Arthur Trebelas v The Trustee for C & S Nastas Family Trust T/A Beta Group
[2011] FWA 4385
•12 JULY 2011
[2011] FWA 4385 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Arthur Trebelas
v
The Trustee for C & S Nastas Family Trust T/A Beta Group
(U2011/5052)
COMMISSIONER GOOLEY | MELBOURNE, 12 JULY 2011 |
Application for unfair dismissal remedy.
[1] Mr Arthur Trebelas (the Applicant) was employed by the Beta Group Pty Ltd (the Respondent) from 17 November 2008 until his employment was terminated on 6 February 2011.
[2] Mr Trebelas lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging that he was unfairly dismissed. The application was referred to conciliation on 11 March 2011, and then for hearing on 8 June 2011.
[3] Mr Gary Pinchen was given permission to appear for Mr Trebelas and Mr Sascha Dawson was given permission to appear for the Respondent.
[4] Mr Trebelas gave evidence on his own behalf and Mr Sam Nastas and Ms Zoe Bain gave evidence for the Respondent.
Jurisdiction of Fair Work Australia
[5] There is no dispute that Mr Trebelas is a person who was protected from unfair dismissal. Further it is not disputed that the Respondent was at the time of the termination of Mr Trebelas’s employment a small business. Fair Work Australia has the jurisdiction to determine the application.
The Evidence of the Applicant
[6] Mr Trebelas was employed as Head Chef at a restaurant called the Den Bar and Bistro located at Monash University in Clayton, Victoria.
[7] Mr Sam Nastas was the owner of the business. Mr Nastas also worked in the restaurant. Ms Zoe Bain was a barista and provided front of house services for the Respondent.
[8] It was Mr Trebelas’s evidence that there were no issues about his work performance during his employment with the Respondent. He said there were issues with Mr Nastas not providing him with pay slips. It was his evidence that when he asked for them, he would be told that they would be printed off for him. In May 2009, he again asked for pay slips and Mr Nastas then printed off all the pay slips, from the commencement of his employment until 15 May 2009. It was Mr Trebelas’s evidence that, after this date, he still did not receive pay slips and he stopped asking for them “out of sheer frustration and to avoid confrontation.” 1
[9] In early 2010 Mr Trebelas found out his superannuation had not been paid. He approached Mr Nastas and was informed that the Australian Taxation Office was conducting an audit of the business and once that was completed, all outstanding superannuation would be paid. 2
[10] Mr Trebelas said his superannuation was paid in September 2010 for work performed up to December 2009. He made further inquires in December 2010 and found that his subsequent superannuation contributions had not been paid. He was advised by his superannuation fund that payments had been made in July 2010 for the second quarter of 2010. Further he advised that Mr Nastas had incorrectly advised the fund of his commencement date. In January 2011 Mr Trebelas made a complaint to the Australian Taxation Office about the non payment of his superannuation. 3
[11] Mr Trebelas was due to take annual leave from 21 January 2011 and on 20 January 2011 he was paid his holiday pay. Once he returned home, he discovered that he had been short paid one week’s pay. He rang Mr Nastas who told Mr Trebelas that he had no money to pay him but if he gave him his bank account details he would pay him when he had the money. 4 In his oral evidence in chief Mr Trebelas admitted that Mr Nastas told him he could return to work to collect his pay.5
[12] Mr Trebelas told his wife about the short pay and unknown to Mr Trebelas she called Mr Nastas and a heated conversation took place between them. Mr Trebelas went into work to collect his pay and met with Mr Nastas. There was a conversation between Mr Trebelas and Mr Nastas about Mr Trebelas’s wife’s phone call. Mr Trebelas gave evidence that Mr Nastas told him that he could not trust him anymore or continue to work with him because of his wife’s phone call. Mr Trebelas asked Mr Nastas if his employment was terminated. Mr Nastas replied not at this point. He told Mr Trebelas to take his holidays and he would consider his employment during this time. Mr Trebelas was told to contact Mr Nastas on his return from holidays. 6
[13] On 6 February 2011 Mr Trebelas and Mr Nastas met and Mr Nastas advised that he was terminating Mr Trebelas’s employment and he would pay him next Friday. 7
[14] On 11 February 2011 Mr Trebelas went to the restaurant to get his pay but Mr Nastas did not have it ready. Mr Trebelas said that Mr Nastas said he would mail his entitlements to him. On 14 February 2011 Mr Nastas sought a meeting to enable him to pay Mr Trebelas’s entitlements in cash. As Mr Trebelas was not able to meet with Mr Nastas, Mr Nastas sent Mr Trebelas a cheque for $2550. However no payslip was provided setting out a breakdown of the monies. Mr Trebelas assumed it was one week’s annual leave and two weeks’ pay in lieu of notice.
