Andrew Hinchen v Moonee Valley Racing Club
[2016] FWC 2176
•6 APRIL 2016
| [2016] FWC 2176 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Andrew Hinchen
v
Moonee Valley Racing Club
(U2015/6788)
COMMISSIONER CIRKOVIC | MELBOURNE, 6 APRIL 2016 |
Application for relief from unfair dismissal.
Introduction
[1] On 3 August 2015, Mr Andrew Hinchen made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by Moonee Valley Racing Club (MVRC).
[2] On 12 August 2015, MVRC filed a response to Mr Hinchen’s application.
[3] Mr Hinchen’s application was heard on 30 November 2015, 1 December 2015 and 17 December 2015. Closing submissions were filed by the Parties and oral submissions were heard on 11 February 2016. Mr Hinchen gave evidence on his own behalf. The following witnesses gave evidence for MVRC:
• Mr Luke Kinniburgh, Manager – Catering;
• Mr Leigh Saville, Manager – Human Resources;
• Mr Glenn Payne, Executive Chef; and
• Mr Sam Tzaferis, Catering Operations.
Andrew Hinchen
[4] Mr Hinchen commenced his employment at MVRC in 2005 as a casual chef. On 13 August 2007, Mr Hinchen was promoted to the position of Junior Sous Chef and promoted to the position of Senior Sous Chef in mid-2012. From 1 May 2013 until his termination on 13 July 2015, Mr Hinchen was employed as an Executive Chef at MVRC. 1 In his role as an Executive Chef, Mr Hinchen reported to Mr Luke Kinniburgh. 2
Luke Kinniburgh
[5] Mr Kinniburgh is the Manager – Catering at MVRC, whose responsibilities include management of MVRC’s catering operations which includes the kitchen, catering and front of house. 3 Mr Kinniburgh was Mr Hinchen’s direct manager and responsible for Mr Hinchen’s annual performance appraisals. 4 Mr Kinniburgh gave evidence about the events leading up to Mr Hinchen’s dismissal.
Leigh Saville
[6] Mr Saville is the Manager – Human Resources at MVRC. 5 Mr Saville stated that he is responsible for guiding and managing the provision of human resources services and policies for MVRC. 6 Mr Saville stated that he facilitates and manages MVRC’s performance management process, including annual performance appraisals. 7 Mr Saville gave evidence about the events leading up to Mr Hinchen’s dismissal.
Glenn Payne
[7] Mr Payne is the current Executive Chef at MVRC, being promoted to that position from the role of Senior Sous Chef on a temporary basis in April 2015 and permanently in July 2015. 8 As a Senior Sous Chef, Mr Payne worked under Mr Hinchen assisting him when requested. Mr Payne gave evidence that he considered he was performing most of Mr Hinchen’s workload in addition to his own. 9 Mr Payne gave evidence of how the kitchen operated during Mr Hinchen’s time as Executive Chef and how things have changed since Mr Hinchen’s dismissal and his promotion to that position. 10
Sam Tzaferis
[8] Mr Tzaferis works in Catering Operations at MVRC. 11 Mr Tzaferis stated that he is responsible for organising and planning events that are booked at MVRC, which involves liaising with the client about the needs of the event and putting the event together in accordance with the client’s expectations. This includes putting together menu cards, organising the floor plan, arranging linen, entertainment and catering. 12 Part of Mr Tzaferis’s role involved communicating the catering requirements to the Executive Chef. Mr Tzaferis gave evidence about his interactions with Mr Hinchen, particularly those involving a change to the catering requirements for an event which impacted the kitchen. 13
Background
Mr Hinchen’s 2014 Performance Appraisal
[9] Mr Hinchen’s 2014 performance appraisal assessed his performance against 11 key performance indicators (KPI’s) and rated his performance from (1) to (4). The ratings corresponded as follows:
(1) Unsatisfactory;
(2) Needs Improvement;
(3) Meets Expectations; and
(4) Exceeds Expectations.
[10] Mr Hinchen’s 2014 performance appraisal identified Mr Hinchen’s KPI’s as none being unsatisfactory, five needing improvement, three meeting expectations and three exceeding expectations. The KPI’s which Mr Kinniburgh rated as needs improvement were the following:
“1. Participate and supervise in planning of all major events for racedays, non-raceday functions and off site events with regards to staffing, stock levels, equipment needs and the view of achieving maximum profit;
2. Maintain profitability by ensuring direct food cost percentages remain at or below the budgeted targets and low levels of perishable stock on hand to avoid wastage and spoilage;
3. Kitchen setup and race meeting and non raceday function labour is managed in accordance to budget expectations;
5. Appropriate and effective management of all direct reports to ensure they achieve all their set objectives, including overseeing the training and skilling of staff that is to the standard of improved levels of skill, knowledge and ability; and
6. Race meetings and non raceday functions are staffed with appropriately skilled staff and labour models remain at or below budgeted targets.” 14
[11] Mr Hinchen stated that after he had been appointed to the position of Executive Chef he had requested training on software he was required to use, including Inzenious (Payroll/Staffing software), Respak and Swiftpos. Mr Hinchen did not receive this training and he stated that this resulted in his inability to deliver on a number of matters specified by Mr Kinniburgh in the Employee Development Plan. 15 Mr Kinniburgh stated that he does not remember Mr Hinchen formally requesting such training either on his appointment as Executive Chef, or at any point during the performance development process. Mr Kinniburgh further stated that the only time he remembered training being requested by Mr Hinchen was in his performance appraisal document. That when it had been raised at that point in time he had said to Mr Hinchen that he would look into whether or not external training for MVRC software was available; that this training normally occurred internally and that he could arrange such training with his direct reports autonomously.16
[12] Mr Kinniburgh gave evidence that he remembered Mr Hinchen, during his performance appraisal meeting, asking about training programs used by MVRC; that no training was provided because it was not required. 17 Mr Kinniburgh also gave evidence that he had recommended Mr Hinchen undergo a form of leadership training and that no such training had been provided.18 He gave evidence that the ability to refer to previous order documents would be helpful in ensuring that orders placed are more in line with MVRC’s expected demand.19
[13] Mr Saville gave evidence that in or around September 2014, Mr Kinniburgh approached him to discuss Mr Hinchen’s response to the 2014 performance appraisal. Mr Saville stated that Mr Kinniburgh expressed frustration with what he considered Mr Hinchen’s “lack of ownership with respect to the performance issues raised with him” and that “Mr Hinchen had blamed his direct reports and indicated to them that it was their fault that he was being subjected to these performance criticisms, rather than modifying his own behaviour.” 20 Mr Saville stated that as it was leading up to the Cox Plate in October 2014, identified as MVRC’s busiest period, he told Mr Kinniburgh that they should schedule a time to speak with Mr Hinchen following the Cox Plate. 21
Incident with Ms Patrick
