Arif Muhammad v Colonial and Empire Brewing Trust T/A Colonial and Empire Brewing Trust (Half Moon)

[2014] FWC 3099

[2014] FWC 3099

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Arif Muhammad
v
Colonial and Empire Brewing Trust T/A Colonial and Empire Brewing Trust (Half Moon)
(U2013/3399)

COMMISSIONER ROE MELBOURNE, 12 MAY 2014

Application for relief from unfair dismissal - application dismissed.

Introduction

[1] This matter concerns an unfair dismissal remedy application made by Mr Arif Mohammad (the Applicant) on 15 October 2013. The application was made against Colonial and Empire Brewing Trust T/A Colonial and Empire Brewing Trust (Half Moon) (the Respondent). The Respondent advised that the correct name of the Respondent is Colonial Leisure Group T/A Half Moon. The parties agreed and I am satisfied that the Respondent in these proceedings is as identified by the Respondent.

[2] The Applicant was employed by the Respondent from November 2012 until 5 October 2013.

[3] The Respondent is a national system employer and is not a small business employer. The Respondent employs 35 people. Subject to confirmation that the period of employment as a casual employee was on a regular and systematic basis and that the Applicant had a reasonable expectation of this continuing, the Applicant has met the minimum period of employment requirement.

[4] On 5 October 2013 the Applicant was dismissed for alleged misconduct, namely failure or refusal to complete necessary duties. Allegedly these matters had occurred on several previous occasions and had been the subject of warning or counseling.

[5] The Applicant denies or provides reasons which he says justify the alleged conduct.

[6] Following an apparent settlement in conciliation the Applicant was provided with some work at another location but the Applicant did not regard this as reinstatement. The Applicant understood that he had been promised work “on terms and conditions no less favorable than those on which the Applicant was employed immediately prior to the dismissal”. The Applicant argues that the amount and regularity of the current work and the duties required to be performed have changed and that the hours and regularity of the work was totally inadequate from his point of view. The Applicant was offered a limited number of hours of work following the conciliation. The Applicant gave uncontested evidence that in six months since his termination he has worked a total of 20 hours for the Respondent.

[7] The Applicant provided uncontested evidence concerning the hours and regularity of his work during the period from November 2012 and 5 October 2013. I am satisfied that the Applicant worked every week during the period. The Applicant worked regularly in the evening hours. The Applicant worked on all days of the week but most commonly on Monday to Friday. The Applicant’s hours were around 20 per week in the early part of the employment and in the final four months they were between 35 and 40 hours per week. I am satisfied that the Applicant was a casual employee who was employed on a regular and systematic basis and who had a reasonable expectation of continuing employment.

[8] I am satisfied that the Applicant was protected from unfair dismissal. I am satisfied that the Applicant was terminated at the initiative of the employer and was not reinstated.

[9] Mr Baker, a manager for the Respondent, gave evidence that the reason for the termination was the Applicant’s refusal to mop the kitchen floor and failure to complete duties including removal of rubbish. The Applicant accepts that these were the reasons given for the termination but suggests that there was an additional matter raised which related to the failure to remove a floor mat at the entrance to the kitchen. I am not satisfied that the issue concerning the floor mat is of particular significance or could justify termination.

[10] It is not in contention that Mr Baker, and other employees of the Respondent, raised the issues concerning removal of rubbish and mopping the kitchen floor with the Applicant on several occasions during August and September 2013. It is also not in contention that on 13 September 2013 Mr Baker gave the Applicant a formal warning concerning his failure to complete normal tasks within a suitable time frame and refusal of reasonable requests from managers. The Applicant was told by Mr Baker that he had to remove all the rubbish and mop the kitchen floor each night. The Applicant said that the issues were put to him and he responded to the issues. He agreed that Mr Baker read out the warning document and that he refused to sign the document. The Applicant said that Mr Baker refused his request to be able to read the document before signing. Mr Baker said that he did give the Applicant an opportunity to read the document. Mr Baker said that the Applicant was told that he would not continue to be employed if he failed to remove all the rubbish and mop the kitchen floor each night. The Applicant did not contest this.

[11] I am satisfied that on 13 September 2013 the Applicant received a formal warning about his failure to remove the rubbish and mop the kitchen floor each night. I am satisfied that the Applicant was put on notice that the failure to comply would result in the termination of his employment.

[12] Mr Baker gave evidence that he met with the Applicant again on 20 September 2013. Mr Baker says that throughout the previous week, despite the warning given, the Applicant had refused to mop the kitchen floor each night and there was some rubbish which had not been removed. According to the contemporaneous file note provided by Mr Baker the Applicant said that these matters were not part of his duties and job description.

Mr Baker gave evidence that the Applicant continued to refuse to mop the floor on the subsequent shifts.

[13] On 5 October 2013 the Applicant came into work. Mr Baker spoke to him on the telephone and advised him that because of his continued failure to mop the kitchen floor and remove all the rubbish he was being terminated. Mr Baker said that the purpose of the telephone call was to advise the Applicant of the decision to terminate him and to advise him of the reason.

[14] The Applicant gave evidence concerning the reasons why he refused to mop the floor during the period from August 2013 until 5 October 2013. He also gave evidence concerning the matter of removal of the rubbish.

[15] The Applicant said that on the day in question he was warned about the rubbish he did remove all the rubbish created on his shift but there were two bags of rubbish left on the trolley which had been there from the previous shift. I am satisfied that notwithstanding the explanation this still constitutes a failure to remove all the rubbish and that the Applicant’s actions were not consistent with the spirit of the directions given.