[15] In cross examination, it was clear that Mr Trebelas distinguished between meetings held to discuss his performance and meetings held to discuss the performance of the restaurant. He accepted that there were meetings to discuss how to improve the quality and the standard of food to get more customers 8 but he denied that he was ever counselled about his performance. However it is clear that discussions did occur and during those discussions Mr Nastas told Mr Trebelas that he did not want any pre-cooked food served.9
[16] Mr Trebelas distinguished between pre-preparing food and pre-cooking food. It was his evidence that, for example, soup could be prepared in advance. 10 He also gave evidence that he prepared lasagne in advance but he only did this one day in advance. He denied keeping precooked food in the cool room for longer than that. Despite his claim that he did not precook food, the lasagne included ingredients that were cooked in advance. Mr Trebelas considered this freshly cooked food as it was cooked on the day it went into the bain marie.
[17] In cross examination he denied that he kept large amounts of precooked food in the cool room or fridge and denied that he had been spoken to about this. He denied throwing out large amounts of food, though he accepted that he had heard Mr Nastas speak to other employees about this. 11He denied that he was ever told his employment was at risk.12
[18] Mr Trebelas denied sleeping whilst on duty and denied leaving the workplace for long periods of time.
[19] Mr Trebelas also denied swearing at staff or belittling staff and he said Mr Nastas never spoke to him about these complaints. 13
[20] In response to the allegations about complaints from customers, Mr Trebelas submitted that issues of taste were an individual issue. 14
[21] Mr Trebelas gave evidence that he did provide an a la carte menu to Mr Nastas but that Mr Nastas did not get back to him about it. 15
The Evidence of the Respondent
[22] Mr Nastas gave evidence that there were significant issues with Mr Trebelas’s performance. These issues centred on the production of freshly cooked meals. Mr Nastas gave evidence that Mr Trebelas was responsible for “cooking fresh meals daily and filling a bain marie with 12 dishes each day.” 16 It was his evidence that by mid 2010 he began to experience problems with Mr Trebelas’s work performance.
[23] It was his evidence that in mid 2010 he found a large amount of pre-cooked food in the rubbish bin. 17 It was his evidence that Mr Trebelas precooked food and then two or three days later he would reheat it and place it in the bain marie. He further said he saw six lasagnes made ready for the week which he described as pre-made not cooked. However it was his evidence that freshly made lasagne was going to be better than something that had been sitting in a fridge for five days.18 He did however not object to the lasagne being prepared the day before.19 He said he was told by Ms Bain that Mr Trebelas was storing cooked food in the fridge for service over more than one day. He said he met with Mr Trebelas to speak to him about this. It was his evidence that Mr Trebelas admitting cooking food in large quantities and storing it in the cool room. Mr Nastas told Mr Trebelas that this was unacceptable because it was placing customers at risk and customers were not receiving fresh meals.20
[24] Mr Nastas had a follow up conversation with Mr Trebelas and he told him he was not to store any cooked food in the fridge and he was required to cook fresh food daily. Mr Nastas said that Mr Trebelas acknowledged his complaint. 21
[25] In mid to late 2010, Mr Nastas again found a large quantity of cooked food in the cool room. He again spoke to Mr Trebelas about this and told Mr Trebelas that he did not want customers receiving reheated food as it was a health risk. Mr Nastas told Mr Trebelas that if this happened again he would consider terminating his employment. 22
[26] Mr Nastas had cause to raise his concerns about Mr Trebelas precooking food with him later in the year. 23
[27] Mr Nastas saw Mr Trebelas at one of the tables out the front of the dining room asleep. Mr Nastas told Mr Trebelas that this was not acceptable conduct. This happened on two further occasions and Mr Nastas told him that as he had caught him sleeping on two prior occasions this was not to occur again. 24
[28] Mr Nastas received complaints about the way Mr Trebelas spoke to other staff. He had received complaints that Mr Trebelas belittled and swore at other staff and had been aggressive towards them. 25 Mr Nastas said that Mr Trebelas denied the conduct and because he could not get the conduct corroborated he did not take any action against Mr Trebelas. Mr Trebelas was told to conduct himself professionally and told there was no place for swearing in the workplace. Further complaints were received, and while Mr Trebelas denied the conduct, Mr Nastas told him that if the conduct continued his employment would be at risk.26
