his own simply demonstrates his lack of insight into to his own conduct. Mr Adams had a wholly legitimate basis to take compassionate leave and was not on a final warning. That Polar Fresh overlooked his lateness in providing evidence to support his absence was wholly understandable.

Conclusion

[48] Taking into account all the matters set out above, I find that Mr Portelli’s dismissal was not harsh, unreasonable or unjust. There was a valid reason for his dismissal, he was accorded procedural fairness, and there were no mitigating factors of sufficient significance to justify the conclusion that dismissal was a disproportionate response to Mr Portelli’s conduct.

Order

[49] Mr Portelli’s application is dismissed.

VICE PRESIDENT

Appearances:

A. Portelli on his own behalf.

D. D’Arcy Industrial Relations Advocatefor Polar Fresh Cold Chain Services Pty Ltd.

Hearing details:

2016.

Sydney:

1 June.

 1 See s.4(2)(a)(iii) of the Long Service Leave Act 1955 (NSW)

Printed by authority of the Commonwealth Government Printer

<Price code C, PR581019>