[16] The Applicant said that the duties he was expected to perform were outlined to him when he started work and they did not include mopping the floor. I am not satisfied that the provision of a list of duties at the time of commencing employment prevents the employer from requesting the performance of other duties at a later date.

[17] The Applicant argued that the Award classification definition for his position as a kitchen attendant grade 2 do not include duties such as mopping the floor.

[18] The Applicant referred to the following classification definitions from the Hospitality Industry (General) Award 2010.

Kitchen attendant grade 1 means an employee engaged in any of the following:

● general cleaning duties within a kitchen or food preparation area and scullery, including the cleaning of cooking and general utensils used in a kitchen and restaurant;
● assisting employees who are cooking;
● assembling and preparing ingredients for cooking; and
● general pantry duties.

Kitchen attendant grade 2 means an employee who has the appropriate level of training and who is engaged in specialised non-cooking duties in a kitchen or food preparation area, or supervision of kitchen attendants.

[19] The Applicant failed to refer to the following provision of the Award.

“18. Work organisation

Employees must undertake duties as directed within the limits of their competence and may undertake duties across the different streams contained in the classification definitions in Schedule D—Classification Definitions.”

[20] I am not satisfied that the Hospitality Industry (General) Award prohibits a kitchen attendant grade 2 from being required to mop a floor and or empty rubbish as part of their duties.

[21] The Applicant also said that he had been voluntarily doing additional duties but decided that he should not do them any longer after the Head Chef displayed aggression to him in a particular incident. I accept of course that acts of aggression by other employees are matters that should be addressed but I cannot see how refusal to perform these duties is a reasonable or relevant response.

[22] The Applicant gave evidence that he had slipped on the floor a number of times when cleaning the floor because the cleaning liquid is very slippery. The Applicant said that he had also cut his thumb. The Applicant did not make a WorkCover claim and did not report the incidents of slipping. I am not satisfied that the Applicant refused to perform the duties requested on reasonable health and safety grounds. The matter of any slip hazard should have been raised directly with management or the OHS representative. If there was a failure to address the matter there were a number of avenues open to the Applicant to address the matter further.

[23] The Applicant argued that the workload was such that it was not possible to complete all duties within the allotted time. The Respondent denies this. The record of the 13 September 2013 warning says that the Applicant was advised that if there were any duties which were not able to be completed by 11 pm they could be left provided that the floors are moped and the bins emptied. I am satisfied that the Applicant was told that the mopping of the floors and the removal of the rubbish were the highest priority for completion within allocated time.

[24] I am satisfied that the instruction by the Respondent for the Applicant to mop the kitchen floor and ensure that all rubbish was removed was a reasonable instruction. I am satisfied that the Applicant refused that instruction on at least three separate occasions. I am satisfied that the Applicant was warned that failure to obey the instruction could result in his termination. I am satisfied that the Applicant was given an opportunity to explain his reasons for not wanting to perform the duties on a number of occasions prior to Mr Baker advising the Applicant that he was required to perform the duties and that failure to do so would lead to termination. I am satisfied that the Applicant continued to refuse to perform the duties despite the warnings and the instruction.

[25] The legislation provides as follows:

“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 FWC considers relevant.”

Was there a valid reason for termination? S 387(a)

[26] I am satisfied that the failure to obey a reasonable instruction after the provision of clear warning was a valid reason for termination.

Procedural matters. S 387(b)-(g)

[27] The Applicant was notified of the reason for the termination.

[28] The Applicant was not provided with an opportunity to respond at the time of the termination. Mr Baker accepts that the purpose of the termination phone call was to advise the Applicant that he was terminated and to tell him the reasons for that termination. It was not an opportunity for the Applicant to respond to the allegations and to have his response considered prior to the decision being made as to whether or not to terminate. There was no termination letter. However, in the circumstances of this case I do not consider that this constitutes a significant breach of procedural fairness. The Applicant had been directed on a number of occasions to perform the duties. He had had a number of opportunities to explain his reasons for refusal and the Respondent had considered those reasons and advised the Applicant that the reasons were rejected. The Applicant was on notice that failure to comply with the directions would result in termination. It is not in contest that the Applicant then continued to fail to comply with the direction. I am satisfied that the Applicant was not provided with an opportunity to respond at the time of termination. However, I do not consider it to be a strong factor in favour of a finding of unfair dismissal in the circumstances of this case. The Applicant was given an opportunity to respond to the matters which led to his termination at meetings prior to the termination but not at the time of the termination itself.

[29] The Applicant was not refused the opportunity to have a support person but the Applicant was given no practical opportunity to make such a request.

[30] The Applicant was warned about his unsatisfactory performance and conduct prior to the termination.

[31] The Respondent is not a large company and it does not have dedicated human resource specialists. I do not consider that the size of the firm or the absence of human resource specialists was a significant factor which influenced the way in which the termination was handled.

Other matters. S 387(h)

[32] There are no other matters. I do not consider that there are particular matters regarding the length of service or the impact of the termination on the Applicant which affect my decision in this case.

Conclusion concerning harsh, unjust and unreasonable.

[33] Having considered all the factors I am satisfied that the termination was not harsh, unjust or unreasonable. The Application is dismissed.

COMMISSIONER

Appearances:

Applicant appeared on his own behalf.

Karen Tselepis of the Respondent.

Hearing details:

2014.

Melbourne:

May 9.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR550469>