[14] Mr Hinchen gave evidence about an “altercation” he had with Ms Jess Patrick. 22 Mr Hinchen was unable to recall the exact date of the altercation. 23 Ms Patrick was not called to give evidence in this matter. Mr Hinchen stated that Ms Patrick worked in catering operations, which involved liaising with the client and coordinating the function. 24 Ms Patrick and Mr Hinchen were working during a function where the numbers fluctuated during the course of the function. Mr Hinchen stated that he was frustrated with the constant increases in the number of guests, and asked Ms Patrick if she could provide him with a “ballpark figure” of the final number of guests.25 Mr Hinchen admitted that he “showed frustration” toward Ms Patrick and stated that he apologised to her around 15 minutes later. 26
[15] Mr Kinniburgh gave evidence that on 10 October 2014, he met with Mr Hinchen to discuss the altercation with Ms Patrick. Mr Kinniburgh stated that he said to Mr Hinchen that it was important for the kitchen to be flexible, that his conduct was unacceptable and that he should lead by example. 27 Mr Hinchen gave evidence that he attended this meeting, however, he refuted that he was advised that his tone and behaviour towards other employees was not that expected of a manager and that outbursts would not be tolerated. 28
Incident with Mr Travers and Verbal Warning
[16] Mr Kinniburgh and Mr Saville gave evidence that shortly before the Cox Plate on 20 October 2014, there was an altercation between Mr Hinchen and one of his direct reports, Mr Michael Travers. 29 Mr Travers is a Pastry Chef at MVRC. 30 Mr Travers was not called to give evidence in this matter. Mr Kinniburgh and Mr Saville stated that on 27 October 2014, they met with Mr Hinchen to discuss the incident. 31 Mr Saville gave evidence about the meeting, which included his summary of Mr Hinchen’s version of events. 32
[17] Mr Hinchen gave evidence about the incident with Mr Travers on 20 October 2014. Mr Hinchen stated that he was accepting deliveries to the main kitchen, when Mr Travers notified him that he was running low on yoghurt whilst preparing breakfast dishes for the following morning. Mr Hinchen stated that he asked Mr Travers to give him a moment, to which Mr Travers replied “you’ll get me the fucking yoghurt when I ask for the fucking yoghurt”. 33 Mr Hinchen stated that he replied by asking Mr Travers to calm down. Mr Saville gave evidence that following the meeting he spoke to Mr Travers and other employees who witnessed the incident who gave the consistent recollection that Mr Hinchen responded to Mr Travers’ request by raising performance issues with him in front of other staff in the kitchen. 34
[18] On 29 October 2014, there was a follow-up meeting between Mr Kinniburgh, Mr Saville and Mr Hinchen. Mr Hinchen was issued a verbal warning for the incident with Mr Travers. 35 Mr Kinniburgh stated that Mr Hinchen was given a verbal warning for what he described as “his aggressive demeanour and his failure to properly manage Mr Travers’ conduct”. 36 Mr Saville stated that he indicated to Mr Hinchen that witnesses to the incident said that his approach and response to the incident was aggressive and rude, which was not acceptable to MVRC. 37
20 January 2015
[19] Mr Kinniburgh gave evidence that on 20 January 2015, he met with Mr Hinchen to discuss matters to be actioned in the kitchen in the coming months. This included dealing with leave accruals, completing menus, ensuring the effective operation of the kitchen, management of suppliers, management of capital items, the role of sous chef and areas of focus in the following 12 month period. 38 Mr Hinchen gave evidence that in or around January 2015, his workload increased as a result of Mr Kinniburgh allocating him tasks such as drafting position descriptions for full time staff reporting to the Executive Chef. 39 I note that it is unclear on the evidence whether Mr Kinniburgh allocated Mr Hinchen these tasks as part of the meeting on 20 January 2015.
“Dessert-Pops”
[20] Also on 20 January 2015, Mr Kinniburgh wrote to Mr Hinchen requesting a written explanation about the apparent over-ordering of a cocktail-style dessert item referred to in the evidence as a “dessert-pop”, and requesting Mr Hinchen’s response to his concerns. 40 Mr Kinniburgh contacted Mr Hinchen on 26 February 2015 and 27 February 2015 requesting a response and explanation. Mr Hinchen provided his response on 2 March 2015 by email. 41 Mr Hinchen stated that on or around 2 March 2015 he discussed this issue with Mr Kinniburgh in a face-to-face discussion. 42 In cross-examination and re-examination, Mr Hinchen explained in greater detail the reason for the large order, which included ensuring adequate catering for guests of a high value event. 43
[21] Mr Kinniburgh gave evidence that a client complained that they were supplied dessert-pops during a function where they did not order them. 44 Subsequently, Mr Kinniburgh investigated the issue. Mr Kinniburgh gave evidence that in January 2015, he discovered 6456 unused dessert-pops in the freezer, with 3456 dessert-pops being recorded in stock and 3000 not being recorded in stock. 45 At the hearing and following a question from the bench, Mr Kinniburgh stated that he was concerned that the initial order was too large, that the stocktake did not represent the actual amount of dessert-pops in stock and that the dessert-pops were being supplied to functions that did not require them. 46
[22] Mr Hinchen’s position was that the size of the event in question justified an order of that size being placed. Mr Hinchen submitted that it was unsurprising that he would err on the side of over ordering, rather than running the risk of there not being enough food at such an event. Further, Mr Hinchen submitted that the dessert-pops were not a perishable item, but rather one capable of refrigeration to be used at further events. Mr Hinchen maintained that the dessert-pops in question were indeed used at subsequent events prior to their expiration date. 47
Meeting of 20 February 2015
[23] Mr Kinniburgh gave evidence that he spoke to Mr Hinchen on 20 February 2015 about a number of underperformance and behavioural issues. These included matters ranging from Mr Hinchen’s refusal to add additional gluten free meals to an event held in 2015, to a complaint received by an employee who said that Mr Hinchen was “ripping shreds” about a dinner scheduled on 28 February 2015 of which he was not aware. He also discussed with Mr Hinchen his aggressive response to a colleague regarding an increase in orders for a function.
Meeting of 5 March 2015
[24] Mr Saville gave evidence that in or about March 2015, Mr Kinniburgh approached him to discuss on-going concerns regarding Mr Hinchen’s performance. Mr Saville stated that he was particularly concerned with Mr Hinchen’s treatment and management of staff, his failure to maintain correct control procedures, his failure to improve food cost percentages (namely the profitability of the catering operations) and his unwillingness to accept responsibility for the performance failings as executive chef and blaming others for those failings. 48
[25] On 5 March 2015, a meeting was convened and attended by Mr Hinchen, Mr Ridley (Mr Hinchen’s support person), Mr Kinniburgh and Mr Saville. Mr Kinniburgh and Mr Saville gave evidence that the discussion canvassed the three recurring poor performance issues that had emerged since the August 2014 performance appraisal. Following this meeting, a further meeting were scheduled for 10March 2015.
10 March 2015 – First and Final Warning
[26] On 10 March 2015, a meeting was attended by Mr Saville, Mr Kinniburgh and Mr Hinchen. Mr Hinchen was issued with a first and final warning, signed by Mr Saville. 49 The warning raised two issues.
[27] The first issue relates to a breach of the Employee Code of Conduct and Information and Communication Technology Guidelines Contract. This issue concerns a finding by MVRC that Mr Hinchen misused company equipment and services by downloading and storing copyrighted movies during work hours.