[29] Mr Nastas gave evidence of complaints from customers about the food. Mr Nastas raised those complaints with Mr Trebelas on many occasions. 27 In December 2010 Mr Nastas told him about his concerns relating to customer complaints and reheated food. He asked Mr Trebelas to prepare an a la carte menu to attract new customers over the low season. Mr Trebelas provided a draft menu two weeks later and Mr Nastas discussed this with him and expected a final menu to be prepared. Mr Nastas then said Mr Trebelas complained that he was having difficulty finalising the menu and that Mr Nastas was “picking on him and asking him to do extra work beyond his job description.”28 Mr Nastas denied Mr Trebelas’s complaints and told him he required Mr Trebelas to produce the menu. No final menu was produced.
[30] In response to Mr Trebelas’s allegations about his failure to provide payslips, Mr Nastas explained that he had not been able to give Mr Trebelas’s payslips promptly because Mr Trebelas left during the lunchtime rush when he was busy. He said that Mr Trebelas told him he did not require a payslip as his pay did not change. He said that when Mr Trebelas asked for payslips he was given payslips and that payslips were always available. 29
[31] Mr Nastas accepted that he did not pay Mr Trebelas his correct wages on 20 January 2011. Mr Nastas said after Mr Trebelas rang him and pointed out the underpayment he agreed to pay him immediately and asked for his bank account details or told him he could call back to collect his wages.
[32] He then received a phone call from Mr Trebelas’s wife. Mr Nastas said Mr Trebelas’s wife was aggressive, accused him of running a shonky business and raised his failure to pay superannuation and provide pay slips. Mr Nastas said he needed to talk to Mr Trebelas.
[33] At the subsequent meeting he asked Mr Trebelas why his wife made the accusations she did. He told Mr Trebelas that he thought Mr Trebelas was telling his wife factually incorrect information. He concluded that what Mr Trebelas had told his wife “reflected a lack of trust” in Mr Nastas and he needed someone he could trust. Mr Nastas said Mr Trebelas asked him if he was terminating his employment and Mr Nastas “stated [he] had no choice based on his many performance issues and [his] lack of confidence in his ability to perform his position given the many past concerns [he] had about his performance.” Mr Nastas also said that Mr Trebelas had “breached my trust by communicating false matters to his wife that we operated a shonky business.” Mr Trebelas asked him to reconsider his decision and Mr Nastas told him that “the termination would take effect however he should proceed to go on his annual leave and contact [him] upon his return and [he] may reconsider the matter.” 30
[34] On 6 February 2011 Mr Nastas met with Mr Trebelas and told him that he had “considered his overall performance and his comments to his wife which he did not dispute, in particular that I operated a shonky business, and [he] had no option but to terminate his employment.” 31
[35] In cross examination Mr Nastas denied terminating Mr Trebelas’s employment because of the phone call. 32
[36] However Mr Nastas then explained his reason for making the decision as follows:
“[Mr Nastas:] What was the incident that deemed that I need to sack this man, this employee, for serious misconduct?--- Yes, my trust, my personal and working trust between myself and Mr Trebelas. I had put extremely a lot of trust within him to perform within the kitchen. I also put in a lot of trust in never questioning him about what he was ordering, never questioning him about he was spending, as long as the results came into the business. I was fine with that. But to have someone speak to you on the phone like his wife did, and now in a way at the time of the phone call I was probably more angrier with his wife than what I was with him. But reflecting back on the matter, and hence asking him to come back and see me that same day, I came to the conclusion where my trust in Arthur as an employee in what he was saying to everyone - and it was blatant lies - that I couldn’t trust him anymore. So I couldn’t trust him with the responsibility with one of the large, main products that we sell within the cafe. To lie to your wife for me is probably the lowest thing that you can do. So that really broke the camel’s back for me. Once the trust had gone between me and him, that was the end. That was the time where I said - - -”. 33