[28] The second issue relates to a finding by MVRC of a “breach of employee position description – key responsibilities in your position description relating to appropriate and effective management of all direct reports, interaction, behaviour and attitude with staff and maintaining profitability and food stock management”.
[29] The warning provided that MRVC expected improvement in Mr Hinchen’s performance in the following areas:
• Appropriate and effective management of all direct reports;
• Interaction, behaviour and attitude with staff;
• Maintaining profitability and food stock management; and
• Ceasing immediately using MRVC equipment for personal use.
[30] Between 11 March 2015 and 2 April 2015, Mr Hinchen was absent on a period of sick leave supported by a medical certificate. 50 Between 3 April 2015 and 25 May 2015, Mr Hinchen was absent on a period of long service leave. 51 Mr Hinchen was instructed to take this period of leave. 52
[31] On 25 May 2015, Mr Hinchen returned to work. Mr Hinchen attended a meeting with Mr Kinniburgh and Mr Saville to discuss matters the subject of the first and final warning. 53 Mr Hinchen gave evidence that at this meeting, Mr Saville and Mr Kinniburgh requested that he provide them with copies of medical records, including hospitals stayed at, length of stay, reasons for stay and treating practitioners. 54 Mr Saville gave evidence that at this meeting Mr Hinchen stated he suffered from a number of health issues which affected his performance. Mr Saville stated that due to the length and timing of his personal leave and Mr Hinchen’s statement that his health issues affected his performance, he asked Mr Hinchen to provide further information about when and for how long he was in hospital. Mr Saville justified the request on the basis that MVRC could take into account any such issues that were affecting Mr Hinchen’s performance to ensure that he was able to perform the requirements of his role safely. 55 Mr Hinchen declined to provide this information. 56
[32] On 3 June 2015, Mr Hinchen attended a meeting with Mr Saville and Mr Kinniburgh. Mr Saville gave evidence that at this meeting he raised the issue that Mr Hinchen had not complied with a request to provide information from his medical practitioner. Mr Saville stated that MVRC was not seeking disclosure of Mr Hinchen’s medical records but that a medical certificate proving his hospital stay in relation to his alleged treatment would clarify the reason for his two week sick period and possibly explain his misconduct and underperformance since August 2014. 57 However, Mr Saville stated that since this issue was delaying further discussions about underperformance and conduct issues in the Employee Development Plan, he and Mr Kinniburgh agreed to re-evaluate MVRC’s position as to whether it would require Mr Hinchen to provide the medical certificate and they would meet with Mr Hinchen the following day.
[33] On 4 June 2015, Mr Saville and Mr Kinniburgh met with Mr Hinchen, where they issued Mr Hinchen a revised final warning and Employee Development Plan. 58 The revised warning was in the form of a letter signed by Mr Saville which included the same requirements as the first and final warning of 10 March 2015, but also included the requirements that Mr Hinchen:
• Communicate in an open, honest and timely way; and
• Treat all employees with respect and promote co-operation within the workplace.
[34] Mr Kinniburgh gave evidence that he met with Mr Hinchen on 5 June 2015 and 12 June 2015 to discuss the progress of the Employee Development Plan. Mr Kinniburgh stated that at both of these meetings, it was his view that Mr Hinchen was not “engaging in the process at all and had failed to action any items in the Employee Development Plan”. 59 Mr Kinniburgh outlined that these included matters relating to a stock report and menus for the 2015 Cox Plate. Mr Hinchen gave evidence that he had not been adequately trained in the use of the stocktake software and the 2015 Cox Plate menus were not finalised due to uncertainties relating to the hospitality packages to be offered. 60
[35] Mr Hinchen gave evidence that on 19 June 2015, he met with Mr Michael Browell, MVRC’s Chief Executive Officer, to discuss what Mr Hinchen perceived as harassment by Mr Saville and Mr Kinniburgh. 61 Also on 19 June 2015, Mr Hinchen met with Mr Kinniburgh to discuss the Employee Development Plan. 62
[36] On 23 June 2015, Mr Hinchen commenced a period of personal leave. Mr Hinchen provided a medical certificate which stated that he was suffering from a medical condition and would be unfit for work until 4 July 2015. 63
[37] On 26 June 2015, Mr Saville wrote to Mr Hinchen requesting his “consent to speak to your medical practitioner about your prognosis”. 64 Mr Saville gave evidence that the reason for this request was so that he could speak to Mr Hinchen’s medical practitioner about when he was likely to return to work. This was to enable MVRC to properly manage its catering operations in Mr Hinchen’s absence, particularly as it was leading up to the spring racing carnival. 65 Mr Hinchen did not comply with Mr Saville’s request.
[38] On 6 July 2015, Mr Saville again wrote to Mr Hinchen requiring his consent to contact his medical practitioner. 66 Mr Hinchen did not respond to this letter. 67
[39] On 7 July 2015, Mr Hinchen provided a medical certificate for the period 5 July 2015 until 19 July 2015. 68
MVRC’s Decision to Terminate Mr Hinchen’s Employment
[40] On 7 July 2015, a letter was sent by MVRC to Mr Hinchen. The letter referred to the final warning issued 10 March 2015, Mr Hinchen’s ensuing sick leave leading into his pre-planned long service leave and his return to work 25 May 2015. On Mr Hinchen’s return to work, he met with Mr Kinniburgh and Mr Saville and it was explained that MVRC had a clear expectation that he would comply with the requirements detailed in the final warning of 10 March 2015. These expectations were again explained in a further final warning dated 4 June 2015, in which it was also explained that if there was a failure to improve further disciplinary action may be taken, including termination of his employment. The letter stated that on 12 and 19 June 2015 Mr Hinchen had further meetings with Mr Kinniburgh as part of the ongoing performance management process. The letter stated that on 22 June 2015 Mr Hinchen had been advised that a further meeting had been arranged for that afternoon, that he had requested this meeting be postponed until the following day, that he was absent the following day, that he had not been to work since and he failed to provide consent to MVRC to seek further information from his treating doctor. The letter stated that MVRC was considering terminating Mr Hinchen’s employment and requested that he provide any relevant information he wished to be taken into account by noon 10 July 2015. MVRC advised that it would make a decision after that time. 69
[41] Mr Saville gave evidence that Mr Hinchen did not attempt to contact him or anyone else to discuss the matters raised in his letter dated 7 July 2015; that Mr Hinchen did not provide a response to MVRC by the requested date of 10 July 2015 or at any later date. Mr Saville stated that after discussing this with Mr Kinniburgh and Mr Browell, and taking into account the period of underperformance by Mr Hinchen, his failure to improve, the seniority of his role and his unwillingness to comply with MVRC’s request to make contact with his medical practitioner, MVRC terminated Mr Hinchen’s employment. MVRC determined that a further warning was inappropriate because Mr Hinchen continued to disagree that disciplinary measures or performance management processes were warranted and because he had not evidenced an attempt to improve or an actual improvement. 70
[42] Mr Kinniburgh confirmed that he was party to the discussions referenced by Mr Saville. Mr Kinniburgh stated that he had considered whether there were other measures that should be taken by MVRC instead of dismissal and that his view had been that other measures were not feasible due to Mr Hinchen’s repeated failure to change his behaviour or improve his performance or conduct and to take ownership of his underperformance. Mr Kinniburgh stated it was his view that termination of Mr Hinchen’s employment was appropriate due to the time and effort that MVRC had invested in assisting him to reach the performance levels required and Mr Hinchen’s complete failure to improve. 71
[43] Mr Hinchen’s employment was terminated by a letter dated 13 July 2015 taking effect on that date. 72 MVRC cited continued underperformance and a failure to comply with a direction to provide his consent to MVRC to seek information from his doctor, as the reasons for the dismissal. 73 MVRC submits that the reasons for Mr Hinchen’s dismissal relate to capacity and conduct, with includes a failure to comply with a reasonable direction. 74
Protection from Unfair Dismissal
[44] Section 382 of the Act sets out the circumstances where a person is protected from unfair dismissal. Section 382 of the Act is as follows:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[45] Mr Hinchen stated that he did not believe he was covered by a modern award or an enterprise agreement. 75 However, Mr Hinchen’s annual rate of earnings was less than the high income threshold. 76 Consequently, I am satisfied that Mr Hinchen was protected from unfair dismissal.