[37] On 11 February 2011, Mr Trebelas attended and demanded to be paid immediately. Mr Nastas, who was serving a customer at the time, told Mr Trebelas he would be with him as soon as he could. Mr Nastas said that Mr Trebelas then swore and went into the kitchen. Mr Nastas then told Mr Trebelas that he would pay him as soon as he could. Mr Nastas sent Mr Trebelas a text message on 14 February 2011 telling him to attend work so that he could finalise his entitlements. Mr Trebelas was not able to attend so Mr Nastas subsequently paid Mr Trebelas four week’s pay in lieu of notice. 34
[38] Mr Nastas admitted that he had failed to pay superannuation but said that this matter had been rectified. Mr Nastas denied advising Hostplus of an incorrect date for the commencement of Mr Trebelas’s employment. 35
[39] It was Ms Bain’s evidence that she often saw Mr Trebelas outside the dining area with his head buried in his arms. 36 She also gave evidence that Mr Trebelas would often go for walks for long periods of time.37 She considered that Mr Trebelas should be available at all times to the kitchen staff and herself. Ms Bain said she heard Mr Trebelas yell and swear at kitchen staff.38 It was not put to Ms Bain that her evidence was untrue.
[40] She also gave evidence that she saw Mr Trebelas precooking large quantities of food, in particular lasagne and casseroles. 39 She spoke to Mr Trebelas and Mr Nastas about this.40 It was her evidence that Mr Nastas told Mr Trebelas that food had to be cooked daily.41
[41] Ms Bain gave evidence that she saw five lasagnes in the fridge and this was an ongoing occurrence. 42 It was her evidence that all that needed to happen on the day they would be sold was the lasagnes would need to “be cheesed and sauced and thrown in the oven.”43 It was her evidence that the meat component and sheets were precooked.44 It was not put to Ms Bain that her evidence was untrue.
[42] In cross examination Ms Bain gave evidence that she overheard Mr Nastas counsel Mr Trebelas about his performance. 45
[43] The FW Act at section 385 provides that a person has not been unfairly dismissed if Fair Work Australia 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.”
[44] It is not disputed that the Small Business Fair Dismissal Code (the Code) applies.
“The Code
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
Summary Dismissal
[45] Mr Trebelas was summarily dismissed. The parties are in dispute about the date of termination. Mr Nastas said he terminated Mr Trebelas’s employment on 20 January 2011. The Form F3 signed by Mr Nastas and filed with the Tribunal advised that the date of termination was 21 January 2011. Mr Trebelas said his employment was terminated on 6 February 2011. In its written submissions the Respondent advised that Mr Trebelas’s employment was terminated on 6 February 2011 for serious and wilful misconduct. 46 On 16 February 2011 Mr Trebelas was paid $2550 by Mr Nastas which was said to be payment in lieu of notice.
[46] I do not consider the subsequent payment of an amount in lieu of notice changes a termination from a summary dismissal to a dismissal with notice. I find that Mr Trebelas was summarily dismissed.
[47] The Code provides a dismissal is fair if the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.
[48] The Respondent submitted that Mr Trebelas’s employment was terminated for serious misconduct which was due to:
“(a) ongoing breaches of occupational health and safety requirements or he has otherwise engaged in conduct that caused a serious and imminent risk to the health and safety of customers or the reputation, viability or profitability of the employer’s business in accordance with regulation 1.07(2)(b) of the Fair Work Regulations 2009 due to
(i) failure to cook food daily; or
(ii) wilfully ignoring directions from his manager Mr Nastas about not placing food cooked on previous days in the cafe’s bain marie for provision to the Respondent’s customers;
(iii) and belittling and swearing at other employees” 47
“(b) he engaged in wilful or deliberate behaviour inconsistent with the continuation of his contract of employment in accordance with Regulation 1.07(2)(a) namely because
(i) the Applicant fundamentally failed to carry out his duties as a Head Chef by not rotating the menu on a regular basis as required;
(ii) the Applicant failed to cook daily or otherwise making available for customers’ consumption, food cooked on previous days;
(iii) belittled or swore at other staff members;
(v) through his wife indicated to the Respondent that it operated a shonky business;
(vi) failed to increase or maintain clientele.” 48
[49] I do not accept these submissions of the Respondent.