Unfair Dismissal
[46] Section 385 of the Act details the circumstances where a person has been unfairly dismissed from their employment. Section 385 is as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[47] I am satisfied that MVRC dismissed Mr Hinchen from his employment on 13 July 2015 within the meaning of s.386(1)(a) of the Act.
[48] At the time of Mr Hinchen’s dismissal, MVRC had 85 employees. 77 Therefore, I am satisfied that the Small Business Fair Dismissal Code does not apply to Mr Hinchen’s dismissal.
[49] MVRC has not submitted that Mr Hinchen’s dismissal was a case of genuine redundancy. Regardless, I am satisfied that Mr Hinchen’s dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act.
Harsh, unjust or unreasonable?
[50] Having been satisfied of each of the matters prescribed by s.385(a), (c)-(d) of the Act, I now must consider whether Mr Hinchen’s dismissal was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[51] The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd (1995) 185 CLR 410. McHugh and Gummow JJ explained as follows:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 78
[52] I will now consider each of the matters set out in s.387 of the Act. 79
Valid Reason – s.387(a)
[53] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees). 80 When considering whether a reason is a valid reason for the purpose of s.387(a) of the Act, the reason must be “sound, defensible or well founded”. 81 A reason which is “capricious, fanciful, spiteful or prejudiced” cannot be a valid reason. 82
[54] The Commission will not stand in the shoes of the employer and determine what it would do if it was in the position of the employer. 83 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).84
[55] MVRC submit the following capacity issues justify Mr Hinchen’s dismissal:
• A failure to manage staff;
• A failure to improve food cost percentages;
• A failure to conduct accurate food stock takes;
• A failure to design menus in a timely manner; and
• A failure to notify his manager of food service problems.
[56] MVRC also cites two additional issues that are described as conduct issues:
• Unacceptable workplace behaviour; and
• Deceptive conduct towards management. 85
Was there a valid reason for Mr Hinchen’s dismissal which related to his capacity?
[57] Capacity is the employee’s ability to do the job as required by the employer. 86 Capacity also includes the employee’s ability to do the work they were employed to do. 87 The appropriate test for capacity is not whether the employee was working to their personal best, but whether the work was performed satisfactorily when looked at objectively. 88
[58] Inability to perform the inherent requirements of the position may be a valid reason for the termination of an employee. This issue was considered in J Boag & Son Brewing Pty Ltd v Button (2010) 195 IR 292:
“Where an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it is the substantive positionor role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must considered.” 89
[59] MVRC submits that in 2014 there was an increase in labour costs, that Mr Hinchen failed to properly manage the allocation of staff numbers, and that Mr Hinchen was delegating functions to his direct reports, including Mr Payne, 90 that form part of the role of Executive Chef.
[60] Mr Hinchen submitted that any reliance by the Commission on Mr Payne’s evidence must be viewed in light of the fact that Mr Payne has a vested interest in the outcome of Mr Hinchen’s application before the Commission, that being that Mr Payne now holds the position of Executive Chef at MVRC. For that reason, Mr Hinchen submitted that the weight placed on Mr Payne’s evidence ought to be discounted accordingly.
[61] I accept MVRC’s evidence in relation to Mr Hinchen’s failure to manage staff. MVRC alerted Mr Hinchen at the 2014 performance appraisal that he was required to improve his KPI’s of planning and participating in planning of events in relation to staffing with a view of achieving maximum proft and of appropriate and effective management off all direct reports. I also accept that the evidence in relation to the incident with Mr Travers demonstrates Mr Hinchen’s failure to manage staff, which led to Mr Hinchen receiving a verbal warning.
A failure to improve food cost percentages
[62] MVRC submitted that one of Mr Hinchen’s core responsibilities as an Executive Chef was the maintenance of profitability. MVRC submits that the budgetary issues for the 2013/14 financial year were attributable to Mr Hinchen’s failures to perform his role satisfactorily. In support of this submission, MVRC seeks to rely on Part 2 of Mr Hinchen’s August 2014 performance appraisal, which relates to maintaining profitability. MVRC also seeks to rely on Mr Kinniburgh’s notes in the performance appraisal contained under a heading “manager feedback” which provides “we’re over budget and over last due with no mitigating factors or reasons to justify the imbalance”. Mr Hinchen submitted that there is no evidentiary basis for a finding that the he was to be blamed for food cost increases.
[63] I accept MVRC’s submissions and evidence in relation to Mr Hinchen’s failure to improve food cost percentages. MVRC alerted Mr Hinchen at the 2014 performance appraisal that he was required to improve his KPI in the area of maintaining profitability by ensuring direct food cost percentages remain at or below the budgeted targets, and that this did not improve at the time of Mr Hinchen’s dismissal.
Failure to conduct accurate food stocktakes
[64] MVRC submitted that this issue relates to the over ordering of dessert-pops for the 2014 Cox Plate Carnival. Mr Hinchen ordered 15,000 dessert-pops for the 2014 Cox Plate Carnival. At the conclusion of the carnival, around 10,000 dessert pops remained. 91 MVRC submitted that Mr Hinchen’s over ordering is significant. Additionally, MVRC alleged that Mr Hinchen failed to record 3000 dessert-pops in MVRC’s stock inventory.
[65] I accept MVRC’s submission that the failure to accurately record 3000 dessert-pops demonstrates Mr Hinchen’s failure to conduct accurate food stocktakes.
A failure to design menus in a timely manner
[66] MVRC relied on the evidence of Mr Payne that he was required to take up the task of preparing menus on very short notice in support of this submission. 92 MVRC also relied on Mr Kinniburgh’s comments to Mr Hinchen in January 2015 that he had failed to complete menus within the required timeframes. 93
[67] I accept MVRC’s submissions and evidence in relation to Mr Hinchen’s failure to design menus in a timely manner.
A failure to notify his manager of food service problems
[68] MVRC maintained that Mr Hinchen ought to have notified his manager that there were an excessive number of desert-pops ordered for the 2014 Cox Plate. As outlined above, Mr Hinchen did not accept that there was an issue with the amount of dessert-pops ordered.
[69] I do not accept MVRC’s submissions in relation to their contention that Mr Hinchen failed to notify his manager of food service problems. I will deal with this issue in greater detail below.
Consideration
[70] There is no evidence led by either party that Mr Hinchen’s performance was anything but satisfactory leading up to his appointment as Executive Chef. It appears that the deterioration occurred sometime after Mr Hinchen’s promotion to the position of Executive Chef in May 2013.
[71] I do not consider that there is a single, easily identifiable reason for dismissal related to Mr Hinchen’s capacity to perform the position of Executive Chef as required by MVRC. I consider that when the reasons relating to capacity submitted by MVRC are viewed objectively and in their totality, they demonstrate that Mr Hinchen was not satisfactorily performing the requirements of the role of Executive Chef as required by MVRC. In coming to this conclusion, I accept MVRC’s submissions that matters in relation to management of staff, food cost percentages and accurate food stocktakes are all matters which demonstrate that Mr Hinchen was not satisfactorily performing the requirements of the position of Executive Chef.
[72] Mr Hinchen submitted that had he been provided the training that he requested at the time of the 2014 performance appraisal, he would have been afforded a greater opportunity to improve his performance in the areas identified by MVRC. Whilst this may have been the case, I do not consider that the evidence demonstrates that Mr Hinchen took a proactive approach to improve the issues identified by MVRC. I consider that Mr Hinchen sought to deflect criticism when matters were raised with him and did not take sufficient responsibility to make meaningful improvements. I consider it is not unreasonable to expect that a senior employee in Mr Hinchen’s position take steps to organise training on his own initiative, or at the very least follow-up on his requests for training with Mr Kinniburgh and Mr Saville.
[73] On the basis of the evidence before me I am satisfied that there was a valid reason for the Mr Hinchen’s dismissal which related to his capacity to perform the position of Executive Chef at MVRC. Whilst I accept Mr Hinchen was a reliable and forthright witness, who considered that he was working to his best, I do not accept that on an objective analysis of the evidence that he was satisfactorily performing the requirements of the position of Executive Chef.
[74] In coming to this finding, I have taken into account Mr Hinchen’s submission that Mr Payne’s evidence must be viewed in light of the fact that Mr Payne has a vested interest in the outcome of Mr Hinchen’s application before the Commission, that being that Mr Payne now holds the position of Executive Chef at MVRC. However, I consider that this does not mean that Mr Payne’s evidence should be discounted in its entirety, as Mr Payne gave relevant evidence relating to his time working in the position as Sous Chef under Mr Hinchen.
[75] Further, in coming to this finding, I have accepted Mr Hinchen’s evidence in relation to the ordering of dessert-pops. Mr Hinchen gave evidence that he did not regard this as a serious issue and that in the position of Executive Chef he was well within the parameters of his role to make a decision to use the remaining of desert-pops at subsequent events. I accept Mr Hinchen’s evidence, which he gave in a frank manner, particularly when asked questions from the bench as to what happened to the remaining desert pops and why. However, ultimately the other matters above in relation to accurate food stocktakes forms part of the valid reason for Mr Hinchen’s dismissal.
[76] As detailed above, I consider that these capacity issues were first raised with Mr Hinchen as feedback on KPI’s from his 2014 performance appraisal in a meeting with Mr Kinniburgh on 5 August 2014. 94 Further, Mr Hinchen was provided with further feedback in relation to these KPI’s, on 20 January 2015, 26 and 27 February 2015 and 2 and 5 March 2015. At the meeting on 10 March 2015, Mr Hinchen was issued a first and final warning letter which reiterated the capacity issues raised as feedback on KPI’s from his 2014 performance appraisal. These capacity issues were again restated in the final warning letter issued to Mr Hinchen on 4 June 2015. I find that the repeated failure of Mr Hinchen to act on feedback and improve in key areas of performance to be a valid reason for Mr Hinchen’s dismissal.
Was there a valid reason for Mr Hinchen’s dismissal which related to his conduct?
[77] In cases relating to alleged conduct, the test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. Further, it is not enough for the employer to establish that it had a reasonable belief that the termination was for a valid reason; the Commission must make a finding as to whether the conduct occurred based on the evidence before it. 95 The reason is valid where the Commission finds that the conduct occurred and justified termination of employment. The reason might not be a valid reason where the conduct did not occur or where it did occur but did not justify termination. 96
[78] Mr Hinchen submitted that before looking at the individual instances alleged by MVRC, one must bear in mind that the allegations are made in the context of a commercial kitchen. Mr Hinchen submitted that a commercial kitchen is a workplace environment involving high pressure, with employees working together in confined spaces with short turnarounds. Further, a commercial kitchen is a workplace notorious for high expectations, short tempers and curt responses. However, Mr Hinchen submitted that none of this justifies any lack of due civility and respect between colleagues, but the context of the allegations cannot be divorced from the nature of the workplace.
Incident with Ms Patrick
[79] I have summarised the evidence in relation to the incident between Mr Hinchen and Ms Patrick above. Whilst I accept, on the evidence, that there was an altercation between Mr Hinchen and Ms Patrick, I do not consider that it constitutes a valid reason relating to conduct for Mr Hinchen’s dismissal. The evidence does not demonstrate that this conduct could justify the termination of Mr Hinchen’s employment.
Incident with Mr Travers and Verbal Warning
[80] I have summarised the evidence in relation to the incident between Mr Hinchen and Mr Travers above. I accept that there was an incident involving Mr Travers and Mr Hinchen, which resulted in Mr Hinchen receiving a verbal warning. In addition to the fact that Mr Travers was not called to give evidence, I consider Mr Saville and Mr Payne’s evidence vague and imprecise in relation to this issue. Mr Saville also fails to particularise the discussions he had with witnesses to the incident during his inquiries. Therefore, I do not accept that on the evidence before the Commission that this constitutes a valid reason relating to Mr Hinchen’s conduct justifying dismissal.
Deceptive conduct toward management
[81] This reason submitted by MVRC relates to the stocktake issue in relation to the unaccounted dessert-pops. I have summarised the evidence in relation to this reason above. MVRC submitted that Mr Hinchen was dishonest to his managers in relation to this issue. Mr Hinchen submitted that this was a serious allegation which was completely lacking in substance based on the evidence before the Commission and a matter which was never put to Mr Hinchen.
[82] On the evidence currently before the Commission, I do not accept that Mr Hinchen attempted to deceive MVRC by concealing the total number of dessert-pops and avoiding inquiry into his actions. As I consider above, I accept Mr Hinchen’s evidence and explaination as to why he ordered the number of dessert-pops that he did. Consequently, I do not consider this a valid reason relating to conduct for Mr Hinchen’s dismissal.
Failure to follow reasonable direction
[83] The termination letter cites Mr Hinchen’s failure to provide his consent to MVRC to seek information from his doctor as a reason for his dismissal. 97 The evidence in relation to this request is summarised above. MVRC submitted that the request to Mr Hinchen to provide this information was both lawful and reasonable in the circumstances and that any refusal by the applicant to follow these directions is in breach of his obligations to the respondent. Mr Hinchen submitted that MVRC’s request was an invasive, unlawful and unreasonable direction.