[50] On 20 January 2011 Mr Trebelas was due to take annual leave. Mr Nastas at that point was not considering terminating Mr Trebelas’s employment. All he had decided to do was to have a serious talk with Mr Trebelas when he returned from leave. 49
[51] All the matters set out in paragraph [48], except for the phone call received by Mr Nastas on that day, were known to Mr Nastas but he had not determined to terminate Mr Trebelas’s employment.
[52] Mr Nastas’s evidence does not support the submissions that there was any serious or imminent risk to the health and safety of customers or the reputation, viability or profitability of the of the employer’s business. Nor did Mr Nastas consider that Mr Trebelas was engaging in wilful or deliberate behaviour inconsistent with the continuation of his contract of employment.
[53] What changed on 20 January 2011 was Mr Nastas received a phone call from Mr Trebelas’s wife. A phone call which greatly offended Mr Nastas. 50
[54] It was not contested that Mr Trebelas’s wife made the phone call without Mr Trebelas’s knowledge. It was not contested that she made the phone call after Mr Trebelas returned home having not been paid his correct annual leave payments.
[55] It was alleged that Mr Trebelas’s wife raised with Mr Nastas his failure to provide payslips, his failure to pay superannuation and his failure to pay the correct annual leave payments. Further, Mr Nastas said that Mr Trebelas’s wife accused him of running a shonky business. 51 Mr Trebelas’s wife was not called to give evidence and I infer that her evidence would not have contradicted Mr Nastas’s evidence.
[56] Mr Nastas was extremely annoyed by the phone call because he had already spoken to Mr Trebelas about the annual leave underpayment and made arrangements for Mr Trebelas to come in and collect his correct payment. Further, it was his evidence that Mr Trebelas had indicated to him that he didn’t need pay slips as his pay did not change from week to week and in any event Mr Nastas told him that the payslips were available.
[57] It is clear that it was the phone call from Mr Trebelas’s wife that caused Mr Nastas to lose confidence in Mr Trebelas. 52 Mr Nastas concluded from what Mr Trebelas’s wife said to him that Mr Trebelas had lied to his wife.53
[58] He accepted in cross examination that that was “the straw that broke the camel’s back on that particular day was the final thing that I’d lost within Arthur was his trust. So along with everything else that was going on within the company and the business and his work performance, once trust goes out that was the final part for me. I couldn’t possibly have some kind of discussion with him and asked him to do something if I couldn’t trust him that he was going to deliver on what we were talking about.” 54
[59] I do not accept that these events justified the summary dismissal of Mr Trebelas’s employment. Mr Trebelas was not responsible for his wife’s phone call. Further, while Mr Nastas objected to the statements made by her, a number of them were in fact true. The Respondent had failed to make superannuation payments and had failed to pay Mr Trebelas’s annual leave prior to him taking leave. The fact that Mr Nastas had agreed to correct that mistake about the annual leave payment was not known to Mr Trebelas’s wife when she made the phone call.
[60] Mr Trebelas’s wife’s complaint about the failure to provide pay slips is less straightforward. Mr Nastas admitted that he did not provide Mr Trebelas pay slips. He said that he could not provide payslips to Mr Trebelas because he left work during the busy lunchtime. This evidence is not convincing. It does not explain why the payslips were not prepared and provided with the pay. Mr Nastas claimed that Mr Trebelas said he didn’t need payslips and therefore he didn’t provide them. However even if that were the case, section 536 of the FW Act requires the employer provide payslips to employees and he did not do so.
[61] However even accepting Mr Nastas’s evidence that he told Mr Trebelas that pay slips were available, the matters complained about in the phone call were not inaccurate.
[62] Therefore while Mr Nastas may have been offended by the phone call, I do not consider that he had reasonable grounds for believing that Mr Trebelas was guilty of serious misconduct.