[84] The issue of whether or not it is reasonable for an employer to direct an employee to provide medical evidence regarding the employee’s capacity to perform his or her duties was considered by Madgwick J in Blackadder v Ramsey Butchering Services Pty Ltd (Blackadder v Ramsey Butching). 98 Madgwick J held:
“An employer has, as indicated above, strict obligations under the NSW legislation to ensure the safety and well-being of its employees. The importance of occupational health and safety is also reflected in the Act. Whilst an AWA, in general, prevails over conditions of employment specified in State laws to the extent of any inconsistency, provisions which relate to certain matters, such as occupational health and safety, operate subject to any relevant State law (see s 170VR(2) of the Act).
It is, in my opinion, essential for compliance with the above duties, that an employer be able, where necessary, to require an employee to furnish particulars and/or medical evidence affirming the employee’s continuing fitness to undertake duties. Likewise, an employer should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness. This is likely to be particularly pertinent in dangerous work environments. Abattoirs entail obvious risks, among other things, of injuries from the repetitive use of knives at speed, and to the spinal column from the necessity to twist, bend and/or lift.
The question whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact as will the question of what are reasonable terms for the undertaking of the medical examination. The matters will generally require a sensitive approach including, as far as possible, respect for privacy. Nevertheless, I assume that there now should be implied by law into contracts of employment terms such as those set out in the first two sentences of the preceding paragraph, on the basis that such terms pass the test of “necessity” accepted by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 450.” 99
[85] These principles were applied by Goldberg J in Thompson v IGT (Australia) Pty Ltd 100 (Thompson v IGT) and by Rares J in Australian and International Pilots Association v Qantas Airways Ltd 101 (AIPA v Qantas).
[86] In Thompson v IGT, the applicant had a history of back and neck issues, both which resulted in surgery. The applicant also underwent open heart surgery for a congenital heart condition. Between 2001 and 2008, the applicant was away from work on a number of occasions. The employer wrote to the applicant in the following terms:
“Further to this conversation and those previously held with your line manager regarding your regular absenteeism and your Performance Review, IGT would like to attain clarity as to your current medical situation and its impact on your ability to undertake your role of Video Artist/Animator on a full-time basis within the Product Development & Compliance department at our site in Mulgrave, Victoria. ... In order for IGT to assess your situation against its duties and responsibilities to you, IGT requires you to provide a detailed medical report from your primary physician or specialist by Friday 26 October 2007 which details the following:
1. your current medical condition/s;
2. current and anticipated future medication and therapeutic regime including dosage, frequency and duration of treatment, and estimates of work time lost as a result;
3. any work restrictions which may apply to you undertaking your role currently or in the foreseeable future, and
4. an estimated time for recovery.” 102
[87] Later, the employer wrote to the applicant in the following terms:
“In light of your correspondence we thought you would find it helpful if we set out the process that IGT follows in circumstances where an employee is suffering from an illness or injury and there are concerns about that employee’s fitness for work.
1. IGT will ordinarily approach the employee to discuss the injury/illness and concerns about capacity.
2. The employee may be invited to provide information about their capacity and matters that impact upon capacity (including medical information). A report from your treating practitioner is not mandatory but in our view will assist.
3. IGT may refer the employee to an independent medical practitioner who is not an employee of IGT and is not part of an ongoing relationship with IGT. ...”
... In addition, if you also choose to obtain a medical report from your treating practitioner/s, then IGT will cover the reasonable costs of your treating practitioner/s for producing such a report.”
[88] Goldberg J, applying the principles in Blackadder v Ramsey Butchering, held:
“As I have already noted, an employer has an obligation under the Occupational Health and Safety Act 2004 (Vic) to provide a safe place of work. In carrying out and discharging that obligation, an employer may, from time to time, need to assess and determine whether an employee suffers from a disability that might affect his work. The employer might need to have regard to the nature and consequences of the employee’s disability in relation to the workplace in which the employee works.” 103
[89] Further:
“I consider such circumstances to be present here, where there is a history of absences due to a medical condition, where there are inconsistencies in the information available to the employer in relation to the state of the employee’s health, and where there are a number of absences for which no details or reasons have been given. In this respect, I refer again to the absences that occurred on and between 5 December 2007 and 6 May 2008.
In my opinion, it was reasonable, and probably necessary, for the respondent in this case to find out more about the applicant’s condition, which included the obtaining of a report from a psychiatrist, especially having regard to the unexplained absences.” 104
[90] The case of AIPA v Qantas concerned a Qantas flight crew member who suffered from clinical depression. In July 2012, the employee, a flight crew member, provided a medical certificate to his employer stating that he was suffering clinical depression and was unfit for normal work until October 2012. In October 2012, the employee provided another medical certificate which stated that he was suffering a medical condition and was unfit for work until January 2013. Subsequently, the employer wrote to the employee stating that:
“You are required to provide a written report from your treating doctor. This report should clearly indicate your diagnosis, prognosis, capacity to return to your pre-injury duties and the anticipated time-frame.” 105
[91] The employer later wrote to the employee the following:
“You have been unable to fulfil the inherent requirements of your role and have been absent from work for more than 149 days. The information you have already provided indicates that you are suffering from a medical illness. However I have little other information in relation to the expected duration of your absence and when, if ever, you will be able to safely return to work.
I am aware that there may be some sensitivities in disclosing the specifics of your diagnosis at this time. Qantas is continuing to discuss this with AIPA. In the meantime, you are required to provide me with a written report from your treating doctor by no later than Wednesday 9th January 2013 that addresses the following:
- your current ability to safely carry out the requirements of your role as a Pilot;
- what job functions are affected by your current condition;
- your ability to return to work on restricted duties and a timeframe during which that would be possible;
- the prognosis and likely timeframe for a return to full duties;
- what, if any, reasonable accommodations could be made to enable a return to work; and
- are there any other issues that may affect your ability to safely return to full duties.” 106
[92] Rares J, applying the principles in Blackadder v Ramsey Butchering, held:
“I am of opinion that it would be quite unrealistic to expect Qantas to be left no ability, as an employer, information of the kind it sought her to require a sick employee to provide it with substantively no right to information about the present and future position of a crew member who had been on extended sick leave. The uninformative medical certificates, other than his first, that Dr Massie gave told Qantas nothing about how to plan for [the employee’s] absence or return to work beyond his not being there for a period that might or might not be further extended. There is no suggestion in the evidence that Qantas took the action it took for any reason involving an intention to prejudice [the employee] in the enjoyment of his rights to obtain and receive sick leave under cl 31 of the agreement.