[63] Having determined that the actions of the Applicant did not constitute serious misconduct, I conclude that the Code has not been followed. The Respondent submitted that in that case I should determine if the termination was consistent with the rest of the Code. However once an employer has elected to summarily dismiss an employee, they cannot then claim to have terminated the employee in accordance with the remaining elements of the Code.
[64] Having found the Respondent did not comply with the Code, I must now consider whether or not the termination was harsh, unjust or unreasonable.
Was the termination of employment harsh, unjust or unreasonable?
[65] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, Fair Work Australia must take into account the following:
s387(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);
Precooking food
[66] I accept that Mr Nastas had advised Mr Trebelas that his performance was not satisfactory. I accept that Mr Nastas had given Mr Trebelas clear instructions about his expectations about when food was to be cooked. I accept that Mr Nastas did not in fact object to lasagne being prepared the day before but he did object to it being prepared any earlier than that. On balance I prefer the evidence of Ms Bain and Mr Nastas on this. I find that contrary to the direction of Mr Nastas, Mr Trebelas precooked food.
[67] It was not contested that precooking food for consumption days later is a risk to the health of customers. While Mr Trebelas distinguished between pre-preparing and precooking, at least in the case of the lasagne, it is clear that pre-preparing involved some cooking. While Mr Trebelas denied precooking food, he accepted that this was a health and safety risk.
[68] I accept that Mr Nastas advised Mr Trebelas a number of times that his employment was at risk if he did not comply with the direction to cook food daily. I accept the evidence that Mr Trebelas would comply with these directions for a period of time and then revert back to precooking food.
[69] The evidence established that in late 2010, Mr Nastas again raised this issue with Mr Trebelas.
Inappropriate language
[70] While I accept that using inappropriate language when speaking to fellow staff members is unacceptable in the modern work place, it is not clear that Mr Nastas formed the view that Mr Trebelas in fact did belittle or swear at other staff members. 55 Ms Bain gave evidence that Mr Trebelas used inappropriate language but her evidence was at such a level of generality that it could not be tested. I accept the evidence that Mr Nastas told Mr Trebelas that if he did use inappropriate language his employment was at risk.
Sleeping at the tables in front of the restaurant
[71] There was no evidence to suggest that Mr Trebelas was asleep out the front of the restaurant whilst he was on duty. All employees are entitled to take breaks at work consistent with either the modern award or an enterprise agreement if one applies. Further there is nothing wrong in an employee resting during their breaks.
[72] It was not clear from Mr Nastas’s evidence what his concerns were. Mr Nastas did not suggest that staff were not able to sit at the tables outside the restaurant during their breaks. There was evidence before the Tribunal that this was done by other staff.
Customer complaints and loss of trade
[73] I accept that Mr Nastas raised customer complaints with Mr Trebelas. In particular, I accept his evidence that he met with Mr Trebelas in December 2010 to discuss these complaints. I further accept his evidence that Mr Trebelas did not finalise the a la carte menu prior to going on leave.
[74] Mr Nastas gave general evidence that there was a downturn in business. There was insufficient evidence to establish that this was caused by Mr Trebelas’s poor performance.
The phone call
[75] It was Mr Nastas’s evidence that Mr Trebelas’s wife rang him and complained that he had failed to pay Mr Trebelas superannuation and his full annual leave entitlements as well as failed to provide Mr Trebelas with pay slips. Mr Nastas’s evidence on this was not challenged.
[76] I do not accept the evidence of Mr Nastas that he did not sack Mr Trebelas because of the phone call. Had the phone call not happened, Mr Nastas would not have terminated Mr Trebelas’s employment at that time. Further, I do not accept that Mr Nastas was justified in determining that he could not trust Mr Trebelas because of what he had told his wife.
[77] There is no doubt that Mr Nastas failed to comply with his obligations as an employer. He failed to pay superannuation, failed to pay Mr Trebelas his correct holiday pay and failed to provide payslips in accordance with section 536 of the FW Act.
[78] While Mr Nastas advised that the Australian Taxation Office did an audit from 2007 until 2010 and the Respondent paid unpaid contributions and interest 56 he also advised that due to a “bit of a misunderstanding” he had not paid subsequent superannuation contributions.57 There was no explanation for the incorrect payment of holiday pay. Mr Nastas’s explanation for his failure to comply with section 536 of the FW Act was either he was busy at the time he gave Mr Trebelas his pay or Mr Trebelas advised him that he didn’t need a pay slip. Further Mr Nastas subsequently acknowledged that he did not pay Mr Trebelas holiday leave loading.
[79] It is not a valid reason to terminate an employee’s employment because complaints are made on their behalf about the failure of the employer to comply with its obligations under the FW Act and superannuation legislation.
[80] Such conduct would be in breach of the general protections provisions of the FW Act.
[81] Section 341 of the FW Act defines certain workplace rights and section 341(1)(c) in particular provides that a person has a workplace right if the person is able to make a complaint or inquiry, if the person is an employee- in relation to his or her employment.
[82] Section 340(2) protects employees from adverse action as follows:
“A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.”
[83] While Mr Trebelas did not ask his wife to make the phone call and did not know she was going to make the phone call, Mr Trebelas’s wife made a complaint to Mr Nastas about Mr Trebelas’s employment for his benefit.
[84] Mr Trebelas’s employment was terminated because of his wife’s phone call.
[85] I accept that a failure over a period of time to perform to the employer’s expectations provides a valid reason for the termination of employment. I find that on the evidence before the Tribunal, Mr Trebelas did fail to perform work to the standard expected of him by his employer. 58
[86] However given my conclusion that Mr Nastas terminated Mr Trebelas’s employment because of the complaints made by Mr Trebelas’s wife, I find there was not a valid reason for the termination of his employment.
s387(b) whether Trebelas was notified of that reason;
[87] I find that Mr Trebelas’s employment was terminated on 6 February 2011. Mr Trebelas was notified of the reason for the termination of his employment on 20 January 2011 when Mr Nastas told him that he was considering terminating his employment.
s387(c) whether Trebelas was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[88] I find that Mr Trebelas had an opportunity on 20 January 2011 to respond to the reasons for the termination of his employment prior to the decision being made to terminate his employment.
s387(d) any unreasonable refusal by the employer to allow Trebelas to have a support person present to assist at any discussions relating to dismissal;
[89] No request was made by Mr Trebelas on 20 January 2011 to have a support person present but this is unsurprising as he was attending work to collect his underpaid holiday pay and was not aware that his employment was at risk. However he did know this on 6 February 2011 and he did not take a support person with him. In any event there was no refusal to allow Mr Trebelas to have a support person.
s387(e) if the dismissal related to unsatisfactory performance by the person—whether Fowler had been warned about that unsatisfactory performance before the dismissal;
[90] I accept that Mr Trebelas was warned about his unsatisfactory performance on a number of occasions and advised that his employment was at risk. I accept Mr Nastas’s evidence that after earlier discussions and warnings in late December 2010 he told Mr Trebelas that things were serious and his job was “on the line.” 59
s387(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;
[91] This is a small business and I accept that it had an impact on the procedures followed in effecting the dismissal.
s387(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;
[92] The Respondent did not have dedicated human resource management.
s387(h) any other matters that FWA considers relevant.
[93] The Respondent submitted that regard should be had to the fact the Mr Trebelas was a senior employee who had breached his duty of fidelity to his employer by disparaging the Respondent to his wife. There was no evidence before the Tribunal that would support a finding that Mr Trebelas breached his duty of fidelity. Given I have accepted that the complaints made by Mr Trebelas’s wife were valid there is no evidence to support the conclusion that Mr Trebelas disparaged his employer.
Conclusion
[94] For the reasons set out above I find that the termination of Mr Trebelas’s employment was harsh, unjust and unreasonable.
Remedy
[95] Mr Trebelas is not seeking reinstatement of his employment. 60
[96] In assessing any amount in lieu of reinstatement, Fair Work Australia is required to have regard to the following:
(a) the effect of the order on the viability of the employer’s enterprise;
[97] While the Respondent submitted that compensation would affect its viability, no evidence was put to support this assertion.
(b) the length of the person’s service with the employer;
[98] Mr Trebelas was employed from 17 November 2008.