Qantas’ requirements were reasonable requirements and were made solely for the purpose of assisting it in understanding how it would need to deal with [the employee] in terms of matters to which Capt Miller’s evidence referred. Qantas required [the employee’s] co-operation in order to make the operational side of the relationship work, both for [the employee] and for Qantas. [The Employee], no doubt at the behest of the Association, withheld that co-operation without lawful justification.” 107
[93] Mr Saville gave evidence that he believed it was reasonable to request to speak to Mr Hinchen’s medical practitioner, as he was trying to ascertain whether Mr Hinchen was fit for work and when Mr Hinchen was going to return to work. 108 I accept that MVRC has an obligation to provide a safe workplace and were required to make arrangements for catering operations in Mr Hinchen’s absence. Further, I consider that the circumstances may have allowed MVRC to seek a report from Mr Hinchen’s medical practitioner or request Mr Hinchen, on reasonable terms, to attend a medical examination to confirm his fitness, particularly if Mr Hinchen had said to his employer that he was suffering from a number of health conditions which impacted on his capacity to perform the role of Executive Chef as required by MVRC. Furthermore, I accept that the medical certificates provided by Mr Hinchen were uninformative as they told MVRC nothing about how to plan for Mr Hinchen’s return to work beyond him not being at work for a period that may or may not be extended.
[94] Nevertheless, I do not consider that the evidence demonstrates that MVRC’s request could be considered reasonable in all of the circumstances. I consider that a requirement that an employer speak to an employee’s medical practitioner about their prognosis can be distinguished from a requirement that an employee furnish their employer with particulars and/or medical evidence affirming the employees continuing fitness and capacity to form their duties. I do not consider that when MVRC made their request to speak to Mr Hinchen’s medical practitioner directly that there was any respect for Mr Hinchen’s privacy, nor for the sensitivities that might attach to disclosing the specifics of his medical condition or conditions. In both Thompson v IGT and AIPA v Qantas, the employers requested reports from their employee’s medical practitioners that detailed the specific nature of the information they required and the reasons for it, such as the impact of a medical condition on the employees ability to perform their role, estimates of time away from work, any restrictions on duties and estimated recovery time amongst other things. This was not the case in the present matter. Therefore, I consider that MVRC’s request to speak to Mr Hinchen’s medical practitioner about his prognosis was unreasonable in all of the circumstances.
[95] For the reasons identified above, I do not find that Mr Hinchen failed to comply with a reasonable direction from MVRC. Consequently, this reason does not constitute a valid reason relating to conduct for Mr Hinchen’s dismissal.
Notification of the Valid Reason – s.387(b)
[96] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether the person was notified of the reason. 109 Procedural fairness requires that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment. 110 The notification of the valid reason must be in explicit, plain and clear terms. 111
[97] Mr Hinchen accepts that he was notified of the reasons for termination in the letter of termination. MVRC also points to this evidence. I am satisfied that Mr Hinchen was notified of the reasons for his termination in the letter of termination dated 13 July 2015.
Opportunity to Respond – s.387(c)
[98] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person. 112 An employee must be notified of the reason for termination and must also be given an opportunity to respond to that reason before the decision to terminate is made. 113 This process does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly. 114 Where an employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of this section. 115
[99] Mr Hinchen submitted that his dismissal was procedurally unfair on the basis that his termination was decided upon in the absence of a detailed response to the prospective sanction of the termination of his employment at MVRC set out in the 7 July 2015 letter. Mr Hinchen pointed to the fact that MVRC chose to terminate his employment whist he was on personal leave, rather than waiting until he had recovered to attend a proposed meeting. However, MVRC submitted that the evidence establishes that MVRC gave Mr Hinchen until 10 July 2015 to provide a response, and that Mr Hinchen was aware of that fact, Mr Hinchen chose to ignore that fact and this does not, of itself, mean that Mr Hinchen was not given an opportunity to respond.
[100] Mr Hinchen was sent the letter dated 7 July 2015 whilst he was on a period of personal leave from work. That same day he provided MVRC a medical certificate detailing that he would be unfit for work until 19 July 2015. Mr Hinchen was asked to provide his response within this period of personal leave. I consider that common sense dictates that MVRC ought to have ensured that Mr Hinchen had the capacity to properly respond to the matters in the 7 July 2015 letter and as such I do not consider that MVRC provided Mr Hinchen a full opportunity to respond to their concerns. On this basis, I find the Mr Hinchen was not given an opportunity to respond to the reason for the dismissal.
Unreasonable Refusal of a Support Person – s.387(d)
[101] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal. 116 With respect to this consideration, the Explanatory Memorandum states:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” 117
[102] Mr Hinchen did not request a support person, and there were no discussions following the letter of 7 July 2015 until 13 July 2015 when Mr Hinchen’s employment at MVRC was terminated in writing. Therefore, I consider this to be a neutral consideration.
Warnings regarding Unsatisfactory Performance – s.387(e)
[103] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal. 118 Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than to their conduct. 119 The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance. 120
[104] MVRC submitted that Mr Hinchen’s 2014 performance appraisal marks the time when he was first warned about unsatisfactory performance. Mr Hinchen stated that whilst he was given feedback on kitchen efficiency, financial performance, ordering practices, staffing budgets and staffing management, he did not consider this feedback constituted a formal notification of performance improvement, nor that it constitute an allegation of underperformance. 121
[105] There is a distinction between alerting an employee to performance issues that require improvement and putting an employee on notice that failure to improve may lead to a termination of employment. In my view, it was open to Mr Hinchen to consider that whilst he was performing satisfactorily in some areas, he was required to make improvements in others. I do not accept that the August 2014 performance appraisal put Mr Hinchen on notice that his employment was at risk. The telling feature of the 2014 performance appraisal is the absence of any unsatisfactory KPI’s.
[106] Mr Hinchen received a first and final warning on 10 March 2015. It is not disputed that he was on an extended period of personal and prearranged long service leave for all but 8 working days between 10 March 2015 and the date of his termination on 13 July 2015. The most telling aspect of this is that only 8 working days had passed since the earlier warning of 10 March 2015. On this basis I accept Mr Hinchen’s submission that he was not given any real opportunity to improve his performance or respond in any meaningful way to the respondents concerns as to his capacity to perform his tasks.
Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(f) – (g)
[107] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal. 122 Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal. 123
[108] Mr Hinchen accepts that MVRC is a large employer with dedicated human resource professionals. MVRC did not contend that it was disadvantaged in relation to s.387(f) of the Act, nor does it lack the resources in this regard. I do not consider that there are any factors which might have impacted on the ability of MVRC to follow a fair process in effecting Mr Hinchen’s dismissal.
Other Relevant Matters – s.387(h)
[109] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any other matters that the Commission considers relevant. 124 However, I do not consider that there are any other relevant matters.
Was Mr Hinchen’s dismissal harsh, unjust or unreasonable?
[110] In the circumstances of this case, and taking into account the matters set out above, I am satisfied that Mr Hinchen’s dismissal was harsh, unjust and unreasonable pursuant to s.385(b) of the Act, having taken into account the considerations in s.387 of the Act. I consider that Mr Hinchen’s dismissal was unjust, as I do not regard Mr Hinchen’s refusal to provide MVRC authority to speak to his medical practitioner about his prognosis as an issue which can properly be characterised as misconduct justifying his dismissal. Further, I consider that Mr Hinchen’s dismissal was unjust because he was not given an opportunity to respond to MVRC’s concerns in the 7 July 2015 letter. Furthermore, I consider Mr Hinchen’s dismissal was harsh and unreasonable as he was not given any real opportunity to improve his performance or respond in any meaningful way to MVRC’s concerns as to his capacity to perform his tasks.