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;
[99] It was Mr Trebelas’s evidence that he was paid $850 per week nett. However Mr Nastas said he was paid $855 gross per week. Mr Pinchen suggested that Mr Nastas only recorded $650 on the pay slip but in fact paid another $200. 61 No pay slips were provided by either party. This serious allegation was made by Mr Pinchen without any evidence from Mr Trebelas that this is what occurred.
[100] I accept Mr Nastas’s evidence that he was going to have a serious chat with Mr Trebelas about his employment after Mr Trebelas returned from annual leave. I also accept that, given Mr Trebelas’s performance had not improved after previous discussions, Mr Nastas would have decided to terminate Mr Trebelas’s employment within four weeks of Mr Trebelas’s return from annual leave. At this point Mr Trebelas would have been given payment in lieu of notice. Therefore I find that Mr Trebelas would have earned four weeks of pay if he had not been dismissed on 6 February 2011. This amounts to $3420.00 gross. In addition superannuation payments of $307.80 would have been paid.
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;
[101] Mr Trebelas gave evidence about looking for work. He commenced working casually about four weeks after his employment was terminated. 62 Further, Mr Trebelas gave evidence of the difficulty he had finding work because of his family responsibilities.63
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation;
[102] Given my decision about compensation this is not relevant.
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation;
[103] Given my decision about compensation this is not relevant.
(g) any other matter that FWA considers relevant.
[104] Mr Trebelas was paid $2550 nett on 16 February 2011 which Mr Nastas said was four weeks pay in lieu of notice. Again no pay slip was provided. Mr Trebelas said this money was two weeks pay in lieu of notice and one week’s holiday pay. I do not accept the submissions of the Respondent that this payment compensated Mr Trebelas for any loss he would be reasonably likely to have suffered. Further, given my conclusion that Mr Trebelas would have been terminated with notice, I have not had regard to this payment in determining the amount of compensation.
[105] Mr Trebelas’s employment was terminated on 6 February 2011. I have found that he would have remained in employment until 5 March 2011 when his employment would have been terminated. He would then have received notice of termination and I find the employer would have paid him in lieu of notice.
[106] I have had regard to the matters set out above and I have decided that that Mr Trebelas should receive the amount he would have been paid for those four weeks being $3420.00 gross plus $307.80 paid as a superannuation contribution. An order to this effect will issue with this decision.
COMMISSIONER
Appearances:
Mr G Pinchen for the Applicant.
Mr S Dawson for the Respondent.
Hearing details:
2011.
June 8:
Melbourne.
1 Exhibit A2 at [5]
2 Ibid at [8]
3 Ibid at [11]
4 Ibid at [14]
5 Transcript PN 78
6 Exhibit A2 at [16]
7 Ibid at [19]
8 Transcript PN 193
9 Ibid PN 195
10 Ibid PN 267
11 Ibid PN 353
12 Ibid PN 347
13 Ibid PN 394
14 Ibid PN 400
15 Ibid PN 411
16 Exhibit R1 at [5]
17 Transcript PN 566
18 Ibid PN 559
19 Ibid PN 576
20 Exhibit R1 at [8]
21 Ibid at [9]
22 Ibid at [10]
23 Ibid at [11]
24 Ibid at [13]-[15]
25 Ibid at [16]
26 Ibid at [19]
27 Ibid at [20]-[21]
28 Ibid at [25]
29 Transcript PN 589
30 Exhibit R1 at [33]
31 Ibid at [34]
32 Transcript PN 671
33 Ibid at PN 673
34 Exhibit R1 at [35]
35 Ibid at [38] and [39]
36 Exhibit R2 at [11]
37 Ibid at [12]
38 Ibid at [14]
39 Ibid at [19]
40 Ibid at [19]
41 Ibid
42 Transcript PN 836-7
43 Ibid PN 842
44 Ibid PN 843
45 Ibid PN 869
46 Exhibit R3 at [3]
47 Ibid at [7]
48 Ibid at [7]
49 Transcript PN 584
50 Ibid PN 621
51 Ibid PN 591
52 Ibid PN 673
53 Ibid
54 Ibid PN 689
55 Exhibit R1 at [16]-[19]
56 Transcript PN 654
57 Ibid PN 656
58 See paragraphs [66]-[74]
59 Transcript PN 588
60 Ibid PN 495
61 Ibid PN 636
62 Ibid PN 492
63 Ibid PN 168
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