Remedy
[111] Having found that Mr Hinchen was unfairly dismissed, I must now consider whether the Commission may order a remedy pursuant to s.390 of the Act. However, I do not consider that there is sufficient material currently before the Commission to properly determine the appropriate remedy. For example, If I am satisfied that reinstatement is appropriate, there is insufficient evidence currently before the Commission to determine the quantum of lost pay pursuant to s.391(3)-(4) of the Act. Further, if I am not satisfied that reinstatement is appropriate, there is insufficient evidence currently before the Commission to determine the appropriate quantum of compensation to be ordered to Mr Hinchen taking into account the matters prescribed by s.392 of the Act.
[112] Therefore, I will issue directions for the filing of short outlines of submissions and witness statements on the issue of remedy in due course.
COMMISSIONER
Appearances:
Mr R Millar of Counsel, instructed by McDonald Murholme, for Mr Andrew Hinchen
Mr P Barry of Counsel, instructed by Thomson Geer, for Moonee Valley Racing Club
Hearing details:
2015.
Melbourne.
November 30
December 1, 17
2016.
Melbourne.
February 11
Final written submissions:
Mr Andrew Hinchen, 5 February 2016
Moonee Valley Racing Club, 22 January 2016
1 Exhibit A1, paras. 2-5
2 Exhibit A1, para. 6; Exhibit R1, para. 2
3 Exhibit R1, para. 1
4 Exhibit R1, para. 7
5 Exhibit R2, para. 1
6 Exhibit R2, para. 2
7 Exhibit R2, para.
8 Exhibit R3, paras. 1, 14
9 Exhibit R3, para. 9
10 Exhibit R3, paras. 12 – 15
11 Exhibit R4, para. 1
12 Exhibit R4, para. 2
13 Exhibit R4, paras. 5 – 13
14 Exhibit R1, LK-1
15 Exhibit A1, paras 10 & 83
16 Exhibit R1, para 57; Attachment LK-1
17 PN 1136-1151
18 PN 1165-1168
19 PN 1336
20 Exhibit R2, para. 10; Exhibit R1, para. 15
21 Exhibit R2, para. 11
22 PN159; PN888
23 PN159
24 PN160
25 PN166
26 PN888 – PN899
27 Exhibit R1, para. 17
28 Exhibit A1, para. 26
29 Exhibit R1
30 PN232
31 Exhibit R1, para. 20; Exhibit R2, para. 12
32 Exhibit R2, paras. 12 – 13
33 Exhibit A1, para. 27
34 Exhibit R2, para. 14
35 Exhibit A1, para. 32
36 Exhibit R1, para. 21
37 Exhibit R2, para. 15
38 Exhibit R1, para. 28
39 Exhibit A1, paras. 38 – 39
40 Exhibit A1, para. 40, Attachment AH-2; Exhibit R1, para. 31
41 Exhibit A1, para. 41, Attachment AH-2
42 Exhibit A1, para. 46
43 PN319, PN339, PN975 – PN984
44 PN1325
45 PN1310 – PN1312
46 PN1341
47 PN982 and PN984
48 Exhibit R2, para.17
49 Exhibit A1, Attachment AH-5
50 Exhibit A1, Attachment AH-7
51 Exhibit A1, para. 62
52 Exhibit R1, Attachment LK-5; PN1256
53 Exhibit A1, para. 66
54 Exhibit A1, para. 72
55 Exhibit R2, para. 21
56 Exhibit A1, para. 73; Exhibit R2, para. 21.3
57 Exhibit R2, para. 23.3
58 Exhibit A1, Attachments AH-9 – AH10; Exhibit R2, para. 224
59 Exhibit R1, para. 47
60 Exhibit A1, paras. 83 – 87
61 Exhibit A1, para. 89
62 Exhibit A1, paras. 91 – 32; Exhibit R1, paras. 49 – 51
63 Exhibit R1, Attachment LK-12
64 Exhibit R2, Attachment LS-5
65 Exhibit R2, para. 29
66 Exhibit R2, Attachment LS-6
67 Exhibit A1, para. 107
68 Exhibit R1, Attachment LK-20
69 Exhibit A1, AH-12
70 Exhibit R2, para 37
71 Exhibit R1, para 56
72 Exhibit A1, AH-13
73 Exhibit A1, AH-13
74 PN997
75 Exhibit A1, para. 9
76 Letter from MVRC to Mr Hinchen dated 6 August 2014 titled “Re: Salary Increase – 2014/2015 Financial Year”
77 Employer Response to Unfair Dismissal Application, filed 12 August 2015, p. 3
78 Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465 (McHugh and Gummow JJ)
79 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]
80 Fair Work Act 2009 (Cth) s. 387(a)
81 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373
82 Ibid
83 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
84 Ibid
85 MVRC’s submissions dated 22 January 2016, paragraphs 15 and 16.
86 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 684
87 Webb v RMIT University [2011] FWAFB 8336, [6]
88 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, [62]
89 J Boag & Son Brewing Pty Ltd v Button (2010) 195 IR 292, [22]
90 Exhibit R3, paras. 8 - 9
91 PN345
92 Exhibit R3, para. 43
93 Exhibit R1, attachment LK-5
94 Exhibit R1, para 10
95 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213
96 Edwards v Giudice (1999) 94 FCR 561, 565
97 Attachment LS5 to statement of Mr Saville
98 Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395
99 Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395, 411
100 Thompson v IGT (Australia) Pty Ltd (2008) 173 IR 395
101 Australian and International Pilots Association v Qantas Airways Ltd (2014) 240 IR 342
102 Thompson v IGT (Australia) Pty Ltd (2008) 173 IR 395, 400
103 Thompson v IGT (Australia) Pty Ltd (2008) 173 IR 395, 409
104 Thompson v IGT (Australia) Pty Ltd (2008) 173 IR 395, 409
105 Australian and International Pilots Association v Qantas Airways Ltd (2014) 240 IR 342, 351 – 352
106 Australian and International Pilots Association v Qantas Airways Ltd (2014) 240 IR 342, 353 – 354
107 Australian and International Pilots Association v Qantas Airways Ltd (2014) 240 IR 342, 363
108 PN1881 – 1900; Exhibit R2, Attachment LS-5
109 Fair Work Act 2009 (Cth) s. 387(b)
110 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151; Gooch v Proware Pty Ltd T/A TSM (The Service Manager)[2012] FWA 10626
111 Previsic v Australian Quarantine Inspection Services (unreported, AIRC, Holmes C, 6 October 1998) Print Q3730,
112 Fair Work Act 2009 (Cth) s. 387(c)
113 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151
114 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14 citing Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ)
115 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14-15 citing Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ)
116 Fair Work Act 2009 (Cth) s.387(d)
117 Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542]
118 Fair Work Act 2009 (Cth) s.387(e)
119 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237
120 Johnston v Woodpile Investments T/A Hog’s Breath Café - Mindarie [2012] FWA 2, [58]
121 Exhibit A1, paras. 15 – 18
122 Fair Work Act 2009 (Cth) s.387(f)
123 Fair Work Act 2009 (Cth) s.387(g)
124 Fair Work Act 2009 (Cth) s.387(h)
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